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A  UTHOR: 

HALL  AM,  HENRY 

i 

TITLE: 

VIEW  OF  THE  STATE  OF 
EUROPE  DURING  THE... 

PLACE: 

NEW  YORK 

DATE: 

1847 

COLUMBIA  UNIVERSITY  LIBRARIES 
PRESERVATION  DEPARTMENT 

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940.1 
^  H153 


i' 
i 


i. 


940.1 

H154 

940.1 
HI  61 


Hallam,  Henry,  1777-1859. 

View  of  the  state  of  Europe  during  the  middle  affes. 
By  Henry  Hallam  ...  From  the  6th  London  ed.  ...  New 
York,  Harpor  fr  brothers,  1847. 

viii,  cl7j-568  p.    24"". 


3  V. 


L  Europe--His 


New  York,    1870. 


New  ed.        London,    1872. 


rope-^ist-476-1492.    2.  Middle  ages— Hist 


Title  from  Univ.  of  Chicago 


KJ 


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GIVEN    BY 


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VIEW 


OF 


A    ♦ 


THE   STATE   OF   EUROPE 


DITBINO 


THE  MIDDLE  AGES. 


Bt  henry   HALLAM,   LL.D.,  F.R.A.8, 

tOEEIOir   ASSOCIATE   OF  THE   IKSTITUTE   OF   FRAXCK. 


IN  THREE  VOLUMES. 


VOLmiE  I. 


NEW    YORK: 
W.   J.    WIDDLETON,    PUBLISHER. 

1870. 


Cambridge :  Presswork  by  John  Wilson  and  Son. 


7 


PREFACE 
TO  THE  FIRST  EDITION. 


It  is  the  object  of  the  present  work  to  exhibit,  in  a  series 
of  historical  dissertations,  a  comprehensive  survey  of  the 
chief  circumstances  that  can  interest  a  philosophical  inquirer 
during  the  period  usually  denominated  the  Middle  Ages. 
Such  an  undertaking  must  necessarily  fall  under  the  class  of 
historical  abridgments :  yet  there  will  perhaps  be  found 
enough  to  distinguish  it  from  such  as  have  already  appeared. 
Many  considerable  portions  of  time,  especially  before  the 
twelfth  century,  may  justly  be  deemed  so  barren  of  events 
worthy  of  remembrance,  that  a  single  sentence  or  paragraph 
is  often  sufficient  to  give  the  character  of  entue  generations, 
and  of  long  dynasties  of  obscure  kings. 

Non  ragioniam  di  lor,  ma  gnarda  e  pas^a. 

And  even  in  the  more  pleasing  and  instructive  parts  of  this 
middle  period  it  has  been  my  object  to  avoid  the  dry  compo- 
sition of  annals,  and  aiming,  with  what  spirit  ;md  freedom  I 
could,  at  a  just  outUne  rather  than  a  miniature,  to  suppress  all 
events  that  did  not  appear  essentially  concatenated  with 
others,  or  illustrative  of  important  conclusions.  But  as  the 
modes  of  government  and  constitutional  laws  which  prevailed 
in  various  countries  of  Europe,  and  especially  in  England, 
seemed  to  have  been  less  fully  dwelt  upon  in  former  works 
of  this  description  than  military  or  civil  transactions,  while 
they  were  deserving  of  far  more  attention,  I  have  taken  pains 
to  give  a  true  representation  of  them,  and  in  every  instance 
to  point  out  the  sources  from  which  the  reader  may  derive 
more  complete  and  original  information. 

Nothing  can  be  farther  from  my  wishes  than  that  the  fol- 
lowing pages  should  be  judged  according  to  the  critical  laws 
of  historical  composition.  Tried  in  such  a  balance  they 
would  be  eminently  defective.  The  limited  extent  of  this 
work,  compared  with  the  subjects  it  embraces,  as  well  as  its 


■O  »J  'i  <J  O  ■^ 


IT 


PREFACE  TO  THE  FIRST  EDITION. 


partaking  more  of  the  character  of  political  dissertation  than 
of  narrative,  must  necessarily  preclude  that  circumstantial 
delineation  of  events  and  of  characters  upon  which  the  beauty 
as  well  as  usefuhiess  of  a  regular  history  so  mainly  depends. 
Nor  can  I  venture  to  assert  that  it  will  be  found  altogether 
perspicuous  to  those  who  are  destitute  of  any  previous  ac- 
quaintance with  the  period  to  which  it  relates ;  though  I  have 
only  presupposed,  strictly  speaking,  a  knowledge  of  the  com- 
mon facts  of  English  history,  and  have  endeavored  to  avoid, 
in  treating  of  other  countries,  those  allusive  references  which 
imply  more  information  in  the  reader  than  the  author  designs 
to  communicate.  But  the  arrangement  which  I  have  adopted 
has  sometimes  rendered  it  necessary  to  anticipate  both  names 
and  facts  which  are  to  find  a  more  definite  place  in  a  subse- 
quent part  of  the  work. 

This  arrangement  is  probably  different  from  that  of  any 
former  historical  retrospect.  Every  chapter  of  the  following 
volumes  completes  its  particular  subject,  and  may  be  con- 
sidered in  some  degree  as  independent  of  the  rest.  The 
order  consequently  in  which  they  are  read  will  not  be  very 
material,  though  of  course  I  should  rather  prefer  that  in  which 
they  are  at  present  disposed.  A  sohcitude  to  avoid  continual 
transitions,  and  to  give  free  scope  to  the  natural  association 
of  connected  facts,  has  dictated  this  arrangement,  to  which  I 
confess  myself  partial.  And  I  have  found  its  inconveniences 
so  trifling  in  composition,  that  I  cannot  believe  they  will  oc- 
casion much  trouble  to  the  reader. 

The  first  chapter  comprises  the  history  of  France  from  the 

invasion  of  Clovis  to  the  expedition,  exclusively,  of  Charles 

VIII.  against  Naples.     It  is  not   possible  to  fix  accurate 

limits  to  the  Middle  Ages ;  but  though  the  ten  centuries  from 

the  fifth  to  the  fifteenth  seem,  in  a  general  point  of  view,  to 

constitute  that  period,  a  less  arbitrary  division  was  necessary 

to  render  the  commencement  and  conclusion  of  an  historical 

narrative  satisfactory.     The  continuous  chain  of  tmnsactions 

on  the  stage  of  human  society  is  ill  divided  by  mere  hnes  of 

chronological  demarcation.     But  as  the  subversion   of  the 

western   empire  is   manifestly   the   natural    termination   of 

ancient  history,  so  the  estabUshment  of  the  Franks  in  Gaul 

appears  the  most  convenient  epoch  for  the  commencement  of 

a  new  period.     Less  difficulty  occurred  in  finding  the  other 

limit.    The  invasion  of  Naples  by  Charles  VIII.  was  the 


i 


PREFACE  TO  THE  FIRST  EDITION.  V 

Ofvent  that  first  engaged  the  principal  states  of  Europe  in  re- 
lations of  alliance  or  hostility  which  may  be  deduced  to  the 
present  day,  and  is  the  point  at  which  every  man  who  traces 
backwards  its  political  history  will  be  obliged  to  pause.  It 
furnishes  a  determinate  epoch  in  the  annals  of  Italy  and 
France,  and  nearly  coincides  with  events  which  naturally 
lerminate  the  history  of  the  Middle  Ages  in  other  countries. 

The  feudal  system  is  treated  in  the  second  chapter,  which 
I  have  subjoined  to  the  history  of  France,  with  which  it  has 
a  nesh*  connection.  Inquiries  into  the  antiquities  of  that  juris- 
prudence occupied  more  attention  in  the  last  age  than  the 
present,  and  their  dryness  may  prove  repulsive  to  many 
readers.  But  there  is  no  royal  road  to  the  knowledge  of 
law  ;  nor  can  any  man  render  an  obscure  and  intricate  disquisi- 
tion either  perspicuous  or  entertaining.  That  the  feudal  sys- 
tem is  an  important  branch  of  historical  knowledge  will  not 
be  disputed,  when  we  consider  not  only  its  influence  upon  our 
own  constitution,  but  that  one  of  the  parties  which  at  present 
divide  a  neighboring  kingdom  professes  to  appeal  to  the  origi- 
nal principles  of  its  monarchy,  as  they  subsisted  before  the 
subversion  of  that  polity. 

The  four  succeeding  chapters  contain  a  sketch,  more  or 
less  rapid  and  general,  of  the  histories  of  Italy,  of  Spain,  of 
Grermany,  and  of  the  Greek  and  Saracenic  empires.  In  the 
seventh  I  have  endeavored  to  develop  the  progress  of  ecclesi- 
astical power,  a  subject  eminently  distinguishing  the  Middle 
Ages,  and  of  which  a  concise  and  impartial  delineation  has 
long  been  desirable. 

The  English  constitution  furnishes  materials  for  the  eighth 
chapter.  I  cannot  hope  to  have  done  sufficient  justice  to  this 
theme,  which  has  cost  me  considerable  labor ;  but  it  is  worthy 
of  remark,  that  since  the  treatise  of  Nathaniel  Bacon,  itself 
open  to  much  exception,  there  has  been  no  historical  develop- 
ment of  our  constitution,  founded  upon  extensive  researches, 
or  calculated  to  give  a  just  notion  of  its  character.  For  those 
parts  of  Henry's  history  which  profess  to  trace  the  progress 
of  government  are  still  more  jejune  than  the  rest  of  his 
volumes;  and  the  work  of  Professor  Millar,  of  Glasgow, 
however  pleasing  from  its  liberal  spirit,  displays  a  fault  too 
common  among  the  philosophers  of  his  country,  that  of  theo- 
rizing upon  an  imperfect  induction,  and  very  often  upon  a  total 
misapprehension  of  particular  facts 


fl 


PREFACE  TO  THE  FIRST  EDITION. 


The  ninth  and  last  chapter  relates  to  the  general  state  of 
society  in  Europe  during  the  Middle  Ages,  and  comprehends 
the  history  of  commerce,  of  manners,  and  of  literature. 
None,  however,  of  these  are  treated  in  detail,  and  the  whole 
chapter  is  chiefly  designed  as  supplemental  to  the  rest,  in 
order  to  vary  the  relations  under  which  events  may  be 
viewed,  and  to  give  a  more  adequate  sense  of  the  spirit  and 
character  of  the  Middle  Ages. 

In  the  execution  of  a  plan  far  more  comprehensive  than 
what  with  a  due  consideration  either  of  my  abilities  or  oppor- 
tunities I  ought  to  have  undertaken,  it  would  be  strangely 
presumptuous  to  hope  that  I  can  have  rendered  myself  in- 
vuhierable  to  criticism.  Even  if  flagrant  errors  should  not 
be  frequently  detected,  yet  I  am  aware  that  a  desire  of  con- 
ciseness has  prevented  the  sense  of  some  passages  from  ap- 
pearing sufficiently  distinct;  and  though  I  cannot  hold  myself 
genenSly  responsible  for  omissions,  in  a  work  which  could 
only  be  brought  within  a  reasonable  compass  by  the  severe 
retrenchment  of  superfluous  matter,  it  is  highly  probable  that 
defective  information,  forgetfuhiess,  or  too  great  a  regard  for 
brevity,  have  caused  me  to  pass  over  many  things  which 
would  have  materially  illustrated  the  various  subjects  of  these 

inquiries. 

I  dare  not,  therefore,  appeal  with  confidence  to  the  tn- 
bunal  of  those  superior  judges  who,  havmg  bestowed  a  more 
undivided  attention  on  the  particular  objects  that  have 
interested  them,  may  justly  deem  such  general  sketches  im- 
perfect and  superficial ;  but  my  labors  will  not  have  proved 
fruitless  if  they  shall  conduce  to  stimulate  the  reflection,  to 
guide  the  researches,  to  correct  the  prejudices,  or  to  anunate 
the  liberal  and  virtuous  sentiments  of  inquisitive  youth : 

MI  satis  ampla 
Merces,  ct  mihi  grande  decus,  sim  ignotus  in  sevniii 
Turn  licet,  extemo  pcnitusque  inglorius  orbi. 

JprO,  1818. 


PKEFACE 

TO  A  VOLUME  PUBLISHED  IN  1848, 

ENTITLED 

SUPPLEMENTAL  NOTES 

TO  THE 

VIEW  OF  THE  STATE  OF  EUROPE  DURmG 
THE  MIDDLE  AGES. 


Thirty  years  have  elapsed  since  the  publication  of  the 
work  to  which  the  following  notes  relate,  and  almost  forty 
since  the  first  chapter  and  part  of  the  second  were  written.  The 
occupations  of  that  time  rendered  it  impossible  for  me  to  bestow 
such  undivided  attention  as  so  laborious  and  difficult  an  un- 
dertaking demanded ;  and  at  the  outset  I  had  very  little  inten- 
tion of  prosecuting  my  researches,  even  to  that  degree  of 
exactness  which  a  growing  interest  in  the  ascertainment  of 
precise  truth,  and  a  sense  of  its  difficulty,  led  me  afterwards 
in  some  parts  to  seek,  though  nowhere  equal  to  what  with  a 
fuller  command  of  time  I  should  have  desired  to  attain.  A 
measure  of  public  approbation  accorded  to  me  far  beyond  my 
hopes  has  not  blinded  my  discernment  to  the  deficiencies  of 
my  own  performance ;  and  as  successive  editions  have  been 
called  for,  I  have  continually  felt  that  there  was  more  to  cor- 
rect or  to  elucidate  than  the  insertion  of  a  few  foot-notes 
would  supply,  while  I  was  always  reluctant  to  make  such  al- 
terations as  would  leave  to  the  purchasers  of  former  editions 
a  right  to  complain.  From  an  author  whose  science  is  con- 
tinually progressive,  such  as  chemistry  or  geology,  this  is  un- 
avoidably expected ;  but  I  thought  the  case  not  quite  the  same 
with  a  mediaeval  historian. 

In  the  mean  time,  however,  the  long  period  of  the  Middle 


vm 


PREFACE  TO  SUPPLOIENTAL  NOTES. 


A<^es  had  been  investigated  by  many  of  ray  distinguished  con- 
temporaries with  signal  success,  and  I  have  been  anxious  to 
bring  my  own  volumes  nearer  to  the  boundaries  of  the  historic 
domain,  as  it  has  been  enlarged  witliin  our  own  age.  My  ob- 
ject has  been,  accordingly,  to  reconsider  those  portions  of  the 
work  which  relate  to  subjects  discussed  by  eminent  writers 
since  its  pubhcation,  to  illustrate  and  enlarge  some  passages 
which  had  been  imperfectly  or  obscurely  treated,  and  to  ac- 
knowlcd^^e  with  freedom  my  own  errors.  It  appeared  most 
convenient  to  adopt  a  form  of  publication  by  which  the  pos- 
sessore of  any  edition  may  have  the  advantage  of  these  Sup- 
plemental Notes,  which  will  not  much  affect  the  value  of 

their  copy.  _  _  . 

The  first  two  Chapters,  on  the  History  of  France  and  on 
the  Feudal  System,  have  been  found  to  require  a  good  deal 
of  improvement.     As  a  history,  indeed,  of  the  briefest  kind, 
the  first  pages  are  insufficient  for  those  who  have  little  pre- 
vious knowledge ;  and  this  I  have,  of  course,  not  been  able 
well  to  cure.     The  second  Chapter  embraces  subjects  which 
have  pecuHarly  drawn  the  attention  of  Continental  writers  for 
the  last  thirty  years.     The  whole  history  of  France,  civil, 
constitutional,  and  social,  has  been  more  philosophically  exam- 
ined, and  yet  with  a  more  copious  erudition,  by  which  philoso- 
phy must  always  be  guided,  than  m  any  former  age.     Two 
writers  of  high  name  have  given  the  world  a  regular  history 
of  that  country  — one  for  modern  as  well  as  medieval  times, 
the  other  for  these  alone.    The  great  historian  of  the  Italian 
republics,  my  guide  and  companion  in  that  portion  of  the 
History  of  the  Middle  Ages,  published  in  1821  the  first  vol- 
umes of  his  History  of  the  French ;  it  is  well  known  that  this 
labor  of  twenty  years  was  very  nearly  terminated  when  he 
was  removed  from  the  world.     The  two  histories  of  Sismondi 
will,  in  all  likehhood,  never  be  superseded ;  if  m  the  latter 
we  sometimes  miss,  and  yet  we  do  not  always  miss,  the  glow- 
ing and  vivid  pencil,  guided  by  the  ardor  of  youth  and  the 
distinct  remembrance  of  scenery,  we  find  no  inferionty  m 
justness  of  thought,  in  copiousness  of  narration,  and  espe- 
cially in  love  of  virtue  and  indignation  at  wrong.    It  seems, 
indeed,  as  if  the  progress  of  years  had  heightened  the  stem 
sentiments  of  repubhcanism  with  which  he  set  out,  and  *o 
which  the  whole  course  of  his  later  work  must  have  afforded 
no  gratification,  except  that  of  scorn  and  severity.    Measur- 


PREFACE  TO  SUPPLEMENTAL  NOTES. 


IX 


ing  not  only  their  actions  but  characters  by  a  rigid  standard, 
he  sometimes  demands  from  the  men  of  past  times  more  than 
human  frailty  and  ignorance  could  have  given ;  and  his  histo- 
ry would  leave  but  a  painful  impression  from  the  gloominess 
of  the  picture,  were  not  this  constantly  relieved  by  the  pecul- 
iar softness  and  easy  grace  of  his  style.  It  cannot  be  said 
that  Sismondi  is  very  dihgent  in  probing  obscurities,  or  in 
weighing  evidence  ;  his  general  views,  with  which  most  of  his 
chapters  begin,  are  luminous  and  valuable  to  the  ordinary 
reader,  but  sometimes  sketched  too  loosely  for  the  critical  in- 
vestigator of  history. 

Less  full  than  Sismondi  in  the  general  details,  but  seizing 
particular  events  or  epochs  with  greater  minuteness  and  ac- 
curacy —  not  emulating  his  full  and  flowing  periods,  but  in  a 
style  concise,  rapid,  and  emphatic,  sparkling  with  new  and 
brilhant  analogies  —  picturesque  in  description,  spirited  in 
sentiment,  a  poet  in  all  but  his  fidelity  to  truth  —  M.  Michelet 
has  placed  his  own  History  of  France  by  the  side  of  that  of 
Sismondi.  His  quotations  are  more  numerous,  for  Sismondi 
commonly  gives  only  references,  and  when  interwoven  with 
the  text,  as  they  often  are,  though  not  quite  according  to  the 
strict  laws  of  composition,  not  only  bear  with  them  the  proof 
which  an  historical  assertion  may  fail  to  command,  but  exhibit 
a  more  vivid  picture. 

In  praising  M.  Michelet  we  are  not  to  forget  his  defects. 
His  pencil,  always  spirited,  does  not  always  fill  the  canvas. 
The  consecutive  history  of  France  will  not  be  so  well  learned 
from  his  pages  as  from  those  of  Sismondi ;  and  we  should 
protest  against  his  peculiar  bitterness  towards  England,  were 
it  not  ridiculous  in  itself  by  its  frequency  and  exaggeration. 

I  turn  with  more  respect  to  a  great  name  in  historical  ht- 
erature,  and  which  is  only  less  great  in  that  sense  than  it 
might  have  been,  because  it  belongs  also  to  the  groundwork 
of  all  future  history — the  whole  series  of  events  which  have 
been  developed  on  the  scene  of  Europe  for  twenty  years  now 
past.  No  envy  of  faction,  no  caprice  of  fortune,  can  tear 
from  M.  Guizot  the  trophy  which  time  has  bestowed,  that  he 
for  nearly  eight  years,  past  and  irrevocable,  held  in  his  firm 
grasp  a  power  so  fleeting  before,  and  fell  only  with  the  mon- 
archy which  he  had  sustained,  in  the  convulsive  throes  of  his 
country. 


PKEFACE  TO  SUPPLEMENTAL  NOTES. 


^  "  Cras  vel  atr^ 

Nube  polum  Pater  occupatO| 
Vel  sole  puro :  non  tamcn  irritum, 
Quodcunque  retro  est,  efiiciet." 

It. has  remained  for  my  distinguished  friend  to  manifest  that 
high  attribute  of  a  great  man's  mind  —  a  constant  and  unsub- 
dued spirit  in  adversity,  and  to  turn  once  more  to  those  tran- 
quil pursuits  of  earlier  days  which  bestow  a  more  immingled 
enjoyment  and  a  more  unenvied  glory  than  the  favor  of  kings 
or  the  applause  of  senates. 

The  Essais  sur  THistoire  de  France,  by  M.  Guizot,  ap- 
peared in  1820;  the  Collection  de  Memoires  relatives  k 
PHistoire  de  France  (a  translation  generally  from  the  Latin, 
under  his  superintendence  and  with  notes  by  him),  if  I  mis- 
take not,  in  1825 ;  the  Lectures  on  the  civilization  of  Europe, 
and  on  that  of  France,  are  of  different  dates,  some  of  the 
latter  in  1829.  These  form,  by  the  confession  of  all,  a 
sort  of  epoch  in  mediaeval  history  by  their  philosophical 
acuteness,  the  judicious  choice  of  their  subjects,  and  the  gen- 
eral solidity  and  truth  of  the  views  which  they  present. 

I  am  jdmost  unwilUng  to  mention  several  other  eminent 
names,  lest  it  should  seem  invidious  to  omit  any.  It  will  suf- 
ficiently appear  by  these  Notes  to  whom  I  have  been  most  in- 
debted. Yet  the  writings  of  Thierry,  Fauriel,  Raynouard, 
and  not  less  valuable,  though  in  time,  almost  the  latest, 
Lehuerou,  ought  not  to  be  passed  in  silence.  I  shall  not 
attempt  to  characterize  these  eminent  men ;  but  the  gratitude 
of  every  inquirer  into  the  mediaeval  history  of  France  is  es- 
pecially due  to  the  Ministry  of  Pubhc  Instruction  under  the 
late  government  for  the  numerous  volumes  of  Documens  In- 
^dits,  illustrating  that  history,  which  have  appeared  under  its 
superintendence,  and  at  the  pubhc  expense,  within  the  last 
twelve  years.  It  is  difficult  not  to  feel,  at  the  present  junc- 
ture, the  greatest  apprehension  that  this  valuable  pubHcation 
will  at  least  be  suspended. 

Several  Chapters  which  follow  the  second  in  my  volumes 
have  furnished  no  great  store  of  additions ;  but  that  which  re- 
lates to  the  Enghsh  Constitution  has  appeared  to  require 
more  illustration.  Many  subjects  of  no  trifling  importance 
in  the  history  of  our  ancient  institutions  had  drawn  the  atten- 
tion of  men  very  conversant  with  its  best  sources ;  and  it  was 
naturally  my  desire  to  impart  in  some  measure  the  substance 


PREFACE  TO  SUPPLEMENTAL  NOTES.  xi 

of  their  researches  to  my  readers.  In  not  many  instances 
have  I  seen  ground  for  materially  altering  my  own  views; 
and  I  have  not  of  course  hesitated  to  differ  from  those  whom 
I  often  quote  with  much  respect.  The  publications  of  the  Re- 
cord Commission  —  the  celebrated  Report  of  the  Lords*  Com- 
mittee on  the  Dignity  of  a  Peer  —  the  work  of  my  learned  ^ 
and  gifted  friend  Sir  Francis  Palgrave,  On  the  Rise  and  * 
Progress  of  the  English  Commonwealth,  replete  with  omnifa- 
rious reading  and  fearless  spirit,  though  not  always  command- 
ing the  assent  of  more  sceptical  tempers  —  the  approved  and 
valuable  contributions  to  constitutional  learning  by  Allen, 
Kemble,  Spence,  Starkie,  Nicolas,  Wright,  and  many  others 
—  are  full  of  important  facts  and  enhghtened  theories.  Yet  I 
fear  that  I  shall  be  found  to  have  overlooked  much,  especially 
in  that  periodical  literature  which  is  too  apt  to  escape  our  ob- 
servation or  our  memory ;  and  can  only  hope  that  these  Notes, 
imperfect  as  they  must  be,  will  serve  to  extend  the  knowledge 
of  my  readers  and  guide  them  to  the  sources  of  historic 
truth.  They  claim  only  to  be  supplemental,  and  can  be  of 
no  service  to  those  who  do  not  ahready  possess  the  History  of 
the  Middle  Ages. 

The  paging  of  the  editions  of  1826  and  1841,  one  in  three 
volumes,  the  other  in  two,  has  been  marked  for  each  Note, 
which  will  prevent  I  hope,  all  inconvenience  in  reference. 

Jtrne,  1848. 


ADVERTISEMENT  TO  THE  PRESENT  EDITION. 

The  Supplemental  Notes  have  been  incorporated  with  the 
original  work,  partly  at  the  foot  of  the  pages,  partly  at  the 
dose  of  each  chapter. 


CONTENTS 


THE   FIRST  VOLUME. 


CHAPTER  I. 


THE  HISTORY  OP  FRANCS  FROM  ITS  CONQUEST  BY  CLOVIS  TO  THB 
INVASION  OF  NAPLES  BY  CHARLES  VIU. 

Part  I. 

Fall  of  the  Roman  Empire — Invasion  of  Clovis — First  Race  of  French 
Kings — Accession  of  Pepin — State  of  Italy — Charlemagne  —  His  Reign 
and  Character  —  Louis  the  Debonair  —  His  Successors  —  Calamitous 
State  of  the  Empire  in  the  Ninth  and  Tenth  Centuries — Accession  of 
Hugh  Capet — His  first  Successors  —  Louis  VH. — Philip  Augustus  — 
Conquest  of  Normandy — War  in  Languedoc  —  Louis  EX. — His  Charac- 
ter—  Digression  upon  the  Crusades  —  Philip  HL  —  Philip  rV.  — Ag- 
grandizement of  French  Monarchy  under  his  Reign  —  Reigns  of  his  Chil- 
dren—Question of  Salic  Law— Claim  of  Edward  HI Page  15 


Part  H. 

War  of  Edward  HI.  in  France  —  Causes  of  his  Success  —  Civil  Disturb- 
ances of  France  —  Peace  of  Bretigni — Its  Interpretation  considered  — 
Charles  V.  — Renewal  of  the  War  — Charles  VL  — His  Minority  and 
Insanity  — Civil  Dissensions  of  the  Parties  of  Orleans  and  Burgundy— 
Assassination  of  both  these  Princes  —  Intrigues  of  their  Parties  with 
England  under  Henry  IV.— Henry  V.  invades  France  —  Treaty  of 
Troyes— State  of  France  in  the  first  Years  of  Charles  VH.- Progress 
and  subsequent  Decline  of  the  English  Arms — their  Expulsion  from 
France— Change  in  the  Political  Constitution  —  Louis  XI.  — His  Char- 
acter— Leagues  formed  against  him  —  Charles  Duke  of  Burgundy— His 
Prosperity  and  Fall  —  Louis  obtains  Possession  of  Burgundy  —  His  Death 
—  Charles  VHI.— Acquisition  of  Britany 61 


Norm  TO  Chaftxr  I. 


109 


CONTENTS  OF  THE  FIRST  VOLUMK 


•  •• 

xm 


CHAPTER  n. 

OF  THE  FXUDAL  SYSTEM,  ESPECIALLY  IN  FRANCS. 

Part  I. 

State  of  ancient  Germany  —  Efiects  of  the  Conquest  of  Gaul  by  the  Franks 
— Tenures  of  Land  —  Distinction  of  Laws  —  Constitution  of  the  ancient 
Frank  Monarchy  —  Gradual  Establishment  of  Feudal  Tenures  —  Prin- 
ciples of  a  Feudal  Relation — Ceremonies  of  Homage  and  Investiture — 
Military  Service — Feudal  Incidents  of  Relief,  Aid,  Wardship,  &c. — 
Diflferent  Species  of  Fiefe — Feudal  Law-books Page  148 


Part  H. 

Analysis  of  the  Feudal  System— Its  local  Extent— View  of  the  different 
Orders  of  Society  during  the  Feudal  Ages  — Nobility— Their  Ranks 
and  Privileges  —  Clergy  —  Freemen  —  Serfs  or  Villeins  —  Comparative 
State  of  France  and  Germany — Privileges  enjoyed  by  the  French  Vas- 
sals— Right  of  coining  Money —  and  of  Private  War  —  Immunity  firom 
Taxation  —  Historical  View  of  the  Royal  Revenue  in  France — Methods 
adopted  to  augment  it  by  Depreciation  of  the  Coin,  &c.  —  Legislative 
Power — Its  State  under  the  Merovingian  Kings,  and  Charlemagne  —  His 
Councils  —  Suspension  of  any  general  Legislative  Authority  during  the 
Prevalence  of  Feudal  Principles  —  The  King's  Council — Means  adopted 
to  supply  the  Want  of  a  National  Assembly  —  Gradual  Progress  of  the 
King's  Legislative  Power— Philip  VI.  assembles  the  States-General  — 
Their  Powers  limited  to  Taxation  —  States  under  the  Sons  of  Philip  IV. 

—  States  of  1355  and  1356  — They  nearly  effect  an  entire  Revolution  — 
The  Crown  recovers  its  Vigor— States  of  1380,  under  Charles  VI.— 
Subsequent  Assemblies  under  Charles  VI.  and  Charles  VII. — The  Crown 
becomes  more  and  more  absolute  —  Louis  XL  —  States  of  Tours  in  1484 

—  Historical  View  of  Jurisdiction  in  France  — Its  earliest  Stage  under 
the  first  Race  of  Kings,  and  Charlemagne  —  Territorial  Jurisdiction  — 
Feudal  Courts  of  Justice  —  Trial  by  Combat  —  Code  of  St.  Louis  —  The 
Territorial  Jurisdictions  give  way  —  Progress  of  the  Judicial  Power  of 

•  the  Crown— Parliament  of  Paris  —  Peers  of  France— Increased  Author- 
ity of  the  Pariiament  —  Registration  of  Edicts  —  Causes  of  the  Decline 
of  the  Feudal  System  —  Acquisitions  of  Domain  by  the  Crown  —  Char- 
ters of  Incorporation  granted  to  Towns  —  Their  previous  Condition  — 
First  Charters  in  the  Twelfth  Century— Privileges  contained  in  them— 
Military  Service  of  Feudal  Tenants  commuted  for  Money  — Hired  Troops 

—  Change  in  the  Military  System  of  Europe  —  General  View  of  the  Ad- 
vantages and  Disadvantages  attending  the  Feudal  System 185 

Notes  to  Chapter  H . .  266 


znr 


CONTENTS  OF  THE  FIRST  VOLUME. 


CHAPTER  HI. 

TBB  HISTORY  OF  ITALY,  FROM  THE  EXTINCTION  OF  THB  CARLOYINOIAH 
EMPERORS  TO  THE  INVASION  OF  NAPLES  BY  CHARLES  YIU. 

Part  I. 

State  of  Italy  after  the  Death  of  Charles  the  Fat  —  Coronation  of  Otho  the 
Great  —  State  of  Rome  —  Conrad  II.  —  Union  of  the  Kingdom  of  Italy 
with  the  Empire  —  Establishment  of  the  Normans  in  Naples  and  Sicily 
—  Roger  Guiscard  —  Rise  of  the  Lombard  Cities — They  gradually  be- 
come more  independent  of  the  Empire  —  Their  internal  Wars  —  Frederic 
Barbarossa — Destruction  of  Milan  —  Lombard  League  —  Battle  of  Leg- 
nano  —  Peace  of  Constance  —  Temporal  Principality  of  the  Popes  — 
Guelf  and  Chibelin  Factions  —  Otho  FV.  —  Frederic  II.  —  Arrangement 
of  the  Italian  Republics  —  Second  Lombard  War — Extinction  of  the 
House  of  Suabia  —  Causes  of  the  Success  of  Lombard  Republics — Their 
Prosperity  —  and  Forms  of  Government — Contentions  between  the  No- 
bility and  People — Civil  Wars— Story  of  Giovanni  di  Vicenza.  Page  343 


Part  H. 

State  of  Italy  after  the  Extinction  of  the  House  of  Suabia  —  Conquest  of 
Naples  by  Charles  of  Anjou — The  Lombard  Republics  become  severally 
subject  to  Princes  or  Usurpers  —  The  Visconti  of  Milan  —  Their  Aggran- 
dizement— Decline  of  the  Imperial  Authority  over  Italy — Internal  State 
of  Rome  —  Rienzi  —  Florence  —  her  Forms  of  Government  historically 
traced  to  the  end  of  the  Fourteenth  Century — Conquest  of  Pisa  —  Pisa 
— Its  Commerce,  Naval  Wars  with  Genoa,  and  Decay  —  Genoa  —  her 
Contentions  with  Venice  —  War  of  Chioggia — Government  of  Genoa — 
Venice  — her  Origin  and  Prosperity  —  Venetian  Government  —  its  Vices 

—  Territorial  Conquests  of  Venice  —  Military  System  of  Italy  —  Com- 
panies of  Adventure  —  1,  foreign ;  Guamieri,  Hawkwood  —  and  2,  native ; 
Braccio,  Sforza — Improvements  in  Military  Service — Arms,  offensive 
and  defensive  —  Invention  of  Gunpowder — Naples — First  Line  of  Anjou 

—  Joanna  I. — Ladislaus  —  Joanna  II.  —  Francis  Sforza  becomes  Duke 
of  Milan — Alfonso  King  of  Naples  —  State  of  Italy  during  the  Fifteenth 
Century — Florence  —  Rise  of  the  Medici,  and  Ruin  of  their  Adversaries 
—Pretensions  of  Charles  VIH.  to  Naples 890 


YIBW 


mr 


THE    STATE    OF    EUROPE 


DURING  THE  MIDDLE  AGES. 


CHAPTER  I. 

THE  HISTORY  OP  FRANCE,  FROM  ITS  CONQUEST  BT  CLOVIS 
TO   THE  INVASION   OP  NAPLES  BY   CHARLES  VUL 


PART  L 


Fall  of  the  Roman  Empfre— Tnraslon  of  Clovis  — First  Race  of  French  Kings  — 
Accession  of  Pepin  —  State  of  Italy  —  Charlemagne  —  His  Reign  and  Character 
—  Louis  the  Debonair  —  Ilia  Successors  —  Calamitous  State  of  the  Empire  in  the 
ninth  and  tenth  Centuries  —  Accession  of  Hugh  Capet  — His  first  Successors  — 
Louis  VII.  —  Philip  Augustus  —  Conquest  of  Normandy  —  War  in  Languedoc  — 
Louis  IX.  —  His  Character  —  Digression  upon  the  Crusades  —  Philip  III.  —  Philip 
IV.  —  Aggrandizement  of  French  Monarchy  under  his  Reign — Reigns  of  hu 
Children  —  Question  of  Salic  Law  —  Claim  of  Edward  III. 

Before  the  conclusion  of  the  fifth  century  the  mighty  fabric 
of  empire  which  valor  and  policy  had  founded  upon  the  seven 
hills  of  Rome  was  finally  overthrown  in  all  the  west  subversion  of 
of  Europe  by  the  barbarous  nations  from  the  north,  ^o  Roman 
whose  martial  energy  and  whose  numbers  were  ir-    ^^"^' 
resistible.   A  race  of  men,  formerly  unknown  or  despised,  had 
not  only  dismembered  that  proud  sovereignty,  but  ^^^  ^^^^^^ 
permanently  settled  themselves  in  its  fairest  prov-  ments  of  the 
inces,  and  imposed  their  yoke  upon  the  ancient  ^^^^ 
possessors.    The  Vandals  were  masters  of  Africa ; 
the  Suevi  held  part  of  Spam;  the  Visigoths  possessed  the 
remainder,  with  a  large  portion  of  Gaul ;  the  Burgundians 
occupied  the  provinces  watered  by  the  Rhone  and  Saone; 
the  Ostrogoths  almost  all  Italy.     The  north-west  of  Gaul, 
between  the  Seine  and  the  Loire,  some  writers  have  filled 


16 


INVASION  OF  CLOVIS.        Chap.  I.  Pabt  1. 


Fbai^ce. 


HIS  CONVERSION. 


with  an  Annorican  republic ;  *  while  the  remainder  was  still 
nominally  subject  to  the  Roman  empire,  and  governed  by  a 
certmn  Syagrius,  rather  with  an  independent  than  a  deputed 

authority. 

At  this  time  Clovis,  king  of  the  Salian  Franks,  a  tribe  of 
Invasion  of  Germans  long  connected  with  Rome,  and  originally 
Clovis.  settled  upon  the  right  bank  of  the  Rhine,*  but  who 

A.D.488.  had  latterly  penetrated  as  far  as  Tournay  and 
Cambray,*  invaded  Graul,  and  defeated  Syagrius  at  Soissons. 
The  result  of  this  victory  was  the  subjugation  of  those  prov- 
inces which  had  previously  been  considered  as  Roman.  But 
as  their  allegiance  had  not  been  very  strict,  so  their  loss  was 
not  very  severely  felt ;  since  the  emperors  of  Constantinople 
were  not  too  proud  to  confer  upon  Clovis  the  titles  of  consul 
and  patrician,  which  he  was  too  prudent  to  refuse.* 

Some  years  after  this,  Clovis  defeated  the  Alemanni,  or 


17 


1  It  is  impossible  not  to  speak  scepti- 
cally as  to  this  republic,  or  rather  confed- 
eration of  independent  cities  under  the 
rule  of  their  respective  bishops,  which 
Bubos  has  with  great  ingenuity  raised 
upon  a  passage  of  Zosimus,  but  in  defi- 
ance of  the  silence  of  Gregory,  whose  see 
of  Tours  bordered  upon  their  supposed 
territory.  Yet  his  hypothesis  is  not  to 
be  absolutely  rejected,  because  it  is  by 
no  means  deficient  in  internal  proba- 
bility, and  the  early  part  of  Gregory's 
history  is  brief  and  negligent.  Dubos, 
Hist.  Critique  de  I'Etablissement  des 
Fran^ais  dans  les  Gaules,  t.  1.  p.  253. 
Gibbon,  c.  38,  after  following  Dubos  in 
his  text,  whispers  as  usual,  hh  suspicions 
in  a  note.  [Notb  I.] 
a  [Now  II.] 

s  The  system  of  P^re  Daniel  who  de- 
ides  any  permanent  settlement  of  the 
Franks  on  the  left  bank  of  the  Rhine 
before  Clovis,  seems  incapable  of  being 
supported.  It  is  difiicult  to  resist  the 
presumption  that  arises  from  the  dis- 
covery of  the  tomb  and  skeleton  of 
Childeric,  father  of  Clovis,  at  Tournay, 
in  1653.  See  Montfaucon,  Monumens 
de  la  Monarchie  Francaise,  tome  i.  p. 
10. 

*  The  theory  of  Dubos,  who  considers 
Clovis  as  a  sort  of  lieutenant  of  the  em- 
perors, and  as  governing  the  Roman  part 
of  his  subjects  by  no  other  title,  has 
justly  seemed  extravagant  to  later  crit- 
ical inquirers  into  the  history  of  France. 
Bat  it  may  nevertheless  be  true  that  the 
connection  between  him  and  the  empire, 
and  the  emblems  of  Roman  magistracy 


which  he  bore,  reconciled  the  con(|^uered 
to  their  new  masters.    This  b  judiciously 
stated  by  the  Duke  de  Nivernois,  M^m. 
de  I'Acad.  des  Inscrip.,  tome  xx.  p.  174 
[Note  III.]    In  the  sixth  century,  how- 
ever, the  Greeks  appear  to  have   been 
nearly  ignorant  of  Clovis's  countrymen. 
Nothing  can  be  made  out  of  a  passage 
in  Procopius  where  he  seems  to  men- 
tion   the  Armoricans   under  the  name 
'Apl^opvXOi;     and    Agathias    gives    a 
rtrangely    romantic     account     of    the 
Franks,  whom  he  extols  fur  their  con- 
formity to  Roman  Laws,  7roAfret(i  ug  r<i 
ttoTlM  XRf^VTOt  'Pcj/zaiVcy,  Koi  vo^tc 
Totc  avTolc,  Kol  Tu  tDiTua  Sfioluc  (^fi^'t 
re  tH  avii^dTiaut  /cat  ydfiovg  koI  t^v 
Tov  "^eiov  -depinrstav  vofiiifivaL .... 
kfioi  ye  doKovai  a<^d6pa  elvai  Koafitoi 
re  Koi  aaTtioTOTOL^  ovdiv  re  ix^iv  rd 
dtukkarrov,  fj  fwvov  rb  pap^apiKOV 
TVC  OToTJjc,  tai  Tb  r^f  ^cjv^f  Idia^ov. 
He  goes  on  to  commend  their  mutual 
union,  and  observes  particularly  that,  in 
partitions  of  the  kingdom,  which  had 
frequently  been  made,  they  had  never 
taken  up  arms  against  each  other,  nor 
polluted  the  land  with  civil  bloodshed. 
One  would  almost  believe  him  ironical. 
The  history  of  Agathias  comes  down  to 
A.D.  659.     At   this    time  many  of   the 
savage  murders  and  other  crimes  which 
fill  the  pages  of  Gregory  of  Tours,  a 
writer  somewhat  more  likely  to  know 
the  truth  than  a  Byzantine  rhetorician, 
had  taken  plaee. 


Swabians,  in  a  great  battle  at  Zulpich,  near  Cologne.     In 
consequence  of  a  vow,  as  it  is  said,  made  during  this  engage- 
ment,* and  at  the  instigation  of  his  wife  Clotilda,  a  princess 
of  Burgundy,  he  became  a  convert  to  Christianity. 
It  would  be  a  fruitless  inquiry  whether  he  was  ^'^'  ^^ 
smcere  in  this  change;  but  it  is   certain,  at  least,  that  no 
policy  could  have  been  more  successful.     The  Arian  sect, 
which    had    been   early  introduced    among    the   barbarous 
nations,   was   predominant,   though    apparently   without  in- 
tolerance,^  in  the  Burgundian  and  Visigoth  courts ;  but  the 
clergy  of  Gaul  were  strenuously  attached  to  the   CathoUc 
side,  and,  even  before  his  conversion,  had  favored  the  arms 
of  Clovis.     They  now  became  his  most  zealous  supporters, 
and  were  rewarded  by  him  with  artful  gratitude,  and  by  his 
descendants  with  lavish  munificence.      Upon  the 
pretence  of  religion,  he  attacked  Alaric,  king  of  the  ^■'''  ^' 
Visigoths,  and,  by  one  great  victory  near  Poitiers  overthrow- 
ing their  empire  in   Gaul,  reduced  them  to  the  maritune 
province  of  Septimania,  a  narrow  strip  of  coast  between  the 


1  Gregory  of  Tours  makes  a  very  rhe- 
torical story  of  this  famous  vow,  wliich, 
though  we  cannot  disprove,  it  may  be 
permitted  to  suspect.  —  L.  li.  c.  30. 

*  Hist,  de  Languedoc,  par  Vich  et  Vais- 
Bette,  tome  i.  p.  238;  Gibbon,  c.  87.  A 
specious  objection  might  he  drawn  from 
the  history  of  the  Gothic  monarchies  in 
Italy,  as  well  as  Gaul  and  Spain,  to  the 
cpraat  principles  of  religious  toleration. 
These  Arian  sovereigns  treated  their 
Catholic  subjects,  it  may  be  said,  with 
tenderness,  leaving  them  in  possession  of 
every  civil  privilege,  and  were  rewarded 
for  it  by  their  defection  or  sedition.  But 
In  answer  to  this  it  may  be  observed :  — 
1.  That  the  system  of  persecution  adopt- 
ed by  the  Vandals  in  Africa  succeeded  no 
better,  the  Catholics  of  that  province 
having  risen  against  them  upon  the 
landing  of  Belisarius :  2.  That  we  do  not 
know  what  insults  and  discouragements 
the  Catholics  of  Gaul  and  Italy  may 
have  endured,  especially  from  the  Arian 
bishops,  in  that  age  of  bigotry ;  although 
the  administrations  of  Alaric  and  Theo- 
doric  were  liberal  and  tolerant :  8.  That 
the  distinction  of  Arian  and  Catholic  was 
Intimately  connected  with  that  of  Goth 
and  Roman,  of  conqueror  and  conquered; 
so  that  it  is  difficult  to  separate  the  ef- 
fects of  national  from  those  of  sectarian 
animosity. 

The   tolerance  of  the  Viulgoth  sove- 
nigOB   must    not   l>e   praised   without 
VOL.  I.  a 


making  an  exception  for  Euric,  predeces- 
sor of  Alaric.    He  was  a  prince  of  some 
eminent  qualities,  but  so  zealous  in  his 
religion  as  to  bear  hardly  on  his  Catholic 
subijects.     Sidonius   Apollinaris    loudly 
complains  that  no  bishoprics  were  per- 
mitted to  be  filled,  that  the  churches 
went  to  ruin,  and  that  Arianism  made  a 
great  progress.     (Fauriel,  Hist,    de   la 
Gaule  M^ridionale,  vol.  i.  p.  578.    Under 
Alaric  himself,  however,  as  well  as  under 
the  earlier  kings  of  the  Visigothic  dy- 
nasty, a  more   liberal  spirit  prevailed. 
Salvian,  about  the  middle  of  the  fifth 
century,  extols  the  Visigothic   govern- 
ment, in  comparison  with  that  of  the 
empire,  whose  vices  and  despotism  had 
met  with  a  deserved  termination.     Eu- 
cherius  speaks  of  the  Burgundians  in  the 
same  manner.    (Id.  ibid,  and  vol.  ii.  p. 
28.)    Yet  it  must  have  been  in  itself 
mortifying  to  live  in  subjection  to  bar- 
barians and  heretics ;  not  to  mention  the 
hospitality,  as  it  was  called,  which  the 
natives  were  obliged  to  exercise  towards 
the  invaders,  by  ceding  two  thirds  of 
their  lands.  "What,  then,  must  the  West- 
em  empire  have  been,  when  such  a  con- 
dition was  comparatively  enviable  !     But 
it  is  more  than  probable  that  the  Gaulish 
bishops  subject  to  the  Visigoths  hailed 
the  invasion  of  the  Franks  with  sanguine 
hope,  and  were  undoubtedly  great  gain- 
ers by  the  exchange. 


18 


DESCENDANTS  OF  CLOVIS.     Chap.  I.  Pabi  I 


Rhone  and  the  Pyrenees.  The  last  exploits  of  Clevis  were 
the  reduction  of  certain  independent  chiefs  of  his  own  tribe 
and  family,  who  were  settled  in  the  neighborhood  of  the 
Rhine.*  All  these  he  put  to  death  by  force  or  treachery ;  for 
he  was  cast  in  the  true  mould  of  conquerors,  and  may  justly 
be  ranked  among  the  first  of  his  class,  both  for  the  splendor 
and  the  guiltiness  of  his  ambition.* 

Clovis  left  four  sons ;  one  illegitimate,  or  at  least  bom  be- 
fore his  conversion ;  and  three  by  his  queen  Clotilda.  These 
His  de-  four  made,  it  is  said,  an  equal    partition  of  hia 

Bcendanta.  dominions,  whlch  comprehended  not  only  France, 
A.D.611.  but  the  western  and  central  parts  of  Germany, 
besides  Bavaria,  and  perhaps  Swabia,  which  were  governed 
by  their  own  dependent,  but  hereditary,  chiefs.  Thierry,  the 
eldest,  had  what  was  called  Austrasia,  the  eastern  or  Ger- 
man division,  and  fixed  his  capital  at  Metz ;  Clodomir,  at 
Orleans ;  Childebert,  at  Paris ;  and  Clotaire,  at   Soissons. 


1  Modern  historians,  in  enumerating 
these  reguli,  call  one  of  them  king  of 
Mans.  But  it  is  difficult  to  understand 
how  a  chieftain,  independent  of  Clovis, 
oould  have  been  settled  in  that  part  of 
France.  In  fact,  Gregory  of  Tours,  our 
only  authority,  does  not  say  that  this 
prince,  Regnomeria,  was  king  of  Mans, 
but  that  he  was  put  to  death  in  that 
city:  apud  Cenomaunis  civitatem  jussu 
Chlodovechi  interfectus  est. 

The  late  French  writers,  as  far  as  I 
have  observed,  continue  to  place  a  king- 
dom at  Mans.     It  is  certain,  neverthe- 
less, that  Gregory  of  Tours,  and  they 
have  no  other  evidence,  does  not  assert 
this ;  and  his  expressions  rather  lead  to 
the  contrary;  since,  if  Regnomeris  were 
king  of  Maus,  why  should  we  not  have 
been  informed  of  it?    It  is,  indeed,  im- 
possible to  determine  such  a  point  nega- 
tively from  our  scanty  materials ;  but  if 
a  Frank  kingdom  had  been  formed  at 
Mans  before  the  battle  of  Soissons,  this 
must  considerably  alter  the  received  no- 
tions of  the  history  of  Gaul  in  the  fifth 
century  ;  and  it  seems  difficult  to  under- 
stand how  it  could  have  sprung  up  after- 
wards during  the  reign  of  Clovis. 

a  The  reader  will  be  gratified  by  an  ad- 
mirable memoir,  by  the  Duke  de  Niver- 
nois,  on  the  policy  of  Clovis,  in  the 
twentieth  volume  of  the  Academy  of  In- 
scriptions. 

3  Quatuor  filii  regnum  accipiunt,  et 
inter  se  ssqui  lance  dividunt.  —  Greg. 
Tur.  I.  iii.  c.  1.  It  would  rather  perplex 
»  geographer  to  make  an  equal  division 


of  Clovis's  empire  into  portions,  of  which 
Paris,  Orleans,  Metz,  and  Soissons  should 
be  the  respective  capitals.     I  apprehend, 
In  feet,  that  Gregory's  expression  Is  not 
very  precise.    The  kingdom  of  Soissons 
seems  to  have  been  the  least  of  the  four, 
and  that  of  Austrasia  the  greatest.     But 
the    partitions  made  by  these    princes 
were    exceedingly    complex;    insulated 
firagmenta   of  territory,  and  even  undi- 
vided shares  of  cities,  being  allotted  to 
the  worse-provided  brothers,  by  way  of 
compensation,  out  of  the  larger    king 
doms.      It    would    be  very  difficult  to 
ascertain  the  limits  of  these  minor  mon- 
archies.   But  the  French  empire  was  al- 
ways considered  as  one,  whatever  might 
be  the  number  of  its  inheritors;  and 
from  accidental  circumstances  it  was  so 
frequently  reunited  as  fully  to  keep  up 
this  notion. 

M.  Pauriel  endeavors  to  show  the 
equalitv  of  this  partition  (Uist.  de  la 
Gaule  Meridionale,  vol.  li.  p.  92.)  But 
he  is  obliged  to  suppose  that  Germany 
beyond  the  Rhine,  part  of  which  owned 
the  dominion  of  Clovis,  was  counted  as 
nothing,  not  being  inhabited  by  Franks. 
It  was  something,  nevertheless,  in  the 
scale  of  power ;  since  from  this  fertile 
source  the  Austraslan  kings  continually 
recruited  their  armies.  Aquitaine,  that 
is,  the  provinces  south  of  the  Loire,  was 
divided  into  three,  or  rather  perhaps  two 
portions.  For  though  Thierry  and  Childe- 
bert had  considerable  territories,  it  seemi 
not  certain  that  Clodomir  took  any  share, 
and  Improbable  that  Clotaire  had  onn. 


Ml 


France. 


DESCENDANTS  OF  CLOVIS. 


19 


During  their  reigns  the  monarchy  was  aggrandized  by  the  con- 
quest of  Burgundy.    Clotaire,  the  youngest  brother, 
ultimately  reunited  all  the  kingdoms ;  but  upon  his 
death  they  were  again  divided  among  his  four   sons,  and 
brought  together  a  second  time  by  another  Clo-         „^ 
taire,  the  grandson  to  the  first     It  is  a  weary  and 
unprofitable  task  to  follow  these  changes  in  detail,  through 
scenes  of  tumult  and  bloodshed,  in  which   the  eye  meets 
with  no  sunshine,  nor  can  rest  upon  any  interesting  spot.     It 
would  be  difficult,  as  Gibbon  has  justly  observed,  to  find  any- 
where more  vice  or  less  virtue.     The  names  of  two  queens 
are  distinguished  even  in  that  age  for  the  magnitude  of  their 
crimes :  Fredegonde,  the  wife  of  Chilperic,  of  whose  atroci- 
ties none  have  doubted ;  and  Brunehaut,  queen  of  Austrasia, 
who  has  met  with  advocates  in  modern  times,  less,  perhaps, 
from  any  fair  presumptions  of  her  innocence  than  from  com- 
passion for  the  cruel  death  which  she  underwent.^ 


Thierry,  therefore,  king  of  Austrasia, 
may  be  reckoned  the  best  provided  of  the 
brethren.  It  will  be  obvious  from  the 
map  that  the  four  capitals,  5Ietz,  Sois- 
sons. Paris,  and  Orleans,  are  situated  at 
no  great  distance  from  each  other,  rela- 
tively to  the  whole  of  France.  They 
were,  therefore,  in  the  centre  of  force ; 
and  the  brothers  might  have  lent  assis- 
tance to  each  other  in  case  of  a  national 
revolt. 

The  cause  of  this  complexity  in  the 
partition  of  France  among  the  sons  of 
Clovis  has  been  coiyectured  by  Dubos, 
with  whom  Sismondi  (vol.  i.  p.  242) 
agrees,  to  have  been  their  desire  of  own- 
ing as  subjects  an  equal  number  of 
Franks.  This  is  supported  by  a  passage 
In  Agathias,  quoted  by  the  former.  Hist, 
de  I'Etablissement,  vol.  ii.  p.  413.  Others 
have  &ncied  that  Aquitaine  was  reck- 
oned too  delicious  a  morsel  to  be  enjoyed 
by  only  one  brother.  In  the  second  great 
partition,  that  of  567  (for  that  of  561  did 
not  last  long),  when  Sigebert,  Gontran, 
and  Chilperic  took  the  kingdoms  of  Aus- 
trasia, Burgundy,  and  what  was  after- 
wards called  Neustria,  the  southern 
provinces  were  again  eqtially  divided. 
Thus  Marseilles  fell  to  the  king  of  Paris, 
or  Neustria,  while  Aix  and  Avignon  were 
in  the  lot  of  Burgundy. 

]  Every  history  will  give  a  sufficient 
epitome  of  the  Merovingian  dynasty. 
The  fects  of  these  times  are  of  little  other 
importance  than  as  they  impress  on  the 
mind  a  thorough  notion  of  the  extreme 
wickedness  of  almost  ev«ry  person  con- 


cerned in  them,  and  consequently  of 
the  state  to  which  society  was  reduced 
But  there  is  no  advantage  in  crowding 
the  memory  with  barbarian  wars  and 
assassinations.    [Note  IV.] 

For  the  question  about  Brunehaut's 
character,  who  has  had  partisa-is  al- 
most as  enthusiastic  as  those  of  Mary  of 
Scotland,  the  reader  may  consult  Pas- 
quier,  Recherches  de  la  France,  1.  viii., 
or  Velly,  Hist,  de  France,  tome  i.,  on  one 
side,  and  a  dissertation  by  Gail  lard,  in 
the  Memoirs  of  the  Academy  of  Inscrip- 
tions, tome  XXX.,  on  the  other.  The  last 
is  unfevorable  to  Brunehaut,  and  per- 
fectly satisfectory  to  my  judgment. 

Brunehaut  was  no  unimportant  per- 
sonage in  this  history.  She  had  become 
hateful  to  the  Australian  aristocracy  by 
her  Gothic  blood,  and  still  more  by  her 
Roman  principles  of  government.  There 
was  evidently  a  combination  to  throw  off 
the  yoke  of  civilized  tyranny.  It  was  a 
great  conflict,  which  ended  in  the  virtual 
dethronement  of  the  house  of  Clovis. 
Much,  therefore,  may  have  been  exag- 
gerated by  Fredegarius,  a  Burgundian  by 
birth,  in  relating  the  crimes  of  Brune- 
haut. But,  unhappily,  the  antecedent 
presumption,  in  the  history  of  that  age, 
is  always  on  the  worse  side.  She  was  un- 
questionably endowed  with  a  masculine 
energy  of  mind,  and  very  superior  to 
such  a  mere  imp  of  audacious  wickedness 
as  Fredegonde-  Brunehaut  left  a  great 
and  almost  fabulous  name ;  public  cause- 
ways, towers,  castles,  in  different  parts 
of  France,  are  popularly  ascribed  to  her. 


I 


France. 


20 


MAYORS  OF  THE  PALACE.    Chap.  I.  Part  I. 


ACCESSION  OF  PEPIN. 


21 


i|{ 


But  after   Dagobert,  son  of  Clotaire  II.,  the  kings  of 
^  «oQ    France  dwindled  into  personal  insignificance,  and 


Their 
degeneracy 

Blayora  of 
(he  palace. 


are  generally  treated  by  later  historians  as  msen- 
sati,  or  idiots.*     The  whole  power  of  the  kingdom 
devolved  upon  the  mayors  of  the  palace,  originally 
officers  of  the  household,  through  whom  petitions 
or  representations  were  laid  before  the  king.^     The  weakness 
of  sovereigns  rendered  this  office  important,  and  still  greater 
weakness  suffered  it  to  become  elective;  men  of  energetic 
talents  and  ambition  united  it  with  military  command ;  and 
the  history  of  France  for  half  a  century  presents  no  names 
more  conspicuous  than  those  of  Ebroin  and  Grimoald,  may- 
ors of  Neustria  and  Austrasia,  the  western  and  eastern  divi- 
sions of  the  French  monarchy.'    These,  however,  met  with 
violent  ends;  but  a  more  successful  usurper  of  the   royal 
authority  was  Pepin  Heristal,  first  mayor,  and  afterwards 
duke,  of  Austrasia;    who   united   with  ahnost  an   avowed 
80verei<mty  over  that  division  a  paramount  command  over  the 
French°or  Neustrian  provinces,  where  nominal  kings  of  the 
Merovingian  family  were  still  permitted  to  exist.*    This  au- 
thority he  transmitted  to  a  more  renowned  hero,  his  son, 
Charles  Tvlartel,  who,  after  some  less  important  exploits,  was 
called  upon  to  encounter  a  new  and  terrible  enemy.     The 
Saracens,  after  subjugating  Spain,  had  penetrated  into  the 
very  heart  of  France.     Charles  Martel  gained  a 
^•"•^'      complete  victory  over  them  between  Tours  and 
Poitiers,*  in  which  300,000  Mohammedans  are  hyperbolically 


It  has  even  been  Btispected-by  some  that 
■he  suggested  the  appellation  of  Brune- 
child  in  the  Nibelungen  Lied.  That  there 
is  no  resemblance  in  the  story,  or  in  the 
character,  courage  excepted,  of  the  two 
heroines,  cannot  be  thought  an  objec- 
tion. 

1  An  Ingenious  attempt  is  made  by  the 

Abb6  Vertot,  Mem.  de  I'Academie,  tome 

Ti.,  to  rescue  these  monarchs  from  this 

long-established   imputation.    But    the 

leading  fact  is  irresistible,  that   all  the 

royal   authority  was  lost   during    their 

rdgns.    However,  the  best  apology  seems 

to  be,  that,  after  the  victories  of  Pepin 

Heristal,  the  Merovingian  kings  were,  in 

effect,  conquered,  and  their  inefficiency 

was  a  matter  of  necessary  submission  to 

a  master. 

a  [NoTB  v.] 

SThe  ori^nal  kingdoms  of  Soissoni, 
Ptris,  and  Orleans  were  coasoUdated  into 


that  denominated  Neustria,  to  which  Bur- 
gundy was  generally  appendant,  though 
distinctly  governed  by  a  mayor  of  its 
own  election.  But  Aquitaine,  the  exact 
bounds  of  which  I  do  not  know,  was, 
fW)m  the  time  of  Dagobert  I.,  separated 
from  the  rest  of  the  monarchy,  under  a 
ducal  dynasty,  sprung  flrom  Aribert, 
brother  of  that  monarch.  [Note  VI.] 
[4  NOTB  VII.] 

6  Tours  is  above  seventy  miles  distant 
from  Poitiers ;  but  I  do  not  find  that  any 
French  antiquary  has  been  able  to  ascer- 
tain the  place  of  this  great  battle  with 
more  precision;  which  is  remarkable, 
since,  after  so  immense  a  sLiughter,  we 
should  expect  the  testimony  of  "  grandi* 
effossis  ossa  sepulcris."  It  is  now,  how- 
ever, believed  that  the  slaughter  at  the 
battle  near  Poitiers  was  by  no  means 
immense,  and  even  that  the  Saracens 
retired  i^thout  a  decifiivo  action.    (Sis- 


asserted  to  have  fallen.  The  reward  of  thiu  victory  was  the 
province  of  Septimania,  which  the  Saracens  had  conquered 
from  the  Visigoths.^ 

Such  powerful  subjects  were  not  likely  to  remain  long  con- 
tented without  the  crown  ;  but  the  circumstances  un- 
der which  it  was  transferred  from  the  race  of  Clovis  the^^jo* 
are  connected  with  one  of  the  most  important  revo-  ASes^ion 
lutions  in  the  history  of  Europe.     The  mayor  Pe-  of  Pepin. 
pin,  inheriting  his  father  Charles  MarteFs  talents  ^'^'  ^^^ 
and  ambition,  made,  in  the  name  and  with  the  consent  of  the 
nation,  a  solemn  reference  to  the  Pope  Zacharias,  as  to  the 
deposition  of  Childeric  UL,  under  whose  nominal  authority 
he  himself  was  reigning.     The  decision  was  favorable ;  that 
he  who  possessed  the  power  should  also  bear  the  title  of  king. 
The  unfortunate  Merovingian  was  dismissed  into  a  convent, 
and  the  Franks,  with  one  consent,  raised  Pepin  to  the  throne, 
the  founder  of  a  more  illustrious  dynasty .^    In  order  to  judge 
of  the  importance  of  this  revolution  to  the  see  of  Rome,  as 
well  as  to  France,  we  must  turn  our  eyes  upon  the  affairs 
of  Italy. 

The  dominion  of  the  Ostrogoths  was  annihilated  by  the 
arms  of  Belisarius  and  Narses  in  the  sixth  century,  The  Lom- 
and  that  nation  appears  no  more  in  history.  But  ^^^' 
not  long  afterwards  the  Lombards,  a  people  for  some  time 
settled  in  Pannonia,  not  only  subdued  that  northern  part  of 
Italy  which  has  retained  their  name,  but,  extending  themselves 
southward,  formed  the  powerful  duchies  of  Spoleto  and  Bene- 
vento.  The  residence  of  their  kings  was  in  Pavia ;  but  the 
hereditary  vassals,  who  held   those    two  duchies,  might  be 


mondi,  ii.  132 ;  Michelet,  ii.  13.)  There  can 
be  no  doubt  but  that  the  battle  was 
fought  much  nearer  to  Poitiers  than  to 
Tours. 

The  victory  of  Charles  Martel  has  im- 
mortalized his  name,  and  may  justly  be 
reckoned  among  those  few  battles  of 
which  a  contrary  event  would  have  es- 
sentially varied  the  drama  of  the  world 
in  all  its  subsequent  scenes ;  with  Mara- 
thon, Arbela,  the  Metaurus,  Chalons, 
and  Leipsic.  Yet  do  wo  not  judge  a  lit- 
tle too  much  by  the  event,  and  follow,  as 
usual,  in  the  wake  of  fortune?  Has  not 
more  frequent  experience  condemned 
those  who  set  the  fate  of  empires  upon  a 
single  cast,  and  risk  a  general  battle  with 
invaders,  whose  greater  peril  is  in  delay  ? 


Was  not  this  the  fatal  error  by  which 
Roderic  had  lost  his  kingdom?  Was  it 
possible  that  the  Saracens  could  hart 
retained  any  permanent  possession  of 
France,  except  by  means  of  a  victory  ? 
And  did  not  the  contest  upon  the  broad 
champaign  of  Poitou  afford  them  a  cor> 
siderable  prospect  of  success,  which  a 
more  cautious  policy  would  have  with 
held? 

1  This  conquest  was  completed  by 
Pepin  in  759.  The  inhabitants  preserved 
their  liberties  by  treaty;  and  Vaissette 
deduces  from  this  solemn  assurance  the 
privileges  of  Languedoc.  —  Hist,  de  Lang, 
tome  1.  p.  412. 

2[N0TEVm.] 


23 


CHARLEMAGNE. 


Chap.  I.  Part  I. 


France. 


CONiiUESTS  OF  CHARLEMAGNE. 


23 


/ 


deemed  almost  independent  sovereigns.*  The  rest  of  Italy 
was  governed  by  exarchs,  deputed  by  the  Greek  emperors, 
and  fixed  at  Ravenna.  In  Rome  itself  neither  the  people 
nor  the  bishops,  who  had  already  conceived  in  part  their 
schemes  of  ambition,  were  much  inclined  to  endure  the  supe- 
riority of  Constantinople ;  yet  their  disaffection  was  counter- 
balanced by  the  inveterate  hatred  as  well  as  jealousy,  with 
which  they  regarded  the  Lombards.  But  an  impolitic  and 
intemperate  persecution,  carried  on  by  two  or  three  Greek 
emperors  against  a  favorite  superstition,  the  worship  of  im- 
ages, excited  commotions  throughout  Italy,  of  which  the  Lom- 
They  bards  took  advantage,  and  easily  wrested  the  ex- 

reduce  the  archate  of  Ravenna  from  the  eastern  empire.  It 
S  R^yeSia,  was  far  from  the  design  of  the  popes  to  see  their 
A.i>. 762;  nearest  enemies  so  much  aggrandized;  and  any 
effectual  assistance  from  the  emperor  Constantine  Coprony- 
mus  would  have  kept  Rome  still  faithful.  But  having  no 
hope  from  his  arms,  and  provoked  by  his  obstinate  intolerance, 
the  pontiffs  had  recourse  to  France ;  *  and  the  service  they 
had  rendered  to  Pepin  led  to  reciprocal  obligations  of  the 
which  greatest  magnitude.     At   the  request  of  Stephen 

Pepin  II.  the  new  king  of  France  descended  from  the 

ISd  iStow's  Alps,  drove  the  Lombards  from  their  recent  con- 
on  the  pope,  quests,  and  conferred  them  upon  the  pope.  This 
memorable  donation  nearly  comprised  the  modem  provinces 
of  Romagna  and  the  March  of  Ancona.* 

The  state  of  Italy,  which  had  undergone  no  change  for 

nearly  two  centuries,  was  now  rapidly  verging  to  a  great 

revolution.     Under  the  shadow  of  a  mighty  name 

Charlemagne.  ^^^  ^^^^^  ^^^.^^  ^^^  concealed  the  extent  of  its 

A.©. 768.  decline.  That  charm  was  now  broken:  and  the 
Lombard  kingdom,  which  had  hitherto  appeared  the  only 
competitor  in  the  lists,  proved  to  have  lost  his  own  energy 
in  awaiting  the  occasion  for  its  display.  France  was  far 
more  than  a  match  for  the  power  of  Italy,  even  if  she  had 
not  been  guided  by  the  towering  ambition  and  restless  ac- 


1  The  history,  character,  and  policy  of 
the  Lombards  are  well  treated  by  Qib- 
bon,  c.  45.  See,  too,  the  fourth  and  fifth 
books  of  Qiannone,  and  some  papers  by 
Gaillard  in  the  Memoirs  of  the  Academy 
of  Inscriptions,  tomes  xxxii.,  xxxr.,  xlr. 

*  There  had  been  some  prerious  OTer- 


tures  to  Charles  Martel  as  well  as  to 
Pepin  himself;  the  habitual  sagacity  of 
the  court  of  Rome  perceiving  the  growth 
of  a  new  western  monarchy,  which  would 
be,  in  faith  and  arms,  their  surest  ally. 
Murntori,  Ann.  d'ltal.  A.D.  741. 
3  Qiannone,  1.  ▼.  c.  2. 


tivity  of  the  son  of  Pepin.     It  was  almost  the  first  exploit 
of  Charlemagne,  after  the  death  of  his  brother  ^  ^  ^^ 
Carloman  had  reunited  the  Frankish  empire  under  He  conquers 
his  dominion,*  to  subjugate  the  kingdom  of  Lom-  Lombardy; 
bardy.     Neither  Pa  via  nor  Verona,  its  most  con-  ^•^-  ^^*- 
siderable  cities,  interposed  any  material  delay  to  his  arms : 
and  the  chief  resistance  he  encountered  was  from  the  dukes 
of  Friuli  and  Benevento,  the  latter  of  whom  could  never  be 
brought  into  thorough  subjection  to  the  conqueror.     Italy, 
however,  be  the  cause  what  it  might,  seems  to  have  tempted 
Charlemagne  far  less  than  the  dark  forests  of  Germany.    For 
neither  the  southern  provinces,  nor  Sicily,  could  have  with- 
stood his  power  if  it  had  been  steadily  directed  against  them. 
Even  Spain  hardly  drew  so  much  of  his  attention      t  of  0,^,1-. 
as  the  splendor  of  the  prize  might  naturally  have  ' 

excited.  He  gained,  however,  a  very  important  accession  to 
his  empire,  by  conquering  from  the  Saracens  the  territory 
contained  between  the  Pyrenees  and  the  Ebro.  This  was 
formed  into  the  Spanish  March,  governed  by  the  count  of 
Barcelona,  part  of  which  at  least  must  be  considered  as  ap- 
pertaining to  France  till  the  twelfth  century.* 

But  the  most  tedious  and  difficult  achievement  of  Charle- 
magne was  the  reduction  of  the  Saxons.  The 
wars  with  this  nation,  who  occupied  nearly  the  ^^  a^o^y. 
modern  circles  of  Westphalia  and  Lower  Saxony,  lasted  for 
thirty  years.  Whenever  the  conqueror  withdrew  his  armies, 
or  even  his  person,  the  Saxons  broke  into  fresh  rebellion, 
which  his  unparalleled  rapidity  of  movement  seldom  failed 
to  crush  without  delay.  From  such  perseverance  on  either 
side,  destruction  of  the  weaker  could  alone  result.  A  large 
colony  of  Saxons  were  finally  transplanted  into  Flanders  and 
Brabant,  countries  hitherto  ill-peopled,  in  which  their  descend- 


I  Carloman,  younger  brother  of  Charles, 
took  the  Austrasian  or  German  provinces 
of  the  empire.  The  custom  of  partition 
was  00  fully  established,  that  those  wise 
and  amtitious  princes,  Charles  Martel, 
Fepin,  and  Charlemagne  himself,  did  not 
renture  to  thwart  the  public  opinion  by 
introducing  primogeniture.  Carloman 
would  not  long  hare  stood  against  his 
brother;  who,  after  his  death,  usurped 
the  inheritance  of  his  two  infant  chil- 
dren. 

*  The  counts  of  Barcelona  always  ac- 
knowledged the  feudal  superiority  of  the 


kings  of  France,  till  some  time  after  their 
own  title  had  been  merged  in  that  of 
kings  of  Aragon.  In  1180  legal  instru- 
ments executed  in  Catalonia  ceased  to  be 
dated  by  the  year  of  the  king  of  France ; 
and  as  there  certainly  remained  no  other 
mark  of  dependence,  the  separation  of 
the  principality  may  be  referred  to  that 
year.  But  the  rights  of  the  French 
crown  orer  it  were  finally  ceded  by 
Louis  IX.  in  1268.  De  Marca,  Marca 
Hispanica,  p.  514.  Art  de  T^rifier  les 
Dates,  t.  U.  p.  291. 


24 


EXTENT  OF  fflS  DOMINIONS.    Chap.  I.  Pabt  I. 


ants  preserved  the  same  unconquerable  spirit  of  resistance  to 
oppression.  Many  fled  to  the  kingdoms  of  Scandinavia,  and, 
mingling  with  the  Northmen,  who  were  just  preparing  to  ruu 
their  memorable  career,  revenged  upon  the  children  and  sub- 
jects of  Charlemagne  the  devastation  of  Saxony.  The  rem- 
nant embraced  Christianity,  their  aversion  to  which  had  been 
the  chief  cause  of  their  rebeUions,  and  acknowledged  the 
sovereignty  of  Charlemagne  —  a  submission  which  even 
Witikind,  the  second  Arminius  of  Germany,  after  such 
irresistible  conviction  of  her  destiny,  did  not  disdain  to 
make.  But  they  retained,  in  the  main,  their  own  laws; 
they  were  governed  by  a  duke  of  their  own  nation,  if  not 
of  their  own  election ;  and  for  many  ages  they  were  dis- 
tinguished by  their  original  character  among  the  nations  of 
Germany.^ 

The  successes  of  Charlemagne  on  the  eastern  frontier  of 
his  empire  against  the  Sclavonians  of  Bohemia  and  Huns  or 
Avars  of  Pannonia,  though  obtained  with  less  cost,  were 
hardly  less  eminent    In  all  his  wars  the  newly  conquered 
nations,  or  those   whom  fear  had  made   dependent  allies, 
were  employed  to  subjugate  their  neighbors,  and  the  inces- 
sant waste  of  fatigue  and  the  sword  was  supplied  by  a  fresh 
population  that  swelled  the  expanding  circle  of  dominion. 
Extent  of  his  I  do  not  kuow  that  the  limits  of  the  new  western 
dominions,      empire  are  very  exactly  defined  by  contemporary 
writers,  nor  would  it  be  easy  to  appreciate  the  degree  of 
subjection  in  which  the  Sclavonian  tribes  were  held.     As  an 
organized  mass  of  provinces,  regularly  governed  by  imperial 
officers,  it  seems  to  have  been  nearly  bounded,  in  Germany, 
by  the  Elbe,  the  Saale,  the  Bohemian  mountains,  and  a  line 
drawn  from  thence  crossing  the  Danube  above  Vienna,  and 
prolonged  to  the  Gulf  of  Istria.    Part  of  Dalmatia  was  com- 
prised in  the  duchy  of  Friuli.    In  Italy  the  empire  extended 
not  much  beyond  the  modern  frontier  of  Naples,  if  we 
exclude,  as  was  the  fact,  the  duchy  of  Benevento  from  any- 
thing more  than  a  titular  subjection.    The  Spanish  boundary, 
as  has  been  said  akeady,  was  the  Ebro.^ 


# 


»  [Note  IX.] 

*  I  follow  in  this  the  map  of  Koch,  in 
his  Tableau  des  Revolutions  de  I'Europe, 
tome  i.  That  of  Vaugondy,  Paris,  1752, 
includes  the  dependent  Sclavonic  tribes, 
and  carries  the  limit  of  the  empire  to 


the  Oder  and  frontiers  of  Poland.  Th» 
authors  of  L'Art  de  verifier  les  Dates 
extend  it  to  the  Raab.  It  would  reqtiii» 
a  loDg  examination  to  give  a  precis* 
statement. 


Fbamce. 


CORONATION  OF  CHARLEMAGNE. 


25 


A  seal  was  put  to  the  glory  of  Charlemagne  when  Leo  HI., 
in  the  name  of  the  Roman  people,  placed  upon  ms  corona- 
his  head  the  imperial  crown.     His  father,  Pepin,  "o"  as  Em- 
had  borne  the  title  of  Patrician,  and  he  had  him-  a!d?800. 
self  exercised,  with   that  title,  a  regular  sovereignty  over 
Rome.^    Money  was  coined  in  his  name,  and  an  oath  of  fidel- 
ity was  taken  by  the  clergy  and  people.     But  the  appellation 
of  Emperor  seemed  to  place  his  authority  over  all  his  subjects 
on  a  new  footing.     It  was  full  of  high  and  indefinite  preten- 
sion, tending  to  overshadow  the  free  election  of  the  Franks 
by  a  fictitious  descent  from  Augustus.     A  fresh  oath  of  fidel- 
ity  to  him  as  emperor  was  demanded  from  his  subjects.     His 
own  discretion,  however,  prevented  him  from  affecting  those 
more  despotic  prerogatives  which  the  imperial  name  might 
still  be  supposed  to  convey.* 

In  analyzing  the  characters  of  heroes  it  is  hardly  possible 
to  separate  altogether  the  share  of  fortune  from 
their  own.  The  epoch  made  by  Charlemagne  in  ^iacharacter. 
the  history  of  the  world,  the  illustrious  families  which  prided 
themselves  in  him  as  their  progenitor,  the  very  legends  of 
romance,  which  are  full  of  his  fabulous  exploits,  have  cast  a 
lustre  around  his  head,  and  testify  the  greatness  that  has  em- 
bodied itself  in  his  name.  None,  indeed,  of  Charlemagne's 
wars  can  be  compared  with  the  Saracenic  victory  of  Charles 
Martel ;  but  that  was  a  contest  for  freedom,  his  for  conquest ; 
and  fame  is  more  partial  to  successful  aggression  than  to  pat- 
riotic resistance.  As  a  scholar,  his  acquisitions  were  probably 
little  superior  to  those  of  his  unrespected  son ;  and  in  several 
points  of  view  the  glory  of  Charlemagne  might  be  extenuated 


1  The  Patricians  of  the  lower  empire 
were  governors  sent  from  Constantinople 
to  the  provinces.  Rome  had  long  been 
accustomed  to  their  name  and  power. 
The  subjection  of  the  Romans,  both 
clergy  and  laity,  to  Charlemagne,  as  well 
before  as  after  he  bore  the  imperial 
name,  seems  to  be  established.  See  Dis- 
sertation Historique,  par  le  Blanc,  sub- 
i'oined  to  his  Trait6  de  Monnoyes  de 
Trance,  p.  18;  and  St.  Marc,  Abreg6 
Chronologique  de  I'Histoire  de  I'ltalie, 
t.  i.  The  first  of  these  writers  does  not 
allow  that  Pepin  exercised  any  authority 
at  Rome.  A  good  deal  of  obscurity  rests 
over  its  internal  government  for  near 
fifty  years ;  but  there  is  some  reason  to 
believe  that  the  nominal  sovereignty  of 
tiw  Greek   emperors  was   not  entirely 


abrogated.  Muratori,  Annali  d'ltalia, 
ad.  ann.  772;  St.  Marc,  t.  i.  p.  356,  872. 
A  mosaic,  still  extant  in  the  Lateran 
palace,  represents  our  Saviour  giving  the 
keys  to  St.  Peter  with  one  hand,  and 
with  the  other  a  standard  to  a  crowned 
prince,  bearing  the  inscription  Constan- 
tine  V.  But  Constantine  V.  did  not 
begin  to  reign  till  780  ;  and  if  this  piece 
of  workmanship  was  made  under  Leo 
III.,  as  the  authors  of  L'Art  de  verifier 
les  Dates  imagine,  it  could  not  be  earlier 
than  795.  T.  i.  p.  262;  Muratori  ad 
ann.  798.  However  this  may  be,  there 
can  be  no  question  that  a  considerable 
share  of  jurisdiction  and  authority  was 
practically  exercised  by  the  popes  during 
this  period.  Vid.  Murat.  ad  ann.  789. 
2  [Note  X.] 


I 


i\ 


26 


CHARACTER  OF  CHARLEMAGNE.  Chap.  I.  Part  I. 


Francs. 


LOUIS  THE  DEBONAIR. 


27 


kiii 
*t1| 


'i 
I* 

'I 
III 


by  an  analytical  dissection.^  But  rejecting  a  mode  of  judging 
equally  uncandid  and  fallacious,  we  shall  find  that  he  pos- 
sessed in  everything  that  grandeur  of  conception  which  dis- 
tinguishes extraordinary  minds.  Like  Alexander,  he  seemed 
born  for  universal  innovation :  in  a  life  restlessly  active,  we  see 
him  reforming  the  coinage  and  establishing  the  legal  divisions 
of  money  ;  gathering  about  him  the  learned  of  every  country  ; 
founding  schools  and  collecting  libraries ;  interfering,  but  with 
the  tone  of  a  king,  in  rehgious  controversies  ;  aiming,  though 
prematurely,  at  the  formation  of  a  naval  force ;  attempting, 
for  the  sake  of  commerce,  the  magnificent  enterprise  of 
uniting  the  Rhine  and  Danube ;  ^  and  meditating  to  mould 
the  discordant  codes  of  Roman  and  barbarian  laws  into  an 
uniform  system. 

The  gi-eat  qualities  of  Charlemagne  were,  indeed,  alloyed 
by  the  vices  of  a  bai'barian  and  a  conqueror.     Nine  wives, 
whom  he   divorced  with   very  little   ceremony,   attest   the 
license  of  his  private  life,  which  his  temperance  and  frugality 
can  hardly  be  said  to  redeem.     Unsparing  of  blood,  though 
not  constitutionally  cruel,  and  wholly  indifferent  to  the  means 
which  his  ambition  prescribed,  he  beheaded  in  one  day  four 
thousand  Saxons  —  an  act  of  atrocious  butchery,  after  which 
his  persecuting  edicts,  pronouncing  the  pain  of  death  against 
those  who  refused  baptism,  or  even  who  ate  flesh  during 
Lent,  seem  scarcely  worthy  of  notice.     This  union  of  bar- 
barous ferocity  with  elevated  views  of  national  improvement 
might  suggest  the  parallel  of  Peter  the  Great.     But  the 
degrading  habits  and  brute  violence  of  the  Muscovite  place 
him  at  an  immense  distance  from  the  restorer  of  the  empire. 
A  strong  sympathy  for  intellectual  excellence   was  the 
leading  characteristic  of  Charlemagne,  and  this  ^doubtedly 
biassed  him  in  the  chief  political  error  of  his  conduct  —  that 
of  encouraging  the  power  and  pretensions  of  the  hierarchy. 
But,  perhaps,  his  greatest  eulogy  is  written  in  the  disgraces 
of  succeeding  times  and  the  miseries  of  Europe.     He  stands 
alone,  hke  a  beacon  upon  a  waste,  or  a  rock  in  the  broad 


1  Eginhard  attests  his  ready  eloquence, 
his  perfect  mastery  of  Latin,  his  knowl- 
edge of  Greek  so  far  as  to  read  it,  his 
acquisitions  in  logic,  grammar,  rhetoric, 
and  astronomy.  But  the  anonymous 
authors  of  the  life  of  Louis  the  Debonair 
attributes  most  of  these  accomplishments 
to  that  unfortunate  prince. 


3  See  an  essay  upon  this  project  in  the 
Memoirs  of  the  Academy  of  Inscriptions, 
t.  xriii.  The  riyers  which  were  designed 
to  form  the  links  of  this  junction  were 
the  Altmuhl,  the  Regnitz,  and  the  Main  ; 
but  their  want  of  depth,  and  the  spongi- 
ness  of  the  soil,  appear  to  present  insu* 
perable  impediments  to  its  completion. 


ocean.  His  sceptre  was  the  bow  of  Ulysses,  which  could  not 
be  drawn  by  any  weaker  hand.  Li  the  dark  ages  of  European 
history  the  reign  of  Charlemagne  affords  a  solitary  resting- 
place  between  two  long  periods  of  turbulence  and  igno- 
miny, deriving  the  advantages  of  contrast  both  from  that  of 
the  preceding  dynasty  and  of  a  posterity  for  whom  he  had 
formed  an  empire  which  they  were  unworthy  and  unequal  to 
maintain.^ 

Pepin,  the  eldest  son  of  Charlemagne,  died  before  him, 
leaving  a  natural  son,  named   Bernard.^     Even  j^^^jg  ^j^^ 
if  he  had  been  legitimate,  the  right  of  representa-  Debonair. 
tion  was  not  at  all  established  during  these  ages  ;  ^'^'  ^^*' 
indeed,  the  general  prejudice  seems  to  have  inclined  against 
it.     Bernard,  therefore,  kept  only  the  kingdom  of  Italy,  which 
had  been  transferred  to  his  father  ;  while  Louis,  the  younger 
son  of  Charlemagne,  inherited  the  empire.*    But,  in  a  short 
time,  Bernard,  having  attempted  a  rebellion  against 
his  uncle,  was  sentenced  to  lose  his  eyes,  which  ^•"•^^^* 
occasioned  his  death  —  a  cruelty  more  agreeable  to  the  pre- 
vailing tone  of  manners  than  to  the  character  of  Louis,  who 
bitterly  reproached  himself  for  the  severity  he  had  been  per- 
suaded to  use. 

Under  this  prince,  called  by  the  Italians  the  Pious,  and 
by  the  French  the  Debonair,  or  Good-natured,*  the  mighty 

1  The  Life  of  Charlemagne,  by  Gaillard,  the  theories  of  his  own.  M.  Guizot  asks 
without  being  made  perhaps  so  interest-  whether  the  nation  was  left  in  the  same 
Ing  as  it  ought  to  have  been,  presents  an  state  in  which  the  eii'peror  found  it. 
adequate  view  both  of  his  actions  and  Nothing  fell  with  him,  iie  remarks,  but 
character.  Schmidt,  Hist,  des  AUemanda,  the  central  government,  which  could  only 
tome  ii.,  appears  to  me  a  superior  writer,    have  been  preserved  b\  a  series  of  men 

An  exception  to  the  general  suffrage  - 
of  historians  in  favor  of  Charlemagne  is 
made  by  Sismondi.  lie  seems  to  consider 
him  as  having  produced  no  permanent 
effect;  the  empire,  within  half  a  century, 
having  been  dismembered,  and  relapsing 
into  the  merest  weakness :  —  "  Tellement 
la  grandeur  acquise  par  les  armes  est 
trompeuse,  quand  elle  ne  se  donne  pour 
appui  aucune  institution  bienfaisante ;  et 
tellement  le  r^gne  d'un  grand  roi  demeure 
sterile,  quand  il  ne  fonde  pas  la  liberte 
de  ses  concitoyens."  (Vol.  iii.  p.  97.) 
But  certainly  some  of  Charlemagne's  in- 
stitutions were  likely  to  prove  beneficial 
if  they  could  have  been  maintained,  such 
as  the  Scabini  and  the  Missi  Dominici. 
And  when  Sismondi  hints  that  Charle- 
magne ought  to  have  given  a  charte  con- 
stitutionnelle,  it  is  difficult  not  to  smile  at 
such  a  proof  of  his  inclination  to  judge 
past  times  by  a  standard  borrowed  from 


like  himself.  (Essais  sur  I'Hist.  de 
France,  pp.  276-294;  Hist,  de  la  Civilisa- 
tion en  France,  Le^on  ii.  p.  39.)  Some, 
indeed,  of  his  institutions  cannot  be  said 
to  have  long  survived  him;  but  this 
again  must  be  chiefly  attributed  to  the 
weakness  of  his  successors.  No  one  man 
of  more  than  common  ability  arose  in 
the  Carlovingian  dynasty  after  himself, 
a  fact  very  disadvantageous  to  the  per- 
manence of  his  policy,  and  perhaps  rather 
surprising;  though  it  is  a  theory  of  Sis- 
mondi that  royal  families  naturally  dwin- 
dle into  imbecility,  especially  in  a  semi- 
barbarous  condition  of  society. 

2  A  contemporary  author,  Thegan,  ap. 
Muratori,  a.d.  810,  asserts  that  Bernard 
was  born  of  a  concubine.  I  do  not  know 
why  modem  historians  represent  it  other- 
wise. 

3  [Note  XI.] 
<  These  names,  as  a  French  writer  ob* 


28 


fflS  MISFORTUNES  AND  ERRORS.    Chap.  I.  Part  I 


structure  of  his  father's  power  began  rapidly  to  decay.  I  do 
not  know  that  Louis  deserves  so  much  contempt  as  he  has 
undergone ;  but  historians  have  in  general  more  indulgence 
for  splendid  crimes  than  for  the  weaknesses  of  virtue.  There 
was  no  defect  in  Louis's  understanding  or  courage ;  he  was 
accomphshed  in  martial  exercises,  and  in  all  the  learning 
which  an  education,  excellent  for  that  age,  could  supply.  No 
one  was  ever  more  anxious  to  reform  the  abuses  of  adminis- 
tration ;  and  whoever  compares  his  capitularies  with  those  of 
Charlemagne  will  perceive  that,  as  a  legislator,  he  was  even 
superior  to  his  father.  The  fault  lay  entirely  in  his  heart ; 
and  this  fault  was  nothing  but  a  temper  too  soft  and  a  con- 
science too  strict.^  It  is  not  wonderful  that  the  empire  should 
have  been  speedily  dissolved ;  a  succession  of  such  men  as 
Charles  Martel,  Pepin,  and  Charlemagne,  could  alone  have 
preserved  its  integrity ;  but  the  misfortunes  of  Louis  and  his 
people  were  immediately  owing  to  the  following  errors  of  his 

conduct. 

Soon  after  his  accession  Louis  thought  fit  to  associate  his 
eldest  son,  Lothaire,  to  the  empire,  and  to  confer 
the  provinces  of  Bavaria  and  Aquitaine,  as  sub- 
ordinate kingdoms,  upon  the  two  younger,  Louis 
and  Pepin.  The  step  was,  in  appearance,  conform- 
able to  his  father's  pohcy,  who  had  acted  towards  himself  in 
a  similar  manner.  But  such  measures  are  not  subject  to 
general  rules,  and  exact  a  careful  regard  to  characters  and 
circumstances.  The  principle,  however,  which  regulated  this 
division  was  learned  from  Charlemagne,  and  could  alone,  if 
strictly«pursued,  have  given  unity  and  permanence  to  the  em- 
pire. The  elder  brother  was  to  preserve  his  superiority  over 
the  others,  so  that  they  should  neither  make  peace  nor  war, 
nor  even  give  answer  to  ambassadors,  without  his  consent. 
Upon  the  death  of  either  no  further  partition  was  to  be  made ; 
but  whichever  of  his  children  might  become  the  popular 
choice  was  to  inherit  the  whole  kmgdom,  under  the  same  su- 


His  misfor' 
tunes  and 
erroK* 

K.V.  817. 


aerres,  meant  the  same  thing.  Pius  had, 
eyen  in  good  Latin,  the  sense  of  mitii, 
meek,  forbearing,  or  what  the  French 
call  debonnaire.  Synonymes  de  Rou- 
band,  torn.  i.  p.  257.  Our  English  word 
debonair  is  hardly  used  in  the  same 
sense,  if  indeed  it  can  be  called  an  Eng- 
lish word;  but  I  have  not  altered  Lou- 
isas appel^tion,  by  which  he  is  so  well 
known. 


1  Schmidt,  Hist,  des  Allemands,  torn, 
il.,  has  done  more  justice  than  other 
historians  to  Louis's  character.  Vais- 
sette  attests  the  goodness  of  his  govern- 
ment in  Aquitaine,  which  he  held  as  a 
subordinate  kingdom  during  his  lather's 
life.  It  extended  from  the  Loire  to  the 
Ebro,  so  that  the  trust  was  not  con- 
temptible.—Hist,  de  Languedoc,  torn.  i. 
p.  476. 


Fbakcb. 


PARTITION  OF  THE  EMPIRE. 


29 


periority  of  the  head  of  the  family.^  This  compact  was,  from 
the  beginning,  disliked  by  the  younger  brothers ;  and  an  event, 
upon  which  Louis  does  not  seem  to  have  calculated,  soon  dis- 
gusted his  colleague  Lothaire.  Judith  of  Bavaria,  the  emper- 
or's second  wife,  an  ambitious  woman,  bore  him  a  son,  by 
name  Charles,  whom  both  parents  were  naturally  anxious  to 
place  on  an  equal  footing  with  his  brothers.  But  this  could 
only  be  done  at  the  expense  of  Lothaire,  who  was  ill  disposed 
to  see  his  empire  still  further  dismembered  for  this  child  of  a 
second  bed.  Louis  passed  his  life  in  a  struggle  with  three 
undutiful  sons,  who  abused  his  paternal  kindness  by  constant 
rebellions. 

These  were  rendered  more  formidable  by  the  concurrence 
of  a  different  class  of  enemies,  whom  it  had  been  another  er- 
ror of  the  emperor  to  provoke.     Charlemagne  had  assumed  a 
thorough  control  and  supremacy  over  the  clergy ;  and  his  son 
was  perhaps  still  more  vigilant  in  chastising  their  irregulari- 
ties, and  reforming  their  rules  of  discipline.     But   to  this, 
which  they  had  been  compelled  to  bear  at  the  hands  of  the 
first,  it  was  not  equally  easy  for  the  second   to  obtain  their 
submission.     Louis  therefore  drew  on  himself  the  inveterate 
enmity  of  men  who  united  with  the  turbulence  of  martial  no- 
bles a  skill  in  managing  those  engines  of  offence  which  were 
peculiar  to  their  order,  and  to  which  the  imphcit  devotion  of 
his  character  laid  him  very  open.      Yet,  after  many  vicissi- 
tudes of  fortune,  and  many  days  of  ignominy,  his  a.  p.  84o. 
wishes   were   eventually  accomplished.      Charles,  partition  of 
his   youngest  son,  sumamed   the  Bald,  obtained,  t^ie  empire 
upon  his  death,  most  part  of  France,  while   Ger-  ^'  ^'  ^^* 
many  fell  to  the  share  of  Louis,  and  the  rest  of   £™°gonB 
the  imperial  dominions,  with  the  title,  to  the  eldest,  Lothaire', 
Lothaire.     This  partition  was  the  result  of  a  san-  charies^the 
guinary,  though  short,  contest ;  and  it  gave  a  fatal  ^*^**- 
blow  to  the  empire  of  the  Franks.     For  the  treaty  of  Ver- 
dun, in  843,  abrogated  the  sovereignty  that  had  been  attached 
to  the  eldest  brother  and  to  the  imperial  name  in  former  par- 
titions :  each  held  his  respective  kingdom  as  an  independent 
right.*    This  is  the  epoch  of  a  final  separation  between  the 


\  :\ 


^ 


i<*.l 


1  Baloxii  Capitularia,  tom.  I.  p.  675.  the  subsequent  conduct  of  the  brothers 

>Baluzii  Capitularia,   tom.  ii.   p.  42;  and  their  family  justifies  the  construction 

Velly.  tome  ii.,  p.  75.    The  expressions  of  Velly,  which  I  have  followed. 

of  this  treaty  are  perhaps  equivocal;  but 


80 


ITS  dis:memberment. 


Chap.  I.  Part  L 


French  and  German  members  of  the  empire.    Its  millenary 
was  celebrated  by  some  of  the  latter  nation  in  1843.^ 

The  subsequent  partitions  made  among  the  children  ot 
these  brothers  are  of  too  rapid  succession  to  be 
here  related.  In  about  forty  years  the  empire  was 
nearly  reunited  under  Charles  the  Fat,  son  of 
Louis  of  Germany;  but  his  short  and  inglorious 
reign  ended  m  his  deposition.  From  tliis  time  the 
possession  of  Italy  was  contested  among  her  na- 
tive princes  ;  Germany  fell  at  first  to  an  illegitunate 
descendant  of  Charlemagne,  and  in  a  short  time 
was  entirely  lost  by  his  family  ;  two  kingdoms,  af- 
terwards united,  were  formed  by  usurpers  out  of 
what  was  then  caUed  Burgundy,  and  comprised  the  provinces 
between  the  Rhone  and  the  Alps,  with  Franche  Comtd,  and 
great  part  of  Switzerland.*  In  France  the  Carlovmgian 
kings  continued  for  another  century ;  but  their  line  was  mter- 
Kings  of  rupted  two  or  three  times  by  the  election  or  usur- 
pation of  a  powerful  family,  the  counts  of  Pans 
and  Orleans,  who  ended,  like  the  old  mayors  of 
the  palace,  in  dispersing  the  phantoms  of  royalty 
they  had  professed  to  serve.*    Hugh  Capet,  the 


Decline  of 
the  Carlo- 
vingian 
family. 
Charles  the 
Fat,  em- 
peror, 881. 
king  of 
France, 885. 
Deposed, 
887. 

Dismember- 
ment of  the 
empire 


France. 
Eudes,  887. 
Charles  the 
Simple,  898. 
Robert? 
822. 


iThe  partition,  T^hlch  the  treaty  of 
Verdun  confirmed,  had  been  made  by 
conuuissioners  specially  appointed  in  the 
preceding  year.    "  Le  nombre  total  des 
commissaires  fut  porte  k  trois  cents ;  lis 
se  distribuerent  toute  la  surface  de  I'em- 
pire,  qu'ils  s'engagerentiparcouriravant 
le  moia  d'  aodt  de  I'ann^  suivante  :  cet 
immense  travail  etoit  en  effet  alors  neces- 
saire  pour  se  procurer  les  connoissances 
qu'on  obtientaujourd'hui  en  un  instant, 
par  linspection  d'une  carte  geograph- 
ique:    malheureusement   on   ^crivoit   i. 
cette  epoque  aussi  peu  qu'on  lisoit.    Le 
rapport  des  commissaires  ne  fut  point 
mis  par  6crit,  ou  point  depose  dans  les 
archives.     S"il  nous  avoit  ete  conserve, 
ce  seroit  le  plus  curieux  de  tous  les  mon- 
umens  sur  I'etat  de  I'Europe  au  moyen 
age."  (Sismondi,  Hist,  des  Fran<j.  ili.  76.) 
For  this  he  quotes  Nithard,  a  contem- 
porary historian. 

In  the  division  made  on  this  occasion 
the  kingdom  of  France,  which  fell  to 
Charles  the  Bald,  had  for  its  eastern 
boundary,  the  Meuse,  the  Sa&ne,  and  the 
Rhone  ;  which,  nevertheless,  can  only  be 
understood  of  the  Upper  Meuse,  since 
Brabant  was  certainly  not  comprised  in 
It.    Lothaire,  the  elder  brother,  besides 


Italy,  had  a  kingdom  called  Lorrsdne, 
from  his  name  (Lotharingia),  extending 
from  the  mouth  of  the  Rhine  to  Provence, 
bounded  by  that  river  on  one  frontier,  by 
France  on  the  other.  Louis  took  all  be- 
yond the  Rhine,  and  was  usually  styled 
The  Germanic. 

2  These  kingdoms  were  denominated 
Provence  and  Transjurane  Burgundy. 
The  latter  was  very  small,  comprising 
only  part  of  Switzerland ;  but  its  second 
sovereign,  Rodolph  II.,  acquired  by 
treaty  almost  the  whole  of  the  former; 
and  the  two  united  were  called  the  king- 
dom of  Aries.  This  lasted  from  933  to 
1032,  when  Rodolph  III.  bequeathed  his 
dominions  to  the  emperor  Conrad  II. — 
Art  de  yirifier  les  Dates,  torn.  ii.  p. 
427-482. 

3  The  femily  of  Capet  is  generally  ad- 
mitted to  possess  the  most  ancient  pedi- 
gree of  any  sovereign  line  in  Europe.  Its 
succession  through  males  is  unequivo- 
cally deduced  from  Robert  the  Brave, 
made  governor  of  Anjou  in  864,  and 
father  of  Eudes  king  of  France,  and  of 
Robert,  who  was  chosen  by  a  party  in 
922,  though,  as  Charlen  the  Simple  wai 
Btill  acknowledged  in  some  provinces,  It 


II 


Fbance. 


STATE  OF  THE  PEOPLE. 


8] 


representative  of  this  house   upon  the  death  of   Ralph,  928. 
Louis  v.,  placed  himself  upon  the  throne;  thus  9^^^ 
founding  the   thu^  and  mo.st  permanent  race  of   ^*^*''*' 
French  sovereigns.     Before  this  happened,  the  de-  Louis  v. 
scendants  of  Charlemagne  had  sunk  into  insignifi-  founts  of 
cance,  and  retained  little  more  of  France  than  the  Paris, 
city  of  Laon.     The  rest  of  the  kingdom  had  been  seized  by 
the  powerful  nobles,  who,  with  the  nominal  fideHty  of  the 
feudal  system,  maintained  its  practical  independence  and  re- 
bellious spirit.^ 

These  were  times  of  great  misery  to  the  people,  and  the 
worst,  perhaps,  that  Europe  has  ever  known.  Even  under 
Charlemagne,  we  have  abundant  proofs  of  the  ca-  state  of  the 
laraities  which  the  people  suffered.  The  light  p«*^p^«- 
which  shone  around  him  was  that  of  a  consuming  fire.  The 
free  proprietors  who  had  once  considered  themselves  as  only 
called  upon  to  resist  foreign  invasion,  were  harassed  by  end- 
less expeditions,  and  dragged  away  to  the  Baltic  Sea,  or  the 
banks  of  the  Drave.  Many  of  them,  as  we  learn  from  his 
Capitularies,  became  ecclesiastics  to  avoid  military  conscrip- 
tion.* But  far  worse  must  have  been  their  state  under  the 
lax  government  of  succeeding  times,  when  the  dukes  and 
counte,  no  longer  checked  by  the  vigorous  administration  of 
Charlemagne,  were  at  liberty  to  play  the  tyrants  in  their  sev- 
eral territories,  of  which  they  now  became  almost  the  sover- 
eigns. The  poorer  landholders  accordingly  were  forced  to 
bow  their  necks  to  the  yoke ;  and,  either  by  compulsion  or 
through  hope  of  being  better  protected,  submitted  their  inde- 
pendent patrimonies  to  the  feudal  tenure. 


Is  uncertdn  whether  he  ought  to  be 
counted  in  the  royal  list.  It  is,  more- 
over, highly  probable  that  Robert  the 
Brave  was  descended,  equally  through 
males,  from  St.  Amoul,  who  died  in  640, 
and  consequently  nearly  allied  to  the 
Carlovingian  family,  who  derive  their 
pedigree  from  the  same  head.  —  See 
Preuves  de  la  Genealogie  de  Hughes  Ca- 
pet, in  I'Art  de  verifier  les  Dates,  torn.  i. 
p.  566. 

l[N0TKXn.] 

At  the  close  of  the  ninth  century  there 
were  twenty -nine  hereditary  fiefs  of  the 
crown.  At  the  accession  of  Hugh  Capet, 
in  987,  they  had  increased  to  fifty-five. 
(Quizot,  Civilis  en  France,  Le^on  24.) 
Thierry  maintains  that  those  between 
th«  Loire  and  the  Pyrenees  were  strictly 


independent  and  bound  by  no  feudal  tie. 
(Lettres  sur  THist.  de  France,  Lett.  IX.) 
2  Capitularia,  a.  d.  805.  Whoever  pos- 
sessed three  mansi  of  alodial  property 
was  called  upon  for  personal  service,  or 
at  least  to  furnish  a  substitute.  Nigellus, 
author  of  a  poetical  Life  of  Louis  I., 
seems  to  implicate  Charlemagne  himself 
in  some  of  the  oppressions  of  his  reign. 
It  was  the  first  care  of  the  former  to  re- 
dress those  who  had  been  injured  in  his 
fiither's  time.  —  Recueil  des  Historiens, 
tome  vi.  N.B.  I  quote  by  this  title  the 
great  collection  of  French  historians, 
charters  and  other  documents  illustra- 
tive of  the  middle  ages,  more  commonly 
known  by  the  name  of  its  first  editor, 
the  Benedictine  Bou  luet.  But  as  several 
learned  men  of  that  order  were  succes 


i 

t  )1 


82 


THE  SARACENS. 


Chap.  I.  Part  L 


But  evils  still  more  terrible  tlian  these  political  abuses 
were  the  lot  of  those  nations  who  had  been  subject  to  Charle- 
magne. They,  indeed,  may  appear  to  us  little  better  than 
ferocious  barbarians ;  but  they  were  exposed  to  the  assaults 
of  tribes,  in  comparison  of  whom  they  must  be  deemed  humane 
and  poUshed.     Each  frontier  of  the  empire  had  to  dread  the 

attack  of  an  enemy.  The  coasts  of  Italy  were 
nie  Saracens.  ^^j^^jjjyjjUy.  alarmed  by  the  Saracens  of  Africa, 
who  possessed  themselves  of  Sicily  and  Sardinia,  and  became 
masters   of  the   Mediterranean   Sea.^     Though   the    Greek 

dominions  in  the  south  of  Italy  were  chiefly  exposed 
A.D.  846-849.  ^^  ^^^^^  ^j^^y  ^^j^g  insulted  and  ravaged  the  terri- 
tory of  Rome  ;  nor  was  there  any  security  even  in  the  neigh- 
borhood of  the  maritime  Alps,  where,  early  m  the  tenth 
century,  they  settled  a  piratical  colony.* 

Much  more  formidable  were  the  foes  by  whom  Germmiy 
-  was  assailed.     The  Sclavonians,  a  widely  extended 

Hungarians,  people,  whose  language  is  still  spoken  upon  half 
the  suriiice  of  Europe,  had  occupied  the  countries  of  Bohemia, 
Poland,  and  Pannonia,*  on  the  eastern  confines  of  the  empire, 
and  from  the  time  of  Charlemagne  acknowledged  its  superi- 
ority. But  at  the  end  of  the  ninth  century,  a  Tartorian 
tribe,  the  Hungarians,  overspreading  that  country  wluch 
since  has  borne  their  name,  and  moving  forward  hke  a  vast 
wave,  brought  a  dreadful  reverse  upon  Germany.  Iheir 
numbers  were  great,  their  ferocity  untamed.  They  tought 
with  hght  cavalry  and  light  armor,  trusting  to  their  showers 
of  arrows,  against  which  the  swords  and  lances  of  the  Euro- 
pean  armies  could  not  avail.  The  memory  of  Attila  was 
renewed  in  the  devastations  of  these  savages,  who,  it  they 
were  not  his  compatriots,  resembled  them  both  in  their  coun- 


girely  concerned  in  this  work,  not  one 
lialf  of  which  has  yet  been  published,  it 
eeemed  better  to  follow  its  own  title-page. 

1  These  African  Saracens  belonged  to 
the  Aglabites,  a  dynasty  that  reigned  at 
Tunis  for  the  whole  of  the  ninth  century, 
after  throwing  off  the  yoke  of  the  Abbas- 
site  Khalifs.  They  were  overthrown 
themselves  in  the  next  age  by  the  Fati- 
mites.  Sicily  was  first  invaded  in  827 : 
but  the  city  of  Syracuse  was  only  re- 
duced in  878. 

2  Muratori,  Annali  d'ltalia,  ad.  ann. 
906,  et  aUbi.  These  Saracens  of  Frassi- 
neto,  supposed  to  be  between  Nice  and 


Monaco,  were  extirpated  by  a  count  of 
Provence  in  972.  But  they  had  estab- 
Ibhed  themselves  more  inland  than  Fras- 
sineto.  Creeping  up  the  line  of  the  Alps, 
they  took  possession  of  St.  Maunce,  in 
the  Valais,from  which  the  feeble  kings  of 
Transjurane  Burgundy  could  not  dislodge 

3  I*  am  sensible  of  the  awkward  efEect 
of  introducing  this  name  from  a  more 
ancient  geography,  but  it  saves  a  circum- 
locution still  more  awkward.  Austria 
would  convey  an  Imperfect  idea,  and  the 
Austrian  dominions  could  not  be  named 
without  a  tremendous  anachronisxa. 


FRA17CB. 


THE  HUNGAKIANS. 


33 


tenances  and  customs.  All  Italy,  all,  Germany,  and  the  south 
of  France  felt  this  scourge;^  till  Henry  the 
Fowler,  and  Otho  the  Great,  drove  them  back  by  '"'''  ^^^' 
successive  victories  within  their  own  lunits,  where,  in  a  short 
time,  they  learned  peaceful  arts,  adopted  the  religion  and 
followed  the  policy  of  Christendom. 

If  any  enemies  could  be  more  destructive  than  these  Hun- 
garians, they  were  the  pirates  of  the  north,  known  The 
commonly  by  the  name  of  Normans.     The  love  of  Normans. 
a  predatory   life   seems   to  have  attracted   adventurers   of 
different  nations  to  the  Scandinavian  seas,  from  whence  they 
infested,  not  only  by  maritime  piracy,  but  continual  invasions, 
the  northern  coasts   both  of  France   and    Germany.     The 
causes  of  their  sudden  appearance  are  inexplicable,  or  at 
least  could  only  be  sought  in  the  ancient  traditions  of  Scandi- 
navia.    For,  undoubtedly,  the  coasts  of  France  and  England 
were  as  little  protected  fix)m  depredations  under  the  Mero- 
vingian kings,  and  those  of  the  Heptarchy,  as  in  subsequent 
times.     Yet  only  one  mstance  of  an  attack  from  this  side  is 
recorded,  and  that  before  the  middle  of  the  sixth  century,^  till 
the  age  of  Charlemagne.     In  787  the  Dane.s,  as  we  call  those 
northern  plunderers,  began  to  infest  England,  which  lay  most 
immediately  open  to  their  incursions.     Soon  afterwards  they 
ravaged  the  coasts  of  France.     Charlemagne  repulsed  them 
by  means  of  his  fleets ;  yet  they  pillaged  a  few  places  during 
his  reign.     It  is  said  that,  perceiving  one  day,  from  a  port  in 
the  Mediterranean,  some  Norman  vessels,  which  had  pene- 
trated into  that  sea,  he  shed  tears,  in  anticipation  of  the 
miseries  which  awaited  his  empire.*     In  Louis's  reign  their 
depredations  upon  the  coast  were  more  incessant,*  but  they 


1  In  924  they  overran  Languedoc. 
Raymond-Pons,  count  of  Toulouse,  cut 
their  army  to  pieces ;  but  they  had  pre- 


2  Greg.  Turon.  I.  iii.  c.  8. 

3  In  the  ninth  century  the  Norman 
pirates  not  only  ravaged    the  Baleario 


viouslycomnutted  such  ravages,  that  the  isles,  and  nearer  coasts  of  the  Mediterra- 
Bishops  of  that  province,  writing  soon  noan,  but  even  Greece.  — De  Marca,  Mar- 
afterwards  to  Pope  John  X.,  assert  that    ca  Hispanica,  p.  327. 


scarcely  any  eminent  ecclesiastics,  out 
of  a  great  number,  were  left  alive.  — 


Hist,  de  Languedoc,  tome  il.  p.  60.    They    the  Normans :  — 


*  Nigellus,  the  poetical  biographer  of 
Louis,  gives  the  following  description  of 


penetrated  into  Ouienne,  as  late  as  951. 
—  Flodoardi  Chronicon,  in  Recueil  des 
Historiens,  tome  viii.  In  Italy  they  in- 
spired such  terror  that  a  mass  was  com- 
posed expressly  deprecating  this  calam- 
ity :  Ab  Ungarorum  nos  defendas  jaculis  I 


Nort   quoque    Francisco   dicuntur   no- 
mine manni. 
Veloces,  agiles,  annigerique  nimis; 
Ipse  quidem  populus  late  pernotus  ha- 
betur, 
Lintredapes  quaerit,  incolitatque  mai«. 


in  W7  they  ravaged  the  country  as  fer    Pulcher  adest  facie,  vultuque  statuau© 
M   Benevento  and  Capua.  -  Muratori,  decorus.  —  1.  ir.  ^i-uqw 

Ann.  d'ltalia. 

VOL.  I.  3 


34 


THE  NORMANS. 


Chap.  I.  Pakt  1. 


did  not  penetrate  into  the  inland  country  tiU  that  of  Charles 
the  Bald      The  wars  between  that  prince  and  his  tamily, 
which  e^austed  France  of  her  noblest  blood,  the  insubordi- 
nation of  the  provincial  governors,  even  the  instigation  ot 
"o?  Charles's  enemies,  laid  all  open  to  their  mro^s 
They  adopted  an  uniform  plan  of  warfare  both  in  France  and 
EnXnd;  saihng   up  navigable   rivers   in  their  vessels  of 
fmSl  buken,  aSd  fortifying  the  islands  which  they  occasion- 
ally  found,  they  made  these  intrenchments  at  once  an  asylum 
Kir  women  and  children,  a  repository  ^r  their  p^^^^^^^^^^ 
and  a  place  of  retreat  from  superior  force.     After  Pjllagmg  a 
town  they  retired  to  these  strongholds  or  to  their  ships  ;  and 
it  was  not  till  872  that  they  ventured  to  keep  possession  ot 
Angers,  which,  however,  they  were  compelled  to  evacuate. 
Sixteen  years  afterwards  they  laid  siege  to  Paris,  and  com- 
mitted  the  most  ruinous   devastations   on  the  neighbormg 
country.     As  these  Normans  were  unchecked  by  religious 
awe,  the  rich  monasteries,  which  had  stood  harmless  amidst 
£he  havoc  of  Christian  war,  were  overwhelmed  in  the  storm. 
Perhaps  they  may  have  endured  some  irrecoverable  losses  ot 
ancient   leaiiing ;  but   their   complaints  are  of  monuments 
disfigured,  bones  of  saints   and  kings   dispersed,  treasures 
carried  a^     St.  Denis  redeemed  its  abbot  from  capUvity 
with  six  hundred  and  eighty-five  pounds  of  gold.     AU  the 
chief  abbeys  were  stripped  about  the  same  time,  either  by  the 
enemy,   or  for  contributions  to  the   P^^hc  necessity,     bo 
impoverished  was  the  kmgdom,  that  in  860  Charles  the  Bald 
had  great  difficulty  in  collecting  three  thousand  pounds  ot 
silver  to  subsidize  a  body  of  Normans  against  their  country- 
men.   The  kings  of  France,  too  feeble  to  prevent  or  repel 
these  invaders,  had  recourse  to  the  palliative  of  buying  peace 
at  their  hands,  or  rather  precarious   armistices,  to  which 
reviving  thirst  of  plunder   soon    put  an   end.     At  length 
Charles  the  Simple,  in  918,  ceded  a  great  province,  which 
they  had  akeady  partly  occupied,  partly  rendered  desolate, 
and  which  has  derived  from  them  the  name  of  Normandy. 
Ignominious   as  this  appears,  it  proved  no  impohtic  step, 
j^llo,   the   Norman  chief,  with    aU    his   subjects,  became 
Christians  and  Frenchmen ;  and  the  kingdom  was  at  once 

He  goes  on  to  teU  ns  that  they  wor-    of  name,  or  of  •ttribute.,  that  deceired 
■hipped  Neptune  — Waa  it  a  similarity    hhn! 


France. 


ACCESSION  OF  HUGH  CAPET. 


35 


otSdy  Sni^tsr  ^'^^  '""'"^'^  ^'  ^^^°^^^^^^  ^^  ^  -- 
The  accession  of  Hugh  Capet  had  not  the  immediate  effect 
of  restoring  the  royal  authority  over  France.     His 
own  very  extensive  fief  was  now,  indeed,  united  to  nSta^f 
the  crown ;  but  a  few  great  vassals  occupied  the  ^'^ ^^• 
remainder  of  the  kingdom.     Six  of  these  obtained,  at  a  sub- 
^quent  time  the  exclusive  appellation  of  peers  of  France,- 
^e  «>unt  of  Flanders,  whose  fief  stretched  from  ,,  ,    / 
the  Scheldt  to  the  Somme;  the  count  of  Cham-  ISnceat 
pagne ;  the  duke  of  Normandy,  to  whom  Britany  ^''^  '^*- 
^d  homage ;  the  duke  of  Burgundy,  on  whom  the  count  of 
Nivemois  seems  to  have  depended;  the  duke  of  Aquitaine, 
whose  territory,  though  less  than  the  ancient  kingdon^of  th2 
name  comprehended  Poitou,  Limousin,  and  most  of  Guiemie, 
with  the  feu^  superiority  over  the  Angoumois,  and  some 
other  central  distncts ;  and  lastly  the  count  of  Toilouse,  who 
g)ssessed  Languedoc,  with  the  smaU  countries  of  Quercy  and 
Rouergue,   and  the   superiority  over  Auvergne^    Besides 
Aese  SIX,  the  duke  of  Gascony,  not  long  afterwards  unit^ 
with  Aquitame,  the  counts  of  Anjou,  Ponthieu,  and  Verman- 
dois,  the  viscount  of  Bourges,  the   lords   of  Bourbon   and 
w  7'  r*^  ""^^  or  two  other  vassals,  held  immediately  of  the 
kst  Cariovingian  kings.'     This  was  the  aristocracy,  of  which 
Hugh  Capet  usurped  the  direction ;  for  the  suffra-e  of  no 
general  assembly  gave  a  sanction  to  his  title.     On  the  death 
ot  U)uis  y.  he  took  advantage  of  the  absence  of  Charles,  duke 
ot  Lorraine,  who,  as  the  deceased  king's  uncle,  was  nearest 
neir,  and  procured  his  own  consecration  at  Rheuns.     At  first 
he  was  by  no  means  acknowledged  in  the  kingdom ;  but  his 
contest  with  Charles  proving  successful,  the   chief  vassals 
ultunately  gave  at  least  a  tacit  consent  to  the  usurpation,  and 
permitted  the  royal  name  to  descend  undisputed  upon  his 
posterity.*     But  this  was  almost  the  sole  attribute  of  sover- 


»  An  exceedingly  good  sketch  of  these 
Norman  incursions,  and  of  the  political 
iituation  of  France  during  that  period, 
may  be  found  in  two  Memoirs  by  M. 
Bonamy,  M^m.  de  I'Acad.  des  Inscript. 
tomes  XV.  and  xrii.  These  I  have  chiefly 
followed  in  the  text.  [Note  XIII.] 
J  Auvergne  changed  its  feudal  superior 
twice.  It  had  been  subject  to  the  duke 
of  Aquitaine  till  about  the  middle  of  the 
tenth  century.    The  counts  of  Toulouse 


then  got  possession  of  It;  but  eariy  in 
the  twelfth  century  the  counts  of  Au- 
vergne again  did  homage  to  Guienne.  It 
is  very  difficult  to  foUow  the  history  of 
these  fiefs. 

»  The  immediacy  of  vassals  in  times  m 
ancient  is  open  to  much  controversy.  I 
have  followed  the  authority  of  those' in> 
dustrious  Benedictines,  the  editors  of 
L'Art  de  verifier  les  Dates. 

*  The  south  of  Franco  not  only  took 


36  STATE  OF  FRANCE  AT  THAT  TIME.     Chap.  I.  Part  I 

eignty  which  the  first  kings  of  the  third  dynasty  enjoyed 
For  a  long  period  before  and  after  the  accession  of  that  family 
France  has,  properly  speaking,  no  national  history,  ihe 
chaVacter  or  fortune  of  those  who  were  called  its  kings  were 
imeZelm^rt^t  to  the  majority  of  the  nation  than  those 
of  forei-n  princes.  Undoubtedly,  the  degree  of  influence 
ly^^  which  they  exercised  with  respect  to  the  vassals 

?i  996.  of  the  crown  varied  according  to  their  power  and 
their  proximity.  Over  Guienne  and  Toulouse  the  first  four 
Capets  had  very  httle  authority;  nor  do  they  seem  to  have 
Henry  I  cvcr  received  assistance  from  them  either  m  cml 
A  !>.  /o3i.  or  national  wars.^  With  provinces  nearer  to  their 
!^'?06b.  own  domains,  such  bs  Normandy  and  Flanders, 
they  were  frequently  engaged  in  alliance  or  hostihty ;  but 
each  seemed  rather  to  proceed  from  the  policy  of  independent 
states  than  from   the  relation  of  a  sovereign  towards  his 

'"  It^should  be  remembered  that,  when  the  fiefs  of  Paris  and 
Orleans  are  said  to  have  been  reunUed  by  Hugh  Capet  to 
the  crown,  Uttle  more  is  understood  than  the  feudal  superi- 
ority over  the  vassals  of  these  provinces.  As  the  kingdom 
of  Charlemagne's  posterity  was  spUt  into  a  number  of  great 
fiefs,  80  each  of  these  contained   many  barons,  possessing 


no  part  in  Hugh's  elevation,  but  long 
refused  to  pay  him  any  obedience,  or 
rather  to  acknowledge  his  title,  for  obe- 
dience was  wholly  out  of  the  question. 
The  style  of  charters  ran,  instead  of  the 
king's  name,  Deo  regnante,  rege  expec- 
tante,  or  absente  rege  terrtno.    He  forced 
Quienne  to  submit  about  990.    But  in 
Limousin  they  continued  to  acknowledM 
the  eons  of  Charles  of  Lorraine  till  1009. 
—  Vaissette,  Hist,  de  Lang.  t.  ii.  p.  120, 
150.    Before  this  Toulouse  had  refused 
to  recognize  Eudes  and  Raoul,  two  kings 
of  France  who  were  not  of  the  Carlovin- 
gian  family,  and  even  hesitated  about 
Louis  IV.  and  Lothaire,  who   had  an 
hereditary  right.  —  Idem. 

These  proofs  of  Hugh  Capet's  usurpa- 
tion seem  not  to  be  materially  invalidated 
by  a  dissertation  in  the  50th  volume  of 
the  Academy  of  Inscriptions,  p.  653.  It 
is  not  of  course  to  be  denied  that  the 
northern  parts  of  France  acquiesced  in 
his  assumption  of  the  royal  title,  if  they 
did  not  give  an  express  consent  to  it. 

1  I  have  not  found  any  authority  for 
supporing  that  the  provinces  south  of  the 
Loire  contributed  their  assistance  to  the 
king  in  war,  unless  the  following  passage 


of  Oulielmus  Pictavlensls  be  considered 
as  matter  of  fact,  and  not  rather  as  a 
rhetorical  flourish.    He  tells  us  that  a 
vast  army  was  collected   by  Henry  I. 
against  the  duke  of  Normandy:    Bur- 
gundium,  Arvemiam,  atque  Vasconiam 
properare  videres  horribiles  ferro  ;  immo 
vires  tanti  regni    quantum    in  climata 
quatuormundi  patent  cunctas.—Recueil 
des  Historiens,  t.  xi.  p.  83.    But  ^e  have 
the  roll  of  the  army  which  Louis  VI.  led 
against  the  emperor  Henry  V.,  A.D.  1120, 
in  a  national  war:  and  it  w!«  entirely 
composed  of  troops  from  Champagne,  the 
Isle  of  France,  the  Orleannois,  and  other 
provinces  north  of  the  Loire.  —  VfcUy, 
t.  iii.  p.  62.    Yet  this  was  a  sort  of  son- 
vocation  of  the  ban ;  Rex  ut  eum  tota 
Francia  sequatur,  invitat.    Even  sc  late 
as  the  reign  of  Philip  Augustus,  in  a 
list  of  the  knights  bannerets  of  France, 
though  those  of  Britany,  Flander3,Cham- 
pagne,  and  Burgundy,  besides  the  royal 
domains,  are  enumerated,  no  mention  is 
made  of  the  provinces  beyond  the  Loire 
— Du  Chesne,  Script.  Rerum  Qallicarum 
t.  V.  p.  262. 
«  [NOTB  XIV.] 


FfUMCE. 


LOUIS  VI. 


37 


exclusive  immunities  within  their  own   territories,  waging 
war  at  their  pleasure,  administering  justice  to  their  miUtary 
tenants  and  other  subjects,  and  free  from  all  control  beyond 
the  conditions  of  the  feudal  compact.^    At  the  Louis  vi 
accession  of  Louis  VI.  in  1108,  the  cities  of  Paris,  ^•^'  HOS- 
Orleans,  and  Bourges,  with  the  immediately  adjacent  districts, 
formed  the  most  considerable  portion  of  the  royal  domain.    A 
number  of  petty  barons,  with  their  fortified  castles,  inter- 
cepted  the   communication  between  these,  and  waged  war 
against  the  king  almost  under  the  walls  of  his  capital.     It  cost 
Louis  a  great  deal  of  trouble  to  reduce  the  lords  of  Montih^ry, 
and  other  places  within  a  few  miles  of  Paris.     Under  this 
prince,  however,  who  had  more  activity  than  his  predecessors, 
the  royal  authority  considerably  revived.     From  his  reign 
we   may  date   the    systematic   rivahy  of  the   French   and 
English  monarchies.     HostiUties  had  several  times  occurred 
between  Philip  L  and  the  two  Williams ;  but  the  wars  that 
began  under  Louis  VL  lasted,  with  no  long  interruption,  for 
three  centuries  and  a  half,  and  form,  indeed,  the  most  leading 
feature  of  French  history  during  tiie  middle  ages.^     Of  aU 
the  royal  vassals,  the  dukes  of  Normandy  were  the  proudest 
and   most  powerful.     Though   they  had   submitted    to    do 
.homage,  they  could  not  forget  that  they  came  in  originally  by 
ibrce,  and  that  in  real  strength  they  were  fully  equal  to  their 
sovereign.    Nor  had  the  conquest  of  England  any  tendency  to 
diminish  their  pretensions.' 
Louis  VII.  ascended  the  throne  with  better  prospects  than 


1  In  a  subsequent  chapter  I  shall  illus- 
trate at  much  greater  length  the  circum- 
stances of  the  French  monarchy  with 
respect  to  its  feudal  vassals.  It  would  be 
inconvenient  to  anticipate  the  subject  at 
present,  which  is  rather  of  a  legal  than 
narrative  character. 

Sismondi  has  given  a  relative  scale  of 
the  great  flefr,  according  to  the  number 
of  modern  departments  which  they  con- 
tained. At  the  accession  of  Louis  VI.  the 
crown  possessed  about  five  departments ; 
the  count  of  Flanders  held  four;  the 
count  of  Vermandois,  two ;  the  count  of 
Boulogne,  one  ;  the  count  of  Champagne, 
rfx;  the  duke  of  Burgundy,  three;  of 
Normandy,  five;  of  Britany,  five;  the 
count  of  Anjou,  three.  Thirty-three  de- 
partments south  of  the  Loire  he  considers 
as  hardly  connected  with  the  crown  ;  and 
twenty-one  were  at  that  time  dependent 
on  the  empire.    (Vol.  v.  p.  7.)    It  is  to 


be  understood  of  course  that  these  di- 
visions are  not  rigorously  exact;  ano 
also  that,  in  every  instance,  owners  of 
fiefs  with  civil  and  criminal  jurisdiction 
had  the  full  possession  of  their  own  terri- 
tories, subject  more  or  less  to  their  im- 
mediate lord,  whether  it  were  the  king  or 
another.  The  real  domain  of  Louis  VI. 
was  almost  confined  to  the  five  towns  — 
Paris,  Orleans,  Estampes,  Melun,  and 
Compiegne  (id.  p.  86);  and  to  estates, 
probably  large,  in  their  neighborhood. 

2  Velly,  t.  iii.  p.  40. 

3  The  Norman  historians  maintain  that 
their  dukes  did  not  owe  any  service  to 
the  king  of  France,  but  only  simple  hom- 
age, or,  as  it  was  called,  per  paragium. 
—  Recueil  des  Historiens,  t.  xi.  pref.  p. 
161.  They  certainly  acted  upon  this 
principle ;  and  the  manner  in  which  they 
first  came  into  the  country  is  not  verr 
consistent  with  dependence. 


38 


PHILIP  AUGUSTUS. 


ChaF'  I-  Part  I. 


<i|i 


I  .i. 


PhUip 
Angus  ttis, 
A.D.  1180. 


T^„f«  vn      his  father.     He  had  married  Eleanor,  heiress  of 
iTiia?.*      the  great  duchy  of  Guienne.     But  this  union, 
which  promised  an  immense  accession  of  strength  to  the 
crown,  was  rendered  unhappy  by  the  levities  of  that  princess. 
Repudiated  by  Louis,  who  felt  rather  as  a  husband  than  a 
kin*^,  Eleanor  immediately  married  Henry  II.  of  England, 
who,  already   inheriting   Normandy  from  his   mother   and 
Anion  from  his  father,  became  possessed  of  more  than  one 
half  of  France,  and  an  overmatch  for  Louis,  even  if  the  great 
vassals  of  the  crown  had  been  always  ready  to  maintain  its 
supremacy.     One  might  venture,  perhaps,  to  conjecture  that 
the  sceptre  of  France  would  eventually  have  passed  from  the 
Capets  to  the  Plantagenets,  if  the  vexatious  quarrel  with 
Becket  at  one  time,  and  the  successive  rebelhons  fomented  by 
Louis  at  a  later  period,  had  not  embarrassed  the  great  talents 
and  ambitious  spirit  of  Henry. 

But  the  scene  quite  changed  when  Philip  Augustus,  son  ot 
Louis  VII.,  came  upon  the  stage.     No  prince  com- 
parable to  him  in  systematic  ambition  and  military 
enterprise  had  reigned  in  France  since  Charle- 
ma<me.    From  his  reign  the  French  monarchy  dates  the  recov- 
ery%f  its  lustre.     He  wrested  from  the  count  of  Flanders  the 
Vermandois  (that  part  of  Picardy  which  borders  on  the  Isle 
of  France  and  Champagne  *),  and  subsequently,  the  county  ot 
Artois.     But  the  most  important  conquests  of  Philip  were 
obtained  against  the  kings  of  England.    Even  Richard  I.,  with 
all  his  prowess,  lost  ground  in  struggling  against  an  adve^ 
sary  not  less  active,  and  more  pohtic,  than  himself. 
nSdV,     But  when  John  not  only  took  possession  of  his 
A.i>.  1203.       brother's  dominions,  but  confirmed  his  usurpation 
by  the  murder,  as  was  very  probably  surmised,  of  the  heir, 
Philip,  artfully  taking  advantage  of  the  general  indignation, 
summoned  him  as  his  vassal  to  the  court  of  his  peers.     John 
demanded  a  safe-conduct.     WiUingly,  said  Philip ;  let  him 
come  unmolested.    And  return  ?  inquired  the  English  envoy. 
If  the  judgment  of  his  peers  permit  him,  replied  the  king. 
By  all   the   saints  of  France,  he  exclaimed,  when  further 
pressed,  he  shall  not  return  unless  acquitted.     The  bishop 

1  The  oriirinal  countfl  of  Vermandois  the  earl  of  Flanders,  after  her  death  in 

were  dVcendS  from  Bernard,  king  of  1183.    The  Principal  towns  of  the  >  er- 

Italy,  grandson    of  Charlemagne:   but  m»°dois  are  St  Quentin  and  Peronne. - 

their  fief  passed  by  the  donation  of  Isa-  Art  de  T6rifler  lea  Dates,  t.  U.  p.  700. 
bel,  the  last  countess,  to  her  huBband, 


Fbakcb. 


LOUIS  vin. 


39 


of  Ely  still  remonstrated  that  the  duke  of  Normandy  could 
not  come  without  the  king  of  England ;  nor  would  the  barons 
of  that  country  permit  their  sovereign  to  run  the  risk  of  death 
or  imprisonment.  What  of  that,  my  lord  bishop?  cried 
Philip.  It  is  well  known  that  my  vassal  the  duke  of  Nor- 
mandy acquired  England  by  force.  But  if  a  subject  obtains 
any  accession  of  dignity,  shall  his  paramount  lord  therefore 
lose  his  rights  ?  ^ 

It  may  be  doubted  whether,  in  thus  citing  John  before  his 
court,  the  king  of  France  did  not  stretch  his  feudal  sovereign- 
ty beyond  its  acknowledged  limits.  Arthur  was  certainly  no 
immediate  vassal  of  the  crown  for  Britany;  and,  though  he 
had  done  homage  to  Philip  for  Anjou  and  Maine,  yet  a  sub- 
sequent treaty  had  abrogated  his  investiture,  and  confirmed 
his  uncle  in  the  possession  of  those  provinces.*-^  But  the 
vigor  of  Philip,  and  the  meanness  of  his  adversary,  cast  a 
shade  over  all  that  might  be  novel  or  irregular  in  these  pro- 
ceedings. John,  not  appearing  at  his  summons,  was  declared 
guilty  of  felony,  and  his  fiefs  confiscated.  The  execution  of 
this  sentence  was  not  mtrusted  to  a  dilatory  arm.  Philip 
poured  his  troops  into  Normandy,  and  took  town  after  town, 
while  the  king  of  England,  infatuated  by  his  own  wickedness 
and  cowardice,  made  hardly  an  attempt  at  defence.  In  two 
years  Normandy,  Maine,  and  Anjou  were  h-recoverably  lost. 
Poitou  and  Guienne  resisted  longer ;  but  the  con-  Louis  vin. 
quest  of  the  first  was  completed  by  Louis  VIIL,  ^•°'  '^^^ 
successor  of  Philip,  and  the  subjection  of  the  second  seemed 
drawing  near,  when  the  arms  of  Louis  were  diverted  to  dif- 
ferent but  scarcely  less  advantageous  objects. 

The  country  of  Languedoc,  subject  to  the  counts  of  Tou- 
louse, had  been  unconnected,  beyond  any  other  part  Affairs  of 
of  France,  with  the  kings  of  the  house  of  Capet.  i^°guedoc. 
Louis  VII.,  having  married  his  sister  to  the  reigning  count, 
and  travelled  hunself  through  the  country,  began  to  exercise 
some  degree  of  authority,  chiefly  in  confirming  the  rights  of 
ecclesiastical  bodies,  who  were  vain,  perhaps,  of  this  addition- 
al sanction  to  the  privileges  which  they  ah-eady  possessed.' 


I  Mat.  Paris,  p.  288,  edit.  1C84. 

«  The  illegality  of  PhiUp's  proceedings 
U  well  argued  by  Mably,  Observations 
■ur  I'ffistoire  de  France,  1.  iii.  c.  6. 

•According  to  the  Benedictine  his- 
torians, Vioh  and  Vaissette,  there  is  no 


trace  of  any  act  of  sovereignty  exercised 
by  the  kings  of  France  in  Languedoo 
from  955,  when  Lothaire  confirmed  a 
charter  of  his  predecessor  Raoul  in  fovor 
of  the  bishop  of  Puy,  till  the  reign  of 
Louis  VII.  (Hist,  de  Languedoc,  tome  iiL 


40  AFFAIRS  OF  LANGUEDOC     Chat.  I.  Part  I. 

But  the  remoteness  of  their  situation,  with  a  difference  in 
lancrua-e  and  legal  usages,  stiU  kept  the  people  of  this  prov- 
ince apart  from  those  of  the  north  of  France. 

About  the  middle  of  the  twelfth  century,  certam  rehgious 
opinions,  which  it  is  not  easy,  nor,  for  our  present  purpose, 
material  to  define,  but,  upon  every  supposition,  exceedingly 
adverse  to  those  of  the  church,^  began  to  spread  over  Langue- 
doc.     Those  who  imbibed  them  have  borne   the  name  ot 
Albi^-eois,  though  they  were  in  no  degree  pecuhar  to  the 
distrfct  of  Albi.    In  despite  of  much  preaching  and  some 
persecution,  these  errors  made  a  continual  progress ;  tiU  in- 
nocent ni.,  in  1198,  despatched  commissaries,  the  seed  ot  the 
inquisition,  with   ample  powers  both  to  investigate  and  to 
chastise.     Raymond   VI.,   count  of  Toulouse,   whether  in- 
clined towards  the  innovators,  as  was  then  the  theme  ot 
reproach,  or,  as  is  more  probable,  disgusted  with  the  insolent 
interference  of  the  pope  and  his  missionaries,  provoked  them 
to  pronounce  a  sentence  of  excommunication  against  him. 
Though  this  was  taken  off,  he  was  still  suspected ; 
A.D.  1208.       ^^  ^^^^  ^^^  assassination  of  one  of  the  inquisitors, 
in  which  Raymond  had  no  concern.  Innocent  pubUshed  a  cru- 
sade both  against  the  count  and  his  subjects,  calhng  upon  the 
king  of  France,  and  the  nobility  of  that  kmgdom,  to  take  up 
the  cross,  with  all  the  indulgences  usually  held  out  as  allure- 
ments to  rehgious  warfare.     Though  Phihp  would  not  inter- 
fere, a  prodigious  number  of  knights  undertook  this  enterpnse, 
led  partly  by  ecclesiastics,  and  partly  by  some  of  the  first 
barons  m  France.    It  was  prosecuted  with  every  atrocious 
barbarity  which  superstition,  the  mother  of  cnmes,  could  m- 
spire.     Languedoc,  a  country,  for  that  age,  flounshing  and 
civilized,  was    laid  waste  by  these   desolators ;   her  cities 
burned ;  her  inhabitants  swept  away  by  fire  and  the  sword. 
And  this  was  to  punish  a  fanaticism  ten  thousand  times  more 
innocent  than  their  own,  and  errors  which,  according  to  the 


France. 


THE  ALBIGEOIS. 


41 


p.  88.)    They  have  published,  however, 
an  instrument  of  Louis  VI.  in  favor  of 
the  same  church,  confirming  those^of 
former    princes.     (Appendix,    p.    478.) 
Neither  the  counts  of  Toulouse,  nor  any 
lord  of  the  province,  were  present  in  a 
very  numerous  national  assembly,  at  the 
coronation  of  Philip  I.     (Id.  p.  200.)    I 
do  not  recollect  to  have  ever  met  with  the 
name  of  the  count  of  Toulouse  as  a  sub- 


scribing witness  to  the  charters  of  tb* 
first  Capetian  Wngs  in  the  Recueil  dea 
mstoriens,  where  many  are  published, 
though  that  of  the  duke  of  Quienne 
sometimes  occars. 

1  For  the  real  tenets  of  the  Langue- 
docian  sectaries  I  refer  to  the  last  chap- 
ter of  the  present  work,  where  the  sulgect 
will  be  taken  up  again. 


worst  imputations,  left  the  laws  of  humanity  and  the  peace 
of  social  life  unimpaired.^ 

The  crusaders  were  commanded  by  Simon  de  Montfort,  a 
man,  like  CromweU,  whose  intrepidity,  hypocrisy,  crusade 
and  ambition,  marked  him  for  the  hero  of  a  holy  against  the 
war.     The  energy  of  such  a  mind,  at  the  head  of  ^^^'«^^' 
an  army  of  enthusiastic  warriors,  may  well  account  for  suc- 
cesses which  then  appeared  miraculous.     But  Montfort  was 
cut  off  before  he  could  realize  his  ultimate  object,  an  inde- 
j)endent  principality ;  and  Raymond  was  able  to  bequeathe  the 
inheritance  of  his  ancestors  to  his  son.     Rome,  however,  was 
not  yet  appeased;  upon  some  new  pretence  she        ^222 
raised  up  a  still  more  formidable  enemy  against  the 
younger  Raymond.     Louis  VHT.  suffered  himself  to  be  di- 
verted  from   the   conquest  of  Guienne,  to  take   the   cross 
against  the  supposed  patron  of  heresy.     After  a  short  and 
successful  war,  Louis,  dying  prematurely,  left  the  crown  of 
France  to  a  son  only  twelve  years  old.     But  the  count  of 
Toulouse  was  still  pursued,  till,  hopeless  of  safety  in  so  un- 
equal a  struggle,  he  concluded  a  treaty  upon  very 
hard  terms.     By  this  he  ceded  the  greater  part  of  ^'^' 
Languedoc ;  and,  giving  his  daughter  in  marriage  to  Alphon- 
80,  brother  of  Louis  IX.,  confirmed  to  them,  and  to  the  king 
in  failure  of  their  descendants,  the  reversion  of  the    rest, 
in  exclusion  of  any  other  children  whom  he  might   have. 
Thus  fell  the  ancient  house  of  Toulouse,  through  one  of  those 
strange  combinations  of  fortune,  which  thwart  the  natural 
course  of  human  prosperity,  and  disappoint  the  plans  of  wise 
policy  and  beneficent  government.^ 


1  The  Albigensian  war  commenced  with 
the  storming  of  Bcziers,  and  a  massacre 
wherein  15,000  persons,  or,  according  to 
some  narrations,  60,000,  were  put  to  the 
sword.  Not  a  living  soul  escaped,  as 
witnesses  assure  us..  It  was  here  that  a 
Cistertian  monk,  who  led  on  the  crusa- 
ders, answered  the  inquiry,  how  the 
Catholics  were  to  be  distinguished  from 
heretics:  Kill  them  all!  God  to  ill  know 
his  oum.  Besides  Vaissette,  see  Siamondl, 
Litt^rature  du  Midi,  t.  i.  p.  201. 

*  The  best  account  of  this  crusade 
against  the  Albigeois  is  to  be  found  in 
the  third  volume  of  Vaissette's  History 
of  Languedoc ;  the  Benedictine  spirit  of 
mildness  and  veracity  tolerably  counter- 
balancing the  prcjjudices  of  orthodoxy. 


Velly,  Hist,  de  France,  t.  iii.,  has  abridged 
this  work. 

M.  Fauriel  edited  for  the  Collection 
des  Documens  Incdits,  in  1837,  a  metrical 
history  of  the  AlbigRnsian  crusade,  by  a 
contemporary  calling  himself  William  of 
Tudela,  which  seems  to  be  an  imaginary 
name.  It  contains  9578  verses.  The 
author  begins  as  a  vehement  enemy  of 
the  heretics  and  favorer  of  the  crusade  ; 
but  becomes,  before  his  poem  is  half  com- 
pleted, equally  adverse  to  Montfort,  Fol- 
quet,  and  the  other  chiefs  of  the  persecu- 
tion, though  never  adopting  heretical 
opinions. 

Sismondi  says  —  bitterly,  but  not  un- 
truly —  of  Simon  de  Montfort :  —  "  Ha- 
bile gucrrier,  austere  dans  see  moeurS; 


42 


LOUIS  IX. 


Chap.  I.  Past.  I 


Fbancb. 


HIS  CHARACTER. 


4S 


The  rapid  progress  of  royal  power  under  Philip  Augustus 
Louis  IX.       and  his  son  had  scarcely  given  the  great  vassals 
k.x>.  1226.       time  to  reflect  upon  the  change  which  it  produced 
m  their  situation.     The  crown,  with  which  some  might  singly 
have  measured  their  forces,  was  now  an  equipoise  to  their 
united  weight.     And  such  an  union  was  hard  to  be  accom- 
plished among  men  not  always  very  sagacious  m  policy,  and 
divided  by  separate  interests  and  animosities.     They  were 
not,  however,  insensible  to  the  crisis  of  their  feudal  liberties ; 
and  the  minority  of  Louis  IX.,  guided  only  by  his  mother, 
the  regent,  Blanche  of  Castile,  seemed  to  offer  a  favorable 
opportunity  for  recovering  their  former  situation.     Some  of 
the  most  considerable  barons,  the  counts  of  Britany,  Cham- 
pagne, and  la  Marche,  had,  during  the  time  of  Louis  VIII^ 
shown  an  unwillingness  to  push  the  count  of  Toulouse  too  far, 
if  they  did  not  even  keep  up  a  secret  understanding  with 
him.     They  now  broke  out  into  open  rebellion ;  but  the  ad- 
dress of  Blanche  detached  some  from  the  league,  and  her 
firmness  subdued  the  rest.     For   the  first  fifteen  years  of 
Louis's  reign,  the  struggle  was  frequently  renewed ;  till  re- 
peated humiliations  convinced  the  refractory  that  the  throne 
was  no  longer  to  be  shaken.     A  prince  so  feeble  as  Henry 
nL  was  unable  to  afford  them  that  aid  from  England,  which, 
if  his  grandfather  or  son  had  then  reigned,  might  probably 
have  lengthened  these  civil  wars. 

But  Louis  IX.  had  methods  of  preserving  his  ascendency 
charac-  ^^^  different  from  miHtary  prowess.  That  excel- 
ter.  Its  ex-  lent  prince  was  perhaps  the  most  eminent  pattern 
ceiiences;  ^£  unswerving  probity  and  Christian  strictness  of 
conscience  that  ever  held  the  sceptre  in  any  country.  There 
is  a  peculiar  beauty  in  the  reign  of  St.  Louis,  because  it  shows 
the  inestimable  benefit  which  a  virtuous  king  may  confer  on 
his  people,  without  possessing  any  distinguished  genius.  For 
nearly  half  a  century  that  he  governed  France  there  is  not 
the  smallest  want  of  moderation  or  disinterestedness  in  his 
actions ;  and  yet  he  raised  the  influence  of  the  monarchy  to 
a  much  higher  point  than  the  most  ambitious  of  his  predeces- 

fitnatique   dans   sa   religion,  inflexible,  exasperated  that  irritable  body  and  ag- 

cruel,  et  perflde,  11  r6uniasait  toutes  los  jcrarated  their   revenge.    (Michelet,  ill. 

qoalites    qui    pouvaient    plaire    4   un  806.)    But  the  atrocities  of  that  war  hare 

moine."    (Vol.   vi.  p.  297.)    The  Albl-  hardly  been  equalled,  and  Sismondi  waa 

gensian  sectaries  had  insulted  the  clergy  not  the  man  to  conceal  them, 
and  hissed  St.  Bernard ;  which,  of  course, 


Bors.  To  the  surprise  of  his  own  and  later  times,  he  restored 
great  part  of  his  conquests  to  Henry  IH.,  whom 
he  might  naturally  hope  to  have  expelled  from  ^'"* 
France.  It  would  indeed  have  been  a  tedious  work  to  con- 
quer Guienne,  which  was  full  of  strong  places ;  and  the  sub- 
jugation of  such  a  province  might  have  alarmed  the  other 
vassals  of  his  crown.  But  it  is  the  privilege  only  of  virtuous 
minds  to  perceive  that  wisdom  resides  in  moderate  counsels : 
no  sagacity  ever  taught  a  selfish  and  ambitious  sovereign  to 
forego  the  svveetness  of  immediate  power.  An  ordinary 
king,  in  the  circumstances  of  the  French  monarchy,  would 
have  fomented,  or,  at  least,  have  rejoiced  in,  the  dissensions 
which  broke  out  among  the  principal  vassals;  Louis  con- 
stantly employed  himself  to  reconcile  them.  In  this,  too,  his 
benevolence  had  all  the  effects  of  far-sighted  policy.  It  had 
been  the  practice  of  his  three  last  predecessors  to  interpose 
their  mediation  in  behalf  of  the  less  powerful  classes,  the 
clergy,  the  inferior  nobility,  and  the  inhabitants  of  chai-tered 
towns.  Thus  the  supremacy  of  the  crown  became  a  familial 
idea ;  but  the  perfect  integrity  of  St.  Louis  wore  away  all 
distrust,  and  accustomed  even  the  most  jealous  feudataries  to 
look  upon  him  as  their  judge  and  legislator.  And  as  the 
royal  authority  was  hitherto  shown  only  in  its  most  amiable 
prerogatives,  the  dispensation  of  favor,  and  tlie  redress  of 
wrong,  few  were  watchful  enough  to  remark  the  transition  of 
the  French  constitution  from  a  feudal  league  to  an  absolute 
monarchy. 

It  was  perhaps  fortunate  for  the  display  of  St.  Louis's  vir- 
tues that  the  throne  had  already  been  strengthened  by  the 
less  innocent  exertions  of  Philip  Augustus  and  Louis  VHI. 
A  century  earUer  his  mild  and  scrupulous  character,  unsus- 
tained  by  great  actual  power,  might  not  have  inspired  suffi- 
cient awe.  But  the  crown  was  now  grown  so  formidable, 
and  Louis  was  so  eminent  for  his  fimmess  and  bravery, 
quaUties  without  which  every  other  virtue  would  have  been 
ineffectual,  that  no  one  thought  it  safe  to  run  wantonly  into 
rebellion,  while  his  disinterested  administration  gave  no  one  a 
pretext  for  it.  Hence  the  latter  part  of  his  reign  was  alto- 
gether tranquil,  and  employed  in  watching  over  the  public 
peace  and  the  security  of  travellers ;  administering  justice 
personally,  or  by  the  best  counsellors;  and  compiling  that 
code  of  feudal  customs  called  the  Establishments  of  St.  Louis, 


44 


CHARACTER  OF  LOUIS  IX.     Chap.  I.  Pam  L 


Fbancb. 


THE  CRUSADES. 


45 


which  is  the  first  monument  of  legislation  after  the  accession 
of  the  house  of  Capet.  Not  satisfied  with  the  justice  of  his 
own  conduct,  Louis  aimed  at  that  act  of  virtue  which  is  rarely 
practised  by  private  men,  and  had  perhaps  no  example  among 
kings  —  restitution.  Commissaries  were  appointed  to  mquire 
what  possessions  had  been  unjustly  annexed  to  the  royal  do- 
main during  the  last  two  reigns.  These  were  restored  to  the 
proprietors,  or,  where  length  of  time  had  made  it  difficult  to 
ascertain  the  claimant,  their  value  was  distributed  among 

the  poor.^ 

It  has  been  hinted  abeady  that  all  this  excellence  of  heart 
m  Louis  IX.  was  not  attended  with  that  strength 
«nd  defecte.    ^^  understanding,  which  is  necessary,  we  must  al- 
low, to  complete  the  usefulness  of  a  sovereign.     During  his 
minority  Blanche  of  Castile,  his  mother,  had  filled  the  office 
of  Regent  with  great  courage  and  firmness.     But  after  he 
grew  up  to  manhood,  her  influence  seems  to  have  passed  the 
limit  which  gratitude  and  piety  would  have  assigned  to  it; 
and,  as  her  temper  was  not  very  meek  or  popular,  exposed 
the  king  to  some  degree  of  contempt.     He  submitted  even  to 
be  restrained  from  the  society  of  his  wife  Margaret,  daugh- 
ter of  Raymond  count  of  Provence,  a  princess  of  great  vir- 
tue and  conjugal  affection.     Joinville  relates  a  curious  story, 
characteristic  of  Blanche's  arbitrary  conduct,  and  sufficienUy 
derogatory  to  Louis.* 

But  the  principal  weakness  of  this  king,  which  almost  ef- 
faced all  the  good  effects  of  his  virtues,  was  superstition.  It 
would  be  idle  to  sneer  at  those  habits  of  abstemiousness  and 
mortification  which  were  part  of  the  religion  of  his  age,  and, 
at  the  worst,  were  only  injurious  to  his  own  comfort.  But  he 
had  other  prejudices,  which,  though  they  may  be  forgiven, 
must  never  be  defended.  No  man  was  ever  more  impressed 
than  St.  Louis  with  a  belief  in  the  duty  of  exterminating 
all  enemies  to  his  own  faith.  With  these  he  thought  no  lay- 
man ought  to  risk  himself  in  the  perilous  ways  of  reason- 
ing, but  to  make  answer  with  his  sword  as  stoutly  as  a  strong 
arm  and  a  fiery  zeal  could  carry  that  argument.'    Though, 


1  Velly,  torn.  v.  p.  150.  This  historian 
has  Tery  properly  dwelt  for  almost  a  vol- 
Time  on  St.  Louis's  internal  administra- 
tion :  it  is  one  of  the  most  valuable  parta 
of  his  work.  Joinville  is  a  real  witness, 
on  whom,  when  we  listen,  it  is  impossible 


not  to  rely. — Collection  des  M6moirei 
relatifs  X  THistoire  de  France,  torn.  ii.  pp. 

140-156. 

2  Collection    des   Mimoires,    torn.    11 

p.  241. 

3  Aussi  vous  dis-je,  me  dist  le  roy,  que 


fortunately  for  his  fame,  the  persecution  against  the  Albigeois, 
which  had  been  the  disgrace  of  his  father*s  short  reign,  was 
at  an  end  before  he  reached  manhood,  he  suffered  an  hypo- 
critical monk  to  establish  a  tribunal  at  Paris  for  the  suppres- 
sion of  heresy,  where  many  innocent  persons  suffered  death. 

But  no  events  in  Louis's  life  were  more  memorable  than 
his  two  crusades,  which  lead  us  to  look  back  on  the  nature 
and  circumstances  of  that  most  singular  phenomenon  in  Eu- 
ropean history.  Though  the  crusades  involved  all  the  west- 
em  nations  of  Europe,  without  belonging  particularly  to  any 
one,  yet,  as  France  was  more  distinguished  than  the  rest  in 
most  of  those  enterprises,  I  shall  introduce  the  subject  as  a 
sort  of  disgression  from  the  main  course  of  French  history. 

Even  before  the  violation  of  Palestine  by  the  Saracen  arms 
it  had  been  a  prevailing  custom  among  the  Chris-  The 
tians  of  Europe  to  visit  those  scenes  rendered  in-  Cmsadea. 
teresting  by  religion,  partly  through  delight  in  the  effects  of 
local  association,  partly  in  obedience  to  the  prejudices  or  com- 
mands of  superstition.  These  pilgrimages  became  more  fre- 
quent in  later  times,  in  spite,  perhaps  in  consequence,  of  the 
danger  and  hardships  which  attended  them.  For  a  while  the 
Mohammedan  possessors  of  Jerusalem  permitted,  or  even  en- 
couraged, a  devotion  which  they  found  lucrative  ;  but  this  was 
interrupted  whenever  the  ferocious  insolence  with  which  they 
regarded  all  infidels  got  the  better  of  their  rapacity.  During 
the  eleventh  century,  when,  from  increasing  superstition  and 
some  particular  fancies,  the  pilgi*ims  were  more  numerous 
than  ever,  a  change  took  place  in  the  government  of  Pales- 
tine, which  was  overrun  by  the  Turkish  hordes  from  the 
North.  These  barbarians  treated  the  visitors  of  Jerusalem 
with  still  greater  contumely,  mingling  with  their  Mohamme- 
dan bigotry,  a  consciousness  of  strength  and  courage,  and  a 
scorn  of  the  Christians,  whom  they  knew  only  by  the  debased 
natives  of  Greece  and  Syria,  or  by  these  humble  and  defence-  . 
less  palmers.     When  such  insults  became  known  throughout 


nul,  si  n'est  grant  clerc,  et  theologien 
parfait,  ne  doit  disputer  aux  Juifs :  mais 
doit  I'homme  lay,  quant  il  oit  mcsdire  de 
la  foy  Chr^tienne,  defendre  la  chose,  non 
pas  seulement  des  paroles,  mais  k  bonne 
esp^  tranchant,  et  en  frapper  les  m6di- 
sans  et  mescreans  a  travers  le  corps  tant 
qu'elle  y  pourra  entrer.  —  Joinville,  in 
Collection  des  M^moires,  torn.  I.  p.  2S. 
This  passage,  which  shows  a  tolerable 


degree  of  bigotry,  did  not  require  to  be 
strained  farther  still  by  Mosheim,  vol.  iii. 
p.  273  (edit.  1803).  I  may  observe,  by 
the  way,  that  this  writer,  who  sees  noth- 
ing in  Louis  IX.  except  his  intolerance, 
ought  not  to  have  charged  him  with  is- 
suing an  edict  in  favor  of  the  inquisition 
in  1^9,  when  he  had  not  assumed  the 
government. 


46 


THE  CRUSADES. 


Chap.  I.  Part  1. 


(• 


Europe,  they  excited  a  keen  sensation  of  resentment  among 
natio^equally  courageous  and  devout,  which  though  wanting 
as  yet  any  definite  means  of  satisfying  itself,  was  ripe  for 
whatever  favorable  conjuncture  might  anse. 

Twenty  years  before  the  first  crusade  Gregory  VII.  had 
projected  the  scheme  of  embodying  Europe  in  arms  against 
SLa  scheme  worthy  of  his  daring  mind    and  which, 
perhaps,  was  never  forgotten  by  Urban  H.,  who  m   ^ery- 
tMnff  loved  to  imitate  his  great  predecessor.^    This  design  of 
Gregory  was  founded  upon  the  suppUcation  of  the  Greek  em- 
peror Michael,  which  was  renewed  by  Alexius  Comnenus  to 
Urban  with  increased  importunity.     The  Turks  had  now  taken 
Nice,  and  threatened,  from  the  opposite  shore,  the  jery  waUa 
of  Constantinople.     Every  one  knows  whose  hand  held  the 
torch  to  that  inflammable  mass  of  enthusiasm  that  pervaded 
Europe;  the  hermit  of  Picardy,  who,  roused  by  witnessed 
wrongs  and  imagined  visions,  journeyed  from  land  to  land, 
the  apostle  of  an  holy  war.     The  preaching  of  Pe- 
A.D.1095.       ^^j.  ^^  powerfully  seconded  by  Urban.     In  the 
councils  of  Piacenza  and  of  Clermont  the  deliverance  of  Jeru- 
salem was  eloquently  recommended  and  exultingly  undertaken. 
« It  is  the  will  of  God ! "  was  the  tumultuous  cry  that  broke 
from  the  heart  and  lips  of  the  assembly  at  Clermont;  and 
these  words  afford  at  once  the  most  obvious  and  most  certam 
explanation  of  the  leading  principle  of  the  crusades.     Later 
writers,  incapable  of  sympathizing  with  the  blind  fervor  of 
zeal,  or  anxious  to  find  a  pretext  for  its  effect  somewhat  more 
conc^enial  to  the  spirit  of  our  times,  have  sought  pohtical  rea- 
sons for  that  which  resulted  only  from  predominant  affections. 
No  sutrcrestion  of  these  will,  I  believe,  be  found  in  contempo- 
rary historians.    To  rescue  the  Greek  empire  from  its  immi- 
nent peril,  and  thus  to  secure  Christendom  from  enemies  who 
professed  towards  it  eternal  hostility,  might  have  been  a  legiti- 
mato  and  magnanimous  ground  of  mterference ;  but  it  oper- 
ated scarcely,  or  not  at  all,  upon  those  who  took  the  cross.     It 
argues,  indeed,  strange  ignorance  of  the  eleventh  century  to 
ascribe  such  refinements  of  later  times  even  to  the  pnnces  ot 
that  age.    The  Turks  were  no  doubt  repelled  from  the  neigh- 


Baracenjs,  who  had  almost  come  up  to  the 


Frakce. 


THE  CRUSADES. 


47 


borliood  of  Constantinople  by  the  crusaders ;  but  this  was  a 
collatei-al  effect  of  their  enterprise.  Nor  had  they  any  dispo- 
sition to  serve  the  interest  of  the  Greeks,  whom  they  soon 
came  to  hate,  and  not  entirely  without  provocation,  with  al- 
most as  much  animosity  as  the  Moslems  themselves. 

Every  means  was  used  to  excite  an  epidemical  frenzy :  the 
remission  of  penance,  the  dispensation  from  those  practices 
of  self-denial  which  superstition   imposed  or   suspended  at 
pleasure,   the  absolution  of  all  sins,  and  the  assurance  of 
eternal  felicity.     None  doubted  that  such  as  perished  in  the 
war  received  immediately  the  reward  of  martyrdom.^    False 
miracles  and  fanatical  prophecies,  which  were  never  so  fre- 
quent, wrought  up  the  enthusiasm  to  a  still  higher  pitch. 
And  these  devotional  feelings,  which  are  usually  thwarted 
and  balanced  by  other  passions,  fell  in  with  every  motive  that 
could  influence  the  men  of  that  time;  with  curiosity,  restless- 
ness, the  love  of  license,  thirst  for  war,  emulation,  ambition. 
Of  the  princes  who  assumed  the  cross,  some  probably  from 
the  beginning  speculated  upon  forming  independent  establish- 
ments in  the  East.     In  later  periods  the  temporal  benefits  of 
undertaking  a  crusade  undoubtedly  blended  themselves  with 
less  selfish  considerations.     Men  resorted  to  Palestine,  as  in 
modem  times  they  have  done  to  the  colonies,  in  order  to 
redeem  their  fame,  or  repair  their  fortune.     Thus  Gui  de 
Lusignan,  after  flying  from  France,  for  murder,  was  ulti- 
mately raised  to  the  throne  of  Jerusalem.     To  the  more  vul- 
gar class  were  held  out  inducements  which,  though  absorbed 
in  the  overruling  fanaticism  of  the  first  crusade,  might  be 
exceedingly  efficacious  when  it  began  rather  to  flag.     During 
the  time  that  a  crusader  bore  the  cross  he  was  free  from  suit 
for  his  debts,  and  the  interest  of  them  was  entirely  abolished ; 
he  was  exempted,  in  some  instances  at  least,  from  taxes,  and 
placed  under  the  protection  of  the  church,  so  that  he  could 
not  be   impleaded   in   any  civil  court,  except   on   criminal 
charges,  or  disputes  relating  to  land.^ 

None  of  the  sovereigns  of  Europe  took  a  part  in  the  first 


1  Nam  qui  pro  Christi  nomine  decer- 
tantes,  in  acie  fidelium  et  Christiana 
militia  dicuntur,  occumbere,  non  solum 
infamise,  verum  et  peccaminum  et  delic- 
torum  omnimodam  credimus  abolitionem 
promereri.    Wiil.  Tyr.  1.  x.  c.  20. 

*  Otho  of  Frisengen,   c.  85,   has   in- 


serted  a  bail  of  Eugenius  m.  in  1146, 
containing  some  of  these  privileges. 
Others  are  granted  by  Philip  Augustus 
in  1214.  Ordonnances  des  Roi  de 
France,  tom.  1.  See  also  Du  Cange,  voo. 
Crucis  Priyilegia. 


I 


48 


FIRST  CRUSADE. 


Chat.  I.  Pabt  I. 


Francs. 


THE  SECOND  CRUSADE. 


1 


crusade ;  but  many  of  their  chief  vassals,  great  part  of  the 
inferior  nobility,  and  a  countless  multitude  of  the  common 
people.     The  priests  left  their  parishes,  and  the  monks  their 
cells ;  and  though  the  peasantry  were  then  in  general  bound 
to  the  soil,  we  find  no  check  given  to  their  emigration  for  this 
cause.     Numbers  of  women  and  children  swelled  the  crowd ; 
it  appeared  a  sort  of  sacrilege  to  repel  any  one  from  a  work 
which  was  considered  as  the  manifest  design  of  Providence. 
But  if  it  were  lawful  to  interpret  the  will  of  Providence  by 
events,  few  undertakings  have  been  more  branded  by  its  dis- 
approbation than  the  crusades.     So  many  crimes  and  so  much 
misery  have  seldom  been  accumulated  in  so  short  a  space  as 
in  the  three  years  of  the  first  expedition.     We  should  be 
warranted  by  contemporary  writers  in  stating  the  loss  of  the 
Christians  alone  during  this  period  at  neai'ly  a  milhon ;  but 
at  the  least  computation  it  must  have  exceeded  half  that  num- 
ber.^    To  engage  in  the  crusade,  and  to  perish  in  it,  were 
almost  synonymous.     Few  of  those  myriads  who  were  mus- 
tered in  the  plains  of  Nice  returned  to  gladden  their  friends 
in   Europe  with  the  story  of  their  triumph  at  Jerusalem. 
Besieging  alternately  and  besieged  in  Antioch,  they  drained 
tothe°lws  the  cup  of  misery:  three  hundred  thousand  sat 
down  before  that  place ;  next  year  there  remained  but  a  sixth 
part  to  pursue  the  enterprise.     But  their  losses  were  least  in 
the  field  of  battle ;    the  intrinsic   superiority  of  European 
prowess  was  constantly  displayed ;  the  angel  of  Asia,  to  apply 
the  bold  language  of  our  poet,  high  and  unmatchable,  where 
her  rival  was  not,  became  a  fear ;  and  the  Christian  lances 
bore  all  before  them  in  their  shock  from  Nice  to 
A.D.  1099.      Antioch,  Edessa,  and   Jerusalem.     It  was   here, 
where  their  triumph  was  consummated,  that  it  was  stained 
with  the  most  atrocious  massacre ;  not  limited  to  the  hour  of 
resistance,  but  renewed  deliberately  even  after  that  famous 
penitential  procession  to  the  holy  sepulchre,  which  might  have 
calmed  their  ferocious  dispositions,  if,  through  the  misguided 
enthusiasm  of  the  enterprise,  it  had  not  been  rather  calculated 
to  excite  them.* 


49 


1  William  of  Tyw  says  that  at  the 
review  before  Nice  there  were  found 
600,000  of  both  sexes,  exclusive  of  100,000 
cavalry  armed  in  mail.  L.  ii.  c.  23.  But 
Fulk  of  Chartres  reckons  the  same  num- 
ber, besides  women,  children,  and  priests. 
An  immense  slaughter  had  previously 


been   made  in  Hungary  of  the  rabbi* 
under  Qaultier  Sans- Avoir. 

«The  work  of  Mailly,  entitled  L'Esprit 
des  Croisades,  is  deserving  of  considerable 
praise  for  its  diligence  and  impartiality. 
It  carries  the  history,  however,  no  fiirther 
than  the  first  expedition.    Gibbon's  two 


wP^Ti!?"^'^  ''^^°.'^.  ^*  '"'^  ^  P"^^  ^y  t^«  first  crusade 
were  chiefly  comprised  in  the  maritime  parts  of 

Syria.      Except  the  state  of  Edessa  beyond  the  ^X''^' 
Euphrates,*  which,  in  its  best  days,  extended  over  ^^^^ 
great   part  of    Mesopotamia,   the  Latin   possessions   never 
reached  more  than  a  few  leagues  from  the  sea.     Wkhin  Z 
barrier  of  Mount  Libanus  their  arms  might  be  feared  but 
their  power  was  never  established ;  and  the  prophet  wS' stil 
mvoked  m  the  mosques  of  Aleppo  and  Damascus^     Thrpr  n 
cipality  of  Antioch  to  the  north,  the  kingdom  of  Jerusalem 
with  its  feudal  dependencies  of  Tripoli  a^d  Tiberias  to  th^ 
south,  were  assigned,  the  one  to  Boemond,  a  brothrof  R^t 
ert  Guiscard,  count  of  Apulia,  the  other  t<^  Godfrey  of  Bot 
logne,^  whose  extraordinary  merit  had  justly  raised  him  to  a 
degi-ee  of  influence  with  the  chief  crusaders  That  has  b^ 
sometimes  confounded  with  a  legitimate  authority.*    In  the 
course  of  a  few  years  Tyre,  Ascalon,  and  the  other  cities  upon 
the  seaK^oast,  were  subjected  by  the  successors  of  G^^n 

stunned   not  kiUed,  by  the  western  storm,  the  Latins  were 

E^  ^h"''''''^  by  the   Mohammedans   of  EgJJt  and 

^U  no  reZ>r%'T''^  "'  '^'  ^"^P^^^«  ^^  Christendom, 

v:K?u    ^^'^^  ^""^  ^^"^  resources.     A  second  crusade    in 

which  the  emperor  Conrad  IIL  and  Louis  VII  V    ^^^^'  "" 

Fmnce  were  engaged,  each  with  seventy  thousand  ct^S^l 
cavalry,   made   scarce   any   diversion;    and   that  ^•''- "*^- 
vast  army  waited  away  in  the  passage  of  Natolia.* 


chapters  on  the  crusades,  though    not 

without  Inaccuracies,  are  a  brilliant  por- 

tion  of  his  great  work.      The  original 

Writers  are  chiefly  collected  in  twofolio 

Tolumes,  entitled  Gesta  Dei  per  Francos, 

Hanover,  1611.  ' 

»  Edessa  was  a  little  Christian  princi- 

J»Uty  surrounded  by,  and  tributary  to, 

t  mI"^*"-      '^*^«   iahabitants   invited 

«iawin,  on  his  progress  in  the  first  cru- 

■Me,  and  he  made  no  great  scruple  of 

inPA^}-^"^^   '***    reigning   prince,   who 

n.^  ^*  represented  as  a  tyrant  and 

Murper     Esprit  des  Croisades,  t.  iv.  p. 

J^  J3^j^««°es,  Hist,  des  Huns,  tom.  S. 

'Godfrey  never  took  the  title  of  King 
orjerusalem,  not  choosing,  he  said,  to 
JBM  a  crown  of  gold  in  that  city  where 
thi.  ^»*^^.  ^***  ^^^  crowned  with 
■ucJ^L"A»5*J?'^^  Godfrey's  brother,  who 
•uweeded  him  within  two  years,  entitlea 

>  OIm    I.  A 


himself,    Rex    Hierusalem.     Latinomm 
pnmus.     WiU.  Tyr.  1.  ii.  c.  12. 

8  The  heroes  of  the  crusade  are  just 
like  those  of  romance.      Godfrey  is  not 
only  the  wisest  but  the  strongest  man  in 
the  army     Perhaps  Tasso  haa  lost  some 
part  of  this  physical  superiority  for  the 
sake  of  contrasting  him  with  the  imagi- 
nary Rinaldo.      He  cleaves   a  Turk  in 
twain,  from  the  shoulder  to  the  haunch. 
A  noble  Arab,  after  the  taking  of  Jeru 
salem,  requests  him  to  try  his  sword  upon 
a  camel,  when  Godfrey,  with  ease,  cuts 
off  the  head.    The  Arab,  suspecting  there 
might  be  something  peculiar  in  the  blade, 
desires    liim  to  do  the    same  with    his 
sword;  and   the  hero  obliges  him    by 
demolishing  a  second  camel.     Will  Tvr 
i.  ix.  c.  22.  ' 

*  Vertot  puts  the  destruction  In  the 
second  crusade  at  two  hundred  thousand 
men  (Hist,  de  Malthe,  p.  129);  and  from 


.1 


5Q  THE  SECOND  CRUSADE.        Chap.  I.  Part  I. 

The  decline  of  the  Christian  establishments  in  the  East  is 
ascribed  by  William  of  Tyre  to  the  extreme  viciousness  of 
ascriDea  oy         ^^        \^  ^^e  adoption  of  European  arms 
S^rtio       by  the  Orientals,  and  to  the  union  of  the  Moham- 
principau-      ^^      principaUties  under  a  single  chiet.       Witn- 
Zi!"  ^'^     ^ut  denying  the  operation  of   these  causes     and 
especially  the  last,  it  is  easy  to  perceive  one  more  radical  than 
Ke  three,  the  inadequacy  of  their  means  of  self-defence 
The  kingdom  of  Jerusalem  was  guarded  only,  exclusive  of 
EuroS  volunteers,  by  the  feudal  service  of  eight  hundred 
td  sSy-six   knights,    attended   each   by  four   archers  on 
SsebS  by  a  mihtia  of  five  thousand  and   seventy-five 
Whers,  and  by 'a  conscription,  in  great  exigencies,  of  the 
3r<^  population.^    William  of  Tyre  mentions  an  army 
of  one  thousand  three  hundred  horse  and  fifteen  thousand 
foot  as  the  greatest  which  had  ever  been  collected,  and  pre- 
S^;  The  utmost  success  from  it,  if  wisely  conducted  »    This 
wi  a  mtle  before  the  irruption  of  Saladin      In  the  last  fatal 
battle  Lusi-nan  seems  to  have  had  somewhat  a  larger  force.* 
Shing  c^  more  strikingly  evince  the  ascendency  of  Europe 
than  the  resistance  of  these  Prankish  acquisitions  m  Syria 
during  nearly  two  hundred  years.     Several  of  then:  victories 
over  the  Moslems  were  obtained  against  such  disparity  of 
numbers,  that  they  may  be  compared  with  whatever  is  most 
mustrioJs  in  history  or  romance.^    These  perhaps  were  less 
due  to  the  descendants  of  the  first  crusaders,  settled  m  the 

inflowing  robes.      Montfeucon,   Monu- 
mens  de  la  Monarchic  Fran^jaise,   t.  1. 

^  3  Gibbon,  c.  29,  note  125.  Jernsalem 
itself  was  very  thinly  inhabited.  For  aU 
the  hejithens,  says  William  of  Tyre,  had 
perished  in  the  massacre  when  the  city 
was  taken ;  or,  if  any  escaped,  they  were 
not  allowed  to  return  ;  no  heathen  being 
thought  fit  to  dwell  in  the  holy  city. 
Baldwin  invited  some  ArabUn  Christiana 
to  settle  in  it. 
3L.  xxU.  c.  27.  ,     ^ 

4  A  primo  introitu  Latinorum  in  tar 
ram  sanctam,  says  John  de  Vitry,  nofltrl 
tot  miUtoB  in  uno  proelio  conjfregare 
uequiverunt.  Erant  enim  mille  ducenO 
mlUtes  loricati;  pcditum  outem  cum 
armis,  arcubus  ct  balistis  circiter  vigintJ 
mllUa,  infaustsB  expedltlonl  interfuiaw 
dicuntur.  Gesta  del  per  Francos,  p.  1118 
5  A  brief  summary  of  these  Tic  tones  u 
glTcn  by  John  of  Vltry,  c.  93 


»      1 


William  of  Tyre's  langur^e,  there  seems 
no  reason  to  consider  this  an  exaggera- 
tion.   L.  xvi.  c.  19. 

1  L.  xxi.  c.  7.     John  of  Vitry  also 
mentions  the  change  of  weapons  by  the 
Saracens,  in  imitation  of  the  Latins,  using 
the  lances  and  coat  of  mail  instead  of 
bows  and  arrows,  c.  92.    But,  according 
to  a  more  ancient  writer,  part  of  SoU- 
man's  (the  Kilidge  Arslan  of  De  Quignes) 
army  in  the  first  crusade  was  in  armor, 
loricis  et  galeis  et  clypeis  aureis  valde 
armati.    Albertus  Aquensis,  I.  ii.  c.  £i. 
I  may  add  to  this  a  testimony  of  another 
kind,  not  less  decisive.      In   the  Abbey 
of  St.  Denis  there  were  ten  pictures,  In 
stained  glass,    representing    sieges   and 
battles  in  the  first  crusade.    These  were 
made  by  order  of  Suger,  the  minister  of 
Louis  VI.,  and  consequently  in  the  early 
part  of  the  twelfth  century.    In  many  of 
them  the  Turks  are  painted  in  coats  of 
mail,  sometimes  even  in  a  plated  cuirass. 
In  others  they  are  quite  unarmed,  aad 


France. 


THIRD  CRUSADE. 


5i 


Holy  Land,»  than  to  those  volunteers  from  Europe  whom 
martial  ardor  and  religious  zeal  impeUed  to  the  service  It 
rrlnir^''  commonly  imposed  upon  men  of  r^k  for 
the  most  heinous  crimes,  to  serve  a  number  of  years  under 
the  banner  of  the  cross.  Thus  a  perpetual  suppl/Jwa^ors 
was  poured  m  from  Europe ;  and  in  this  sense  IC  crSes 
maybe  said  to  have  lasted  without  intemission  durinTfhe 
whole  penod  of  the  Latin  settlements.  Of  these  defender^ 
the  most  renowned  were  the  military  orders  of  the  Sh^ 

L;  ,  ^\      u   *^  k'°gdom  of  Jerusalem  was  falUn.^,  soot 
ttr  ot  the   world.     Large   estates,  as  well  in  Palestine  ax 

tp£"'ranrP''  '""'=''^,"'^  '^'^  ^^^^  instiSns  •  b" 
rf  thp  t/  T'""'"^''  *"•'  "Misconduct  of  both,  especiaUy 

derived  fTo^th?'  ^T%  *^''T   ^"^"^^  the 'advLtag^ 
derived  from  their  valor.'    At  length  the  famous 

Sakdin  usurping  the  throne  of  a  feeble  dynasty  ""■  ""• 

JieS-Tf- "  ^^X'^^t"  «  upon  Christians  of 
Jerusalem;  the  king  and  the  kingdom  feU  into  his  hands- 
noting  remained  but  a  few  stK.ng%w„s  upon  the  sea-^^.' 
,„  J  ft    ^'.^ff '"ne«  "used  once  more  the  princes  of  E^p^ 
and  the  thmi  crusade  was  undertaken  by  three  ihw 
of  her  sovereigns,  the  greatest  in  personal  estima-  -i- 
ton  as  well  ^  d  gnity_by  the  emperor  Frederic  ''•»•  "89- 
Barbarossa^  Philip  Augustus  of  France,  and  our  own  Rich- 
ard Coeur  de  Lion.     But  this,  like  the  preceding  emerDrise 
failed  of  permanent  effect;    and   those  feats  of  romS 
prowess  which  made  the  name  of  Richard  so  famousTt^  to 
Europe  and  Asia«  proved  only  the  total  inefficacJofX^ 


1  Kany  of  these  were  of  a  mongrel  ex- 
ttaction,  descended  from  a  Frank  parent 

Th^"  '^'*®'  n  °?»®J'"*'^  °°  *^«  other. 
These  were  called  Poulains,  Pullani ;  and 

were  looked  upon  as  a  mean,  degenerate 

»ce.     Du  Cange ;  Qloss.  v.  Pullani ;  and 

Observations  sur  Joinville,  in  Collection 

«M   Mdmoires    reUtifa  k   I'Histoire    de 

France,  t.  ii.  p.  190. 

y.^,u^^.^*'r.'^^^°    °f   Jerusalem    wu 
neither  the  Evangelist  nor  yet  the  Bap- 

rS,'Jl"i,*  ce':^i°  Cypriot,  surnamed  the 
t^rltable,  who   had  been  patriarch  of 


»  See  a  cunous  ins*jince  of  the  miscon- 
w-n-  '*°'^  insolence  of  the  Templars,  in 
WilUam  of  Tyre,  1.  xx.  c.  32.    The  Tem° 

?^J^^^1^'^.^'l.°*°®  thousand  manore, 
and  the  Knights  of  St.  John  nineteei^ 
thousand,  in  Europe.  The  latter  wer» 
almost  as  much  reproached  as  the  Tem- 
plars for  their  pride  and  avarice.  L. 
xvm.  c.  6. 

«  When  a  Turk's  horse  started  at  a 
5?ir'S®.T°"^'^  chide  him,  Joinville  sayt, 
^th,  Cuides-tu  qu'y  soit  le  roi  RichaMf 
Women  kept  their  children  quiet  with 
the  threat  of  bringing  Richard  to  themT 


% 


52  CBUSADES  OF  ST.  LOUIS.    Chap.  I.  Pakt  I. 

ertions  in  an  attempt  so  impracticable ;  Palatine  '^a^  never 
I;  ™*  the  scene  of  another  crusade.  One  great  arma- 
t:S:  ml:  ^ent  was  diverted  to  the  siege  of  ConstanUnopIe ; 
and  another  wasted  in  fruitless  attempts  upon  Egypt.  Ihe 
emperor  Frederic  II.  afterwards  procured  the  restoration  of 
JeSem  by  the  Saracens;  but  the  Christmn  prmces  of 
S  wTre  -Lable  to  defend  it,  and  their  V^^^^H^'J 
gLually  reduced  to  the  maritime  t"''"^- „,^'='^^' *"t^^' ^^ 
Siese,  was  finally  taken  by  storm  m  1291 ;  ^^  its  rum 
closes  the  history  of  the  Latin  dom.mon  m  Syria,  which 
Europe  had  ahready  ceased  to  protect.  ^     .       -, 

The  two  last  crusades  were  undertaken  by  bt-l-ouis.  in 
^  7,„,  the  first  he  was  attended  by  2,800  kn.ghts  and 
grrr'  60,000  ordinary  troops.^  He  landed  at  Damietta 
A...  1218.  in  Egypt,  for  that  country  was  now  deemed  the  key 
of  the  Holy  ll^d,  and  easily  made  himself  master  of  the 
city.  But  advancing  up  the  country,  he  fomid  natural  im- 
J^ents  as  weU  as'enemies  in  his  way ;  *«  Turks^.M 
EL  with  Greek  fire,  an  instrument  of  warfare  almost  as 
surprising  and  terrible  as  gunpowder ;  he  lost  l»s  brother  the 

count  of  Artois,  with  many  knighu,  "^^  M^^«%"^^Ci: 
and  began  too  late  a  retreat  towards  Damiette.     S»<*  ~' 
ties  now  feU  upon  this  devoted  army  as  have  scarce  ever 
been  surpassedfhunger  and  want  of  eve.7  kind,  aggravated 
Ty  an  rsparing  pestilence.    At  length  the  ^-g  was  made 
prisoner,  and  very  few  of  the  army  escaped  the  Turbsh 
cimeter  in  battle  or  in  captivity.     Four  hundred  thousand 
Tres  were  paid  as  a  ransom  for  Louis.    He  returned  to 
France,  and  passed  near  twenty  years  in  the  exercise  of  tW 
virtues  which  are  his  best  title  to  canomzation.     But  the  latal 
illusions  of  superstition  were  stiU  always  at  his  heart;  nor 
did  it  fail  to  be  painfully  observed  by  his  subjects  that  he  still 
kept  the  cross  upon  his  garment.    His  last  expedi- 
*•»•'="'»•      tion  was  originaUy  designed  for  Jerusalem.     But 
he  had  received  some  intimation  that  the  king  of  Turns  was 
desirous  of  embracing  Christianity.    That  these  mtent.ons 
might  be  carried  into  effect,  he  sailed  out  of  his  way  to  the 
oo^t  of  Africa,  and  kid  siege  to  that  city.    A  fever  here  put 

.  Th.  Arabian  wnte«  gi«  him  9600   *«»^«\*?''J?-ja*^anu  Ato. 

jSnvmfw  J  haa  twice  mentioned  the    amounted  to  1800. 
Buaber  of  koighti  ia  the  text.    On  Gib- 


Franck. 


PHILIP  m. 


53 


an  end  to  his  life,  sacrificed  to  that  ruling  passion  which  never 
would  have  forsaken  him.  But  he  had  survived  the  spirit  of 
the  crusades ;  the  disastrous  expedition  to  Egypt  had  cured 
his  subjects,  though  not  himself,  of  their  foUj ;  *  his  son,  after 
making  terms  with  Tunis,  returned  to  France ;  the  Christians 
were  suffered  to  lose  what  they  still  retained  in  the  Holy 
Land ;  and  though  many  princes  in  subsequent  ages  talked 
loudly  of  renewing  the  war,  the  promise,  if  it  were  ever 
smcere,  was  never  accomplished. 

Louis  IX.  had  increased  the  royal  domain  by  the  annexa- 
tion of  several  counties  and  other  less  important  Phiup  in 
fiefs;  but  soon  after  the  accession  of  Philip  IIL  a»1270.* 
(surnamed  the  Bold)  it  received  a  far  more  considerable  aug- 
mentation.    Alfonso,  the  late  king's  brother,  had  been  io- 
vested  with   the   county  of  Poitou,   ceded   by  Henry  HI. 
together  with  part  of  Auvergne  and  of  Saintonge ;  and  held 
also,  as  has  been  said  before,  the  remains  of  the  great  fief  of 
Toulouse,  in  right  of  his  wife  Jane,  heiress  of  Raymond  VIL 
Upon  his  death,  and  that  of  his  countess,  which 
happened  about  the  same  time,  the  king  entered  ^•'*"  ^^* 
into   possession   of  all   these   territories.      This   acquisition 
brought   the   sovereigns  of  France   into   contact  with  new 
neighbors,  the  kings  of  Aragon  and  the  powers  of  Italy. 
The  first  great  and  lasting  foreign  war  which  they 
carried  on  was  that  of  Philip  IIL  and  Philip  IV. '"'''  ^^' 
against  the  former  kingdom,  excited  by  the  insurrection  of 
Sicily.     Though  effecting  no  change  in  the  boundaries  of 
their  dominions,  this  war  may  be  deemed  a  sort  of  epoch  in 
the  history  of  France  and  Spain,  as  weU  as  in  that  of  Italy, 
to  which  it  more  pecuUarly  belongs. 


>  The  refusal  of  Joinville  to  accompany 
the  king  in  this  wcond  cru.<iade  is  very 
memorable,  and  gives  us  an  insight  into 
the  bad  t-fifecti  of  "wth  expeditions.  Le 
Roy  de  France  et  ?e  Roy  de  Navarre  me 
pressoient  fort  de  me  croiser,  et  entre- 
preodre  le  chemin  du  pelerinage  de  la 
croix.  Slai.s  je  leur  respond!,  que  tendis 
quej^avoie  est6  oul'ire-mer  au  service  de 
Weu,  que  les  gens  ct  officers  du  Roy  de 
France  avoient  trop  grev6  et  fouUe  mes 
•ubjets,  tant  (ju'ils  en  estoient  apovris ; 
tenement  que  jam&i  II  ne  seroit  que  eulx 
et  moy  ne  nous  en  Bortissons.  Kt  veoie 
elerement,  si  je  me  mectoie  au  pelerinage 
de  la  croix.  que  co  seroit  la  totale  de- 
struction de  mesdiz  povres  subjets.    De- 


puls  ouy-Je  dire  a  plusieurs,  que  ceux 
qui  luy  conseillerent  I'enterprinse  de  la 
croix  firent  un  trez  grant  mal,  et  peche- 
rent  mortellement.  Car  tandis  qu'il  fust 
au  royaume  de  France,  tout  son  royaume 
vivoit  en  paix,  et  regnoit  justice.  Et  in- 
continent qu'il  en  fust  ors,  tout  com- 
men^a  ji  d6cliner  et  k  empirer.  —  T.  ii. 
p.  158. 

In  the  Fabliaux  of  Le  Grand  d'Auwy 
we  have  a  neat  poem  by  Rutuboeuf,  a 
writer  of  St.  Louis's  age,  in  a  dialogue 
between  a  crusader  and  a  non-crusader, 
wherein,  though  he  gives  the  last  word 
to  the  former,  it  is  plain  that  he  designed 
the  opposite  scale  to  preponderate.  —  T 
U.p.  163 


m' 


H 


PHILIP  IV. 


Chap.  I.  Pakt  I. 


France. 


AGGRANDIZEMENT  OF  FRANCE. 


55 


11' 


There  stiU  remained  five  great  and  ancient  fiefs  of  the 

French  crown ;  Champagne,  Guienne,  Flanders,  Burgundy, 
J?rencn  crown,  Fb  ^  ^^^^^^ 

^  *'•  S  rXmarried  the  heiress  of  the  first,  a  Uttle 
A.0. 1285.  before  his  father^s  death ;  and  although  he  gov- 
emed  that  county  in  her  name  without  pretending  to  reunite 
U  to  the  royal  domain,  it  was,  at  least  in  a  pohuca^  sense  no 
longer^^^  of  the  feudal  body.    With  some  of  h,s  other 

vas!als  Philip  used  more  violent  methods  A  paral le  migh 
be  drawn  between  this  prince  and  Phihp  Augustus.  But 
while  in  ambition,  violence  of  temper  and  unprincipled  rapac- 
ity  as  well  as  in  the  success  of  their  attempts  to 
i^:fZ  estebUsh  an  absolute  authority,  they  may  be  con- 
French  gidcrcd  as  nearly  equal,  we  may  remark  this  ditier- 

Z^r^      ence,  that  Philip  the  Fair,  who  was  destitute  of 
"•8^-  mihtary  talents,  gained  those  ends  by  dissimulation 

which  his  predecessor  had  reached  by  force. 

The  duchy  of  Guienne,  though  somewhat  abridged  of  its 
original  extent,  was  still  by  far  the  most  considerable  of  the 
French  fiefs,  even  independently  of  its  connection  with  Eng- 
land.^    Phihp,  by  dmt  of  perfidy,  and  by  the  egregious  inca- 
nacity  of  Edmund,  brother  of  Edward  L,  contrived  to  obtain 
^d  to  keep  for  several  years,  the  possession  of  this  great 
province.     A   quarrel   among   some  French  and 
A.i>.  1292.      5£j^„iisb  sailors  having  provoked  retaliation,  till  a 
sort  of  piratical  war  commenced  between  the  two  countries, 
Edward,  as  duke  of  Guienne,  was  summoned  mto  the  king  i 
court  to  answer  for  the  trespass  of  his  subjects.     Upon  thu 
he  despatched  his  brother  to  settle  terms  of  reconciliation, 
with  fuller  powers  than  should  have  been  intrusted  to  so  cred 
ulous  a  negotiator.     Philip  so  outwitted  this  prince,  through  f 
fictitious  treaty,  as  to  procure  from  him  the  surrender  of  aL 
the  fortresses  in  Guienne.     He  then  threw  off  the  mask,  and 
after  again  summoning  Edward  to  appear,  pronounced  the 


1  Philip  was  highly  offended  that  in- 
■truments  made  in  Guienne  should  be 
dated  by  the  year  of  Edward's  reign,  and 
not  of  his  own.  This  almost  sole  badge 
of  sovereignty  had  been  preserred  by  the 
kings  of  France  during  all  the  feudal 
ages.  A  struggle  took  place  about  it, 
which  is  recorded  in  a  curious  letter  from 
John  de  Greilli  to  Edward.  The  French 
eourt  at  last  consented  to  let  dates  be 
thus  expressed:    Actum  fuit,  regnante 


P.  rege  Franciie,  E.  rege  Anglla  tenent* 
ducatum  Aqultanioe.  Several  precedents 
were  shown  by  the  English  where  the 
counts  of  Toulouse  had  used  the  form, 
Regnante  A.  Comite  Tolosas.  Itjmcr  t. 
ii  p.  1083.  As  this  is  the  first  time 
that  I  quote  Ilymer,  it  may  be  proper  to 
observe  that  my  references  "e  to  the 
London  edition,  the  paging  of  which  U 
preserved  on  the  margin  of  that  priatea 
at  the  llague. 


confiscation  of  his  fief.^  This  business  is  the  greatest  blemish 
in  the  political  character  of  Edward.  But  his  eagerness  about 
the  acquisition  of  Scotland  rendered  him  less  sensible  to  the 
danger  of  a  possession  in  many  respects  more  valuable ;  and 
the  spirit  of  resistance  among  the  English  nobility,  which  his 
arbitrary  measures  had  provoked,  broke  out  very 
opportunely  for  Philip,  to  thwart  every  effort  for  ^*^*  ^^^' 
the  recovery  of  Guienne  by  arms.  But  after  repeated  sus- 
pensions of  hostilities  a  treaty  was  finally  concluded,  by  which 
Philip  restored  the  province,  on  the  agreement  of  a  marriage 
between  liis  daughter  Isabel  and  the  heir  of  England. 

To  this  restitution  he  was  chiefly  induced  by  the  ill  success 
that  attended  his  arms  in  Flanders,  another  of  the  great  fiefs 
which  this  ambitious  monarch  had  endeavored  to  confiscate. 
We  have  not,  perhaps,  as  clear  evidence  of  the  original  injus- 
tice of  his  proceedings  towards  the  count  of  Flanders  as  in 
the  case  of  Guienne ;  but  he  certainly  twice  detained  his  per- 
son, once  after  drawing  him  on  some  pretext  to  his  court,  and 
again,  in  violation  of  the  faith  pledged  by  his  generals.  The 
Flemings  made,  however,  so  vigorous  a  resistance, 
that  Philip  was  unable  to  reduce  that  small  coun-  ^'^'  ^^^' 
try  ;  and  in  one  famous  battle  at  Courtray  they  discomfited  a 
powerful  army  with  that  utter  loss  and  ignominy  to  which  the 
undisciplined  impetuosity  of  the  French  nobles  was  preemi- 
nently exposed.* 

Two  other  acquisitions  of  Philip  the  Fair  deserve  notice ; 
that  of  the  counties  of  Angouleme  and  La  Marche,  upon  a 
sentence  of  forfeiture  (and,  as  it  seems,  a  very  harsh  one) 
passed  against  the  reigning  count ;  and  that  of  the  city  of 
Lyons,  and  its  adjacent  territory,  which  had  not  even  feu- 
dally been  subject  to  the  crown  of  France  for  more  than  three 
hundred  years.  Lyons  was  the  dowry  of  Matilda,  daughter 
of  Louis  IV.,  on  her  marriage  with  Conrad,  king  of  Bur- 
gundy, and  was  bequeathed  with  the  rest  of  that  kingdom  by 
Rodolph,  in  1032,  to  the  empire.  Frederic  Barbarossa  con- 
ferred upon  the  archbishop  of  Lyons  all  regalian  rights  over 
the  city,  with  the  title  of  Imperial  Vicar.     France  seems  to 

iln  the  view  I  have   taken  of  this  «The  Flemings  took  at  Courtray  4000 

trannaction  I  tiavebeen  guided  by  several  pair  of  gilt  spurs,  which  were  only  worn 

Instruments  in  Rymer,  which  leave  no  by  knights.  These  Velly,  happily  enough, 

doubt  on  my  mind.    Velly  of  course  rep-  compares  to  Hannibal's  three  bushels  of 

resents  the  matter  more  favorably  for  gold  rings  at  Cannse. 
Philip. 


66 


THE  SALIC  LAW. 


Chap.  I.  Part  L 


have  had  no  concern  with  it,  tiU  St  Louis  was  called  in  as  a 
mediator  in  disputes  between  the  chapter  and  the  city,  during 
a  vacancy  of  the  see,  and  took  the  exercise  of  junsdiction 
upon  himself  for  the  time.  Phihp  HI.,  having  been  chosen 
arbitrator  in  similar  circumstances,  insisted,  before  he  would 
restore  the  jurisdiction,  upon  an  oath  of  fealty  from  the  new 
archbishop.  This  oath,  which  could  be  demanded,  it  seems, 
by  no  right  but  that  of  force,  continued  to  be  taken,  till,  in 
1310,  an  archbishop  resisting  what  he  had  thought  an  usurpa- 
tion, the  city  was  besieged  by  Philip  IV.,  and,  the  inhabitants 
not    being  unwillmg  to   submit,  was  finally  umted  to  the 

French  crown.^  .  . 

Philip  the  Fair  left  three  sons,  who  successively  reigned  m 
LoBte  X         France ;  Louis,  surnamed  Hutin,  Phihp  the  Long, 
A.D.  181*4.      and  Charles  the  Fair ;  with  a  daughter,  Isabel,  mar- 
ried to  Edward  II.  of  England.^     Louis,  the  eldest,  survived 
his  father  httle  more  than  a  year,  leaving  one  daughter,  and 
his  queen  pregnant.     The  circumstances  that  en- 
Question  of    g^^^  require  to  be  accurately  stated.     Louis  had 
fSfip^'v.'       possessed,  in  right  of  his  mother,  the  kingdom  of 
A.D.I316.       Navarre,  with  the   counties  of   Champagne  and 
Brie.     Upon  his  death,  PhiUp,  his  next  brother,  assumed  the 
regency  both  of  France  and  Navarre ;  and  not  long  afterwards 
entered  into  a  treaty  with  Eudes,  duke  of  Burgundy,  uncle  of 
the  princess  Jane,  Louis's  daughter,  by  which  her  eventu^ 
rights  to  the  succession  were  to  be  regulated.     It  was  agreed 
that,  in  case  the  queen  should  be  delivered  of  a  daughter, 
these  two  prmcesses,  or  the  survivor  of  them,  should  take  the 
grandmother's  inheritance,  Navarre  and  Champagne,  on  re- 
leasing all  claun  to  the  throne  of  France.     But  this  was  not 
to  take  place  till  their  age  of  consent,  when,  if  they  should 
refuse  to  make  such  renunciation,  their  claim  was  to  remain, 
and  right  to  he  done  to  them  therein  ;  but,  in  return,  the  release 
made  by  Phihp  of  Navarre  and  Champagne  was  to  be  null. 
In  the  mean  time,  he  was  to  hold  the  government  of  France, 
Navarre,  and  Champagne,  receiving  homage  of  vassals  in  all 
these  countries  as  governor;  saving  the  right  of  a  male  heir 
to  the  late  kmg,  in  the  event  of  whose  birth  the  treaty  was 
not  to  take  effect.' 


1  VeUy,  t.  vii.  p.  404.    For  a  more  pre- 
eiae  account  of  the  political  dependenoo 
of  Lyons  and  its  district,  see  L'Art  de    couase,  vol 
▼6rifier  les  Dates,  t.  ii.  p.  469. 


«[NoT«XV.l 

3  Htst.  de  Charles  le  Maaralj,  par  B4> 
U.  p.  2. 


France. 


PHILIP  V. 


67 


This  convention  was  made  on  the  17th  of  July,  1316 ;  and 
on  the  15  th  of  November  the  queen  brought  into  the  world  a 
son,  John  I.  (as  some  called  him),  who  died  in  four  days.^ 
The  conditional  treaty  was  now  become  absolute  ;  in  spirit,  at 
least,  if  any  cavil  might  be  raised  about  the  expression ;  and 
Phihp  was,  by  his  own  agreement,  precluded  from  taking  any 
other  title  than  that  of  regent  or  governor,  until  the  princess 
Jane  should  attain  the  age  to  concur  in  or  disclaim  the  pro- 
visional contract  of  her  uncle.  Instead  of  this,  however,  he 
procured  himself  to  be  consecrated  at  Rheims ;  though,  on 
account  of  the  avowed  opposition  of  the  duke  of  Burgundy, 
and  even  of  his  own  brother  Charles,  it  was  thought  prudent 
to  shut  the  gates  during  the  ceremony,  and  to  dispose  guards 
throughout  the  town.     Upon  his  return  to  Paris,  ,     «  ,„,„ 

11  -i/»-i,  Jan.  o«  lolf. 

an  assembly  composed  of  prelates,  barons,  and  bur- 
gesses of  that  city,  was  convened,  who  acknowledged  him  as 
their  lawful  sovereign,  and,  if  we  may  beheve  an  historian, 
expressly  declared  that  a  woman  was  incapable  of  succeeding 
to  the  crown  of  France.^  The  duke  of  Burgundy,  however, 
made  a  show  of  supporting  his  niece's  interests,  till,  tempted 
by  the  prospect  of  a  marriage  with  the  daughter  of  Philip,  he 
shamefully  betrayed  her  cause,  and  gave  up  in  her  name,  for 
an  inconsiderable  pension,  not  only  her  disputed  claim  to  the 
whole  monarchy,  but  her  unquestionable  right  to  Navarre  and 
Champagne.*  I  have  been  rather  minute  in  stating  these 
details,  because  the  transaction  is  misrepresented  by  every 
historian,  not  excepting  those  who  have  written  since  the  pub- 
hcation  of  the  documents  which  illustrate  it.* 

In  this  contest,  every  way  memorable,  but  especially  on 
account  of  that  which  sprung  out  of  it,  the  exclusion  of  females 
from  the  throne  of  France  was  first  publicly  discussed.     The 


1  Ancient  writers,  Sismondi  tells  us 
(ix.  344),  do  not  call  this  infant  any- 
thing but  the  child  who  was  to  be  king; 
the  maxim  of  later  times,  "  Le  roi  ne 
meurt  pas,"  was  unknown.  I  suspect, 
nevertheless,  that  the  strict  hereditary 
succession  was  better  recognized  before 
this  time  than  Sismondi  here  admits; 
compare  what  he  says  afterwards  of  a 
period  very  little  later,  vol.  xi.  6. 

^Tunc  etiam  declaratum  fuit,  quod  in 
regno  Franciae  mulier  non  succedit.  Con- 
tin.  Qui.  Nangis,  in  SpicUegio  d'- 
Achery,  torn.  iii.  This  monk,  without 
talents,  and  probably  without  private 
Information,  ia  the  sole   contemporary 


historian  of  this  important  period.  He 
describes  the  assembly  which  confirmed 
Philip's  possession  of  the  crown;  — 
quamplures  proceres  et  regni  nobiles  ao 
magnates  uni  cum  plerisque  prselatis  et 
burgensibus  Parisiensis  civitatis. 

3  Hist,  de  Charles  le  Mauvais,  t.  ii.  p.  6. 
Jane,  and  her  husband  the  count  of  Ev- 
reux,  recovered  Navarre,  after  the  death 
of  Charles  the  Fair. 

*Velly,  who  gives  several  proofs  of 
disingenuousness  in  this  part  of  history, 
mutilates  the  treaty  of  the  17th  of  July, 
1316,  in  order  to  conceal  Philip  the  Long'i 
breach  of  faith  towards  his  niece. " 


58 


PHILIP  V. 


Chap.  I.  Part  L 


Fbancb. 


PHILIP  OF  VALOIS. 


59 


French  writers  almost  unanimously  concur  in  asserting  that 
such  an  exclusion  was  built  upon  a  fundamental  maxim  ot 
their  government.     No  written  law,  nor  even,  as  far  as  I 
know,  the  direct  testimony  of  any  ancient  writer,  has  been 
brought  forward  to  confirm  this  position.     For  as  to  the  text 
of  the  Salic  law,  which  was  frequently  quoted,  and  has  indeed 
given  a  name  to  this  exclusion  of  females,  it  can  only  by  a 
doubtful  and  refined  analogy  be  considered  as  bearing  any 
relation  to  the  succession  of  the  crown.     It  is  certain  never- 
theless that,  from  the  time  of  Clovis,  no  woman  had  ever 
rei-ned  in  France ;  and  although  not  an  instance  of  a  sole 
heiress  had  occurred  before,  yet  some  of  the  Merovingian 
kings  left  daughters,  who  might,  if  not  rendered  incapable  by 
thefr  sex,  have  shared  with  their  brothers  in  partitions  then 
commonly  made.^     But,  on  the  other  hand,  these  times  were 
gone  quite  out  of  memory,  and  France  had  much  in  the 
Inalogy  of  her  existing  usages  to  reconcile  her  to  a  female 
reign.     The  crown  resembled  a  great  fief;  and  the  great  fiefe 
might  universally  descend  to  women.     Even  at  the  consecra- 
tioS  of  Philip  himself,  Maud,  countess  of  Artois,  held  the 
crown  over  his  head  among  the  other  peers.=^    ^^^^ '^  ^^ 
scarcely  beyond  the  recollection  of  persons  Uving  that  Blanche 
had  been  legitimate  regent  of  France  durmg  the  mmority  of 

St.  Louis.  ^  .  •  •      1 

For  these  reasons,  and  much  more  from  the  provisional 
treaty  concluded  between  Philip  and  the  duke  of  Burgundy, 
it  may  be  fairly  inferred  that  the  Sahc  law,  as  it  was  called, 
was  not  so  fixed  a  principle  at  that  time  as  has  been  con- 
tended.   But  however  this  may  be,  it  received  at  the  accession 


1  The  treaty  of  Andely,  in  587,  will  be 
found  to  afford  a  very  strong  preaximp- 
tion  that  females  were  at  that  time  ex- 
cluded from  reigning  in  France.    Greg. 

Turon.  1.  ix.  .    ,     , 

3  The  continuator  of  Nangia  says  indeed 
of  this,  de  quo  aliqui  indignati  fuerunt. 
But  these  were  probably  the  partisans 
of  her  nephew  Robert,  who  had  been 
excluded  by  a  judicial  sentence  of  Philip 
IV.,  on  the  ground  that  the  right  of  rep- 
resentation did  not  take  place  in  Artois ; 
a  decision  considered  by  many  as  unjust. 
Robert  subsequently  renewed  his  appeal 
to  the  court  of  Philip  of  Valois ;  but, 
unhappily  for  himself,  yielded    to  the 
temptation  of  forging  documents  in  sup- 
port of  a  claim  which  seems  to  have  been 
%t  least   plausible   without   such   aid. 


This  unwise  dishonesty,  which  is  not 
without  parallel  in  more  private  causes, 
not  only  ruined  his  pretensions  to  the 
county  of  Artois,  but  produced  a  sentence 
of  forfeiture,  and  even  of  capital  punish- 
ment, against  himself.  See  a  pretty  good 
account  of  Kobert's  process  in  Velly,  t. 
viii.  p.  262.  ^    ^ 

Sismondi  (x.  44)  does  not  seem  to  be 
convinced  that  Robert  of  Artois  waa 
guilty  of  forgery ;  but  perhaps  he  is  led 
away  by  his  animosity  against  kings, 
especially  those  of  the  house  of  Valois. 
M.  Michelet  informs  us  (v.  30)  that  the 
deeds  produced  by  the  demoiselle  Divion, 
on  which  Robert  founded  his  claims,  are 
in  the  Tresor  des  Chartes,  and  palpable 
forgeries. 


of  Philip  the  Long  a  sanction  which  subsequent  events  more 
thoroughly   confirmed.     Philip   himself  leaving   only   three 
daughters,  his  brother  Charles  mounted  the  thi-one ;  charies  iv. 
and  upon  his  death  the  rule  was  so  unquestionably  ^.p.  1322. 
established,  that  his  only  daughter  was  excluded  by  phinp  of 
the  count  of  Valois,  grandson  of  Philip  the  Bold.  Vaiois. 
This   prince   first   took  the   regency,  the  queen-  ^•^- 1328. 
dowager  being  pregnant,  and,  upon  her  giving  birth  to  a 
daughter,  was  crowned   king.     No  competitor  or  opponent 
appeared   in  France ;  but  one   more  formidable   than   any 
whom  France  could  have  produced  was  awaiting  the  occasion 
to  prosecute  his  imagined  right  with  all  the  resources  of  valor 
and  genius,  and  to  carry  desolation  over  that  great  kingdom 
with  as  little  scruple  as  if  he  was  preferring  a  suit  before  a 
civil  tribunal. 

From  thj  moment  of  Charles  IV.'s  death,  Edward  III.  of 
England  buoyed  himself  up  with  a  notion  of  his  ciaim  of 
title  to  the  crown  of  France,  in  right  of  his  mother  Edward  rn. 
Isabel,  sister  to  the  three  last  kings.  We  can  have  no  hesita- 
tion in  condemning  the  injustice  of  this  pretension.  Whether 
the  Salic  law  were  or  were  not  valid,  no  advantage  could  be 
gained  by  Edward.  Even  if  he  could  forget  the  express  or 
tacit  decision  of  all  France,  there  stood  in  his  way  Jane,  the 
daughter  of  Louis  X.,  three  of  Philip  the  Long,  and  one  of 
Charles  the  Fair.  Aware  of  this,  Edward  set  uj)  a  distinction, 
that,  although  females  were  excluded  from  h  uccession,  the 
same  rule  did  not  apply  to  their  male  issue  ;  an  I  thus,  though 
his  mother  Isabel  could  not  herself  become  queen  of  France, 
she  might  transmit  a  title  to  him.  But  this  was  contrary  to 
the  commonest  rules  of  inheritance  ;  and  if  it  could  have  been 
regarded  at  all,  Jane  had  a  son,  afterwards  the  famous  king 
of  Navarre,  who  stood  one  degree  nearer  to  the  crown  than 
Edward. 

It  is  asserted  in  some  French  authorities  that  Edward  pre- 
ferred a  claim  to  the  regency  immediately  after  the  decease 
of  Charles  the  Fair,  and  that  the  States-General,  or  at  least 
the  peers  of  France,  adjudged  that  dignity  to  Philip  de  Valois. 
Whether  this  be  true  or  not,  it  is  clear  that  he  entertained 
projects  of  recovering  his  right  as  early,  though  his  youth  and 
the  embarrassed  circumstances  of  his  government  threw 
insuperable  obstacles  in  the  way  of  their  execution.^     He  did 

^  Letter  of  Edward  m.  addressed  to    certain  nobles  and  towns  in  the  south  of 


i 


m 


CLAIM  OF  EDWARD  HI.       Chap.  I.  Pabt  I. 


Fbaxcb. 


fflS  WAR  IN  FRANCE. 


61 


liege  homage,  therefore,  to  Philip  for  Guienne,  and  for  sev- 
erS  years,  while  the  affairs  of  Scotland  engrossed  his  atten- 
tion, gave  no  sign  of  meditating  a  more  magnificent  enterprise. 
As  he  advanced  in  manhood,  and  felt  the  consciousness  of  his 
strength,  his  early  designs  grew  mature,  and  produced  a  senes 
of  the  most  important  and  interesting  revolutions  in  the 
fortunes  of  France.  These  wiU  form  the  subject  of  the 
ensuing  pages. 


Prance,  dated  March  28, 1328,  four  days 
before  the  birth  of  Charles  iV.'s  posthu- 
mous daughter,  intimates  this  resolution. 
Rymer,  vol.  iv.  p.  344  et  seq.    But  an 
instrument,  dated  at  Northampton  on 
the  16th  of  May,  is  decisive :  This  is  a 
procuration  to  the  bishops  of  Worcester 
and  Litchfield,  to  demand  and  take  pos- 
session of  the  kingdom  of  France,  "  in 
(mr  name,  which  kingdom  has  devolved 
ftnd  appertains  to  us  as  to  the  right  heir." 
P.    354.     To   this   mission   archbishop 
Stratford  refers,  in  his  vindication  of 
himself  from    Edward's   accusation    of 
treason  in  1340 ;  and  informs  us  that  the 
two  bishops  actually  proceeded  to  France, 
though  without  mentioning  any  further 
particulars.  Novit  enim  qui  nihil  ignorat, 
quod  cum  qusestio  de  regno  Franciae  post 
mortem  regis  Caroli,  fratris  seremssimae 
matris  vestrae,  in  parliamento  tunc  apud 
Northampton  celebrato,  tractata  discus- 
saque  fuisset ;    quodque  idem  regnum 
Francise  ad  vos  hiereditario  jure  extite- 
rat  legitime  devolutum ;  et  super  hoc 
fuit  ordinatum,  quod  duo  episcopi.  Wig- 
omiensis  tunc,  nunc  autem  Wintonlensis, 
ac  Coven  triensis  et  Lichfeldensis  in  Fran- 
ciam  dirigerent  gressus  suos,  nomincquc 
vestro  regnum  Francise  vindicarent  et 
prsedicti  Philippi  de  Valesio  coronationem 
pro  viribus  impedircnt ;  qui  juxta  ordi- 
nationem  praedictam  legationem  ils  in- 
junctam  tunc  assumentes,  gressus  suos 
Tersus  Franciam  direxeruut;  quae  qui- 
dem  legatio  maximam  guerrae  prsesentis 
materiam  ministravit.  Wilkins,  Concilia, 
t.i  p.  664. 

There  is  no  evidence  in  Rymer'e  Foe- 
dera  to  corroborate  Edward's  supposed 
eUim  to  the  regency  of  France  upon  the 


death  of  Charles  IV. ;  and  it  is  certainly 
suspicious  that  no  appointment  of  am- 
bassadors or  procurators  for  this  purpose 
should  appear  in  so  complete  a  collection 
of  documents.    The  French  historians 
generally  assert  this,  upon  the  authority 
of  the  continuator  of  William  of  Nangis, 
a  nearly  contemporary,  but  not  always 
well-informed  writer.    It  is  curious  to 
compare  the  four  chief  English  historians. 
Kapin  affirms  both  the  claim  to  the  re- 
gency on  Charles  IV.'s  death,  and  that 
to  the  kingdom  after  the  birth  of  hia 
daughter.     Carte,  the  most  exact  his- 
torian we  have,  mentions  the  latter,  and 
is  silent  as  to  the  former.     Hume  passes 
over  both,  and  Intimates  that  Edward 
did  not  take  any  steps  in  support  of  hb 
pretensions  in  1328.    Uenry  gives  the 
supposed  trial  of  Edward's  claim  to  the 
regency  before  the  States-General  at  great 
length,  and  makes  no  allusion  to  the 
other,  so  indisputably  authenticated  in 
Rymer.    It  is,  I  think,  most  probable 
that  the  two  bishops  never  made  the 
formal  demand  of  the  throne  as  they  were 
directed  by  their  instructions.  Stratford's 
expressions  seem  to  imply  that  they  did 

not.  ..11 

Sismondi  does  not  mention  the  clum 
of  Edward  to  the  regency  after  the  death 
of  Charles  IV.,  though  he  supposes  his 
pretensions  to  have  been  taken  into  con- 
sideration by  the  lords  and  doctors  of 
law,  whom  he  asserts,  following  the  con- 
tinuator of  William  of  Nangis,  to  have 
consulted  together,  before  PhiUp  of  Valois 
took  the  title  of  regent.  (Vol.  x.  p.  10.) 
Michelet,  more  studious  of  effect  than 
minute  in  details,  makes  no  aUusioa  to 
the  suttject. 


PABT  n. 

War  of  Edward  m.  In  France  —  Causes  of  his  Success  —  Civil  Disturbances  of 
France — Peace  of  Bretigni  —  Its  interpretation  considered—  Charles  V.—  Re- 
newal of  the  War  —  Charles  VI.  —  his  Minority  and  Insanity  —  Civil  Dissensions 
of  the  Parties  of  Orleans  and  Burgundy  —  Assassination  of  both  these  Princes 

—  Intrigues  of  their  Parties  with  England  under  Henry  IV.  —  Henry  V.  invades 
France— Treaty  of  Troyes  —  State  of  France  in  the  first  Years  of  Charles  VII. 
•—Progress  and  subsequent  decline  of  the  English  Arms  —  their  Expulsion 
from  France  —  Change  in  the  Political  Constitution — Louis  XI. — his  Character 

—  Leagues  formed  against  him — Charles  Duke  of  Burgundy — his  Prosperity 
and  Fall  —  Louis  obtains  possession  of  Burgundy — hia  Death  —  Charles  VIU. — 
«—  Acquisition  of  Britany. 

No  war  had  broken  out  in  Europe,  since  the  fall  of  the 
Roman  Empire,  so  memorable  as  that  of  Edward 
III.  and  his  successors  against  France,  whether  we  Edward  in. 
consider  its  duration,  its  object,  or  the  magnitude  ^  ^'^a^ce- 
and  variety  of  its  events.  It  was  a  struggle  of  one  hundred 
and  twenty  years,  interrupted  but  once  by  a  regular  pacifica- 
tion, where  the  most  ancient  and  extensive  dominion  in  the 
civilized  world  was  the  prize,  twice  lost  and  twice  recovered, 
in  the  conflict,  while  individual  courage  was  wrought  up  to 
that  high  pitch  which  it  can  seldom  display  since  the  regulari- 
ty of  modem  tactics  has  chastised  its  enthusiasm  and  levelled 
its  distinctions.  There  can  be  no  occasion  to  dwell  upon  the 
events  of  this  war,  which  are  familiar  to  almost  every  reader : 
it  is  rather  my  aim  to  develop  and  arrange  those  circum- 
stances which,  when  rightly  understood,  give  the  clue  to  its 
various  changes  of  fortune. 

France  was,  even  in  the  fourteenth  century,  a  kingdom  of 
such  extent  and  compactness  of  figure,  such  popu-  causes  of 
lation  and  resources,  and  filled  with  so  spirited  a  *^  s^^ccess. 
nobiHty,  that  the   very  idea  of  subjugating  it  by  a  foreign 
force  must  have  seemed  the  most  extravagant  dream  of  am- 
bition.*   Yet,  in  the  course  of  about  twenty  years  of  war, 


»  The  pope  (Benedict  XTI.)  wrote  a 
strong  letter  to  Edward  (March,  1340), 
dissuading  him  from  taking  the  title  and 
arms  of  France,  and  pointing  out  the 
Impossibility  of  his  ever  succeeding.  I 
have  no  doubt  but  that  this  was  the  com- 
mon opinion.    But  the  Avignon  popee 


were  very  subservient  to  France.  Clem> 
ent  VI.,  as  well  aa  his  predecessor,  Ben- 
edict XII.,  threatened  Edward  with 
spiritual  arms.  Rymer,  t.  v.  p.  88  and 
465.  It  required  Edward's  spirit  and 
steadiness  to  despise  these  menaces.  But 
the  time   when   they  were   terrible  to 


62  EDWARD  HI.  AND  THE  BLACK  PRINCE.    Chap.  I.  Paet  II. 

this  mighty  nation  was  reduced  to  the  lowest  state  of  exhaus- 
tion, and  dismembered  of  considerable  provinces  by  an  igno- 
minious peace.  What  was  the  combmation  of  pohtical  causes 
which  brought  about  so  strange  a  revolution,  and,  though  not 
reahzmt'  Edward's  hopes  to  their  extent,  redeemed  them  from 
the  imputation  of  rashness  in  the  judgment  of  his  own  and 
succeedinf^  ases  ? 

The  first  advantage  which  Edward  III.  possessed  in  this 
contest  was  derived  from  the  splendor  of  his  per- 
eShl    sonal  character  and  from  the  still  more  eminent 
and  his  son.    yiptugg  of  hig  son.     Bcsidcs  prudcncc  and  military 
skill  these  great  princes  were  endowed  with  qualities  peculiar- 
ly fitted  for  the  times  m  which  they  lived.     Chivah-y  was  then 
in  its  zenith ;  and  in  all  the  virtues  which  adorned  the  knight- 
ly character,  in  courtesy,  munificence,  gallantry,  m  all  deli- 
(ite  and  magnanimous  feelings,  none  were  so  conspicuous  as  . 
Edward  III.  and  the  Black  Prince.    As  later  princes  have 
boasted  of  being  the  best  gentlemen,  they  might  claim  to  be 
the  prowest  knights  in  Europe  —  a  character  not  quite  dis- 
similar, yet  of  more  high  pretension.     Their  court  was,  as 
it  were,  the  sun  of  that  system  which  embraced  the  valor  and 
nobility  of  the  Christian  world ;  and  the  respect  which  was 
felt  for  their  excellences,  while  it  drew  many  to  their  side, 
mitigated  in  all  the  rancor  and  ferociousness  of  hostihty. 
This  war  was  like  a  great  tournament,  where  the  combatants 
fought  indeed  a  outrance,  but  with  all  the  courtesy  and  fair 
play  of  such  an  entertainment,  and  almost  as  much  for  the 
honor  of  then-  ladies.     In  the  school  of  the  Edwards  were 
formed  men  not  inferior  in  any  nobleness  of  disposition  to 
their  masters  —  Manni  and  the  Captal  de  Buch,  Knollys  and 
Calverley,  Chandos  and   Lancaster.     On  the  French  side, 
especially  after  Du  Gueschn  came  on  the  stage,  these  had 
rivals  almost  equally  deserving  of  renown.     K  we  could  for- 
get, what  never  should  be  forgotten,  the  wretchedness  and 
devastation  that  fell  upon  a  great  kingdom,  too  dear  a  price 
for  the  display  of  any  heroism,  we  might  count  these  English 
wars  in  France  among  the  brightest  periods  in  history. 

Philip  of  Valois,  and  John  his  son,  showed  but  poorly  in 
Character  of  comparison  with  their  illustrious  enemies.  Yet 
l^dJohl:      they  both  had   considerable   virtues;   they  were 

princes  wm  rather  parsed  by ;  and  the    out  his  reign,  with  admirable  firnmert 
Holy  See  never  ventured  to  provoke  the    and  temper, 
king,  who  treated  the  church,  through- 


Pbaitck. 


RESOURCES  OF  EDWARD  IH. 


63 


brave,*  just,  hberal,  and  the  latter,  in  particular,  of  un- 
shaken fidelity  to  his  word.  But  neither  was  beloved  by 
his  subjects ;  the  misgovernment  and  extortion  of  their  pred- 
ecessors during  half  a  century  had  alienated  the  public 
mind,  and  rendered  their  own  taxes  and  debasement  of  the 
coin  intolerable.  Philip  was  made  by  misfortune,  John  by 
nature,  suspicious  and  austere ;  and  although  their  most 
violent  acts  seem  never  to  have  wanted  absolute  justice,  yet 
they  were  so  ill-conducted,  and  of  so  arbitrary  a  complexion, 
that  they  greatly  impaired  the  reputation,  as  well  as  interests, 
of  these  monarchs.  In  the  execution  of  Clisson  under  Philip, 
in  that  of  the  Connetable  d'Eu  under  John,  and  still  more  in 
that  of  Harcourt,  even  in  the  imprisonment  of  the  king  of 
Navarre,  though  every  one  of  these  might  have  been  guilty 
of  treasons,  there  were  circumstances  enough  to  exasperate 
the  disaffected,  and  to  strengthen  the  party  of  so  politic  a 
competitor  as  Edward. 

Next  to  the  personal  qualities  of  the  king  of  England, 
his  resources  in  this  war  must  be  taken  into  the  Resources 
account      It    was   after  long  hesitation   that   he  of  ti^e  king 
assumed  the  title  and  arms  of  France,  from  which,  °^  ^"^land. 
unless  upon  the  best  terms,  he  could  not  recede  without  loss 
of  honor.^     In  the  mean  time  he  strengthened  himself  by 


1  The  bravery  of  Philip  is  not  ques- 
tioned. But  a  French  historian,  in  order, 
I  suppose,  to  enhance  this  quality,  has 
presumed  to  violate  truth  in  an  extraor- 
dinary manner.  The  challenge  sent  by 
Edward,  oflFering  to  decide  his  claim  to 
the  kingdom  by  single  combat,  is  well 
known.  Certainly  it  conveys  no  imputa- 
tion on  the  king  of  France  to  have  de- 
clined this  unfair  proposal.  But  Velly 
has  represented  him  as  accepting  it,  on 
condition  that  Edward  would  stake  the 
crown  of  England  against  that  of  France ; 
an  interpolation  which  may  be  truly 
called  audacious,  since  not  a  word  of  this 
is  in  Philip's  letter,  preserved  in  Rymer, 
which  the  historian  had  before  his  eyes, 
and  actually  quotes  upon  the  occasion. 
Hist,  de  France,  t.  viii.  p.  382. 

'  The  first  instrument  in  which  Ed- 
ward disallows  the  title  of  Philip  is  his 
convention  with  the  emperor  Louis  of 
Bavaria,  wherein  he  calls  him  nunc  pro 
rege  Francorum  se  gcrentem.  The  date 
of  this  is  August  26,  1337,  yet  on  the 
28th  of  the  same  month  another  instru- 
ment gives  him  the  title  of  king;  and 
the  same  occurs  in  subsequent  instances. 
At  length  we  have  an  instrument  of  pro- 


curation to  the  duke  of  Brabant.  Oc- 
tober 7,  1337,  empowering  him  to  take 
possession  of  the  crown  of  France  in  the 
name  of  Edward ;  attendentes  inclitum 
regnum  Francije  ad  nos  fore  jure  succes- 
sionis  legitime  devolutum.  Another  of 
the  same  date  appoints  the  said  duke  his 
vicar-general  and  lieutenant  of  France. 
The  king  assumed  in  this  commission 
the  title  Rex  Francia;  et  Angliaj ;  in 
other  instruments  he  calls  himself  Rex 
Angliae  et  Franciae.  It  was  necessary  to 
obviate  the  jealousy  of  the  English,  who 
did  not,  in  that  age,  admit  the  precedence 
of  France.  Accordingly,  Edward  had 
two  great  seals  on  which  the  two  king- 
doms were  named  in  a  different  order. 
But,  in  the  royal  arms,  those  of  France 
were  always  in  the  first  quarter,  as  they 
continued  to  be  until  the  accession  of 
the  house  of  Brunswick. 

Probably  Edward  III.  would  not  have 
entered  into  the  war  merely  on  account 
of  his  claim  to  the  crown.  He  had  dis- 
putes with  Philip  about  Guienne ;  and 
that  prince  had,  rather  unjustifiably, 
abetted  Robert  Bruce  in  Scotland.  I  am 
not  inclined  to  lay  any  material  stress 
upon  the  instigation  of  Robert  of  Artois 


54  THE  ENGLISH  AKMIES.       Cbap.  I.  Pabt  U. 

alliances  with  the  emperor,  with  the  cities  of  Flandei^,  and 
with  most  of  the  princes  in  the  Netherlands  and  on  the 
RhL  Yet  I  do  not  know  that  he  profited  much  by  these 
conventions,  since  he  met  with  no  success  UU  the  scene  of 
the  war  was  changed  from  the  Flemish  frontier  to  Normandy 
and  Poitou.  The  troops  of  Hainault  alone  were  constantly 
distinguished  in  his  service.* 

But  his  intrinsic  strength  was  at  home.     England  had 
been  growing  in  riches  since  the  wise  government  ot  his 
gi^andftther,  Edward  I.,  and  through  the  market  opened  for 
her  wool  with  the  manufacturing  to^vns  of  Flanders,     bhe 
was  tranquil  within;  and  her  northern  enemy,  the  Scotch 
had  been  defeated  and  quelled.    The  Pf^'a^^J^  ^fte--  «>^.« 
sUght  precautions  against  a  very  probable  effect  ?f  Edward  s 
conquest  of  France,  the  reduction  of  their  own  '^land  >"»» J 
province,  entered,  as  warmly  as  improv.dently,  into  his  quM> 
rel     The  people  made  it  their  own,  and  grew  so  intoxicated 
with  the  victories  of  this  war,  that  for  some  centuries  the  m- 
justice  and  folly  of  the  enterprise  do  not  seem  to  have  struck 
the  gravest  of  our  countrymen. 

There  is,  indeed,  ample  room  for  national  exultation  at  the 
names  of  Crecy,  Poitiers,  and  Azincourt.    So  great 
sxceiienc  jhe  disparity  of  numbers  upon  those  lamous 

En*i'h  days,  that  we  cannot,  with  the  French  historians, 
•™"'-  attribute  the  discomfiture  of  their  hosts  merely  to 

mistaken  tactics  and  too  impetuous  valor.  They  yielded 
rather  to  that  intrepid  steadiness  in  danger  which  had  already 
become  the  characteristic  of  our  English  soldiers,  and  which, 
durin-r  five  centuries,  has  insured  their  superiority,  whenever 
IgnorMce  or  infatuation  has  not  led  them  into  the  field.     But 


1  Michelet  dwells  on   the   advantage 
which  Edward  gained  by  the  commerce 
of  England  with  Flanders :   "  Lo  secret 
des  batailles  de  Crecy,  de  Poitiers,  est 
aux  comptoirs  des  marchands  de  Londres, 
de  Bordeaux,  et  de  Bourges  "  (vol.  T.  p. 
6).    France  had  no  internal  trade;  the 
roads  were  dangerous  on  account  of  rob- 
bers, and  heavy  tolls  were  to  be  paid; 
fiscal  officers  had  replaced   the  feudal 
lords.     The  value  of  money  was  per- 
netually  varying  far  more  than  in  Eng- 
land.    (Id.  p.  12.)     Certainly  the  com- 
parative prosperity  of  the  latter  country 
supplied   Edward  with    the    sinews    of 
war.    France  could  not  afford  to  main- 
tain a  well-appointed  infantry 


»»Une  tactique  nouvclle,"  M.  Michelet 
afterwards  very  well    observes   (P-  o\)' 
"  sortait  de  l'6tat  nouveau  de  la  societe ; 
CO  n'etait  pas  un  oeuvre  de  genie,  ni  de 
reflexion.     Edouard  III.  n'etait  ni  un 
Gnstave  Adolphe  ni  un  Frederic  II.     ll 
avait  employ*   les   fantassins  fauto   de 
cavaliers      ...    La  bataille  de  Crecy 
reveilla  un  secret  dont  personne  ne  se 
doutait,  I'impuissance   militaire   de  ce 
monde  feodal,  qui  s'itait   cru    le   seul 
monde  miUtaire.^'    Courtray  might  have 
riven  some  suspicion  of  this ;  but  Cour- 
tray was  much  less  of  a  "  bataille  rang6e 
than  Creoy. 


France. 


CONDITION  OF  FRANCE. 


65 


these  victories,  and  the  qualities  that  secured  them,  must 
chiefly  be  ascribed  to  the  freedom  of  our  constitution,  and  to 
the  superior  condition  of  the  people.  Not  the  nobility  of 
England,  not  the  feudal  tenants  won  the  battles  of  Crecy  and 
Poitiers ;  for  these  were  fully  matched  in  the  ranks  of  France ; 
but  the  yeomen  who  drew  the  bow  with  strong  and  steady 
arms,  accustomed  to  use  it  in  their  native  fields,  and  rendered 
fearless  by  personal  competence  and  civil  freedom.  It  is  well 
known  that  each  of  the  three  great  victories  was  due  to  our 
archers,  who  were  chiefly  of  the  middle  class,  and  attached, 
according  to  the  system  of  that  age,  to  the  knights  and  squires 
who  fought  in  heavy  armor  with  the  lance.  Even  at  the 
battle  of  Poitiers,  of  which  our  country  seems  to  have  the 
least  right  to  boast,  since  the  greater  part  of  the  Black 
Prince's  small  army  was  composed  of  Gascons,  the  merit  of 
the  English  bowmen  is  strongly  attested  by  Froissart.^ 

Yet  the  glorious  termination  to  which  Edward  was  enabled, 
at  least  for  a  time,  to  bring  the  contest,  was  rather  condition 
the  work  of  fortune  than  of  valor  and  prudence,  of  France 
Until   the   battle   of   Poitiers  he   had    made   no  Jat'tVo/ 
progress  towards  the  conquest  of  France.     That  Poitiers, 
country  was  too  vast,  and  his  army  too  small,  for  such  a  rev- 
olution.    The  victory  of  Crecy  gave  him  nothing  but  Calais ; 
a  post  of  cx)nsiderable  importance  in  war  and  peace,  but 
rather  adapted  to  annoy  than  to  subjugate  the  kingdom.     But 
at  Poitiers   he  obtained  the  greatest  of  prizes,  by  taking 
prisoner  the  king  of  France.     Not  only  the  love  of  freedom 
tempted  that  prince  to  ransom  himself  by  the  utmost  sacrifices, 
but  his  captivity  left  France  defenceless,  and  seemed  to  anni- 
hilate  the  monarchy  itself.     The  government  was   already 
odious ;  a  spirit  was  awakened  in  the  people  which  might 


»  Au  vray  dire,  les  archres  d'Angle- 
terre  fkisoient  k  leurs  gens  grant  avan- 
tage.  Car  ils  tiroyent  tant  espessement. 
que  les  Francois  ne  s^javovcnt  deque! 
cost*  entendre,  qu'ils  ne  fussent  con- 
Buyvis  de  trayt;  et  s'avan^oyent  tous- 
jours  ces  Anglois.  et  petit  k  petit  enque- 
royent  terre.     Part  I.  c.  1(52. 

It  is  by  an  odd  oversight  that  Slsmondi 
bas  said  (x.  295),  "  Les  Anglais  6taient 
accoutum^s  k  se  servir  sans  cesse  de  Var- 
kaW/e."  The  cross-bow  was  looked  upon 
•■  a  weapon  unworthy  of  a  brave  man ; 
»  prejudice  which  afterwards  prevailed 
with  re.spect  to  fire-arms.  A  romancer 
praises  the  emperor  Conrad, 

VOL.  L  6 


"  Par  un  effort  de  lance  et  d'6cu, 
Conqu^rant  tous  ses  ennemis, 
Y  k  arbalestrcis  ni  fu  mis ; " 

quoted  by  Boucher  in  his  translation  of 
'  II  Consoiato  del  Mare,'  p.  518.  Even  the 
long-bow  might  incur  this  censure ;  or 
any  weapon  in  which  the  combatants 
fought  eminus.  But  if  we  look  at  the 
plate-armor  of  the  fifteenth  century,  it 
may  seem  that  a  knight  had  not  much 
to  boast  of  the  danger  to  which  he  ex- 
posed himself,  e?pecisdly  when  encounter^ 
ing  infantry. 


66 


CONDITION  OF  FRANCE       Chap.  I.  Part  IL 


seem  hardly  to  belong  to  the  fourteenth  century;  and  the 
convulsions  of  our  own  time  are  sometimes  strongly  paralleled 
by  those  which  succeeded  the  battle  of  Poitiers.    Already  the 
States-General  had  established  a  fundamental  prniciple,  that 
no  resolution  could  be  passed  as  the  opinion  of  the  whole 
unless  each  of  the  three  orders  concurred  m  its  adoption. 
The  ricrht  of  levying  and  of  regulating  the  collection  ot  taxes 
was  recognized.     But  that   assembly,  which   met   at  Paris 
immediately  after  the  battle,  went  far  greater  lengths  in  the 
reform  and  control  of  government.     From  the  time  of  Philip 
the  Fair  the  abuses  natural  to  arbitrary  power  had  harassed 
the  people.     There  now  seemed  an  opportunity  of  redress ; 
and  however  seditious,  or  even  treasonable,  may  have  been 
the  motives  of  those  who  guided  this  assembly  of  the  btates, 
especially  the  famous  Marcel,  it  is  clear  that  many  of  their 
reformations  tended  to  liberty  and  the  public  good.=»     But  the 
tumultuous   scenes  which  passed  in  the  capital,  sometimes 
heightened  into  civil  war,  necessarily  distracted  men  Irom 
the  common  defence  against  Edward.     These  tumults  were 
excited,  and  the  distraction  increased,  by  Charles  king  ot 
Navarre,  surnamed  the  Bad,  to  whom  the  I  rench  writers 
have,  not  perhaps  unjustly,  attributed  a  character  of  unmixed 
and  inveterate  malignity.     He  was  grandson  of  Louis  Hutm, 
by  his  daughter  Jane,  and,  if  Edward's  pretence  of  claiming 
through  females,  could  be  admitted,  was  a  nearer  heir  to  the 
crown  ;  the  consciousness  of  which  seems  to  have  suggested 
itself  to  his  depraved  mind  as  an  excuse  for  his  treacheries, 
thouorh  he  could  entertain  very  httle  prospect  of  asserting  the 
claim  against  either  contending  party.     John  had  bestowed 
his  daucrhter  in  marriage  on  the  king  of  Navarre ;  but  he 
very  soon  gave  a  proof  of  his  character  by  procuring  the 
assassination  of  the  king's  favorite,  Charles  de  la  Cerda.     An 
irreconcileable  enmity  was  the  natural  result  of  this  crime. 
Charles  became  aware  that  he  had  offended  beyond  the  possi- 
bility  of  forgiveness,  and  that  no  letters  of  pardon,  nor  pre- 
tended reconciliation,  could  secure  him  from  the  king's  resent 
ment.     Thus,  impelled  by  guilt  into  deeper  guilt,  he  entered 
into  alliances  with  Edward,  and  fomented  the  seditious  spint 
of  Paris.    Eloquent  and  insmuating,  he  was  the  favorite  of  the 

1  Ordonnances  des  Rois  de  France,  t.  H.  but  it  arose  indispensably  o^  ^^  ™y  "f 

«  I  must  refer  the  reader  onward  to  the  rangement  and  prevented  greater  inoon- 

next  chapter  for  more  information  on  thia  Ycniences 

subject.   Thifl  separation  is  inconrenient, 


France.  AFTER  THE  BATTLE  OF  POITIERS.  67 

people,  whose  grievances  he  affected  to  pity,  and  with  whose 
leaders  he  intrigued.  As  his  paternal  inheritance,  he  pos- 
sessed the  a)unty  of  Evreux  in  Normandy.  The  proximity 
of  this  to  Pans  created  a  fonnidable  diversion  in  favor  of 
Edward  III  and  connected  the  English  garrisons  of  the 
North  with  those  of  Poitou  and  Guienne. 

There  is  no  affliction  which  did  not  fall  upon  France  during 
this  miserable  period.     A  foreign  enemy  was  in  the  heart  of 
the  kingdom,  the  king  a  prisoner,  the  capital  in  sedition,  a 
treacherous  prince  of  the  blood  in  arms  against  the  soverei^ 
authority.     Famine,  the  sure  and  terrible  companion  of  wS- 
for  several  years  desolated  the  country.    In  1348  a  pestilence! 
the  most  extensive  and  unsparing  of  which  we  have  any 
memorial,  visited  France  as  well  as  the  rest  of  Europe  and 
consummated  the  work  of  hunger  and  the  sword.^     The  com- 
panies of  adventure,  mercenary  troops  in  the  service  of  John 
or  t'dward,  finding  no  immediate  occupation  after  the  truce 
•1,        '  scattered  themselves  over  the  country  in  search  of 
pillage.     No  force  existed  sufficiently  powerf-ul  to  check  these 
robbers  m  their  career.     Undismayed  by  superstition,  they 
compelled  the  pope  to  redeem  himself  in  Avignon  by  the 
payment  of  forty  thousand  crowns.^     France  was  the  passive 
victim  of  their  license,  even  after  the  pacification  concluded 
with  England,  till  some  were  diverted  into  Italy,  and  others 
led  by  Du  Gueschn  to  the  war  of  Castile.     Impatient  of  this 


k   *ui         awount  of  the  ravages  made 
oj  this  memorable  plague  may  be  found 
In  Matteo  Villani,   the  second  of  that 
amily  who  wrote  the  history  of  Florence. 
His  brother  and  predecessor,  John  Vil- 
lani. was  himself  a  victim  to  it.    The 
disease  began  in  the  Levant  about  1346 ; 
from  whence  Italian  traders  brought  it 
to  bicily,  Pisa,  and  Genoa.    In  1§48  it 
pMsed  the  Alps  and  spread  over  France 
and  Spain ;  in  the  next  year  it  reached 
Britain,  and  in  1350  laid  waste  Germany 
and  other  northern  states  ;  lasting  gen- 
erally about  five  months  in  each  country. 

filf  **  ^^^  ^^'^^  ^^^^  out  of  five 

«ed.  Muratori,  Script.  Rerum  Italica- 
rom,  t.  XIV.  p.  12.  The  stories  of  Boc- 
caccio  8  Decamerone,  as  is  weU  known,  ar« 
supposed  to  be  related  by  a  society  of 
Jriorentme  ladies  and  gentlemen  retired 
to  the  country  during  this  pestilence. 

Another  pestilence,  only  less  destruc- 
uIa  iP'^'?  ^^^  former,  wasted  both  France 
and  England  in  1361.  Sismondi  bitterly 
remarks  (x.  342)  that  between  four  and 


five  millions  who   died  of  the   former 
plague  m  France  merely  diminished  the 
number  of  the  oppressed,  producing  no 
perceptible  effect.    But  this  is  examer- 
ated.     The   plague  caused  a  truce  of 
several  months.    The  war  was  in  fact 
carried  on  with  less  vigor  for  some  years. 
It  IS,  however,  by  no  means  unlikely 
that  the  number  of  deaths  has  been  over- 
rated.   Nothing  can  be  more  loose  than 
the    statistical    evidence   of   medijeval 
writers.    Thus  30,000  are  said  to  have 
died   at   Narbonue.    (Michelet,  v.  94.) 
But  had  Narbonne  so  many  to  lose  ?    At 
least,  would  not  the  depopulation  have 
been  out  of  all  proportion  to  other  cities' 
8  Froissart,  p.  187.    Thia  troop  of  ban- 
ditti was  commanded  by  Arnaud  de  Cer- 
vole,  surnamed  I'ArchiprStre,  from  a  ben- 
efice which,  although  a  layman,  he  poe- 
sessed,  according  to  the  irregularity  of 
those  ages.    See  a  memoir  on  the  life  of 
Arnaud  de  Cervole,  in  the  twenty-fifth 
volume  of  the  Academy  of  Inscriptions. 


H  PEACE  OF  BRETIGNI.       Chap.  I.  Part  U 

wretchedness,  and  stung  by  the  insolence  and  luxury  of  their 
wretchedness,  ^^j^      ^^  ^^^^^^  ^.^^^^^^^  ^^^        , 

-•-  ^358.  nto  a  dreadful  insurrection.  This  was  called  the 
Tftonuerie  from  the  cant  phrase  Jacques  Bonhomme,  applied 
S  of  \  Jat  d^ ;  -d  ^as  marked  by  all  the  circumstances 
of  horror  incident  to  the  rising  of  an  exasperated  and  unen- 

'^tldlny  ^ei  misfortunes,  though  Edward  had  made 
r      but  sli-ht  progress  towards  the  conquest  of  the 
S^gSl.       Sunti^^^^^^^^  of  France,  afterwards  Charles 

V   Submitted  toYhe  peace  of  Bretigni.     By  this  treaty  no  to 
menS"srimporto^^  all  Guienne,  Gascony,  Poitou, 

mention  ies.^    P  ^^^  Limousin,  and  the  Angoumois,  as 

^•^-  ^^-  well  as  cLlais,  and  the  county  of  Ponthieu,  were 
ceded  in  full  sovereignty  to  Edward;  a  price  abundantly  com- 
^nsatin^^^^^^  renunciation  of  the  title  of  France,  which  w^  the 
^fe  concession  stipulated  in  return.  Every  care  seems  to 
Sve  beenXn  to  make  the  cession  of  these  P«>vmces  com- 
l\Z  The  first  six  articles  of  the  treaty  expressly  surrender 
ffmto  !he  king  of  England  By  the  seventh^  John  and  his 
8on   engaged  to   convey  withm   a  year   from   the  ensuing 

must  add  that  the  celebrated  "^^  of  *Jj« 
8iT  citizens  of  Calais,  -which  has  of  late 
been  called  in  question,  receives  strong 
conSmaUon  fn?m  John  ViUaui,  yho  ched 
rery  soon  afterwards.   L.  wi.  c.  96.  ^  1-  row- 
sart  of  course  wrought  up  the  circum- 
stances after  this  manner.    In  all  ^ne 
cSoring  of  his  history  he  Is  as  great  a 
master  as  Livy,  and  as  Uttlc  observant 
S  particular  truth.    M.  de  Brequigny, 
ahnost  the  latest  of  those  exceUent  an- 
tiquaries whose  memoirs  so  ny»<;\\  »""«; 
trate  the  French  Academy  of  JufcnP 
tions,  has  discussed  the  history  of  Calais, 
and  particularly  this  renuirkable  portion 
of  it.    Mem.  de  I'Academie  des  Inscrip- 

^  F^twrch  has  drawn  a  laf  ejl*?;^^®  Pjf T 
ture  of  the  state  of  France  in  1380,  when 
he  paid  a  visit  to  Pans.    I  could  not 
beUeve,  he  says,  that  this  was  the  same 
S^gJom  which 'l  had  once  seen  so  nch 
and  flourishing.  Nothing  preseutcd  it>clf 
to  my  eyes  but  a  fearful  solitude,  an  ex- 
{^Se  poverty,  lands  uncultivated,  hou^J 
S:  ruins.    Even    the    no  gbborhood  of 
Paris  manifested  everywhere  marks  oi 
destruction  and  conflagration.  The  streets 
are  deserted;  the  roads  overgrown  w^ 
weeds:  the  whole   is   a  vast   sohtude. 
M«m.  de  P^trarque,  t.  lu.  P-  o^i- 


\  The  second  continuator  of  Nangia,  » 
monk  of  no  great  abilities,  but  entitled 
to  notice  as  our  most  contemporary  His- 
torian, charges  the  nobility  wth  spend- 


lorium,  t.  iii.  p.  114  (folio  edition).    All 
toe  mi^ries  that  followed  the  battle  of 
Poitiers  he  ascribes  to  bad  government 
and  neglect  of  the  commonweal :  but 
especially  to  the  pride  and  luxurj-of  the 
nobles.    I  am  aware  that  this  writer  is 
biassed  in  favor  of  the  king  of  Navarre  , 
but  he  was  an  eye-witness  of  the  people  s 
misery,  and  perhaps  a  less  exceptionable 
luithority  than  FroUsart,  whose  love  of 
pageantry  and  habits  of  feasting  in  the 
OiBtles  of  the  great  seem  to  have  produced 
gome  insensibility  towards  the  sufferings 
of  the  lower  classes.    It  is  a  painful  cir- 
cumstance, which  Froissart  and  the  con- 
tinuator of  Nangis  attest,  that  the  citizens 
of  Calais,  more  interesting  than  the  com- 
mon hei-oes  of  history,  were  unrewarded, 
and  begsed  their  bread  in  misery  through- 
out France.    VUlaret  contradicts  this,  on 
the  authority  of  an  ordinance  which  he 
has  seen  in  their  &vor.     But  that  was 
not  a  time  when  ordinances  ^ere  very 
raze  of  execution.    Vill.  t.  Ix.  p.  4<0.    I 


France. 


PEACE  OF  BRETIGNI. 


69 


Michaebnas  aU  their  rights  over  them,  and  especially  those 
of  sovereignty  and  feudal  appeal.     The  same  words  are  re- 
peated  still  more  emphatically  in  the   eleventh  and   some 
other  articles.     The  twelfth  stipulates  the  exchange  of  mu- 
tual renunciations ;   by  John,  of  aU  right   over  the   ceded 
countries ;  by  Edward,  of  his  claim  to  the  throne  of  France 
At  Calais  the  treaty  of  Bretigni  was  renewed  by  John,  who 
us  a  prisoner,  had  been  no  party  to  the  former  compact,  with 
the  omission  only  of  the  twelfth  article,  respecting  the  ex- 
change  of  renunciations.     But  that  it  was  not  intended  to 
waive  them  by  this  omission  is  abundantly  manifest  by  instru- 
ments of  both  the  kings,  in  which  reference  is  made  to  their  fu- 
ture interchanges  at  Bruges,  on  the  feast  of  St.  Andrew,  1361. 
And,  until  that  time  should  arrive,  Edward  promises  to  lay 
aside  the  title  and  arms  of  France  (an  engagement  which  he 
strictly  kept»),  and  John  to  act  in  no  respect  as  kincr  or 
suzerain  over  the  ceded  provinces.     Finally,  on  November 
10,  idbl,  two  commissioners  are  appointed  by  Edward  to  re- 
ceive the  renunciations  of  the  king  of  France  at  Bruges  on 
the  ensuing  feast  of  St.  Andrew,^  and  to  do  whatever  might 
be  mutually  required  by  virtue  of  the  treaty.     These,  how- 
ever, seem  to  have  been  withheld,  and  the  twelfth  article  of 
the  treaty  of  Bretigni  was  never  expressly  completed.     By 
mutual  instruments,  executed  at  Calais,  October  24,  it  had 
been  declared  that  the  sovereignty  of  the  ceded  provinces,  as 
well  as  Edward's  right  to  the  crown  of  France,  should  remain 
as  betore,  although  suspended  as  to  its  exercise,  until  the  ex- 
change of  renunciations,  notwithstanding  any  words  of  present 
conveyance  or  release  in  the  treaties  of  Bretigni  and  Calais. 
And  another  pair  of  letters-patent,  dated  October  26,  contains 
the  form  of  renunciations,  which,  it  is   mutually  declared, 
should  have  effect  by  virtue  of  the  present  letters,  in  case  one 
party  should  be  ready  to  exchange  such  renunciations  at  the 
time  and  place  appointed,  and  the  other  should  make  default 
therein.     These  instruments  executed  at  Calais  are  so  prolix, 
and  so  studiously  enveloped,  as  it  seems,  in  the  obscurity  of 
technical  language,  that  it  is  difficult  to  extract  their  precise 
intention.     It  appears,  nevertheless,  that  whichever  party  was 
prepared  to  perform  what  was  required  of  him  at  Bruges  on 

ofV??,!!!^  ^^'f  ^?^''  *^®  *J"®  °'  ^*°«    ^-  P-  217.    The  treaty  was  signed  Octc 
of  France  in  an  instrument  bearing  date    ber  24.    Id.  p.  219.  ^ 

at  Calais,  October  22,  1360.    Rymer,  t.       2  Rym.  t.  k  p.  339 


70 


PEACE  OF  BRETIGNl.        Chap.  I.  Part  O. 


November  30,  1361,  the  other  then  and  there  making  default, 
would  acquire  not  only  what  our  lawyers  might  call  an 
equitable  title,  but  an  actual  vested  right,  by  virtue  of  the 
provision  in  the  letters-patent  of  October  26,  1360.     The  ap- 
pointment above  mentioned  of  Edward's  commissioners  on 
November  15,  1361,  seems  to  throw  upon  the  French  the 
burden  of  proving  that  John  sent  his  envoys  with  equally 
full  powers  to  the  place  of  meeting,  and  that  the  non-mter^ 
chancre  of  renunciations  was  owing  to  the  English  govern- 
ment?   But  though  an  historian,  sixty  years  later  (Juvenal  des 
Ursins),  asserts  that  the  French  commissioners  attended  at 
Brut^es,  and  that  those  of   Edward  made  default,  this  is 
certainly  rendered  improbable  by  the  actual  appointment  of 
commissioners  made  by  the  king  of  England  on  the  loth  of 
November,  by  the  silence  of  Charles  V.  after  the  recom- 
mencement of  hostilities,  who  would  have  rejoiced  in  so  good 
a  gi-ound  of  excuse,  and  by  the  language  of  some  English 
instruments,  complaining  that  the  French  renunciations  were 
withheld.^     It  is  suggested  by  the  French  authors  that  Ed- 
ward  was  unwilUng  to  execute  a  formal  renunciation  ot  his 
claim  to  the  crown.     But  we  can  hardly  suppose  that,  m 
order  to  evade  this  condition,  which  he  had  voluntarily  im- 


1  It  appears  that,  among  other  alleged 
Infractions  of  the  treaty,  the  king  of 
France  had  received  appeals  from  Ar- 
magnac,  Albret,  and    other    nobles  of 
Aquitaine,  not  long  after  the  peace.  For, 
in  February,  1362,  a  French  envoy,  the 
oount  de  Tancarville,  being  in  England. 
the  privy  council  presented  to  Edward 
their  bill  of  remonstrances  against  this 
conduct  of  France  ;  et  semble  au  conseil 
le   roy  d'Angleterre    que    considere    la 
fburme  de  la  ditte  paix,  que  tant  estoit 
honourable  et  proffltable  au  royaume  de 
France  et  i  toute  chretiente,  que  la  re- 
ception desdittes  appellacions  n'a   mie 
este  bien  faite,  ne  passee  si  ordenement, 
ne  i  si  bon  affection  et  amour,  comme  il 
droit  avoir  este  fait  de  raison  parmi  Tcf- 
fet  et  I'intention  de  la  paix  et  ailliances 
afferm«ics  et  entr'eux  semble  estre  moult 
preaudiciables  et  contraires  i  Tonneur  et 
a  I'estat  du  roy  et  de  son  fils  le  prince  et 
de  toute  la  maison  d'Angleterre,  et  pour- 
ra  estre  evidente  mati^re  de  rebellion  des 
snbgiez,  et  aussi  donner  tres-grant  oc- 
casion d'enfraindre  la  paix,  si  bon  re- 
mede  sur  ce  n'y  soit  mis  plus  hastive- 
ment.    Upon  the  whole  they  conclude 
that  if  the  king  of  France  would  repair 
this  trespass,  and  send  hi3  renunciation 


of  sovereignty,  the  king  should  send  his 
of  the  title  of  Fniuce.  Martcnne,  Thes. 
Anec.  t.  i.  p.  1487. 

Four  princes  of  the  blood,  or,  as  they 
are   termed.  Seigneurs  des  Fleurdelys, 
were  detained  as  hostages  for  the  due  ex- 
ecution of  the  treaty  of  Bretigni,  which, 
from  whatever  pretence,  was  delayed  for 
a  considerable  time.    Anxious  to  obtain 
their  liberty,   they  signed  a  treaty  at 
London  in  November,  1362,  by  which, 
among  other  provisions,  it  was  stipulated 
that  the  king  of  Franco   should  send 
fresh  letters,  under  his  seal,  conveying 
and  releasing  the  territories  ceded  by  the 
peace,  without  the  clause  contained  in 
the  former  letters,  retaining  the  ressort : 
et  que  en  ycelles  lettres  soit  expresse- 
ment  compris  transport  de  la  souver* 
ainete   et   du    ressort,   &c.      Et  le  roi 
d'Angleti?rre  et  ses  cnfiins  forront  sem- 
blablement  autiels  rcnonciations,  sur  ce 
q'il  doit  faire  de  sa  partie.     Rymer,  t.  vi. 
p.  396.    This  treaty  of  London  was  never 
ratified  by  the  French  government ;  but 
I  use  it  as  a  proof  that  Edward  imputed 
the  want  of  mutual   renunciations   to 
France,  and  was  himself  ready  to  per- 
form his  part  of  the  treaty. 


France. 


PEACE  OF  BRETIGNI. 


71 


posed  upon  himself  by  the  treaties  of  Bretigni  and  Calais,  he 
would  have  left  his  title  to  the  provinces  ceded  by  those  con- 
ventions imperfect.  He  certainly  deemed  it  indefeasible,  and 
acted,  without  any  complaint  from  the  French  court,  as  the 
perfect  master  of  those  countries.  He  created  his  son  prince 
of  Aquitaine,  with  the  fullest  powers  over  that  new  principal- 
ity, holding  it  in  fief  of  the  crown  of  England  by  the  yearly 
rent  of  an  ounce  of  gold.'  And  the  court  of  that  great 
prince  was  kept  for  several  years  at  Bordeaux. 

I  have  gone  something  more  than  usual  into  detail  as  to 
these  circumstances,  because  a  very  specious  account  is  given 
by  some  French  historians  and  antiquaries  which  tends  to 
throw  the  blame  of  the  rupture  in  1368  upon  Edward  HI.' 
Unfounded  as  was  his  pretension  to  the  crown  of  France,  and 
actuated  as  we  must  consider  him  by  the  most  ruinous  am- 
bition, his  character  was  unblemished  by  ill  faith.  There  is 
no  apparent  cause  to  impute  the  ravages  made  in  France  by 
soldiers  formerly  in  the  English  service  to  his  instigation,  nor 
any  proof  of  a  connection  with  the  king  of  Navarre  subse- 
quently to  the  peace  of  Bretigni.  But  a  good  lesson  may  be 
drawn  by  conquerors  from  the  change  of  fortune  that  befell 
Edward  III.  A  long  warfare,  and  unexampled  success,  had 
procured  for  him  some  of  the  richest  provinces  of  France. 
Within  a  short  time  he  was  entirely  stripped  of  them,  less 
through  any  particular  misconduct  than  in  consequence  of  the 
intrinsic  difficulty  of  preserving  such  acquisitions.  The  French 
were  already  knit  together  as  one  people;  and  even  those 


»  Rym.  t.  ri.  p.  385-389.  One  clause 
is  remarkable ;  Edward  reserves  to  him- 
eelf  the  ri^ht  of  creating  the  province  of 
Aquitiiine  into  a  kingdom.  So  high  were 
the  notions  of  this  great  monarch  in  an 
age  when  the  privilege  of  creating  new 
kingdoms  was  deemed  to  l>elong  only  to 
the  pope  and  the  emperor.  Etiam  si  per 
noshujusmodi  provinciae  adregalis  hono- 
ris titulum  et  fastigium  imposterum  sub- 
limentur;  quam  erectionem  faciendam 
pej  nos  ex  tunc  specialiter  reservamus. 

•  Besides  Villaret  and  other  historians, 
the  reader  who  feels  any  curiosity  on  this 
subject  may  consult  three  memoirs  in 
the  15th  volume  of  the  Academy  of  In- 
«;riptions  by  MM.  Secousse,  Salier,  and 
Bonamy.  —  These  distinguished  antiqua- 
nes  unite,  but  the  third  with  much  less 
confidence  and  passion  than  the  other 
two,  in  charging  the  omission  upon  Ed- 
*W(L    The  observations  iu  the  text  will 


serve,  I  hope,  to  repel  their  arguments, 
which,  I  may  be  permitted  to  observe, 
no  English  writer  has  hitherto  under- 
taken to  answer.  This  is  not  said  in 
order  to  assume  any  praise  to  myself;  in 
fact,  I  have  been  guided,  in  a  great  de- 
gree, by  one  of  the  adverse  counsel,  M. 
Bonamy,  whose  statement  of  facts  is  very 
fair,  and  makes  me  suspect  a  little  that 
he  saw  the  weakness  of  his  own  cause. 

The  authority  of  Christine  de  Pisan, 
a  contemporary  panegyrist  of  the  French 
king,  is  not,  perhaps,  very  material  in 
such  a  question ;  but  she  seems  wholly 
ignorant  of  this  supposed  omission  on 
Edward's  side,  and  puts  the  justice  of 
Charles  V.'s  war  on  a  very  different 
basis ;  namely,  that  treaties  not  condu- 
cive to<the  public  interest  ought  not  to 
be  kept.  —  Collection  des  Memoires,  t.  t. 
p.  137.  A  principle  more  often  acted 
upon  than  avowed! 


7t 


RUPTURE  OF  THE  PEACE.    Chap.  I.  Pabt  n. 


whosd  feudal  duties  sometimes  lead  them  into  the  field  against 
their  sovereign  could  not  endure  the  feeUng  of  dismember- 
ment from  the  monarchy.     When  the  peace  of  Bretigni  was 
to  be  carried  into  effect,  the  nobility  of  the  South  remon- 
strated against  the  loss  of  the  king's  sovereignty,  and  showed, 
it  is  said,  in  their  charters  granted  by  Charlemagne,  a  promise 
never  to  transfer  the  right  of  protecting  them  to  another 
The  citizens  of   Rochelle  implored  the  king  not  to  desert 
them,  and  protested  their  readiness  to  pay  half  their  estates 
in  taxes,  rather  than  fall  under  the  power  of  England.    John 
with  heaviness  of  heart  persuaded  these  faithful  people  to 
comply  with  that  destiny  which  he  had  not  been  able  to  sur- 
mount.    At  length  they  sullenly  submitted  :  we  will  obey,  they 
said,  the  English  with  our  lips,  but  our  hearts  shall  never 
forget  their  allegiance.^     Such  unwilling  subjects  might  per- 
haps have  been  won  by  a  prudent  government ;  but  the  tem- 
per of  the  prince  of  Wales,  which  was  rather   stern   and 
arbitrary,  did  not  concihate  then*  hearts  to  his  cause.^     After 
the  expedition  into  Castile,  a  most  injudicious  and  fatal  enter- 
prise, he  attempted  to  impose  a  heavy  tax  upon  Guienne. 
This  was  extended  to  the  lands  of  the  nobility,  who  claimed 
an  immunity  from  all  impositions.     Many  of  the  chief  lords 
in  Guienne  and  Gascony  carried  their  complamts 
RSe^of     to  the  throne  of  Charles  V.,  who  had  succeeded  his 
the  peace  of    father  in  1364,  appealing  to  him  as  the  prince's 
Bretigni.        sovereign   and  judge.     After  a  year's  delay  the 
A.D.1368.       ^j^g  ventured  to  summon  the  Black   Prince   to 
answer  these  charges  before  the  peers  of  France,  and  the  war 
immediately  recommenced  between  the  two  countries.* 

Though  it  is  impossible  to  reconcile  the  conduct  of  Charles 
upon  this  occasion  to  the  stem  principles  of  rectitude  which 
ought  always  to  be  obeyed,  yet  the  exceeding  injustice  of  Ed- 
ward in  the  former  war,  and  the  miseries  which  he  inflicted 
upon  an  unoffending  people  in  the  prosecution  of  his  claim, 
will  go  far  towards  extenuating  this  breach  of  the  treaty  of 


1  Froissart,  part  i.  chap.  214. 

*  See  an  anecdote  of  his  difference  with 
the  seigneur  d'Albret,  one  of  the  princi- 
pal barons  in  Gascony,  to  which  Frois- 
sart, who  was  then  at  Bordeaux,  ascribes 
the  alienation  of  the  southern  nobility, 
«hap.  244.  —  Edward  III.,  soon  after  the 
peace  of  Bretigni,  revoked  all  his  grants 
in  Quienue.  —  Rymer,  t.  vi.  p.  891. 


«  On  November  20, 1368,  some  time  be- 
fore the  summons  of  the  prince  of  Wales, 
a  treaty  was  concluded  between  Charles 
and  Henry  king  of  Castile,  wherein  the 
latter  expressly  stipulates  that  whatever 
parts  of  Guienne  or  England  he  might 
conquer  he  would  give  up  to  the  king  of 
France.  — Bymer,  t.  vi.  p.  G98. 


tBASCB.         LOSS  OF  THE  ENGLISH  CONQUESTS. 


7b 


Bretigni.  It  is  observed,  indeed,  with  some  truth  by  Rapin, 
that  we  judge  of  Charles's  prudence  by  the  event ;  and  that, 
if  he  had  been  unfortunate  in  the  war,  he  would  have  brought 
on  himself  the  reproaches  of  all  mankind,  and  even  of  those 
writers  who  are  now  most  ready  to  extol  him.  But  his 
measures  had  been  so  sagaciously  taken,  that,  except  through 
that  perverseness  of  fortune,  against  which,  especially  in  war 
there  is  no  security,  he  could  hardly  fail  of  success.  Th« 
elder  Edward  was  decUning  through  age,  and  the  youno-ef 
through  disease ;  the  ceded  provinces  were  eager  to  return 
to  their  native  king,  and  their  garrisons,  as  we  may  infer  by 
their  easy  reduction,  feeble  and  ill-supplied.  France,  on  the 
other  hand,  had  recovered  breath  after  her  losses  ;  the  sons  of 
those  who  had  fallen  or  fled  at  Poitiers  were  in  the  field ;  a 
king,  not  personally  warlike,  but  eminently  wise  and  popular, 
occupied  the  throne  of  the  rash  and  intemperate  John.  She 
was  restored  by  the  policy  of  Charles  V.  and  the  valor  of  Du 
Guesclin.  This  hero,  a  Breton  gentleman  without  fortune  or 
exterior  graces,  was  the  greatest  ornament  of  France  during 
that  age.  Though  inferior,  as  it  seems,  to  Lord  Chandos  in 
military  skill,  as  well  as  in  the  poHshed  virtues  of  chivalry, 
his  unwearied  activity,  his  talent  of  inspiring  confidence,  his 
good  fortune,  the  generosity  and  frankness  of  his  character, 
have  preserved  a  fresh  recollection  of  his  name,  which  has 
hardly  been  the  case  with  our  countryman. 

In  a  few  campaigns  the  English  were  deprived  of  almost 
all  tlieir  conquests,  and  even,  in  a  great  degree,  of 
their  original  possessions  in  Guienne.  They  were  lose  ^^^ 
still  formidable  enemies,  not  only  from  their  cour-  *^eir  con- 
age  and  alacrity  in  the  war,  but  on  account  of  the 
keys  of  France  which  they  held  in  their  hands  ;  Bordeaux, 
Bayonne,  and  Calais,  by  inheritance  or  conquest;  Brest 
and  Ciierbourg,  in  mortgage  from  their  allies,  the  duke  of 
Britany  and  king  of  Navarre.  But  the  successor  of  Edward 
IIL  was  Richard  II. ;  a  reign  of  feebleness  and  sedition  gave 
no  opportunity  for  prosecuting  schemes  of  ambition.  The 
war,  protracted  with  few  distinguished  events  for  several 
years,  was  at  length  suspended  by  repeated  armistices,  not, 
indeed,  very  strictly  observed,  and  which  the  animosity  of  the 
English  would  not  permit  to  settle  in  any  regular  treaty. 
Nothing  less  than  the  terms  obtained  at  Bretigni,  emphati- 
cally called  the  preat  Peace,  would  satisfy  a  frank  and  cour- 


74 


CHARLES  V.  AND  VI.        Chap.  I.  Part.  11. 


ageous  people,  who  deemed  themselves  cheated  by  the  man- 
ner of  its  infraction.     The  war  was  therefore  always  popular 
in  England,  and  the  credit  which  an  ambitious  prince,  Thomas 
duke  °of  Gloucester,  obtained    in   that   country,  was  chiefly 
owing  to  the  determined  opposition  which  he  showed  to  all 
French  connections.     But  the  pohtics  of  Richard  II.  were  of 
a  different  cast ;  and  Henry  IV.  was  equally  anxious  to  avoid 
hostilities  with  France ;  so  that,  before  the  unhappy  condition 
of  that  kingdom  tempted  his  son  to  revive  the  claims  of  Ed- 
ward in  still  more  favorable  circumstances,  there  had  been 
thirty  years  of  respite,  and  even  some  intervals  of  friendly 
intercourse   between  the  two  nations.      Both,  indeed,  were 
weakened  by  internal  discord ;  but  France  more  fatally  than 
England.     But  for  the  calamities  of  Charles  VI.*s  reign,  she 
would  probably  have  expelled  her  enemies  from  the  kingdom. 
The  strength  of  that  fertile  and  populous  country  was  re- 
cruited with  surprismg   rapidity.      Sir   Hugh  Calverley,  a 
famous  captain  in  the  wars  of  Edward  III.,  while  serving  in 
Flanders,  laughed  at  the  herald,  who  assured  him  that  the 
king  of  France's  army,  then  entering  the  country,  amounted 
to  26,000  lances;  asserting  that  he  had  often  seen  their  larg- 
est musters,  but  never  so  much  as  a  fourth  part  of  the  num- 
ber.^   The  relapse  of  this  great  kingdom  under  Charles  VI. 
was  more  painful  and  perilous  than  her  first  crisis ;  but  she 
recovered  from  each  through  her  intrinsic  and  inextinguish- 
able resources. 

Charles  V.,  sumamed  the  Wise,  after  a  reign,  which,  if  we 
Accession  of  ovcrlook  a  little  obliquity  in  the  rupture  of  the 
oharLs  VI.,  peacc  of  Brctigui,  may  be  deemed  one  of  the  most 
^*^'  honorable  in  French  history,  dying  prematurely, 

left  the  crown  to  his  son,  a  boy  of  thirteen,  under  the  care  of 
three  ambitious  uncles,  the  dukes  of  Anjou,  Berry,  and  Bur- 
gundy. Charles  had  retrieved  the  glory,  restored  the  tran- 
quillity, revived  the  spirit  of  his  country ;  the  severe  trials 
which  exercised  his  regency  after  the  battle  of  Poitiers  had 
disciplined  his  mind ;  he  became  a  sagacious  statesman,  an 
encourager  of  literature,  a  beneficent  lawgiver.  He  erred, 
doubtless,  though  upon  plausible  grounds,  in  accumulating  a 
vast  treasure,  which  the  duke  of  Anjou  seized  before  he  was 
cold  in  the  grave.  But  all  the  fruits  of  his  wisdom  were  lost 
in  the  succeeding  reign.     In  a  government  essentially  popu- 

iFroissart,  p.ii.  0.142. 


FSASCE. 


SEDITIONS  AT  PAEIS. 


75 


lar  the  youth  or  imbecility  of  the  sovereign  creates  no  mate- 
rial derangement  In  a  monarchy,  where  all  the  springs  of 
the  system  depend  upon  one  central  force,  these  accidents, 
which  are  sure  in  the  course  of  a  few  generations  to  recur, 
can  scarcely  fail  to  dislocate  the  whole  machine.  During 
the  forty  years  that  Charles  VI.  bore  the  name  of  king, 
rather  than  reigned  in  France,  that  country  was  reduced 
to  a  state  far  more  deplorable  than  during  the  captivity  of 
John. 

A  great  change  had  occurred  in  the  political  condition  of 
France  during  the  fourteenth  century.  As  the  feudal  militia 
became  unserviceable,  the  expenses  of  war  were  increased 
through  the  necessity  of  taking  troops  into  constant  pay  ;  and 
while  more  luxurious  refinements  of  living  heightened  the 
temptations  to  profuseness,  the  means  of  enjoying  them  were 
lessened  by  improvident  alienations  of  the  domain.  Hence, 
taxes,  hitherto  almost  unkno>vn,  were  levied  incessantly,  and 
with  all  those  circumstances  of  oppression  which  are  natural 
to  the  fiscal  proceedings  of  an  arbitrary  government.  These, 
as  has  been  said  before,  gave  rise  to  the  unpopularity  of  the 
two  first  Valois,  and  were  neai-ly  leading  to  a  complete  revo- 
lution in  the  convulsions  that  succeeded  the  battle  of  Poitiers. 
The  confidence  reposed  in  Charles  V.*s  wisdom  and  economy 
kept  everything  at  rest  during  his  reign,  though  the  taxes 
were  still  vfery  heavy.  But  the  seizure  of  his  vast  accumula- 
tions by  the  duke  of  Anjou,  and  the  ill  faith  with  which  the 
new  government  imposed  subsidies,  after  promising  their  abo- 
lition, provoked  the  people  of  Paris,  and  seme-  Seditions 
times  of  other  places,  to  repeated  seditions.  The  **  ^*"** 
States-General  not  only  compelled  the  government  to  revoke 
these  impositions  and  restore  the  nation,  at  least  according  to 
the  language  of  edicts,  to  all  their  liberties,  but,  with  less  wis- 
dom, refused  to  make  any  grant  of  money.  Indeed  a  re- 
mai-kable  spirit  of  democratical  freedom  was  then  rising  in 
those  classes  on  whom  the  crown  and  nobility  had  so  long 
trampled.  An  example  was  held  out  by  the  Flemings,  who, 
always  tenacious  of  their  privileges,  because  conscious  of  their 
ability  to  maintain  them,  were  engaged  in  a  furious  conflict  with 
Louis  count  of  Flanders.*    The  court  of  France  took  part 

»The  Flemish  rebellioi),  which  origi-  upon  the  people  of  Ghent  without  their 
nated  in  an  attempt,  suggested  by  bad  consent,  is  related  in  a  very  interesting 
adrisen  to  the  count,  to  impose  a  tax    manner  by  Froissartjp.  ii.  c.  87,  &o.,  who 


76 


SEDITIONS  AT  PARIS.       Chap.  I.  Pabt  n. 


in  this  war ;  and  after  obtaining  a  decisive  victory  over  the 
citizens  of  Ghent,  Charles  VI.  returned  to  chastise  those  of 
Paris.^  Unable  to  resist  the  royal  army,  the  city  was  treated 
as  the  spoil  of  conquest;  its  immunities  abridged;  its  most 
active  leaders  put  to  death ;  a  fine  of  uncommon  severity  im- 
posed; and  the  taxes  renewed  by  arbitrary  prerogative.  But 
the  people  preserved  their  indignation  tor  a  favorable  mo- 
ment ;  and  were  unfortunately  led  by  it,  when  rendered  sub- 
servient to  the  ambition  of  others,  into  a  series  of  crimes,  and 
a  long  aUenation  from  the  interests  of  their  country. 

It  is  difficult  to  name  a  limit  beyond  which  taxes  will  not 
be  borne  without  impatience,  when  they  appear  to  be  called 
for  by  necessity,  and  faithfully  applied;  nor  is  it  impracticable 
for  a  skilful  minister  to  deceive  the  people  in  both  these 
respects.  But  the  sting  of  taxation  is  wastefulness.  What 
high-spirited  man  could  see  without  indignation  the  eamings 
of  his  labor,  yielded  ungrudgingly  to  the  public  defence, 
become  the  spoil  of  parasites  and  speculators?  It  is  this 
that  mortifies  the  liberal  hand  of  public  spirit;  and  those 
statesmen  who  deem  the  security  of  government  to  depend 
not  on  laws  and  armies,  but  on  the  moral  sympathies  and 
prejudices  of  the  people,  will  vigilantly  guard  against  even 
the  suspicion  of  prodigahty.  In  the  present  stage  of  society 
it  is  impossible  to  conceive  that  degree  of  misapplication 
which  existed  in  the  French  treasury  under  Charles  VI., 
because  the  real  exigencies  of  the  state  could  never  again  be 
so  inconsiderable.     Scarcely  any  military  force  was  kept  up ; 


equals  Herodotus  in  simplicity,  liveliness, 
and  power  over  the  heart.  I  would  ad- 
vise the  historical  student  to  acquaint 
himself  with  these  transactions  and  with 
the  corresponding  tumults  at  Paris. 

They  are  among  the  eternal  lessons  of 
history ;  for  the  unjust  encroachments 
of  courts,  the  intemperate  passions  of 
the  multitude,  the  ambition  of  dema- 
gogues, the  cruelty  of  victorious  fiu:tions, 
will  never  cease  to  have  their  parallels 
and  their  analogies ;  whi'e  the  military 
achievements  of  distant  times  afford  in 
general  no  instruction,  and  can  hardly 
occupy  too  little  of  our  time  in  historical 
studies.  The  prefaces  to  the  fifth  and 
sixth  volumes  of  the  Ordon  nances  des 
Rois  de  France  contain  more  accurate 
in'.ormation  as  to  the  Parisian  disturb- 
ances than  can  be  found  in  Froissart. 

1  If  Charles  VI.  had  been  defeated  by 
the  Flemings,  the  insorrectioa  of  the 


Parisians,  Froissart  says,  would  have 
spread  over  France  ;  toute  gentillesse  et 
noblesse  eut  ^te  morte  et  perdue  en 
France;  nor  would  the  Jacquerie  have 
ever  been  si  grande  et  si  horrible,  c.  120. 
To  the  example  of  the  Oantois  he  as- 
cribes the  tumults  which  broke  out  about 
the  same  time  in  England  as  well  as  in 
France,  c.84.  The  Flemish  insurrection 
would  probably  have  had  more  important 
consequences  if  it  had  been  cordially  sup- 
ported by  the  English  government.  But 
the  danger  of  eucouniging  that  demo- 
cratical  spirit  which  so  strongly  U'Avened 
the  commons  of  England  might  jusUy 
be  deemed  by  Richard  II.'s  council  much 
more  than  a  counterbalance  to  the  ad- 
vantage of  distressing  France.  When 
too  late,  some  attempts  were  made,  and 
the  Flemish  towns  acknowledged  Rich- 
ard as  king  of  France  in  1384.  Bymer, 
t.  vii.  p.  i^. 


France. 


SEDITIONS  AT  PARIS. 


77 


and  the  produce  of  the  grievous  impositions  then  levied  was 
chiefly  lavished  upon  the  royal  household,^  or  plundered  by 
the  officers  of  government.  This  naturally  resulted  from  the 
peculiar  and  afflicting  circumstances  of  this  reign.  The 
duke  of  Anjou  pretended  to  be  entitled  by  the  late  king's 
appointment,  if  not  by  the  constitution  of  France,  to  exercise 
the  government  as  regent  during  the  minority;^  but  this 
period,  which  would  naturally  be  very  short,  a  law  of  Charles 
V.  having  fixed  the  age  of  majority  at  thirteen,  was  still  mora 
abridged  by  consent ;  and  after  the  young  monarch's  corona- 
tion, he  was  considered  as  reigning  with  full  personal  au- 
thority. Anjou,  Berry,  and  Burgundy,  together  with  the 
king's  maternal  uncle,  the  duke  of  Bourbon,  divided  the 
actual  exercise  of  government. 

The  first  of  these  soon  undertook  an  expedition  into  Italy, 
to  possess  himself  of  the  crown  of  Naples,  in  which  he  per- 
ished. Berry  was  a  profuse  and  voluptuous  man,  of  no  great 
talents ;  though  his  rank,  and  the  middle  position  which  he 
held  between  struggling  parties,  made  him  rather  conspicuous 
throughout  the  revolutions  of  that  age.  The  most  respecta- 
ble of  the  king's  uncles,  the  duke  of  Bourbon,  being  further 
removed  from  the  royal  stem,  and  of  an  unassuming  charac- 


*  The  expenses  of  the  royal  household, 
which  under  Charles  V.  were  94,000 
livres,  amounted  in  1412  to  450,000. 
VUlaret,  t.  iii.  p.  243.  Vet  the  king  was 
so  ill  supplied  that  his  plate  had  been 
panned.  When  Montagu,  minister  of 
the  finances,  was  arrested,  in  1409,  all 
this  plate  was  found  concealed  in  his 
house. 

3  It  has  always  been  an  unsettled 
point  whether  the  presumptive  heir  is 
entitled  to  the  regency  of  France;  and, 
if  he  be  so  to  the  regency,  whether  this 
includes  the  custody  of  the  minor's  per- 
son. The  particular  case  of  the  duke  of 
Anjou  is  subject  to  a  considerable  appar- 
ent difficulty.  Two  instruments  of  Charles 
v.,  bearing  the  same  date  of  October,  1374, 
as  published  by  Dupuy  (Traite  de  Ma- 
jority d«'s  Hois,  p.  IGl),  are  plainly  irrec- 
oncilable with  each  other;  the  former 
giving  the  exclusive  regency  to  the  duke 
of  Anjou,  reserving  the  custody  of  the 
minor's  person  to  other  guardians ;  the 
latter  conferring  not  only  this  custody, 
but  the  government  of  the  kingdom,  on 
the  queen,  and  on  the  dukes  of  Bur- 
gundy and  Bourbon,  without  mention- 
ing the  duke  of  Anjou^s  name.  Daniel 
calls  these  testaments  of  Charles  V., 
Whereas  they  are  in  the  form  of  letters- 


patent  ;  and  supposes  that  the  king  had 
suppressed  both,  as  neither  party  seems 
to  liave  availed  itself  of  their  authority 
in  the  discussions  that  took  place  after 
the  king's  death.  (Hist,  de  France,  t.  iii. 
p.  662,  edit.  1720).  Villaret,  as  is  too 
much  his  custom,  slides  over  the  diffi- 
culty without  notice.  But  M.  de  Bre- 
quigni  (Mem.  de  I'Acad.  des  Inscript.  1. 1. 
p.  533)  observes  that  the  second  of  these 
instruments,  as  published  by  M.  Se- 
cousse,  in  the  Ordonnances  des  Rois,  t. 
vi.  p.  406,  dififers  most  essentially  from 
that  in  Dupuy,  and  contains  no  mention 
whatever  of  the  government.  It  is, 
therefore,  easily  reconcilable  with  the 
first,  that  confers  the  regency  on  th» 
duke  of  Anjou.  As  Dupuy  took  it  from 
the  same  source  as  Secousse,  namely, 
the  Tresor  des  Chartes,  a  strong  sus- 
picion of  wilful  interpolation  falls  upon 
him,  or  upon  the  editor  of  his  posthu- 
mous work,  printed  in  1655.  This  date 
will  readily  suggest  a  motive  for  such  an 
interpolation  to  those  who  recollect  the 
circumstances  of  France  at  that  time  and 
for  some  years  before ;  Anne  of  Austria 
having  maintained  herself  in  possession 
of  a  te.stumentary  regency  against  th* 
presumptive  heir 


78 


DERANGEMENT  OF  CHARLES  VI.  Chap.  I.  Part  11. 


ter,  took  a  less  active  part  than  his  three  coadjutors.  Bur- 
gundy, an  ambitious  and  able  prince,  maintained  the  ascen- 
dency,  until  Charles,  weary  of  a  restraint  which  had  been 
protracted  by  liis  uncle  till  he  was  in  his  twenty- 
A.i).l887.  first  year,  took  the  reins  into  his  own  hands.  The 
dukes  of  Burgundy  and  Berry  retired  from  court,  and  tlie 
administration  was  committed  to  a  different  set  of  men,  at 
the  head  of  whom  appeared  the  constable  de  Clisson,  a  sol- 
dier of  great  fame  in  the  English  wars.  The  people  rejoiced 
in  the  fall  of  the  princes  by  whose  exactions  they  had  been 
plundered ;  but  the  new  ministers  soon  rendered  themselves 
odious  by  similar  conduct.  The  fortune  of  Clisson,  after  a 
few  years'  favor,  amounted  to  1,700,000  livres,  equal  in 
weight  of  silver,  to  say  nothing  of  the  depreciation  of  money, 
to  ten  times  that  sum  at  present.^  ^         , . 

Charles  VI.  had  reigned  five  years  from  his  assumption 
of  power,  when  he  was  seized  with  a  derangement 
mentT"        of  intellect,  which  continued,  through  a  series  of 
Charles  VI.    rgcoveries  and  relapses,  to  his  death.     He  passed 
^■"'  ^^*      thirty  years  in  a  pitiable  state  of  suffering,  neglected 
by  his  family,  particularly  by  the  most  infamous  of  women, 
Isabel  of  Bavaria,  his  queen,  to  a  degree  which  is  hardly 
credible.'*     The  ministers  were   immediately  disgraced;   the 
princes   reassumed   their   stations.      For  several   years  the 
duke  of  Burgundy  conducted  the  government.     But  this  was 
in  opposition  to  a  formidable  rival,  Louis,  Duke 
Burgundy      of  Orleans,  the  king's  brother.     It  was  impossiblf 
and  Orleans    ^^^^  ^  princc  SO  near  to  the  throne,  favored  by  tLe 
queen,  perhaps  with  criminal  fondness,  and  by  the  people  on 
account  of  his  external  graces,  should  not  acquire  a  share  of 
power.     He  succeeded  at  length  in  obtaining  the  whole  man- 
agement of  affairs ;  wherein  the  outrageous  dissoluteness  of 
his  conduct,  and  still  more  the  excessive  taxes  imposed,  ren- 
dered him  altogether  odious.     The  Parisians  compared  his 
administration  with  that  of  the  duke  of  Burgundy ;  and  from 
that  time  ranged  themselves  on  the  side  of  the  latter  and  his 


iFroissart,  p.  iv.  c.  46. 

«Sismondi  inclines  to  speak  more  fe- 
▼orably  of  this  queen  than  most  have 
done:  "Dans  les  temps  posterieurs  on 
B'est  plu  k  faire  un  monstre  de  Isabeau 
de  Baviire."  He  discredits  the  suspicion 
of  a  criminal  intercourse  with  the  duke 


of  Orleans,  and  represents  her  as  merely 
an  indolent  woman  fond  of  good  cheer. 
Yet  he  owns  that  the  king  was  so  neg- 
lected as  to  suffer  from  an  excessive  want 
of  cleanliness,  sometimes  even  from  hun- 
ger (xii.  218,  225).  Was  this  no  imputa- 
tiononhiswife?  See  too  Michelet,  vl.  «• 


Francb.         murder  of  THE  DUKE  OF  ORLEANS. 


79 


femily,  throughout  the  long  distractions  to  which  the  ambition 
of  these  princes  gave  birth. 

The  death  of  the  duke  of  Burgundy,  in  1404,  after  sev- 
eral fluctuations  of  success  between  him  and  the  duke  of 
Orleans,  by  no  means  left  his  party  without  a  head.    Equally 
brave  and  ambitious,  but  far  more  audacious  and  unprinci- 
pled, his  son  John,  surnamed  Sanspeur,  sustained  the  same 
contest.     A  reconciliation  had  been,  however,  brought  about 
with  the  duke  of  Orleans ;  they  had  sworn  reciprocal  friend- 
ship, and  participated,  as  was  the  custom,  in  order  to  render 
these  obligations  more  solemn,  in  the  same  communion.     In 
the  midst  of  this  outward  harmony,  the  duke  of 
Orleans  was  assassinated  in  the  streets  of  Paris,   ^""duke  of 
After  a  slight  attempt  at  concealment.  Burgundy  Orleans, 
avowed  and  boasted  of  the  crime,  to  which  he  had  ^'^'  ^^^' 
been  instigated,  it  is  said,  by  somewhat  more  than  political 
jealousy.*      From  this  fatal  moment  the  dissensions  of  the 
royal  family  began  to  assume  the  complexion  of  civil  war. 
The  queen,  the  sons  of  the  duke  of  Orleans,  with  the  dukes 
of  Berry  and  Bourbon,  united  against  the  assassin.     But  he 
possessed,  in  addition  to  his  own  appanage  of  Burgundy,  the 
county  of  Flanders  as  his  maternal  inheritance;   and  the 
people  of  Paris,  who  hated  the  duke  of  Orleans,  readily  for- 
gave, or  rather  exulted  in  his  murder.^ 


1  Orleans  is  said  to  have  boasted  of 
the  duchess  of  Burgundy's  favors.  Vill. 
t.  xii.  p.  474.  Amelgard,  who  wrote 
about  eighty  years  after  the  time,  says, 
vim  etiam  inferrc  atteutare  prscsumpsit. 
Notices  des  Manuscrits  du  Roi,  t,  i.  p.  411. 

2  Michelet  represents  this  young  prince 
as  regretted  and  beloved ;  but  his  lan- 
guage is  full  of  those  strange  contrasts 
and  inconsistencies  which,  for  the  sake 
of  effect,  this  most  brilliant  writer  some- 
times employs.  "  II  avait,  dans  ses  em- 
portemens  de  jeunesse,  terriblement  vex6 
lepeuple;  il  futmauditdu  peuple,  pleure 
du  peuple.  Vivant,  il  cofita  bien  de 
larmes;  mais  combien  plus,  mort!  Si 
vous  eussiez  demande  k  la  France  si  ce 
jeune  homme  ctait  bien  dignc  de  tanto 
d'amour,  elle  eut  repondu,  Je  I'aimais. 
Ce  n'est  pas  seulement  pour  le  bien  qu'on 
&ime;  qui  aime,  aime  tout,  les  defauts 
aossi.  Celui-ci  plut  comme  il  etait,  mele 
de  bien  et  de  mal.  (Hist,  do  France,  vi. 
6.)  What  is  the  meaning  of  this  love  for 
one  who,  he  has  just  told  us,  was  cursed 
by  the  people?  And  If  Paris  was  the 
representative  of  France,  how  did  the 
people  show  their  affection  for  the  duka 


of  Orleans,  when  they  were  openly  and 
vehemently  the  partisans  of  his  mur- 
derer ?  On  the  first  return  of  the  duke 
of  Burgundy  to  Paris  after  the  assassi- 
nation, the  citizens  shouted  Noel,  the 
usual  cry  on  the  entrance  of  the  king, 
to  the  great  displeasure  of  the  queen  and 
other  princes.  "  Efc  pour  vrai,  comme 
dit  est  dessus,  il  estoit  tres  fort  ayme  du 
commun  peuple  de  Paris,  et  avoient 
grand  esperance  qu'iceluy  due  eust  tres 
grand  affection  au  royaurae,  et  k  la  chose 
publicque,  et  avoient  souvenance  des 
grans  tailles  qui  avoient  este  mises  sus 
depuis  la  mort  du  due  Philippe  de  Bour- 
gogne  p6re  d'iceluy,  jusques  k  I'heure 
presente,  lesquelles  ils  entendoient  que 
feust  par  le  moyen  dudit  due  d'Orleans. 
Et  pource  estoit  grandement  encouru  en 
I'indignation  d'iceluy  peuple,  et  leur 
eembloit  que  Dieu  de  sa  grace  les  avoit 
tris-grandement  pour  r6commandez, 
quand  il  avoit  souffert  qu'ils  fussent 
hors  de  sa  subjection  et  governement,  et 
qu'ils  en  estoient  delivrez."  Monstrelet, 
8i.  Compare  this  with  what  M.  Michelet 
has  written. 


80 


CIVIL  WAR. 


Chap.  I.  Pabt  II. 


It  is  easy  to  estimate  the  weakness  of  the  government,  from 
the  terTs  upon  which  the  duke  of  Burgundy  was  permitted 
to  obS^  pain  at  Chartres,  a  year  after  the  perpetration  of 
1  c^me!^   As  soon  as  he  entered  the  royal  presence  every 
one  rose  except  the  king,  queen,  and  dauplun.     ^  he  duke, 
ZrSn-  the  throne,  fell  on  his  knees ;  when  a  lord  who 
acted  asTrort  of  counsel  for  him,  addressed  the  king:     Sn-e 
fee  duke  of  Burgundy,  your  cousin  and  servant,  .s  come 
Sbi  yo«;  being  informed  that  he  has  incurred  your  djs- 
oWure  on  account  of  what  he  caused  to  be  done  to  the  duke 
of  Means  Your  brother,  for  your  good  and  that  of  your  kjng- 
Crheisready  to  p'rove'when  it  «lf  P'e- y-  to^ear 
it,  and  therefore  requests  you,  w.th  all  ^^'''f' *?  .", 
your  resentment  towards  him,  and  to  receive  hun  mto  your 

^'T^'insolent  apology  was  all  the  atonement  that  could  he 
extorted  for  the  assassination  of  the  first  prmce  ol 
A.B.  Mio.       the  blood.    It  is  not  wonderful  that  the  duke  ot 
SI"  ™       Burgundy  soon  obtained  the  management  of  affairs 
ttel^rto.     and  drove  his  adversaries  from  the  capital.    The 
princes,  headed  by  the  father-in-law  of  the  «  ^uke  o^ 
Orleans,  the  count  of  Armagnac,  from  whom  fe'r  party  was 
now  denominated,  raised  their  standard  against  hun ;  and  the 
north  of  France  ^as  rent  to  pieces  by  a  protracted  «v^  wiu, 
in  which  neither  party  scrupled  miy  ex  rem.ty  of  pillage  or 
massacre.     Several  times  peace  was  made ;  b"t  each  faction^ 
conscious  of  their  own  insincenty,  suspected  tha    ot  thwr 
Adversaries.    The  king,  of  whose  name  both  availed  them- 
Xs,  was  only  m  some  doubtful  intervals  of  reason  capable 
Tf  rendering  legitimate  the  acts  of  either.    The  dauphin, 

•  aware  of  the  tyranny  which  the  two  parties  alternately  exer- 
cised, was  forced,  even  at  the  expense  of  fpetuf ng  a  civil 
war,  to  balance  one  against  the  other,  and  permit  neither  to 
be  wholly  subdued.  He  gave  peace  to  *«  Armagnacs  at 
Auxerre,  in  despite  of  the  duke  of  Burgundy ;  and, 
*•*  ^*^  havin"  afterwards  united  with  them  against  this 
prince,  and  carried  a  successful  war  into  fl^°de.^.,'?«  ^^P; 
'^  pointed  their  revenge  by  ooncludmg  with  him  a 

k.B.ia*.      treaty  at  Arras.  . 

This  dauphin  and  his  next  brother  died  within  six  een 
months  of  Lh  other,  by  which  the  rank  devolved  upon 

1  MoDBtrelet,  p«rt  i.  f.  112. 


Francb. 


MURDER  OF  DUKE  OF  BURGUNDY. 


81 


Charles,  youngest  son  of  the  king.     The  count  of  Armagnac, 
now  constable  of  France,  retained  possession  of  the  govern- 
ment.    But  his  severity,  and  the  weight  of  taxes, 
revived  the  Burgundian  party  in  Paris,  which  a  ^^^'  ^^^ 
rigid  proscription  had  endeavored  to  destroy.     He  brought  on 
his  head  the  implacable  hatred  of  the  queen,  whom  he  had 
not  only  shut  out  from  public  affairs,  but  disgraced  by  the 
detection  of  her  gallantries.     Notwithstandmg  her 
ancient  enmity  to  the  duke  of  Burgundy,  she  made  ^'"*  ^^^* 
overtures  to  him,  and,  being  delivered  by  his  troops  from  con- 
finement, declared  herself  openly  on  his  side.     A  few  obscure 
persons  stole  the  city  keys,  and  admitted  the  Burgundians 
into  Paris.     The  tumult  which  arose  showed  in  a  moment 
the  disposition  of  the  inhabitants  ;  but  this  was  more  horribly 
displayed  a  few  days  afterwards,  when  the  populace,  rushing 
to  the  prisons,  massacred  the  constable  d' Armagnac 
and  his  pai'tisans.     Between  three  and  four  thou-  •^'^®^'^*^^ 
sand  persons  were  murdered  on  this  day,  which  has  no  paral- 
lel but  what  our  own  age  has  witnessed,  in  the  massacre 
perpetrated  by  the  same  ferocious  populace  of  Paris,  under 
circumstances  nearly  similar.     Not  long  afterwards  an  agree- 
ment took  place  between  the  duke  of  Burgundy,  who  had  now 
the  king's  person  as  well   as  the  capital  in  his 
hands,  and  the  dauphin,  whose  party  was  enfeebled  ^'^'  ^^^' 
by  the  loss  of  almost  all  its  leaders.     This  reconciUation, 
which  mutual  interest  should  have  rendered  per- 
manent, had  lasted  a  very  short  time,  when  the  AssassinaUon 
duke  of  Burgundy  was  assassinated  at  an  interview  Bii^dj!^' 
with  Charles,  in  his  presence,  and  by  the  hands  of 
his  friends,  though  not,  perhaps,  with  his  previous  knowledge.* 


»  There  are  three  suppositions  conceiTu  could  not  accept  without  oEfending  God  j 
able  to  explain  this  important  passage  iiS-  and  conjecture  that  this  might  mean  the 
history,  the  assassination  of  John  Sans-  wissassination  of  the  dauphin.    But  the 
peur.    1.  It  was  pretended  by  the  dau-i  expressions  of  Uenry  do  not  relate  to  any 
phin's  friends  at  the  time,  and  has  been  **  private  proposals  of  the  duke,  but  to  de- 
maintained  more  lately  (St.  Foix,  Essais  v«mands  made  by  him  and  the  queen,  as 
Bur  Paris,  t.  iii.  p.  209,  edit.  1767),  that  ho    proxies  for  Charles  VI.  in  conference  for 
had  premeditated  the  murder  of  Charlesyki  peace,  which  he  says  he  could  not  accept 
and  that  his  own  was  an  act  of  self-de-ji  without  offending  God  and  contravening 
fence.  This  is,  I  think,  quite  improbable  -T  his  own  letters-patent.    (Rymer,  t.  ix.  p 
the  dauphin  had  a  great  army  near  the^'  790.)   It  is  not,  however,  very  clear  what 
spot,  while  the  duke  wai  only  attended    this  means.    2.  The  next  hypothesis  is, 
by  five  hundred  men.    Villaret,  indeed, n^hat  it  was  the  deliberate  act  of  Charles, 
and  St.  Foix,  in  order  to  throw  suspicion    But  his  youth,  his  feebleness  of  spirit, 

upon  the  duke  of  Burgundy's  motives,  

assert  that  Uenry  V.  accused  him  of 
having  made  proposals  to  him  which  he 
VOL.  I.  6 


and  especially  the  consternation  into 
which,  by  all  testimonies  he  was  thrown 
by  the  event,  are  rather  adverse  to  this 


82 


INTRIGUES  WITH  ENGLAND.    Chap.  I.  Part  II. 


From  whomsoever  the  crime  proceeded,  it  was  a  deed  of  in- 
fatuation,  and  plunged  France  afresh  into  a  sea  of  perils,  from 
which  the  union  of  these  factions  had  just  afforded  a  hope  of 

extricating  her.  ,      -r^     ,.  i.         *    j 

It  has  been  mentioned  already  that  the  English  war  had 
almost  ceased  during  the  reigns  of  Richard  11.  and 
J?Jn?^®'  °^    Henry  IV.     The  former  of  these  was  attached  by 
pSis  with    inclination,  and  latterly  by  marriage,  to  the  court 
England.        ^^  France ;  and,  though  the  French  government 
showed  at  first  some  disposition  to  revenge  his  dethronement, 
yet  the  new  king's  success,  as  well  as  domestic  quarrels, 
deterred  it  from  any  serious  renewal  of  the  war.     A  long 
commercial  connection  had  subsisted  between  England  and 
Flanders,  which  the  dukes  of  Burgundy,  when  they  became 
sovereigns  of  the  latter  country  upon  the  death  of  count 
Louis  in  1384,  were  studious  to  preserve  by  separate  truces.^ 
They  acted  upon  the  same  pacific  policy  when  their  interest 
predominated  in  the  councils  of  France.     Henry  had  even 
a  negotiation  pending  for  the  marriage  of  his  eldest  son  with 
a  pri'ncess  of  Burgundy,^  when  an  unexpected  proposal  from 
the  opposite  side  set  more  tempting  views  before  his  eyes. 
The  Armagnacs,  pressed  hard  by  the  duke  of  Burgundy, 
offered,  in  consideration  of  only  4000  troops,  the  pay  of  which 
they  would  themselves  defray,  to  assist  him  in  the  recov- 
ery of  Guienne  and  Poitou.     Four  princes  of  the 
May,  1412.     ^^^^^  —  Berry,  Bourbon,  Orleans,  and  Alen9on  — 
disgraced  their  names  by  signing  this  treaty.*     Henry  broke 
off°his  alliance  with  Burgundy,  and  sent  a  force  into  France, 
which  found  on  its  arrival  that  the  princes  had  made  a  sep- 
arate treaty,  without  the  least  concern  for  their  English  allies. 
After  his  death,  Henry  V.  engaged  for  some  time  in  a  series 
of  negotiations  with  the  French  court,  where  the  Orleans 
party  now  prevailed,  and  with  the  duke  of  Burgundy.     He 
even  secretly  treated  at  the  same  time  for  a  marriage  with 
Catherine  of  France  (which  seems  to  have  been  his  favorite. 


explanation.  3.  It  remains  only  to  con- 
clude that  Tanegui  de  Chastel,  and  other 
fevorites  of  the  dauphin,  long  attached 
\o  the  Orleans  faction,  vrho  justly  re- 
garded the  duke  as  an  infamous  assassin, 
and  might  question  his  sincerity  or  their 
own  safety  if  he  should  regain  the  ascen- 
dant, took  advantage  of. this  opportunity 
to  commit  an  act  of  retaliation,  less  crim- 
faiai,  but  not  less  ruinous  in  its  conse- 


quences, than  that  which  had  provoked 
it.  Charles,  however,  bv  his  subsequent 
conduct,  recognized  their  deed,  and  nat^ 
urally  exposed  himself  to  the  resentment 
of  the  young  duke  of  Burgundy. 

1  Rymer,  t.  viii.  p.  611;  Villaret,  t 
xii.  p.  174. 
*  Idem,  t.  tiil.  p.  721.  _ 

3  Idem,  t.  Tiii.  p.  726,  737,  788. 


Fraiyce. 


INVASION  BY  HENRY  V. 


83 


as  it  was   ultimately  his   successful  project),  and  with    a 
daughter  of  the  duke  —  a  duphcity  not  creditable   to  his 
memory.^    But  Henry's  ambition,  which  aimed  at  the  highest 
quarry,  was  not  long  fettered  by  negotiation  ;  and,  indeed,  his 
proposals  of  marrying  Catherine  were   coupled  with   such 
exorbitant  demands,  as  France,  notwithstanding  all 
her  weakness,  could  not  admit,  though  she  would  |?JSJeb°' 
have  ceded  Guienne,  and  given  a  vast  dowry  with  Henry  v.*^ 
the  princess.*     He  invaded  Normandy,  took  Har-  ^'^'  ^^' 
fleur,  and  won  the  great  battle  of  Azincourt  on  his  march  to 
Calais.* 

The  flower  of  French  chivalry  was  mowed  down  in  this 
fatal  day,  but  especially  the  chiefs  of  the  Orleans  party,  and 
the  princes  of  the  royal  blood,  met  with  death  or  captivity. 
Burgundy  had  still  suffered  nothing ;  but  a  clandestine  nego- 
tiation had  secured  the  duke's  neutrality,  though  he  seems 
not  to  have  entered  into  a  regular  alliance  till  a  year  after 
the  battle  of  Azincourt,  when,  by  a  secret  treaty  at  Calais,  he 
acknowledged  the  right  of  Henry  to  the  crown  of  France, 
and  his  own  obligation  to  do  him  homage,  though  its  per- 
formance was  to  be  suspended  till  Henry  should  become 
master  of  a  considerable  part  of  the  kingdom.*  In  a  second 
invasion  the  English  achieved  the  conquest  of  Normandy ; 
and  this,  in  all  subsequent  negotiations  for  peace  during  the 
life  of  Henry,  he  would  never  consent  to  relinquish.  After 
several  conferences,  which  his  demands  rendered  abortive,  the 
French  court  at  length  consented  to  add  Normandy  to  the 
cessions  made  in  the  peace  at  Bretigni;^  and  the  treaty, 
though  laboring  under  some  difficulties,  seems  to  have  been 
nearly  completed,  when  the  duke  of  Burgundy,  for  jui„  n^ 
reasons  unexplained,  suddenly  came  to  a  reconcil-  1*19- 


>  Rymer,  t.  Ix.  p.  136. 

•  The  terms  required  by  Henry's  am- 
MMftdors  in  1415  >vere  the  crown  of 
France;  or,  at  least,  reserving  Henry's 
rights  to  that,  Normandy,  Touraine, 
Maine,  Quienne,  with  the  homage  of 
Britany  and  Flanders.  The  French  of- 
fered Guienne  and  Salntonge,  and  a 
dowry  of  800,000  gold  crowns  for  Cath- 
erine. The  English  demanded  2,000,000. 
Rym.  t.  ix.  p.  218. 

'  The  English  army  at  Azincourt  was 
probably  of  not  more  than  15,000  men  ; 
the  French  were  at  the  least  50,000,  and, 
by  some  computations,  much  more  nu- 
merous.  They  lost  10,000  killed,  of  whom 


9000  were  knights  or  gentlemen.  Almost 
as  many  were  made  prisoners.  The  Eng- 
lish, according  to  Monstrelet,  lost  16W 
men ;  but  their  own  historians  reduce 
this  to  a  very  small  number.  1 1  is  curious 
that  the  duke  of  Berry,  who  advised  the 
French  to  avoid  an  action,  had  been  in 
the  battle  of  Poitiers  fifty-nine  years 
before.    Vill.  t.  xiii.  p.  865. 

«  Compare  Rym.  t.  ix.  p.  34, 188,  904; 
894.  The  last  reference  is  to  the  treaty 
of  Calais. 

628,763.  Nothing  can 
than  the  tone  of  Hen> 
to  his  commissioners, 


6  Rym.  t.  ix.  p 
be  more  insolent 


ry's  instructi»ns 


p. 628. 


r 


84 


TREATY  OF  TR0TE8.  Chap.  I.  Part  TL 


iation  with  the  dauphin.  This  event,  which  mast  have  been 
intended  adversely  to  Henry,  would  probably  have  broken  off 
a.  ,  ,rt  all  parley  on  the  subject  of  peace,  if  it  had  not 
mS:  '  been  speedily  followed  by  one  still  more  surprising, 
the  assassination  of  the  duke  of  Burgundy  at  Montereau. 

An  act  of  treachery  so  apparently  unprovoked  inflamed 
the  minds  of  that  powerful  party  which  had  looked  up  to  the 
duke  as  their  leader  and  patron.  The  city  of  Pans,  especially, 
abjured  at  once  its  respect  for  the  supposed  author  of  the 
murder,  though  the  legitimate  heir  of  the  crown.  A  solemn 
oath  was  taken  by  all  ranks  to  revenge  the  crime ;  the  nobility, 
the  clergy,  the  parliament,  vying  with  the  populace  m  their 
invectives  against  Charles,  whom  they  now  styled  only  pre- 
tended (soi-disant)  dauphin.  Philip,  son  of  the  assassinated 
duke,  who,  with  all  the  popularity  and  much  of  the  ability  ot 
his  father,  did  not  inherit  all  his  depravity,  was  instigated  by 
a  pardonable  excess  of  filial  resentment  to  ally  himself  ^Nnth 
the  kintr  of  England.  These  passions  of  the  people  and  the 
duke  of  Burgundy,  concurring  with  the  imbecility  of  Charles 
-^.  VI.  and  the  rancor  of  Isabel  towards  her  son,  led 

SS^^  °        to  the  treaty  of  Troyes.     This  compact,  signed  by 
May,  1420.      ^j^^  ^^^^^  ^^  ^^k^,  as  proxics  of  the  king,  who 
had  fallen  into  a  state  of  unconscious  idiocy,  stipulated  that 
Henry  V.,  upon  his  marriage  with  Catherine,  should  become 
immediately  regent  of  France,  and,  after  the  death  of  Charles, 
succeed  to  the  kingdom,  in  exclusion  not  only  of  the  dauphin, 
but  of  aU  the  royal  family.^     It  is  unnecessary  to  remark  that 
these  flagitious  provisions  were  absolutely  invalid.     But  they 
had  at  the  time  the  strong  sanction  of  force ;  and  Henry  might 
plausibly  flatter  himself  with  a  hope  of  establishing  his  own 
usurpation  as  firmly  in  France  as  his  father's  had  been  in 
England.    What  not  even  the  comprehensive  policy  of  Ed- 
ward in.,  the  energy  of  the  Black  Prince,  the  valor  of  their 
KnoUyses  and  Chandoses,  nor  his  own  victories  could  attain, 
now  seemed,  by  a  strange  vicissitude  of  fortune,  to  court  his 


1  As  if  through  shame  on  account  of 
what  was  to  follow,  the  first  articles  con- 
tain petty  stipulations  about  the  dower 
of  Catherine.  The  sixth  gives  the  king- 
dom of  France  after  Charles's  decease  to 
Henry  and  his  heirs.  The  seventh  con- 
i!eies  the  immediate  regency.  Henry 
kept  Normandy  by  right  of  conquest, 
not  in  virtue  of  any  stipulation  in  the 


treaty,  which  he  was  too  proud  to  admit. 
The  treaty  of  Troyes  was  confirmed  by 
the  states-General,  or  rather  by  a  partial 
convention  which  assumed  the  name,  in 
December  1420.  Kym.  t.  x.  p.  80.  The 
pariiament  of  England  did  the  same. 
Id.  p.  110.  It  is  printed  at  fuU  length 
by  ViUaret,  t.  xt.  p.  84. 


FBAJfCE.    CAUSES  OF  THE  SUCCESS  OF  THE  ENGLISH.      85 

ambition.  During  two  years  that  Henry  lived  after  the  treaty 
of  Troyes,  he  governed  the  north  of  France  with  unhmited 
authority  in  the  name  of  Charles  VI.  The  latter  survived 
his  son-in-law  but  a  few  weeks ;  and  the  infant  Henry  VI. 
was  immediately  proclaimed  king  of  France  and  England, 
under  the  regency  of  his  uncle  the  duke  of  Bedford. 

Notwithstanding  the  disadvantage  of  a  minority,  the  Eng- 
lish cause  was  less  weakened  by  the  death  of  Henry  than 
might  have  been  expected.     The  duke  of  Bedford  partook  of 
tL^  same  character,  and  resembled  his  brother  in  g^te  of 
feiults  as  well  as  virtues ;  in  his  haughtiness  and  France  at  the 
arbitrary  temper  as  in  his  energy  and  address.    At  chSfes  vn. 
the  accession  of  Charles  VII.  the  usurper  was  ac-  ^•"-  ^^^• 
knowledged  by  all  the  northern  provinces  of  France,  except 
a  few  fortresses,  by  most  of  Guienne,  and   the 
dominions  of  Burgundy.     The  duke  of  Britany  ^•"*  ^^* 
soon  afterwards  acceded  to  the  treaty  of  Troyes,  but  changed 
his  party  again   several   times  within   a  few   years.     The 
central  provinces,  with  Languedoc,  Poitou,  and  Dauphin^, 
were  faithful  to  the  king.     For  some  years  the  war  continued 
without  any  decisive  result ;  but  the  balance  was  clearly  swayed 
in  favor  of  England.    For  this  it  is  not  difficult  to  assign  sev- 
eral causes.     The  animosity  of  the  Parisians  and  causes  of  the 
the  duke  of  Burgundy  against  the  Armagnac  party  success  of  um 
still  continued,  mingled  in  the  former  with  dread  ^"sUsh. 
of  the  king's  return,  whom  they  judged  themselves  to  have 
inexpiably  offended.     The  war  had  brought  forward  some 
accojnplished  commanders  in  the  English  army ;  surpassing, 
not  indeed  in  valor  and  enterprise,  but  in  military  skill,  any 
whom  France  could  oppose  to  them.     Of  these  the  most  dis- 
tinguished, besides  the  duke  of  Bedford  himself,  were  War- 
wick, Salisbury,  and  Talbot.     Their  troops,  too,  were  still 
very  superior  to  the  French.     But  this,  we  must  in  candor 
allow,  proceeded  in  a  great  degree  from  the  mode  in  which 
they  were  raised.     The  war  was  so  popular  in  England  that 
it  was  easy  to  pick  the  best  and  stoutest  recruits,^  and  their 
high  pay  allured  men  of  respectable  condition  to  the  service. 
We  find  in   Rymer  a  contract  of  the  earl  of  Salisbury  to 
supply  a  body  of  troops,  receiving  a  shilling  a  day  for  every 
man-at-arms,  and  sixpence  for  each  archer.^    This  is,  per- 

»  Monstrelet,  part  i.  f.  303.  fbr  600  men-at-arms,  including  six  ban  • 

*  Rym.  t.  X.  p.  392     Tliis  contract  was    nerets  and  thirty-four  bachelors ;  and  tor 


86   CAUSES  OF  SUCCESS  OF  THE  ENGLISH.   Chap.  I.  Part  U. 

haps,  equal  to  fifteen  times  the  sum  at  our  present  value  of 
money.     They  were  bound,  indeed,  to  furnish  their   own 
equipments  and  horses.    But  France  was  totally  exhausted 
by  her  civil  and  foreign  war,  and  incompetent  to  defray  the 
expenses  even  of  the  small  force  which  defended  the  wreck 
of  the  monarchy.     Charles  VII.  lived  in  the  utmost  poverty 
at  Bourges.^     The  nobility  had  scarcely  recovered  from  the 
fatal  slaughter  of  Azincourt  ;  and  the  infantry,  composed  of 
peasants  or  burgesses,  which  had  made  their  army  so  numer- 
ous upon  that  day,  whether  from  inability  to  compel  their 
services,  or  experience  of  their  inefficacy,  were  never  called 
into  the  field.     It  became  almost  entirely  a  war  of  partisans. 
Every  town  in  Picardy,  Champagne,  Maine,  or  wherever  the 
contest  might  be  carried  on,  was  a  fortress  ;  and  in  the  attack 
or  defence  of  these  garrisons  the  valor  of  both  nations  was 
called  into  constant  exercise.      This   mode  of  warfare  was 
undoubtedly  the  best  in  the  actual  state   of  France,   as  it 
gradually  improved  her  troops,  and  flushed  them  with  petty 
successes.     But  what  principally  led  to  its  adoption,  was  the 
license  and  insubordination  of  the  royalists,  who,  receiving  no 
pay,  owned  no  control,  and  thought  that,  provided  they  acted 
against  the  English  and  Burgundians,  they  were  free  to  choose 
their  own  points  of  attack.     Nothing  can  more  evidently  show 
the  weakness  of  France  than  the  high  terms  by  which  Charles 
VII.  was  content  to  purchase  the  assistance  of  some  Scottish 
auxiliaries.     The  earl  of  Buchan  was  made  constable ;  the 
earl  of  Douglas  had  the  duchy  of  Touraine,  with  a  new  title, 
lieutenant-general  of  the  kingdom.     At  a  subsequent  time 
Charles  offered  the  province  of  Saintonge  to  James  I.  for  an 
aid  of  6000  men.     These  Scots  fought  bravely  for  France, 
though  unsuccessfully,  at  Crevant  and  Vemeuil ;  but  it  must 
be  owned  they  set  a  sufficient  value  upon  their  service.     Un- 
der all  these  disadvantages  it  would  be  unjust  to  charge  the 
French  nation  with  any  inferiority  of  courage,  even  in  the 
most  unfortunate   periods  of  this  war.     Though   frequently 
panic-struck  m  the  field  of  battle,  they  stood  sieges  of  their 
walled  towns  with  matchless  spirit  and  endurance.     Perhaps 
some  analogy  may  be  found  between  the  character  of  the 

ITOOarcbers;  blen  et sufflsamment  mon-  at-arms,  I*.;  and  for  each  archer,  W. 

tes,  armez,  et  arraiez  comme   a   leura  Artillery-men  were    paid    higher    than 

estats  appartient.     The  pay  was,  for  the  men-at-arms. 

earl,  6a.  Sd.  a  day;  for  a  banneret,  45.;  1  Villaret,  t.  xiT.  p.  802. 

for  a  bachelor,  2s. ;  for  every  other  man* 


Fbamcb. 


SIEGE  OF  ORLEANS. 


87 


French  commonalty  during  the  English  invasion  and  the 
Spaniards  of  the  late  peninsular  war.  But  to  the  exertions 
of  those  brave  nobles  who  restored  the  monarchy  of  Charles 
VII.  Spain  has  afforded  no  adequate  parallel. 

It  was,  however,  in  the  temper  of  Charles  VII.  that  his  ene- 
mies found  their  chief  advantage.     This  prince  is  character  of 
one  of  the  few  whose  character  has  been  improved  charies  vii. 
by  prosperity.     During  the  calamitous  morning  of  his  reign 
he  shrunk  from  fronting  the  storm,  and  strove  to  forget  him- 
self in  pleasure.     Though  brave,  he  was  never  seen  in  war ; 
though  intelligent,  he  was  governed  by  flatterers.     Those  who 
had  committed  the  assassination  at  Montereau  under  his  eyes 
were  his  first  favorites ;  as  if  he  had  determined  to  avoid  the 
only  measure  through  which  he  could  hope  for  better  success, 
a  reconciliation  with  the  duke  of  Burgundy.     The  count  de  • 
Richemont,  brother  of  the  duke  of  Britany,  who  became  af- 
terwards one  of  the  chief  pillars  of  his  throne,  consented  to 
renounce  the  English  alliance,  and  accept  the  rank  of  consta- 
ble, on  condition  that  these  favorites  should  quit 
the  court.     Two  others,  who  successively  gained  *"^' 
a  similar  influence  over  Charles,  Richemont  publicly  caused 
to  be  assassinated,  assuring  the  king  that  it  was  for  his  own 
and  the  public  good.    Such  was  the  debasement  of  morals  and 
government  which  twenty  years  of  civil  war  had  produced ! 
Another  favorite.  La  Tremouille,  took  the  dangerous  office, 
and,  as  might  be  expected,  employed  his   influence  against 
Richemont,  who  for  some  years  lived  on  his  own  domains, 
rather  as  an  armed  neutral  than  a  friend,  though  he  never 
lost  his  attachment  to  the  royal  cause. 

It  cannot  therefore  surprise  us  that  with  all  these  advan- 
tages the  regent  duke  of  Bedford  had  almost  completed  the 
capture  of  the  fortresses  north  of  the  Loire  when  siegc  of 
he  invested  Orleans   in    1428.     If  this   city  had  ^'^''^'^■ 
fallen,  the  central  provinces,  which  were  less  furnished  with 
defensible  places,  would  have  lain  open  to  the  enemy ;  and  it 
is  said  that  Charles  VII.  in  despair  was  about  to  retire  into 
Dauphine.     At  this  time   his  affairs   were  restored  by  one 
of  the  most  marvellous  revolutions  in  history.     A  joan  of 
country  girl  overthrew  the  power  of  England.    We 
cannot  pretend  to  explain  the  surprising  story  of  the  Maid  of 
Orleans  ;  for,  however  easy  it  may  be  to  suppose  that  a  heated 
and  enthusiastic  imagination  produced  her  own  visions,  it  is  a 


88 


JOAN  OF  ABC. 


Chap.  I.  Pabt  H. 


Fbance. 


AGNES  SOREL. 


89 


mucli  greater  problem  to  account  for  the  credit  they  obtained, 
and  for  the  success  that  attended  her.  Nor  will  this  be  solved 
by  the  hypothesis  of  a  concerted  stratagem ;  which,  if  we  do 
not  judge  altogether  from  events,  must  appear  liable  to  so 
many  chances  of  failure,  that  it  could  not  have  suggested  it- 
self to  any  rational  person.  However,  it  is  certain  that  the 
appearance  of  Joan  of  Arc  turned  the  tide  of  war,  which 
from  that  moment  flowed  without  interruption  in  Charles's 
favor.  A  superstitious  awe  enfeebled  the  sinews  of  the  Eng- 
lish. They  hung  back  in  their  own  country,  or  deserted  from 
the  army,  through  fear  of  the  incantations  by  which  alone 
they  conceived  so  extraordinary  a  person  to  succeed.*  As 
men  always  make  sure  of  Providence  for  an  ally,  whatever 
untoward  fortune  appeared  to  result  from  preternatural  causes 
.  was  at  once  ascribed  to  infernal  enemies ;  and  such  bigotry 
may  be  pleaded  as  an  excuse,  though  a  very  miserable  one, 
for  the  detestable  murder  of  this  heroine.* 

The  spirit  which  Joan  of  Arc  had  roused  did  not  subside. 
The  kin  France  recovered  confidence  in  her  own  strength, 
retrieves*  which  had  been  chilled  by  a  long  course  of  adverse 
his  afiBiirs ;     ^^j^^^^     The  king,  too,  shook  off*  his  indolence,' 


»  Rym.  t.  X.  p.  458-472.  This,  how- 
ever, is  conjecture ;  for  the  cause  of  their 
desertion  is  not  mentioned  in  these  proc- 
lamations, though  Rymer  has  printed 
it  in  their  title.  But  the  duke  of  Bed- 
ford speaks  of  the  turn  of  success  as 
astonishing,  and  due  only  to  the  supersti- 
tious fear  which  the  English  had  con- 
ceived of  a  female  magician.  Rymer,  t. 
X.  p.  408. 

2  M.  de  I'Averdy,  to  whom  we  owe 
the  copious  account  of  the  proceedings 
against  Joan  of  Arc,  as  well  as  those 
which  Charles  VII.  instituted  in  order  to 
rescind  the  former,  contained  in  the  third 
volume  of  Notices  des  Manuscrits  du 
Roi,  has  justly  made  this  remark,  which 
is  founded  on  the  eagerness  shown  hy  the 
University  of  Paris  in  the  prosecution, 
and  on  its  being  conducted  before  an 
inquisitor;  a  circumstance  exceedingly 
remarkable  in  the  ecclesiastical  history 
of  France.  But  another  material  ob- 
servation arises  out  of  this.  The  Maid 
was  pursued  with  peculiar  bitterness  by 
her  countrymen  of  the  English,  or  rather 
Burgundian,  faction ;  a  proof  that  in 
1430  their  animosity  against  Charles  VII. 
was  still  ardent.     [Note  XVI.] 

3  It  is  a  current  piece  of  history  that 
Agnes  Sorel,  mistress  of  Charles  VII., 
bad  the  merit  of  diasuading  him  from 


giving  up  the  kingdom  as  lost  at  the 
time  when  Orleans  was  besieged  in  1428. 
Mezeray,  Daniel,  Villaret,  and,  I  believe, 
every  other  modern  historian,  have  men- 
tioned this  circumstance;  and  some  of 
them,  among  whom  is  Hume,  with  the 
addition  that  Agnes  threatened  to  leave 
the  court  of  Charles  for  that  of  Henry, 
affirming  that  she  was  born  to  be  the 
mistress  of  a  great  kiup.  The  latter 
part  of  this  tale  is  evidently  a  fabrication, 
Henry  VI.  being  at  the  time  a  child  of 
seven  years  old.  But  I  have,  to  say  the 
least,  great  doubts  of  the  main  story. 
It  is  not  mentioned  by  con  tern  porarj 
writers.  On  the  contrary,  what  they  say 
of  Agnes  leads  mo  to  think  the  dates  In- 
compatible. Agnes  died  (in  childbed,  a» 
some  say)  in  1450;  twenty-two  years  after 
the  siege  of  Orleans.  Men st relet  says 
that  she  had  been  about  five  years  in  the 
service  of  the  queen  ;  and  the  king  tak 
ing  pleasure  In  her  liveliness  and  wit, 
common  fame  had  spread  abroad  that 
she  lived  in  concubinage  with  him.  She 
certainly  had  a  child,  and  was  willing 
that  it  should  be  thought  the  king's ;  but 
he  always  denied  it,  et  le  pouyoit  bien 
avoir  emprunte  ailleurs.  Pt.  iii.  f.  25. 
Olivier  de  la  Marche  another  contempo- 
rary, who  lived  in  the  court  of  Burgundy, 
says,  about  the  year  1444,  le  rojr  avoit 


and  permitted  Richemont  to  exclude  his  unworthy  favor- 
ites from  the  court  This  led  to  a  very  important  conse- 
quence. The  duke  of  Burgundy,  whose  alliance  with  Eng- 
land had  been  only  the  fruit  of  indignation  at  his  father's 
murder,  fell  naturally,  as  that  passion  wore  out,  into  senti- 
ments more  congenial  to  his  birth  and  interests.  A  prince  of 
the  house  of  Capet  could  not  willingly  see  the  inheritance  of 
liis  ancestors  transferred  to  a  stranger.  And  he  had  met 
with  provocation  both  from  the  regent  and  the  duke  of  Glou- 
cester, who,  in  contempt  of  all  policy  and  justice,  had  endeav- 
ored, by  an  invalid  marriage  with  Jacqueline,  countess  of 
Hainault  and  Holland,  to  obtain  provinces  which  Burgundy 
desiojned  for  himself.     Yet  the  union  of  his  sister  with  Bed- 


nonvellement  eslev6  une  pauvre  demoi- 
selle, gentifemme,  nommee  Agnes  Sorel, 
et  mis  en  t«l  triumphe  et  tel  pouvoir, 
que  son  estat  estoit  a  comparer  aux 
grandes  princesses  de  royaume,  et  certes 
c'estoit  une  des  plus  belles  fenunes  que 
je  vey  oncques,  et  fit  en  sa  qualite  beau- 
coup  au  royaume  de  France.  Elle  avan- 
^it  devers  le  roy  jeunes  gens  d'armes  et 
geutils  compaignons,  et  dont  le  roy  de- 
pnis  fut  bien  servy.  La  Marche;  Mem. 
HL''t.  t.  viii.  p.  145.  Du  Clercq,  whose 
memoirs  were  first  published  in  the  same 
collection,  says  that  Agues  mourut  par 
poison  moult  jcune.  lb.  t.  viii.  p.  410. 
And  the  coiitinuatorof  Monstrelet,  prob- 
ably John  Chartier,  speaks  of  the  youth 
and  beauty  of  Agnes,  which  exceeded 
that  of  any  other  woman  in  France,  and 
of  the  favor  shown  her  by  the  king, 
which  so  much  excited  the  displeasure  of 
the  dauphin,  on  his  mother's  account, 
and  he  w:is  suspected  of  having  caused 
her  to  be  poisoned,  fol.  68.  The  same 
writer  affirms  of  Charles  VII.  that  he 
was,  before  the  peace  of  Arras,  de  moult 
belle  vie  et  devote;  but  afterwards  en- 
laiJit  sa  vie  de  tenir  malles  femmes  en 
son  hostel,  &c.  fol.  86. 

It  is  for  the  reader  to  judge  how  for 
these  passaj^es  render  it  improbable  that 
-^giies  Sorel  was  the  mistress  of  Charles 
VII.  at  the  siege  of  Orleans  in  1428,  and, 
consequently,  whether  she  is  entitled  to 
the  praise  which  she  has  received,  of  be- 
ing instrumental  in  the  deliverance  of 
Fr.ince.  The  tradition,  however,  is  as  an- 
cient as  Francis  I.,  who  made  in  her  honor 
a  quatrain  which  Is  well  known.  This 
probably  may  have  brought  the  story 
more  into  vogue,  and  led  Mezeray,  who 
was  not  very  critical,  to  insert  it  in  his 
history,  from  which  it  has  passed  to  his 
followers.  Its  origin  was  apparently  the 
popular  character  of  Agnes.    She  was 


the  Nell  Gwyn  of  France ;  and  justly  be- 
loved, not  only  for  her  charity  and  cour- 
tesy, but  for  bringing  forward  men  of 
merit,  and  turning  her  influence,  a  vir- 
tue very  rare  in  her  class,  towards  the 
public  interest.  From  thence  it  was 
natural  to  bestow  upon  her,  in  after- 
times,  a  merit  not  ill  suited  to  her  char 
acter,  but  which  an  accurate  observation 
of  dates  seems  to  render  impossible.  But 
whatever  honor  I  am  compelled  to  de- 
tract from  Agnes  Sorel,  I  am  willing  to 
transfer  undiminished  to  a  more  unblem- 
ished female,  the  injured  queen  of  Charles 
VII.,  Mary  of  Anjou,  who  has  hitherto 
only  shared  with  the  usurper  of  her 
rights  the  credit  of  awakening  Charles 
from  his  lethargy.  Though  I  do  not 
know  on  what  foundation  even  this  rests, 
it  is  not  unlikely  to  be  true,  and,  in  def- 
erence to  the  sex,  let  it  pass  undisputed. 
Sismondi  (vol.  -\iii.  p.  204),  where  he 
first  mentions  Agnes  Sorel,  says  that 
many  of  the  circumstances  told  of  her 
influence  over  Charles  VII.  are  fabulous. 
"  Cependant  il  faut  bien  qu' Agnes  ait 
merite,  en  quelque  maniere,  la  reconnois- 
sance  qui  s'est  attachee  k  son  nom." 
This  is  a  loose  and  inconclusive  way  of 
reasoning  in  history ;  many  popular  tra- 
ditions have  no  basis  at  all.  And  in 
p.  345  he  slights  the  story  told  in  Bran- 
tdme  to  the  honor  of  Agnes,  as  well  he 
might,  since  it  is  ridiculously  untrue  that 
she  threatened  Charles  to  go  to  the  court 
of  Henry  VI.,  knowing  herself  to  bo 
born  to  be  the  mistress  of  a  great  king. 
Sismondi  afterwards  (p.  497  and  604) 
quotes,  as  I  have  done,  Chartier  and 
Jacques  du  Clercq;  but  without  adverting 
to  the  incongruity  of  their  dates  with 
the  current  story.  M.  Michelet  does  not 
seem  to  attach  much  credit  to  it,  though 
he  adopts  the  earlier  date  for  the  king's 
attachment  to  Agnes. 


I 
f 


90 


IMPOLICY  OF  THE  ENGLISH.    Chap.  I.  Part  H. 


France. 


LOSS  OF  THEIR  CONQUESTS. 


91 


ford,  the  obligations  by  which  he  was  bound,  and,  most  of  all, 
the  favor  shown  by  Charles  VII.  to  the  assassins  of  his  father, 
and  is  rcc-  ^cpt  him  foF  many  years  on  the  English  side,  al- 
onciied  to  though  rendering  it  less  and  less  assistance.  But 
filTrgundy.^  at  length  he  concluded  a  treaty  at  Arras,  the  terms 
A.D.  1435.  of  ^vliich  he  dictated  rather  as  a  conqueror  than  a 
subject  negotiating  with  his  sovereign.  Charles,  however,  re- 
fused nothing  for  such  an  end ;  and,  in  a  very  short  time,  the 
Burgundians  were  ranged  with  the  French  against  their  old 
aUies  of  England. 

It  was  now  time  for  the  latter  to  abandon  those  magnificent 
Impolicy  of  projccts  of  Conquering  France  which  temporary 
the  EngUsh.  circumstauccs  alone  had  seemed  to  render  feasible. 
But  as  it  is  a  natural  effect  of  good  fortune  in  the  game  of 
war  to  render  a  people  insensible  to  its  gradual  change,  the 
English  could  not  persuade  themselves  that  their  affairs  were 
irretrievably  declining.  Hence  they  rejected  the  offer  of 
Normandy  and  Guienne,  subject  to  the  feudal  superiority  of 
France,  which  was  made  to  them  at  the  congress  of  Arras;* 
and  some  years  afterwards,  when  Paris,  with  the  adjacent 
provinces,  had  been  lost,  the  English  arabassadoi-s,  though 
empowered  by  their  private  instructions  to  relax,  stood  upon 
demands  quite  disproportionate  to  the  actual  position  of  af- 
fairs.^ As  foreign  enemies,  they  were  odious  even  in  that 
part  of  France  which  had  acknowledged  Henry ;  ^  and 
when  the  duke  of  Burgundy  deserted  tlieir  side,  Paris  and 
_^  every  other  city  were  impatient  to  throw  off"  the 

all  their  yokc.  A  fccblc  monarchy,  and  a  selfish  council, 
rSl^rm*  completed  their  ruin :  the  necessary  subsidies  were 
raised  with  difficulty,  and,  when  raised,  misapplied. 
It  is  a  proof  of  the  exhaustion  of  France,  that  Charles  was 
unable,  for  several  years,  to  reduce  Normandy  or  Guienne, 
which  were  so  ill-provided  for  defence.*    At  last  he  came 


1  Villarct  says,  Lcs  pldnipotentiaire^  de 
Charles  offrirent  la  cession  de  la  Nor- 
mandie  et  do  la  Quienne  en  toute  pro- 
priety sous  la  clause  de  Vhommage  d  la 
couronnej  t.  xt.  p.  174.  But  he  does  not 
quote  his  authority,  and  I  do  not  like  to 
rely  on  an  historian  not  eminent  for  ac- 
curacy in  fact  or  precision  in  language. 
If  his  expression  is  correct,  the  French 
must  have  given  up  the  feudal  appeal  or 
ressort  which  had  heen  the  great  point 
in   dispute  between   Edward  III.  and 


Charles  V.,  preserving  only  a  homage 
per  paroffiunij  as  it  was  called,  which 
implied  no  actual  supremacy.  Monstrelet 
says  only,  que  per  certaines  conditions 
luy  seroient  accord^es  les  seign  euries  de 
Quicnnc  et  Normandie. 

2  Sec  the  instructions  given  to  the  Eng- 
lish negotiators  in  14^,  at  length,  in 
Rymer,  t.  x  p.  724. 

sVUlaret,  t.  xiv.  p.  448. 

*Amelgard,  from  whose  unpublished 
memoirs  of  Cliarles  VII.  and  Louis  XI. 


*  with  collected  strength  to  the  contest,  and,  breaking  an  armis- 
tice  upon  slight  pretences,  within  two  years  overwhelmed  the 
English  garrisons  in  each  of  these  provinces.  Ail  the  inher- 
itance of  Henry  II.  and  Eleanor,  all  the  conquests  of  Edward 
HI.  and  Henry  V.  except  Calais  and  a  small  adjacent  district, 
were  irrecoverably  torn  from  the  crown  of  England.  A  barren 
title,  that  idle  trophy  of  disappointed  ambition,  was  preserved 
with  strange  obstinacy  to  our  own  age. 

In  these  second  English  wars  we  find  little  left  of  that  gen- 
erous feeling  which  had,  in  general,  distinguished  condition 
the  contemporaries  of  Edward   III.     Tlie   very  °/  K^'^^f^^ 

.  .  I  •  1  i   i       /•  I        •!•-  "^   during  the 

vutues  which  a  state  of  hostility  promotes  are  not  second 
proof  against  its  long  continuance,  and  sink  at  last  ^^s^'^^  ^^"• 
into  brutal  fierceness.  Revenge  and  fear  excited  the  two 
factions  of  Orleans  and  Burgundy  to  all  atrocious  actions. 
The  troops  serving  under  partisans  on  detached  expedi- 
tions, according  to  tlie  system  of  the  war,  lived  at  free  quar- 
ters on  the  people.  The  histories  of  the  time  are  full  of 
their  outrages,  from  wliich,  as  is  the  common  case,  the  unpro- 
tected peasantry  most  suffered.*  Even  those  laws  of  war, 
which  the  courteous  sympathies  of  chivalry  had  enjoined, 
were  disregarded  by  a  merciless  fury.  Garrisons  surrendering 
after  a  brave  defence  were  put  to  death.  Instances  of  this  are 
very  frequent.  Henry  V.  excepts  Alain  Blanchurd,  a  citizen 
who  had  distinguished  himself  during  the  sie;:!:e,  from  the 
capitulation  of  Rouen,  and  orders  him  to  execu  ion.  At  the 
taking  of  a  town  of  Champagne,  John  of  Luxemburg,  the 
Burgundian  general,  stipulates  that  every  four;h  and  sixth 
man   should  be   at  his   discretion;  which  he  exercises  by 


some  valuable  extracts  are  made  in  the 
Notices  des  Manuscrits,  t.  i,  p.  403,  attrib- 
utes the  delay  in  recovering  Normandy 
solely  to  the  king's  slothfulness  and  sen- 
suality. In  fact  the  people  of  that  prov- 
ince rose  upon  the  English  and  almost 
emimcipated  themselves  with  little  aid 
from  Charles. 

1  Monstrelet,  passim.  A  long  metrical 
complaint  of  the  people  of  France,  curious 
as  a  specimen  of  versification,  as  well  as 
a  testimony  to  the  misfortunes  of  the 
time,  may  be  found  in  this  historian, 
l^t  i.  fol.  321.  Notwithstanding  the 
treaty  of  Arras,  the  French  and  Burgun- 
iians  made  continual  incursions  upon 
each  other's  frontiers,  especially  about 
Laon  am.',  in  the  Vermandois.  So  that 
the  people  had  no  help,  says  Monstrelet, 


si  non  de  crier  miservblement  a  Dieu 
leur  creatctir  vengeance ;  et  que  pis 
cstoit,  quand  iLs  obtenoient  aucun  sauf- 
conduit  d'aucuns  capit;iines,  peu  en  estoit 
entretenu,  mesmement  tout  d'un  parti, 
part  ii.  fol.  139.  These  pillagers  were 
called  Ecorcheurs,  because  they  stripped 
the  people  of  their  shirts.  And  this  name 
superseded  that  of  Armagnacs,  by  which 
one  side  had  hitherto  been  known.  Even 
Xaintrailles  and  La  Hire,  two  of  the 
bravest  champions  of  France,  were  dis- 
graced by  these  habits  of  outrage.  Ibid, 
fol.  144, 150, 175  Oliv.  de  la  Marche,  in 
Collect,  des  Memoires,  t.  viii.  p.  25  ;  t.  y. 
p.  323. 

Pour  la  plupart,  says  Villaret,  se  faire 
guerrier,  ou  voleur  de  grands  chemins, 
signifioit  la  memo  chose. 


92 


CONDITION  OF  FRANCE.     Chap.  I.  Pabt  XL 


causing  them  all  to  be  hanged.*  Four  hundred  English  from 
Pontoi°se,  stormed  by  Charles  VII.  in  1441,  are  paraded  in 
chains  and  naked  through  the  streets  of  Paris,  and  thrown 
afterwards  into  the  Seine.  This  infamous  action  cannot  but 
be  ascribed  to  the  king.* 

At  the  expulsion  of  the  Enghsh,  France  emerged  from  the 

chaos  with  an  altered  character  and  new  features 

Subsequent      £•  crovemment.     The  royal  authority  and  supreme 

events  in  the    v^^  o^tv.***  j  j  * 

reign  of         jurisdiction  of  the   parhament  were   universally 
Charles  vn.   j-ecognizcd.    Yet  there  was  a  tendency  towards 
insubordination°left  among  the  great  nobility,  arising  in  part 
from  the  remains  of  old  feudal  privileges,  but  still  more  from 
that  lax  administration  which,  in  the  convulsive  struggles  of 
the  war,  had  been  suffered  to  prevail.     In  the  south  were 
some  considerable  vassals,  the  houses  of  Foix,  Albret,  and 
Armagnac,  who,  on  account  of  their  distance  from  the  seat  of 
empire,  had  always  maintained  a  very  independent  conduct 
The  dukes  of  Britany  and  Burgundy  were  of  a  more  formi- 
dable character,  and  might  rather  be  ranked  among  foreign 
powers  than  privileged  subjects.     The  princes,  too,  of  the 
royal  blood,  who,  during  the  late  reign,  had  learned  to  partake 
or  contend  for  the  management,  were   ill-inclined   towards 
Charles  VII.,  himself  jealous,  from  old  recollections,  of  their 
ascendancy.     They  saw  that  the   constitution  was   verging 
rapidly  towards  an  absolute  monarchy,  from  the  direction  of 
which  they  would  studiously  be  excluded.    This  apprehension 
gave  rise  to  several  attempts  at  rebellion  durmg  the  reign  of 
Charles  VII.,  and  to  the  war,  commonly  entitled,  for  the 
Public  Weal  (du  bien  public),  under  Louis  XI.     Among  the 
pretences  alleged  by  the  revolters  in  each  of  these,  the  injuries 
of  the  people  were  not  forgotten  ;•  but  from  the  people  they 


1  Monstrelet,  part  ii.  f.  79.    This  John 
of  Luxemburg,  count  de  Ligny.  was  a 
distinguished  captain  on  the  Burgundian 
Bide,  and  for  a  long  time  would  not  ac- 
quiesce in  the  treaty  of  Arras.    He  dis- 
graced himself  by  giving  up  to  the  duke 
of  Bedford  his  prisoner  Joan  of  Arc  for 
10,000  francs.    The  famous  count  of  St. 
Pol  was  his  nephew,  and  inherited  his 
great  possessions  in  the  county  of  Ver- 
mandois.    Monstrelet  relates  a  singular 
proof  of  the  good  education  which  his 
uncle  gave  him.     Some  prisonershaving 
been  made  in  an  engagement,  si  fut  le 
jeune  comte  de  St.  Pol  mis  en  voye  de 
guerre  j  car  le  comte  de  Ligny  son  oncle 


luy  en  feit   occire   aucuns,   le  quel  y 
prenoit  grand  plaisir.  part  ii.  fol.  95. 

2  ViUaret,  t.  xv.  p.  SiT. 

'  The  confederacy  formed  at  Nevers 
in  1441,  by  the  dukes  of  Orleans  and 
Bourbon,  with  many  other  princes,  made 
a  variety  of  demands,  all  relating  to  the 
grievances  which  different  classes  of  the 
state,  or  individuals  among  themselves, 
suffered  under  the  administration  of 
Charles.  These  may  be  found  at  length 
in  Monstrelet,  pt.  ii.  f.  193 ;  and  are  ft 
curious  document  of  the  change  which 
was  then  working  in  the  French  consti- 
tution. In  his  answer  the  king  claim* 
the  right,  in  urgent  cases,  of  levying  taxes 


France. 


EVENTS  UNDER  CHARLES  VH. 


93 


received    small    support.     Weary   of   civil   dissension,   and 
anxious  for  a  strong  government  to  secure  them  from  depre- 
dation, the  French  had  no  inducement  to  intrust  even  their 
real  grievances  to  a  few  malcontent  princes,  whose  regard 
for  the  common  good  they  had   much   reason   to  distrust. 
Every  circumstance  favored  Charles  VII.  and  his  son  in  the 
attainment  of  arbitrary  power.     The  country  was  pillaged  by 
military  ruffians.    Some  of  these  had  been  led  by  the  dauphin 
to  a  war  m  Germany,  but  the  remainder  still  infested  the 
high  roads  and  villages.     Charles  established  his  companies 
of  ordonnance,  the  basis  of  the  French  regular  army,  in  order 
to  protect  the  country  from  such  depredators.     They  con- 
sisted of  about  nine  thousand  soldiers,  all  cavalry,  of  whom 
fifteen  hundred  were  heavy  armed ;  a  force  not  very  consid- 
erable, but  the  first,  except  mere  body-guards,  which  had  been 
raised  in  any  part  of  Europe  as  a  national  standing  army.* 
These  troops  were  paid  out  of  the  produce  of  a  permanent 
tax,  called  the  taille  ;  an  innovation  still  more  important  than 
the  former.    But  the  present  benefit  cheating  the  people,  now 
prone  to  submissive  habits,  Httle  or  no  opposition  was  made, 
except  in  Gruienne,  the  inhabitants  of  which  had  speedy  reason 
to  regret  the  mild  government  of  England,  and  vainly  endeav- 
ored to  return  to  its  protection.^ 
It  was  not  long  before  the  new  despotism  exhibited  itself 


without  waiting  for  the  consent  of  the 
Btates-Qeneral. 

1  Olivier  del  a  Marche  speaks  very  much 
in  &vor  of  the  companies  of  ordonnance, 
as  having  repressed  the  plunderers,  and 
restored  internal  police.  Collect,  des 
Mcnoires,  t.  viii.  p.  148.  Amelgard  pro- 
nounces a  vehement  philippic  against 
them ;  but  it  is  probable  that  his  obser- 
vation of  the  abuses  they  had  fallen  into 
was  confined  to  the  reign  of  Louis  XI. 
Notices  des  Manuscrits,  ubi  supra. 

2  The  insurrection  of  Ouienne  in  1462, 
which  for  a  few  months  restored  that 
province  to  the  English  crown,  is  ac- 
counted for  in  the  curious  memoirs  of 
Amelgard,  above  mentioned.  It  pro- 
ceeded solely  from  the  arbitrary  taxes 
Imposed  by  Charles  VII.  in  order  to 
defray  the  expenses  of  his  regular  army. 
The  people  of  Bordeaux  complained  of 
exactions  not  only  contrary  to  their  an- 
cient privileges,  but  to  the  positive  con- 
ditions of  their  capitulation.  But  the 
Ung  was  deaf  to  such  remonstrances. 
The  province  of  Guienne,  he  says,  then 
perceived  that  it  \*-as  meant  to  subject  it 


to  the  same  servitude  as   the  rest  of 
France,  where  the  leeches  of  the  state 
boldly  maintain  as  a  fundamental  maxim, 
that  the  king  has  a  right  to  tax  all  his 
subjects  how  and  when  he  pleases ;  which 
is  to  advance  that  in  France  no  man  has 
anything  that  he  can  call  his  own.  and 
that  the  king  can  take  all  at  his  pleasure ; 
the  proper  condition  of  slaves,  whose 
peculium  enjoyed  by  their  master's  per- 
mission belongs  to  him,  like  their  persons, 
and  may  bo  taken  away  whenever  he 
chooses.    Thus  situated,  the  people  of 
Guienne,  especially  those  of  Bordeaux, 
alarmed  themselves,  and,  excited  by  some 
of  the  nobility,  secretly  sought  about  for 
means  to  regain  their  ancient  freedom ; 
and  having  still  many  connections  with 
persons  of  rank  in  England,  they  nego- 
tiated with  them,  &c.   Notices  des  Manu- 
scrits, p.  433.  The  same  cause  is  assigned 
to  this  revolution  by  Du  Clercq,  also  a 
contemporary  writer,  living  in  the  do- 
minions of  Burgundy.    Collection   des 
Memoires,  t.  ix.  p.  400.    Villaret  has  not 
known,  or  not  chosen  to  know,  anything 
of  the  matter. 


94 


LOUIS  XI. 


Chat.  I.  Fabt  IL 


Louis  XI. 


in  its  harshest  character.    Louis  XI.,  son  of  Charles 
VII.,  who,  during  his  father's  reign,  had  been  con- 
nected  with  the  discontented  princes,  came  to  the   throne 
ereatly  endowed  with  those  virtues  and  vices  which  conspire 
to  the  success  of  a  king.     Labonous  vigilance  m 
' ffischS:       business,  contempt  of  pomp,  affabiUty  to  inferiors, 
•cter.  were  his  excellences ;  qualities  especially  praise- 

worthy in  an  age  characterized  by  idleness,  love  of  pageanU-y, 
and  insolence.    To  these  virtues  he  added  a  perfect  knowledge 
of  all  persons  eminent  for  talents  or  influence  in  the  countries 
with  which  he  was  connected,  and  a  well-judged  bounty,  that 
thoucrht  no  expense  wasted  to  draw  them  mto  his  service  or 
interest.     In  the  fifteenth  century  this  poUtical  art  had  hardly 
been  known,  except  perhaps  in  Italy  ;  the  princes  of  Europe 
had  contended  with  each  other  by  arms,  sometimes  by  treach- 
ery, but  never  with  such  complicated  subtlety  of  intrigue. 
Of  that  insidious  cunning,  which  has  since  been  brought  to 
perfection,  Louis  XI.  may  be  deemed  not  absolutely  the 
kiventor,  but  the  most  eminent  improver  ;  and  its  success  has 
led,  perhaps,  to  too  high  an  estimate  of  his  abilities.     Like 
most  bad  men,  he  sometimes  fell  into  his  own  snare,  and  was 
betrayed  by  his  confidential  ministers,  because  his  confidence 
was  generally  reposed  in  the  wicked.     And  his  dissimulation 
was  so  notorious,  his  tyranny  so  oppressive,  that  he  was  nat- 
urally  surrounded  by  enemies,  and  had  occasion  for  all  his 
craft  to  elude  those  rebelHons  and  confederacies  which  might 
perhaps  not  have  been  raised  agamst  a  more  upright  sover- 
eign  1    At  one  time  the  monarchy  was  on  the  point  of  sinking 
before  a  combination  which  would  have  ended  in  dism^ber- 
m<r  France.     This  was  the  league  denominated  of  the  Public 
°  Weal,  in  which  all  the  princes  and  great  vassals  of 

SfSuated  the  French  crown  were  concerned ;  the  dukes  of 
of  the  Public  Britany,  Burgundy,  Alen9on,  Bourbon,  the  count 
A.D.  ii6l.  of  Dunois,  so  renowned  for  his  valor  in  the  Enghi?h 
wars,  the  famiUes  of  Foix  and  Armagnac ;  and  at  the  head 

aeainst  hi«  enemies,  and  especially  against 
his  rebellious  subjects.  Louis  composea 
for  his  son's  use,  or  caused  to  be  com 
posed  a  political  treatise  entitled  Lc 
Rosier  des  Ouerres,'  which  has  never 
been  published.  It  is  written  in  a  spirit 
of  public  morality  very  unlike  his  prac- 
tice. (Sismondi,  vol.  xiv.  p.  616.)  Thus 
two  royal  Antl-Machiavels  have  flatimea 
themselvtis. 


1  Sismondi  (vol.  xiv.  p.  312)  and  Mich- 
elet  (vol.  ix.  p.  »17)  agree  in  thinking 
Louis  XI.  no  worse  than  other  kings  of 
his  age  ;  in  fact  the  former  seems  rarely 
to  make  a  distinction  between  one  king 
and  another.  Louis  was  just  and  even 
attentive  towards  the  lower  people,  and 
spared  the  blood  of  his  soldiers.  But  he 
had  imbibed  a  notion  that  treachery  and 
cruelty  could   not  be   carried  too  fiur 


France.  LEAGUE  OF  THE  PUBLIC  WEAL.— APPANAGES.     95 

of  all,  Charles  duke  of  Berry,  the  king's  brother  and  pre- 
sumptive heir.  So  unanimous  a  combination  was  not  formed 
without  a  strong  provocation  from  the  king,  or  at  least  with- 
out  weighty  grounds  for  distrusting  his  intentions ;  but  the 
more  remote  cause  of  this  confederacy,  as  of  those  which  had 
been  raised  against  Charles  VII.,  was  the  critical  position  of 
the  feudal  aristocracy  from  the  increasing  power  of  the  crown. 
This  war  of  the  Public  Weal  was,  in  fact,  a  struggle  to  pre- 
serve their  independence  ;  and  from  the  weak  character  of 
the  duke  of  Berry,  whom  they  would,  if  successful,  have 
placed  upon  the  throne,  it  is  possible  that  France  might  have 
been  in  a  manner  partitioned  among  tliem  in  the  event  of 
their  success,  or,  at  least,  that  Burgundy  and  Britany  would 
have  thrown  off  the  sovereignty  that  galled  them.^ 

The  strength  of  the  confederates  in  this  war  much  exceeded 
that  of  the  king ;  but  it  was  not  judiciously  employed ;  and 
after  an  indecisive  battle  at  Montlhery  they  failed  in  the  great 
object  of  reducing  Paris,  which  would  have  obliged  LoiTis  to 
fly  from  his  dominions.  It  was  liis  policy  to  promise  every- 
thing, in  trust  that  fortune  would  afford  some  opening  to 
repair  his  losses  and  give  scope  to  his  superior  prudence. 
Accordingly,  by  the  treaty  of  Conflans,  he  not  only  surren- 
dered afresh  the  towns  upon  the  Somme,  wliich  he  had  lately 
redeemed  from  the  duke  of  Burgundy,  but  invested  his  brother 
with  the  duchy  of  Normandy  as  his  appanage. 

The  term  appanage  denotes  the  provision  made  for  the 
younger  children  of  a  king  of  France.  This  always 
consisted  of  lands  and  feudal  superiorities  held  of  -^pp^^s^- 
the  cro\vn  by  the  tenure  of  peerage.  It  is  evident  that  tliis 
usage,  as  it  produced  a  new  class  of  powerful  feudataries,  was 
hostile  to  the  interests  and  policy  of  the  sovereign,  and  re- 
tarded the  subjugation  of  the  ancient  aristocracy!  But  an 
usage  coeval  with  the  monarchy  was  not  to  be  abrogated,  and 
the  scarcity  of  money  rendered  it  impossible  to  provfde  for  the 
younger  branches  of  the  royal  family  by  any  other  means.  It 
was  restrained,  however,  as  far  as  circumstances  would  permit. 
Philip  IV.  declared  that  the  county  of  Poitiers,  bestowed  by 


♦V  ®*®™°°<i*  has  a  Just  observation  olr¥t6  proclam6 ;  c'est  que  le  bien  public 
we  League  of  the  PubUc  Weal.  "  1%  Moit  etre  le  but  du  gouvemement ;  maia 
nom  seul  du  Bien  PubUc,  qui  fut  donnWWs  princes  qui  s'associaient  pour  Pob^^^ur 
acette  ligue,  etait  un  hommage  au  pro-  etaient  encore  bien  peu  en  6tat  d»  v»- 
irw  des  lumieres  ;  c'etait  la  profession  naitio  sa  nature."  (jdv.  161.) 
o  on  principe  qui  n'avait  point  encore 


96 


APPANAGES. 


Chat.  I.  Part  11 


*« 


■tP 


him  on  hi3  son,  should  revert  to  the  crown  on  the  extinction 
of  male  heirs.  But  this,  though  an  important  precedent,  was 
not,  as  has  often  been  asserted,  a  general  law.  Charles  V. 
limited  the  appanages  of  his  own  sons  to  twelve  thousand 
livres  of  annual  value  in  land.  By  means  of  their  appanages, 
and  throucrh  the  operation  of  the  Salic  law,  which  made  then- 
inheritance  of  the  crown  a  less  remote  contingency,  the  prmces 
of  the  blood  royal  in  France  were  at  all  times  (for  the  remark 
is  applicable  long  after  Louis  XL)  a  distinct  and  formidable 
class  of  men,  whose  influence  was  always  disadvantageous  to 
the  rei^ninnr  monarch,  and,  in  general,  to  the  people. 

No  appanage  had  ever  been  granted  to  France  so  enormous 
as  the  duchy  of  Normandy.     One  third  of  the  whole  national 
revenue,  it  is  declared,  was  derived  from  that  rich  province. 
Louis  could  not,  therefore,  sit  down  under  such  terms  as,  with 
his  usual  insincerity,  he  had  accepted  at  Conflans.     In  a  very 
short  time  he  attacked  Normandy,  and  easily  compelled  his 
brother  to  take  refuge  in  Britany ;  nor  were  his  enemies  ever 
able  to  procure  the  restitution  of  Charles's  appanage.     Dur- 
in<r  the  rest  of  his  reign  Louis  had  powerful  coalitions  to  with- 
stand ;  but  his  prudence  and  compHance  with  circumstances, 
ioined  to  some  mixture  of  good  fortune,  brought  him  safely 
throu<rh  his  perils.     The  duke  of  Britany,  a  prince  of  moder- 
ate  tSents,  was  unable  to  make  any  formidable  impression, 
thouc^h  generally  leagued  with  the  enemies  of  the  king,     i  he 
less  powerful  vassals  were  successfully  crushed  by  Louis  with 
decisive  vigor ;  the  duchy  of  Alenfon  was  contiscated ;  the 
count  of  Armagnac  was  assassinated ;  the  duke  of  Nemours,  and 
the  constable  of  St.  Pol,  a  politician  as  treacherous  as  Louis, 
who  had  long  betrayed  both  him  and  the  duke  of  Burgundy, 
suffered  upon  the  scaffold.     The  king's  brother  Charles,  after 
disquieting  him  for  many  years,  died  suddenly  in   Guienne, 
which  had  finally  been  granted  as  his  appanage,  with  strong 
suspicions  of  having  been   poisoned  by  the  kings 
A.D.1472.       ^.Qjjtrivance.^     Edward  IV.  of   England  was   too 
dissipated  and  too  indolent  to  be  fond  of  war  ;  and,  though  he 
once  entered  France  with  an  army  more  considera- 
A.i>.  1475.      ^^^  ^jj^j^  ^Q^i^  liave  been  expected  after  such  civil 
bloodshed  as  England  had  witnessed,  he  was  induced,  by  the 

iSismondi,  howeTer,and  Michelet  do    was  poisoned  by  hla  brother ;  he  had  bwn 
not  belieye  that  the  duke  of  Guienne    111  for  Beveral  month*. 


FB4NCB. 


HOUSE  OF  BURGUNDY. 


»7 


stipulation  of  a  large  pension,  to  give  up  the  enterprise.^  So 
terrible  was  still  in  France  the  apprehension  of  an  EngUsh 
war,  that  Louis  prided  himself  upon  no  part  of  his  policy  so 
much  as  the  warding  this  blow.  Edward  showed  a  desire  to 
visit  Pans ;  but  the  king  gave  him  no  invitation,  lest,  he  said, 
his  brother  should  find  some  handsome  women  there,  who 
might  tempt  him  to  return  in  a  different  manner.  Hastino-s 
Howard,  and  others  of  Edward's  ministers,  were  secured  by 
bribes  in  the  interest  of  Louis,  which  the  first  of  these  did 
not  scruple  to  receive  at  the  same  time  from  the  duke  of 
Burgundy.* 

This  was   the  most  powerful  enemy  whom  the  craft  of 
Louis  had  to  counteract.     In  the  last  days  of  the  feudal  sys- 
tem, when  the  house  of  Capet  had  ahnost  achieved  the  subju- 
gation of  those  proud  vassals  among  whom  it  had  House  of 
been  originally  numbered,  a  new  antagonist  sprung  burgundy. 
up  to  dispute  the  field  against  the  crown.     John   "^  ^"*'*'®?' 
king  of  France  granted  the  duchy  of  Burgundy,  by  Stuy^?"^ 
way  of  appanage,  to  his  third  son,  Philip.     By  his  marriage 
with  Margaret,  heiress  of  Louis  count  of  Flanders,  Philip  ac- 
quired  that  province,  Artois,  the  county  of  Burgundy  (or  Fran- 
che-comte),  and  the  Nivemois.    Phihp  the  Good,  his  grandson, 
who  carried  the  prosperity  of  this  family  to  its  height,  pos- 
sessed himself,  by  various  titles,  of  the  several  other  provinces 
which  composed  the  Netherlands.     These  were  fiefs  of  the 
empire,  but  latterly  not  much  dependent  upon  it,  and  alienated 
by  their  owners  without  its  consent.     At  the  peace  of  Arras 
Ae  districts  of  Macon  and  Auxerre  were  absolutely  ceded  to 
Philip,  and  great  part  of  Picardy  conditionally  made  over  to 
him,  redeemable  on  the  payment  of  four  hundred  thousand 
crowns.      These  extensive,  though  not   compact   dominions, 

laS'LT^^f  *^'^^.^'^'*^  ""^  ^^   °°'  *»*^e  it   said  that   the  Great 

JhVif  ?"  "'  *"?."  »°d  l^'OOO  archers;  Chamberlain  of  England  is  a  pensioner 

t  ii  n^l.i''^Th"  *PP«^°t«?-    Comines,  of   the  king  of  l4nce,   nor  have  my 

L«U?«^;.f  *■  *'''®  T'T  y'.u^'l''  ^•:^?  °^«  ^PP^*'^  *«»  *^c  books  of  the  Cham- 

t^^^**P*^*^*'°"  ^^  ^^^*  *^®  English  bres  des  Comptes."    Ibid 
S«  ^^^^""^  g^At  fears  entertained  by        3  The  duke  of  Burgundy  was  person- 

JS^ffK       P^**Sed  no  expense  to  get  ally  excifced  from  all  homage  and  service 

Jrnms^""'  ,    _,        «       T.     ,  *^  ^'^''l«s  VII.;    but,  if  either  died,  it 

th.»\!^T       '      7^-  ^  ^-^  °a«"°gs  liad  was  to  be  paid  by  the  heir,  or  to  the 

re^eiTfor^Jhl^;:!  '^  "^^T  ^  ^^%  ^  S"'^-     Accordingly,  on  Char'les's  death 

I^t  -  Y?    um®K.P*'^^°'*  *^®   *^^   ^^^  P*»'^P  did  homage  to  Louis.    This  ex- 

kW-  .      *  present,  he  said  to  the  emption  can  hardly,  therefore,  have  been 

"ng  ■agent,  comes  from  your  master's  inserted  to  gratify  the  pride  of  PhUip,  as 

fndif  .^"'*'  *5d  J^o^a*  my  request;  historians  suppose.    Is  it  not  probable 

mav  nut  VfT*°  w^**''^^  r^^*^«  *'' y°"  *^''    during   his    resentment    against 

sffii  w     ^ere  into  my  sleeve,  but  you  Charles,  he  might  have  made  somt  vow 

voir      "^^  ^'^^'^^  ^"^^  ™«J  *>'  I  aerer  to  do  him  homage  j  which  this 


>(ll 


98 


CHARLES  OF  BURGUNDY.      Chap.  1.  Part  H 


were  abundant  in  population  and  wealth,  fertile  m  corn, 
wine,  and  salt,  and  fuU  of  commercial  activity.  Thirty 
years  of  peace  which  followed  the  treaty  of  Arras,  with  a 
mild  and  free  government,  raised  the  subjects  of  Burgundy  to 
a  decrree  of  prosperity  quite  unparalleled  in  these  times  of 
disorder,  and  this  was  displayed  in  general  sumptuousness  of 
dress  and  feasting.  The  court  of  Philip  and  of  his  son 
Charles  was  distinguished  for  its  pomp  and  riches,  for  pag 
eants  and  tournaments ;  the  trappings  of  chivalry,  perhaps 
without  its  spirit ;  for  the  military  character  of  Burgundy  had 
been  impaired  by  long  tranquilhty.* 

During  the  lives  of  Philip  and  Charles  VH.  each  under- 
stood the  other's  rank,  and  their  amity  was  little  in- 
S'SS^ries      terrupted.     But  their  successors,  the  most  opposite 
duke  of         Qf  human  kind   in  character,  had   one  common 
Burgundy.  ambition,  to  render  their  antipathy  more 

powerful.  Louis  was  eminently  timid  and  suspicious  in  policy ; 
Charles  intrepid  beyond  all  men,  and  blindly  presumptuous: 
Louis  stooped  to  any  humiliation  to  reach  his  aim ;  Charles 
was  too  haughty  to  seek  the  fairest  means  of  strengthen- 
in^  his  party.  An  alliance  of  his  daughter  with  the  duke 
of°Guienne,  brother  of  Louis,  was  what  the  malecontent 
French  princes  most  deshred  and  the  king  most  dreaded ;  but 
Charles,  either  averse  to  any  French  connection,  or  wilhng 
to  keep  his  daughter's  suitors  in  dependence,  would  never 
directly  accede  to  that  or  any  other  proposition  for  her  mar- 
riage.  On  Philip's  death  in  1467,  he  inherited  a  great  treasure, 
which  he  soon  wasted  in  the  prosecution  of  his  schemes.  These 
were  so  numerous  and  vast,  that  he  had  not  time  to  live,  says 
Comines,  to  complete  them,  nor  would  one  half  of  Europe 
have  contented  him.     It  was  his  intention  to  assume  the  title 


reservation  in  tlie  treaty  was  intended  to 
preserve  ? 

It  is  remarkable  that  Villaret  says  the 
duke  of  Burgundy  was  positively  ex- 
cused by  the  25th  article  of  the  peace  of 
Arras  from  doing  homage  to  Charles,  or 
his  successors  kings  of  France,  t.  xvi.  p. 
404.  For  this  assertion  too  he  seems  to 
quote  the  Tresor    des  Chartes,   where, 


treaty  Philip  is  entitled  duke  by  the 
grace  of  God;  which  was  reckoned  a 
mark  of  independence,  and  not  usually 
permitted  to  a  vassal. 

1  P.  de  Comines,  1.  I.  c.  2  and  3;  I.  ▼• 
c.  9.  Du  Clercq,  in  Collection  des  Me 
moires,  t.  ix.  p.  889.  In  the  investiture 
granted  by  John  to  the  first  Philip  of 
Burgundy,  a  reservation  is  made  that 
the  royal  taxes  shall  be  levied  throughout 


Srobably,  the  original  treaty  is  preserved.  *ue  ru>  »»  «**--  "~"n.,V  HnVinD.  the"  long 

fevertheless,  it   appears   otherwise,  as  that  appanage.      But  during  '««    opf 

pubUshed  by  Monst^let  at  full  length,  hostiUty  between  the  k'°«'l''„^'t"^/"iSj 

X  could  have  no  motive  to  lalsify  it;  this  could  not  »\»T«J««°«;f°:f  .^^,4°. 

and  PhUip's  conduct  in  doing  homage  to  by  the  ,;'-e?'y  ^f^^"*?.  ^^"^fi^J/dS- 

Louis  is  hMdly  compatible  with  Villaret's  dered  aU  right  to  tax  the  duke  s  domm 

assertion.      Daniel    copies     Monstrelet  ions.    Monstrelet,  1.  114. 
without  any  observation.    In  the  same 


France.  INSUBORDINATION  OF  THE  FLEMISH  CITIES.  09 

of  King ;  and  the  emperor  Frederic  III.  was  at  one  time  act- 
ually on  his  road  to  confer  this  dignity,  when  some  suspicion 
caused  him  to  retire,  and  the  project  was  never  renewed.*  It 
is  evident  that,  if  Charles's  capacity  had  borne  any  propor- 
tion to  his  pride  and  courage,  or  if  a  prince  less  politic  than 
Louis  XI.  had  been  his  contemporary  in  France,  the  prov- 
ince of  Burgundy  must  have  been  lost  to  the  monarchy.  For 
several  years  these  great  rivals  were  engaged,  sometimes  in 
open  hostility,  sometimes  in  endeavors  to  overreach  each 
other;  but  Charles,  though  not  much  more  scrupulous,  was 
far  less  an  adept  in  these  mysteries  of  poHtics  than  the  king. 

Notwithstanding  the  power  of  Burgundy,  there  were  some 
disadvantages   in   its   situation.      It  presented  (I 
speak  of  all  Charles's  dominions  under  the  com-  S?"on°S^" 
mon  name.  Burgundy)  a  very  exposed  frontier  on   '^J  ^'^"^"^ 
the  side  of  Grermany  and  Switzerland,  as  well  as   '''  ^' 
France  ;  and  Louis  exerted  a  considerable  influence  over  the 
adjacent  princes  of  the  empire  as  well  as  the  United  Cantons. 
The  people  of  Liege,  a  very  populous  city,  had  for  a  long 
time  been  continually  rebelling  against  their  bishops,   who 
were  the  alhes  of  Burgundy ;  Louis  was  of  course  not  back- 
ward to  foment  their  insurrections,  which  sometimes  gave  the 
dukes  a  good  deal  of  trouble.     The  Flemings,  and  especiaUy 
the  people  of  Ghent,  had  been  during  a  century  noted  for 
their  republican  spirit  and  contumacious  defiance  of  their  sov- 
ereign.    Liberty  never  wore  a  more  unamiable  countenance 
than  among   these  burghers,  who  abused  the  strength  she 
gave  them  by  cruelty  and  insolence.     Ghent,  when  Froissart 
wrote,  about  the  year  1400,  was  one  of  the  strongest  cities  in 
Europe,  and  would  have  required,  he  says,  an  army  of  two 
hundred  thousand  men  to  besiege  it  on  every  side,  so  as  to 
shut  up  all  access  by  the  Lys   and  Scheldt.      It  contained 
eighty  thousand  men  of  age  to  bear  arms ;  ^  a  calculation 


1  Gamier,  t.  xviU.  p.  62.  It  is  observa- 
ble that  Comines  says  not  a  word  of  this; 
»r  which  Garnicr  seems  to  quote  Belca- 
riug,  a  writer  of  the  sixteenth  age.  But 
even  Philip,  when  Morvilliers,  Louis's 
chancellor,  used  menaces  towards  him, 
interrupted  the  orator  with  these  words  : 
Je  veux  que  chacunseache  que,  si  j'eusse 
Toulu,  je   fusse  roi.     Villaret,  t.   xvii. 

Charles  had  a  vague  notion  of  history, 
and  confounded  the  province  or  duchy 
of  Burgundy,  which  had  always  apper- 


tained to  the  French  crown,  with  Fran- 
che-comt^  and  other  countries  which  had 
belonged  to  the  kingdom  of  Burgundy. 
Hence  he  talked  at  Dyon,  in  1473,  to  the 
estates  of  the  former,  about  the  kingdom 
of  Burgundy,  "  que  ceux  de  France  ont 
longtems  usurp6  et  d'icelui  fait  duch6; 
que  tous  les  sujets  doivent  bien  avoir  i 
regret, et  dit  qu'il  avait  en  soi  des  chosea 
qu'il  n'appartenait  de  savoir  4  nul  qa'4 
lui."  Michelet  (ix.  162)  is  the  first  who 
has  published  this. 
>  Froi«sart,  part  ii.  c.  67. 


■I 
•t 

n 


100 


THE  FLEMISH  CITIES.       Chap.  I.  Part  U. 


which,  although,  as  I  presume,  much  exaggerated,  is  evidence 
of  great  actual  populousness.  Such  a  city  was  absolutely  im- 
pregnable at  a  time  when  artillery  was  very  imperfect  both  in 
its  construction  and  management.  Hence,  though  the  citizens 
of  Ghent  were  generally  beaten  in  the  field  with  great  slaugh- 
ter, they  obtained  tolerable  terms  from  their  masters,  who 
knew  the  danger  of  forcing  them  to  a  desperate  defence. 

No  taxes  were  raised  in  Flanders,  or  indeed  throughout 
the  dominions  of  Burgundy,  without  consent  of  the  three  es- 
tates. In  the  time  of  Philip  not  a  great  deal  of  money  was 
levied  upon  the  people ;  but  Charles  obtained  every  year  a 
pretty  large  subsidy,  which  he  expended  in  the  hire  of  Ital- 
ian and  English  mercenaries.^  An  almost  uninterrupted  suc- 
cess had  attended  his  enterprises  for  a  length  of  time,  and 
rendered  his  disposition  still  more  overweening. 
A.».  1474.       jj.g  g^g^  failure  was  before  Neuss,  a  little  town 

near  Cologne,  the  possession  of  which  would  have  made  him 
nearly  master  of  the  whole  course  of  the  Rhine,  for  he  had 
already  obtained  the  landgraviate  of  Alsace.  Though  com- 
pelled to  raise  the  siege,  he  succeeded  in  occupying,  next  year, 
the  duchy  of  Lorraine.  But  his  overthrow  was  reserved  for 
an  enemy  whom  he  despised,  and  whom  none  could  have 
thought  equal  to  the  contest.  The  Swiss  had  given 
^■*'  *  '  him  some  slight  provocation,  for  which  they  were 
ready  to  atone;  but  Charles  was  unused  to  forbear;  and 
perhaps  Switzerland  came  within  his  projects  of  conquest 
At  Granson,  in  the  Pays  de  Vaud,  he  was  entirely  routed, 
with   more   disgrace    than    slaughter.*      But    having   reas- 


1  Comines,  1.  ir.  c.  13.  It  ma  rery  re- 
luctantly that  the  Flemings  granted  any 
money.  Philip  once  begged  for  a  tax 
on  salt,  promising  nerer  to  ask  anything 
more  ;  but  the  people  of  Qhent,  and,  in 
imitation  of  them,  the  whole  county,  re- 
fused it.  Du  Clercq,  p.  389.  Upon  his 
pretence  of  taking  the  cross,  they  granted 
him  a  subsidy,  though  less  than  he  had 
requested,  on  condition  that  it  should 
not  be  levied  if  the  crusade  did  not  take 
place,  which  put  an  end  to  the  attempt. 
The  states  knew  well  that  the  duke  would 
employ  any  money  they  gave  him  in  keep- 
ing up  a  body  of  gens-d'armes,  like  his 
neighbor,  the  king  of  France ;  and  though 
the  want  of  such  a  force  exposed  their 
country  to  pillage,  they  were  too  good 
patriots  to  place  the  means  of  enslaving 
It  in  the  hands  of  their  sovereign.    Qrand 


doute  faisoient  les  sujeta,  et  pour  pin 
sieurs  raisons,  de  se  mettre  en  cette  bu- 
jetion  oik  ils  voyoient  le  royaume  de 
France,  4  cause  de  ses  gens  d'armes.  A  la 
verity,  leur  grand  doute  n'estoit  pas  sans 
cause  ;  car  ijuand  il  se  trouva  cinq  c6n« 
hommes  d'armes,  la  volonte  luy  Tint  d'en 
avoir  plus,  et  de  plus  hardiment  entre- 
prendre  contre  tous  ses  voisins.  Comines, 
1.  iii.  c.  4,  9. 

Du  Clercq,  a  contemporary  writer  of 
very  good  authority,  mentioning  the 
story  of  a  certain  widow  who  had  re- 
married the  day  after  her  husband's 
death,  says  that  she  was  in  some  degree 
excusable,  because  it  was  the  practice  of 
the  duke  and  his  oflacers  to  force  rich  wid- 
ows into  marrying  their  soldiers  or  other 
servants,    t.  ix.  p.  418. 

a  A   famoufl    diamond|    belonging    to 


Fbakcb. 


CLAIM  OF  LOUIS  XI. 


101 


sembled  his  troops,  and  met  the  confederate  army  Defeats  of 
of  Swiss  and  Germans  at  Morat,  near  Friburg,  he  SaM?  *' 
was  again  defeated  with  vast  loss.     On  this  day  and  Mwat. 
the   power   of  Burgundy   was   dissipated:   deserted  by  his 
allies,  betrayed  by  his  mercenaries,  he  set  his  Hfe  His  dLh 
upon  another  cast  at   Nancy,  desperately  giving  a.d.  1477.' 
battle  to  the  duke  of  Lorraine  with  a  small  dispirited  army, 
and  perished  in  the  engagement. 

Now  was  the  moment  when  Louis,  who  had  held  back 
while  his  enemy  was  breaking  his  force  against  the  ciaim  of 
rocks  of  Switzerland,  came  to  gather  a  harvest  i^^isxi. 
which  his  labor  had  not  reaped.     Charles  left  an  SssfonT 
only  daughter,  undoubted  heiress  of  Flanders  and  ^'"^''^' 
Artois,  as  weU  as  of  his  dominions  out  of  France,  but  whose 
nght  of  succession  to  the  duchy  of  Burgundy  was  more  ques- 
bonable.    Originally  the  great  fiefs  of  the  crown  descended  to 
females,  and  this  was  the  case  with  respect  to  the  two  first 
mentioned.      But  John  had  granted  Burgundy  to   his   son 
riulip  by  way  of  appanage ;  and  it  was  contended  that  the 
appanages  reverted  to  the  crown  in  default  of  male  heirs. 
In  the  form  of  Philip's  investiture,  the  duchy  was  granted  to 
him  and  his  lawful  heirs,  without  designation  of  sex.     The 
construction,  therefore,  must  be  left  to  the  established  course 
ot  law.     This,  however,  was  by  no  means  acknowledtred  by 
Mary,  Charles's  daughter,  who  maintained  both  that  no  gen- 
eral law  restricted  appanages  to  male  heu-s,  and  that  Bur- 
gundy had  always  been  considered  as  a  feminine  fief,  John 
himself  having  possessed  it,  not   by  reversion  as  kino-  (for 
descendants  of  the  first  dukes  were  then  living),  but  by  inher- 
itance derived  through  females.^     Such  was  this  question  of 
succession  between  Louis  XL  and  Mary  of  Burgundy,  upon 


Charles  of  Burgundy,  was  taken  in  the 
plunder  of  his  tent  by  the  Swiss  at  Gran- 
son. After  several  changes  of  owners, 
mMt  of  whom  were  ignorant  of  its  value. 
It  became  the  first  jewel  in  the  French 
crown.    Gamier,  t.  xviii.  p.  ^1. 

*  It  is  advanced  with  too  much  confl- 
dence  by  several  French  historians,  either 
that  the  ordinances  of  Philip  IV.  and 
Charles  V.  constituted  a  general  law 
■gainst  the  descent  of  appanages  to  fe- 
msJe  heirs,  or  that  this  was  a  fundament- 
tl  Uw  of  the  monarchy.  Du  Clos,  Hist, 
de  Louis  XL  t.  ii.  p.  262.  Gamier,  Hist, 
de  France,  t.  xviii.  p.  258.  The  latter  po- 
Ution  is  refuted  by  frequent  instances  of 


female  succession  ;  thus  Artois  had  pass- 
ed, by  a  daughter  of  Louis  le  Male,  into 
the  house  of  Burgundy.  As  to  the  above- 
mentioned  ordinances,  the  first  applies 
only  to  the  county  of  Poitiers  ;  the  sec- 
ond does  not  contain  a  syllable  that  re- 
lates to  succession.  (Ordonnances  des 
Rois,  t.  vi.  p,  64.)  The  doctrine  of  ex- 
cluding female  heirs  was  more  consonant 
to  the  pretended  Salic  Law,  and  the  re- 
cent principles  as  to  inalienability  of  do- 
main than  to  the  analogy  of  feudal  rules 
and  precedents.  M.  Gaillard,  in  his  Ob- 
servations sur  I'Histoire  de  Velly,  Villa- 
ret,  et  Garni,>r,  has  a  judicious  note  on 
this  sulyect,  t.  iii.  p.  804. 


102 


CONDUCT  OF  LOUIS.        Chap.  I.  Part  II. 


the  merits  of  whose  pretensions  I  will  not  pretend  altogether 
to  decide,  but  shall  only  observe  that,  if  Charles  had  con- 
ceived his  daughter  to  be  excluded  from  this  part  of  his  in- 
heritance, he  would  probably,  at  Conflans  or  Peronne,  where 
he  treated  upon  the  vantage-ground,  have  attempted  at  least 
to  obtain  a  renunciation  of  Louis's  claim. 

There  was  one  obvious  mode  of  preventing  all  further  con- 
Conduct  of  test  and  of  aggrandizing  the  French  monarchy  far 
Louis.  more  than  by  the  reunion  of  Burgundy.     This  was 

the  marriage  of  Mary  with  the  Dauphin,  which  was  ardently 
wished  in  France.     Whatever  obstacles  might  occur  to  this 
connection,  it  was  natural  to  expect  on  the  opposite  side  — 
from  Mar/s  repugnance  to  an  infant  husband,  or  from  the 
jealousy  which  her  subjects  were  likely  to  entertain  of  being 
incorporated  with  a  country  worse  governed  than  their  own. 
The  arts  of  Louis  would  have  been  well  employed  in  smooth- 
ing these  impediments.^     But  he  chose  to  seize  upon  as  many 
towns  as,  in  those  critical  circumstances,  lay  exposed  to  him, 
and  stripped  the  young  duchess  of  Artois  and  Franche-comt^. 
Expectations  of  the  marriage  he  sometimes  held  out,  but,  as 
it  seems,  without  sincerity.     Indeed  he  contrived  irreconcila- 
bly to  aUenate  Mary  by  a  shameful  perfidy,  betraying  the 
ministers  whom  she  had  intrusted  upon  a  secret  mission  to  the 
people  of  Ghent,  who  put  them  to  the  torture,  and  afterwards 
to  death,  in  the  presence  and  amidst  the  tears  and  supplications 
of  their  mistress.     Thus  the  French  alliance  becoming  odious 
-  „       in  France,  this  princess  married  Maximilian  of 
^**"    '  *       Austria,  son  of  the  emperor  Frederic  —  a  connec- 
tion which  Louis  strove  to  prevent,  though  it  was  impossible 
then  to  foresee  that  it  was  ordained  to  retard  the  growth  of 
France  and  to  bias  the  fate  of  Europe  during  three  hun- 
dred years.     This  war  lasted  till  after  the  death  of  Mary,  who 
left  one  son,  Philip,  and  one  daughter,  Margaret.     By  a  treaty 
of  peace  concluded  at  Arras,  in  1482,  it  was  agreed  that  this 
daughter  should  become  the  dauphin's  wife,  with  Franche- 


1  Robertson,  as  well  as  some  other  mod- 
ems, have  maintained,  on  the  authority 
of  Connnes,  that  Louis  XI.  ought  ia 
policy  to  have  married  the  young  prin- 
cess to  the  count  of  Angoulgme,  father 
of  Francis  I.,  a  connection  which  she 
would  not  have  disliked.  But  certainly 
nothing  could  have  been  more  adverse  to 
the  interirsts  of  the  French  monarchy 
than  such  a  marriage,  which  would  have 


put  a  new  house  of  Burgundy  at  the 
head  of  those  princes  whose  confedera- 
cies had  so  often  endangered  the  crown. 
Comines  is  one  of  the  most  judicious  of 
historians ;  but  his  sincerity  may  be 
rather  doubtful  in  the  opinion  above- 
mentioned  ;  for  he  wrote  in  the  reign  of 
Charles  VIII.,  when  the  count  of  An- 
gou1«^m«  was  engaged  in  the  same  (action 
as  himtolf 


Fbance. 


HIS  SICKNESS  AND  DEATH. 


103 


comte  and  Artois,  which  Louis  held  already,  for  her  dowry, 
to  be  restored  in  case  the  marriage  should  not  take  effect. 
The  homage  of  Flanders  was  reserved  to  the  crown. 

Meanwhile  Louis  was  lingering  in  disease  and  torments  of 
mind,  the  retribution  of  fraud  and  tyranny.     Two  g.^^^  ^ 
years  before  his  death  he  was  struck  with  an  apo-  anddelthof 
plexy,  from  which  he  never  wholly  recovered.    As  ^^^  ^• 
he  felt  his  disorder  increasing,  he  shut  himself  up  in  a  palace 
near  Tours,  to  hide  from  the  world  the  knowledge  of  his  de- 
cline.^    His  solitude  was  like  that  of  Tiberius  at  Capreaj,  full 
of  terror  and  suspicion,  and  deep  consciousness  of  universal 
hatred.    All  ranks,  he  well  knew,  had  their  several  injuries 
to  remember:  the  clergy,  whose  liberties  he  had  sacrificed  to 
the  see  of  Rome,  by  revoking  the  Pragmatic  Sanction  of 
Charles  VII. ;  the  princes,  whose  blood  he  had  poured  upon 
the  scaffold ;  the  parliament,  whose  course  of  justice  he  had 
turned  aside  ;  the  commons,  who  groaned  under  his  extortion, 
and  were  plundered  by  his  soldiery.^    The  palace,  fenced 
with  portcullises  and  spikes  of  iron,  was  guarded  by  archers 
and  cross-bow  men,  who  shot  at  any  that  approached  by  night 
Few  entered  this  den ;  but  to  them  he  showed  himself  in 
magnificent  apparel,  contrary  to  his  former  custom,  hoping 
thus  to  disguise  the  change  of  his  meagre  body.     He  dis- 
trusted his  friends  and  kindred,  his  daughter  and  his  son,  the 
last  of  whom  he  had  not  suffered  even  to  read  or  write,  lest 
he  should  too  soon  become  his  rival.     No  man  ever  so  much 
feared  death,  to  avert  which  he  stooped  to  every  meanness 
and  sought  every  remedy.     His  physician  had  sworn  that  if 
he  were  dismissed  the  king  would  not  survive  a  week ;  and 
Louis,  enfeebled  by  sickness  and  terror,  bore  the  rudest  usage 
from  this  man,  and  endeavored  to  secure  his  services  by  vast 
rewards.     Always  credulous   in  relics,  though   seldom  re- 
strained by  superstition  from  any  crime,*  he  eagerly  bought 


1  For  Louis's  Illness  and  death  see 
Comines,  1.  vi.  c  7-12,  and  Gamier,  t. 
adx.  p.  112,  &c.  Plessis,  his  last  resi- 
dence, about  an  English  mile  from  Tours, 
is  now  a  dilapidated  farm-house,  and  can 
B«?er  have  been  a  very  large  building. 
The  vestiges  of  royalty  about  it  are  few; 
but  the  principal  apartments  have  been 
destroyed,  either  in  the  course  of  ages  or 
at  the  revolution. 

'  Bee  a  remarlcable  chapter  in  Philip  de 
Comines,  1,  iv.  c.  19,  wherein  he  tells  us 
that  Cliarlei  VII  had  never  ndsed  more 


than  1,800,000  francs  a  year  in  taxes ;  but 
Louis  XI.,  at  the  time  of  his  death,  raised 
4,700,000,  exclusive  of  some  military  im- 
positions; et  surement  c'estoit  compas- 
sion de  voir  et  scavoir  la  pauvret^  du 
peuple.  In  this  chapter  he  declares  his 
opinion  that  no  king  can  justly  levy 
money  on  his  subjects  without  their  con- 
sent, and  repels  all  common  ai^uments 
to  the  contrary. 

s  An  exception  to  this  was  when  he 
swore  by  the  cross  of  St.  Lo,  after  which 
he  feared  to  violate  his  oath.    The  oon- 


104 


CHARLES  Vm. 


Chap.  I.  Part  II 


up  treasures  of  this  sort,  and  even  procured  a  Calabrian  her- 
mit, of  noted  sanctity,  to  journey  as  far  as  Tours  in  order  to 
restore  his  health.  PhiHp  de  Comines,  who  attended  him 
during  his  infirmity,  draws  a  parallel  between  the  torments  he 
then  endured  and  those  he  had  formerly  inflicted  on  others. 
Indeed  the  whole  of  his  life  was  vexation  of  spirit.  "  I  have 
known  him,"  says  Comines,  "and  been  his  servant  in  the 
flower  of  his  age,  and  in  the  time  of  his  greatest  prosperity ; 
but  never  did  I  see  him  without  uneasiness  and  care.  Of  all 
amusements  he  loved  only  the  chase,  and  hawking  in  its 
season.  And  in  this  he  had  almost  as  much  uneasiness  as 
pleasure :  for  he  rode  hard  and  got  up  early,  and  sometimes 
went  a  great  way,  and  regarded  no  weather  ;  so  that  he  used 
to  return  very  weary,  and  almost  ever  in  wrath  with  some 
one.  I  think  that  from  his  childhood  he  never  had  any 
respite  of  labor  and  trouble  to  his  death.  And  I  am  certain 
that,  if  all  the  happy  days  of  his  life,  in  which  he  had  more 
enjoyment  than  uneasiness,  were  numbered,  they  would  be 
found  very  few ;  and  at  least  that  they  would  be  twenty  of 
sorrow  for  every  one  of  pleasure."  ^ 

Charles  VIII.  was  about  thirteen  years  old  when  he  suc- 
Chariesvin.  ceeded  liis  father  Louis.  Though  the  law  of 
A.D.1483.  France  fixed  the  majority  of  her  kings  at  that 
age,  yet  it  seems  not  to  have  been  strictly  regarded  on 
this  occasion,  and  at  least  Charles  was  a  minor  by  nature, 
if  not  by  law.  A  contest  arose,  therefore,  for  the  regency, 
which  Louis  had  intrusted  to  his  daughter  Anne,  wife  of  the 
lord  de  Beaujeu,  one  of  the  Bourbon  family.  The  duke  of 
Orleans,  afterwards  Louis  XII.,  claimed  it  as  presumptive 
heir  of  the  crown,  and  was  seconded  by  most  of  the  princes. 
Anne,  however,  maintained  her  ground,  and  ruled  France  for 
several  years  in  her  brother's  name  with  singular  spirit  and 
address,  in  spite  of  the  rebelUons  which  the  Orleans  party 
raised  up  against  her.  These  were  supported  by  the  duke 
of  Britany,  the  last  of  the  great  vassals  of  the  crown,  whose 
daughter,  as  he  had  no  male  issue,  was  the  object  of  as  many 
suitors  as  Mary  of  Burgundy. 

stable  of  St.  Pol,  whom  Louis  inTited  he  had  a  similar  respect  for  a  leaden 
with  many  assurances  to  court,bethought  image  of  the  Virgin,  which  he  wore  in  hif 
himself  of  requiring  this  oath  before  he  hat;  as  alluded  to  by  Pope : 
trusted  his  promises,  which  the  king  re-  "A  pequred  prince  a  leaden  eaint  re- 
fused ;  and  St.  Pol  prudently  stayed  away.  vere." 
Qam.  t.  xTiii.  p.  72.    Some  report  that  ^  Comines,  1.  Ti.  o  13 


Frakck. 


AFFAIRS  OF  BRITANY. 


105 


The  duchy  of  Britany  was  peculiarly  circumstanced.  The 
inhabitants,  whether  sprung  from  the  ancient  re-  Affairs  of 
publicans  of  Armorica,  or,  as  some  have  thought,  ^riuinj. 
from  an  emigration  of  Britons  during  the  Saxon  invasion,  had 
not  originally  belonged  to  the  body  of  the  French  monarchy. 
They  were  governed  by  their  own  princes  and  laws,  though 
tributary,  perhaps,  as  the  weaker  to  the  stronger,  to  the  Me- 
rovingian kings.^  In  the  ninth  century  the  dukes  of  Britany 
did  homage  to  Charles  the  Bald,  the  right  of  which  was 
transferred  afterwards  to  the  dukes  of  Normandy.  This 
formality,  at  that  time  no  token  of  real  subjection,  led  to  con- 
sequences beyond  the  views  of  either  party.  For  when  the 
feudal  chains  that  had  hung  so  loosely  upon  the  shoulders  of 
the  great  vassals  began  to  be  straightened  by  the  dexterity 
of  the  court,  Britany  found  itself  drawn  among  the  rest  to  the 
same  centre.  The  old  privileges  of  independence  were 
treated  as  usurpation  ;  the  dukes  were  menaced  with  confisca- 
tion of  their  fief,  their  right  of  coining  money  disputed,  their 
jurisdiction  impaired  by  appeals  to  the  pariiament  of  Paris. 
However,  they  stood  boldly  upon  their  right,  and  always 
refused  to  pay  liege-homage,  which  implied  an  obligation  of 
service  to  the  lord,  in  contradistinction  to  simple  homage^ 
which  was  a  mere  symbol  of  feudal  dependence.^ 

About  the  time  that  Edward  III.  made  pretension  to  the 
crown  of  France,  a  controversy  somewhat  resembling  it  arose 
in  the  duchy  of  Britany,  between  the  families  of  Blois  and 
Montfort.  This  led  to  a  long  and  obstinate  war,  connected 
all  along,  as  a  sort  of  underplot,  with  the  great  drama  of 
France  and  England.  At  last  Montfort,  Edward's  ally,  by 
the  defeat  and  death  of  his  antagonist,  obtained  the  duchy,  of 
which  Charles  V.  soon  after  gave  him  the  investiture.  This 
prince  and  his  family  were  generally  inclined  to  English  con- 


»  Gregory  of  Tours  says  that  the 
Bretons  were  subject  to  France  from  the 
death  of  Clovis,  and  that  their  chiefs 
were  styled  counts,  not  kings,  1.  iv.  c.  4. 
Charlemagne  subdued  the  whole  of  Bri- 
tany. Yet  it  seems  clear  from  Nigellus, 
author  of  a  metrical  Life  of  Louis  the 
Debonair,  that  they  were  again  almost 
independent.  There  waa  even  a  march 
of  the  Britannic  frontier,  which  sepa- 
rated it  from  France,  In  the  ensuing 
reign  of  Charles  the  Bald,  Hincmar  tells 
ns,  regnum  undique  a  Paganis,  et  fiilsis 
Christianis,  KiUcet  Britonibus  circum- 


scriptum est.  Epist.  c.  8.  See,  too, 
Capitularia  Car,  Calvi,  a.d.  877,  tit,  28. 
At  this  time  a  certain  Nomenoe  had 
assumed  the  crown  of  Britany,  and  some 
others  in  succession  bore  the  name  of 
king.  They  seem,  however,  to  have  been 
feudally  subject  to  France.  Charles  the 
Simple  ceded  to  the  Normans  whatever 
right  he  possessed  over  Britany  ;  and  the 
dukes  of  that  country  (the  name  of  king 
was  now  dropped)  always  did  homage  to 
Normandy,  See  Daru,  Hist,  de  Bretagne. 
2  Villaret,  t.  xii.  p.  82;  t.  xt.  p.  199 


106 


MARRIAGE  OF  CHARLES  Vm.   Chap.  i.  Past  U. 


A.i>.  1489. 


nections ;  but  the  Bretons  would  seldom  permit  them  to  be 
effectual.     Two  cardinal  feelings  guided  the  conduct  of  this 
brave  and  faithful  people ;  the  one,  an  attachment  to  the 
French  nation  and  monarchy  in  opposition  to  foreign  enemies ; 
the  other,  a  zeal  for  their  own  privileges,  and  the  family  of 
Montfort,  in  opposition  to  the  encroachments  of  the  crown. 
In  Francis  II.,  the  present  duke,  the  male  line  of  that  family 
was  about  to   be  extinguished.     His   daughter  Anne  was 
naturally  the  object  of  many  suitors,  among  whom  were  par- 
ticularly distinguished  the  duke  of  Orleans,  who  seems  to 
have  been  preferred  by  herself;  the  lord  of  Albret,  a  member 
of  the  Gascon  family  of  Foix,  favored  by  the  Breton  nobility, 
as  most  likely  to  preserve  the  peace  and  liberties  of  their 
country,  but  whose  age  rendered  him  not  very  acceptable  to 
a  youthful  princess;  and  Maximilian,  king  of  the  Romans. 
Britany  was  rent  by  factions  and  overrun  by  the  armies  of  the 
regent  of  France,  who  did  not  lose  this  opportunity  of  inter- 
fering with  its  domestic  troubles,  and  of  persecuting  her  private 
enemy,  the  duke  of  Orleans.     Anne  of  Britany,  upon  her 
father's  death,  finding  no  other  means  of  escaping 
the  addresses  of  Albret,  was  married  by  proxy  to 
Maximilian.     This,  however,  aggravated   the   evils   of  the 
country,  since  France  was  resolved  at  all  events  to  break  off  so 
dangerous  a  connection.     And  as  Maximilian  himself  was 
unable,  or  took  not  sufficient  pains,  to  relieve  his  betrothed 
„    .       -    wife  from  her  embarrassments,  she  was  ultimately 
Charles  viH.  compelled  to  accept  the  hand  of   Charles   Vlll.* 
of  Britony.'''  He  had  long  been  engaged  by  the  treaty  of  Ari-as 
to  marry  the  daughter  of  Maximilian,  and  that 
princess  was  educated  at  the  French  court.    But  this  engage- 
ment had  not  prevented  several  years  of  hostilities,  and  con- 
tinual intrigues  with  the  towns  of  Flanders  against  Maxi- 
milian.    The  double  injury  which  the  latter  sustained  in  the 
marriage  of  Charles  with   the   heiress  of  Britany  seemed 
likely  to  excite  a  protracted  contest ;  but  the  king  of  France, 
who  had  other  objects  in  view,  and  perhaps  was  conscious 
that  he  had  not  acted  a  fair  part,  soon  came  to  an  accommo- 
dation, by  which  he   restored  Artois  and   Franclie-comte. 

1  This  is  one  of  the  coolest  riolations  without  papal  dispensation.    This  was 

of  ecclesiastical    law    in    comparatiTely  obtained;  but  it  bears  date  eight  days 

modem  times.   Both  contracts,  especially  after  the  ceremony  between  Charles  and 

that  of  Anne,  were  obligatory,  so  far  at  Anne.    (Sismondi,  XT.  106.) 
least  that  they  could  not  be  dissoUed 


§1 


Fbakce. 


THE  FRENCH  MONARCHY. 


107 


Both  these  provinces  had  revolted  to  Maximilian ;  so  that 
Charles  must  have  continued  the  war  at  some  disadvantage.* 
France  was  now  consolidated  into  a  great  kingdom :  the 
feudal  system  was  at  an  end.    The  vigor  of  Philif)  ^^  ^^^ 
Augustus,  the  paternal  wisdom  of  St.  Louis,  the 
policy  of  Philip  the  Fair,  had  laid  the  foundations  of  a  power- 
ful monarchy,  which  neither  the  arms  of  England,  nor  sedi- 
tions of  Paris,  nor  rebellions  of  the  princes,  were  able  to 
shake.     Besides  the  original  fiefs  of  the  French  crown,  it  had 
acquired  two  countries  beiyond  the  Rhone,  which  properly 
depended  only  upon  the  empire,  Dauphin^,  under  Philip  of 
Valois,  by  the  bequest  of  Humbert,  the  last  of  its  ^  ^  ^^^ 
princes ;  and  Provence,  under  Louis  XL,  by  that 
of  Charles  of  Anjou.*     Thus  having  conquered  herself,  if 
I  may   use   the    phrase,   and    no    longer  apprehensive    of 
any  foreign  enemy,  France  was  prepared,  under  a  monarch 
flushed  with  sanguine  ambition,  to  carry  her  arms  into  other 


1  Sismondi,  xr.  135. 

*  'ihe  country  now  called  Dauphin6 
formed  part  of  the  kingdom  of  Aries  or 
Provence,  bequeathed  by  Rodolph  III.  to 
the  emperor  Conrad  II.  But  the  dominion 
of  the  empire  over  these  new  acquiisitions 
being  little  more  than  nominal,  a  few  of 
the  chief  nobility  converted  their  respec- 
tive fiefs  into  independent  principalities. 
One  of  these  was  the  lord  or  dauphin  of 
Tieune,  whose  family  became  ultimately 
masters  of  the  whole  province.  Hum- 
bert, the  last  of  these,  made  John,  son 
of  Philip  of  Valois,  his  heir,  on  condition 
that  Dauphine  should  be  constantly  pre- 
■erred  as  a  separate  possession,  not  in- 
corporated with  the  kingdom  of  France. 
This  bequest  was  confirmed  by  the  em- 
peror Charles  IV.,  whose  supremacy  over 
the  province  was  thus  recognized  by  the 
kings  of  France,  though  it  soon  came  to 
be  altogether  disregarded.  Sismondi  (xiv. 
8)  dates  the  reunion  of  Dauphine  to  the 
crown  from  1457,  before  which  time  it 
was  governed  by  the  dauphin  for  the 
time  being  as  a  foreign  sovereignty. 

Provence,  like  Dauphin^,  was  changed 
from  a  feudal  dependency  to  a  sover- 
eignty, in  the  weakness  and  dissolution 
of  the  kingdom  of  Aries,  about  the  early 
part  of  the  eleventh  century.  By  the 
marriage  of  Douce,  heiress  of  the  first  line 
Of  lOTereigu  counts,  with  Raymond  Be- 


renger,  count  of  Barcelona,  in  1112,  it 
passed  into  that  distinguished  family. 
In  1167  it  was  occupied  or  usurped  by 
Alfonso  II.,  king  of  Aragon,  a  relation, 
but  not  heir,  of  the  house  of  Berenger. 
Alfonso  bequeathed  Provence  to  hia 
second  son,  of  the  same  name,  from  whom 
it  descended  to  Raymond  Berenger  IV. 
This  count  dying  without  male  issue  in 
1245,  his  youngest  daughter  Beatrice 
took  possession  by  vir'ue  of  her  father's 
testament.  But  this  si'.ccession  being  dis- 
puted by  other  claimu  its,  and  especially 
by  Louis  IX.,  who  had  married  her  eldest 
sister,  she  compromi  ed  differences  by 
marrying  Charles  of  Anjou,  the  king's 
brother.  The  family  of  Anjou  reigned  in 
Provence,  as  well  as  in  Naples,  till  the 
death  of  Joan  in  1382,  who,  having  no 
children,  adopted  Louis  duke  of  Anjou, 
brother  of  Charles  V.,  as  her  successor. 
This  second  Angevine  line  ended  in  1481 
by  the  death  of  Charles  III.;  though 
Regnier,  duke  of  Lorraine,  who  was  de- 
scended through  a  female,  had  a  claim 
which  it  does  not  seem  easy  to  repel  by 
argument.  It  was  very  easy,  however, 
for  Louis  XI.,  to  whom  Charles  III.  had 
bequeathed  his  rights,  to  repel  it  by 
force,  and  accordingly  he  took  possession 
of  Provence,  which  was  permanently 
united  to  the  Crown  by  letters  patent  of 
Charles  VHI.  in  I486.* 


Art  de  T6rifler  les  Dates,  t.  ii.  p.  445.  —  Qarnier,  t.  ziz.  p.  57,  474. 


/' 


^1 


108       AUTHORITIES  FOR  FRENCH  HISTORY.  Chap.  I.  Past  11. 


Jl 


countries,  and  to  contest  the  prize  of  glory  and  power  upon 
the  ample  theatre  of  Europe.^ 


1  The  principal  authority,  exclusive  of 
original  writers,  on  which  I  have  relied 
for  this  chapter,  is  the  History  of  France 
by  Velly,  Villaret.  and  Gamier ;  a  work 
which,  notwithstanding  several  defects, 
has  absolutely  superseded  those  of  Meze- 
ray  and  Daniel.    The  part  of  the  Abbe 
Velly  comes  down  to  the  middle  of  the 
eighth  volume  (12mo.  edition),  and  of  the 
reign  of  Philip  de  Valois.    His  continu- 
ator,  Villaret,  was  interrupted  by  death 
in  the  seventeenth  volume,  and  in  the 
reign  of  Louis  XI.    In  my  references  to 
this  history,  which  for  common  facts  I 
have  not  thought  it  necessary  to  make,  I 
have  merely  named  the  author  of  the 
particular  volume  which  I  quote.    This 
has  made  the  above  explanation   con- 
venient, as  the  reader  might    imagine 
that  I  referred  to  three  distinct  works. 
Of  these  three  historians.  Gamier,  the 
last,  is  the  most  judicious,  and,  I  believe, 
the  most  accurate.  His  prolixity,  though 
a  material  defect,  and  one  which  has  oc- 
casioned the  work  itself  to  become  an 
immeasurable  undertaking,  which  could 
never  be  completed  on  the  same  scale,  is 
chiefly  occasioned  by  too  great  a  regard 
to  details,  and  is  more  tolerable  than  a 
similar  fault  in  Villaret,  proceeding  from 
a  love  of  idle  declamation  and  sentiment. 
Villaret,  however,  is  not  without  merits. 
He  embraces,  perhaps  more  fully  than 
his    predecessor  Velly,   those    collateral 
branches  of  history  which  an  enlightened 
reader  requires  almost  in  preference  to 

eivil  transactions}  the  laws,  maimers,  lit- 


erature, and  in  general  the  whole  domes- 
tic records  of  a  nation.  These  subjects 
are  not  always  well  treated;  but  the 
book  itself,  to  which  there  is  a  remark- 
ably full  index,  forms,  upon  the  whole,  a 
great  repository  of  useful  knowledge. 
Villaret  had  the  advantage  of  official 
access  to  the  French  archives,  by  which 
he  has  no  doubt  enriched  his  history; 
but  his  references  are  indistinct,  and  his 
composition  breathes  au  air  of  rapidity 
and  want  of  exactness.  Velly's  charac- 
teristics are  not  very  dissimilar.  The 
style  of  both  b  exceedingly  bad,  as  has 
been  severely  noticed,  along  with  their 
other  defects,  by  Gaillard,  in  Observa- 
tions sur  I'Histoire  de  Velly,  Villaret,  ei 
Gamier.    (4  vols.  12mo.  Paris,  1806.) 

[This  history  is  now  but  slightly  es- 
teemed in  France,  especially  the  volumes 
written  by  the  Abb6  Velly.    The  writers 
were  too  much  imbued  with  the  spirit  of 
the  old  monarchy  (though  no  adulators 
of  kings,  and  rather  liberal  according  to 
the  standard  of  their  own  age)  for  those 
who  have  taken  the  sovereignty  of  the 
people  for  their  creed     Nor  are    they 
critical  and  exact  enough  for  the  present 
state  of  historical  knowledge.     Sismondi 
and  Michelet,  especially  the  former,  are 
doubtless  superior;  but  the  reader  will 
not  find  in  the  latter  as  regular  a  narra- 
tion of  facts  as  in  Velly  and  Villaret. 
Sismondi   has   as   many  prejudices   on 
one  side  as  they  have  on  the  opposite. 
[1848]]. 


.1 


Notes  to  Chap.  I. 


ANCIENT  GAUL. 


109 


I 


NOTES  TO  CHAPTER  L 


Note  I.    Page  16. 

The  evidence  of  Zosimus,  which  is  the  basis  of  this  theory 

of  Dubos,  cannot  be  called  very  slight.     Early  in  the  fifth 

century,  according  to  him,  about  the  time  when  Constantino 

usurped  the  throne  of  Britain  and  Gaul,  or,  as  the  sense 

shows,  a  Httle  later,  in  consequence  of  the  incursions  of  the 

barbarians  from  beyond  the  Rhine,  the  natives  of  Britain, 

taking  up  arms  for  themselves,  rescued  their  cities  from  these 

barbarians  ;   and  the  whole  Armorican  territory,  and  other 

provinces  of  Gaul,  6  'Apfwpixog  uTzag,  xal  irepai  ToTuituv  iirapxiai, 

in  imitation  of  the  Britons,  liberated  themselves  in  the  same 

manner,  expelling  the  Roman   rulers,  and   establishing  an 

internal   government :    iK^dT^xyvaai  fiev   roifc   Tcj/iozovf  apxovTog, 

oiKelov  de  /car'  k^ovalav  •KoTuTevyja  KoQiordaaL.    Lib.  vi.  C.  5.      Guizot 

gives  so  much  authority  to  this  as  to  say  of  the  Armoricans, 

"  lis  se  maintinrent  toujours  hbres,  entre  les  barbares  et  les 

Romains."    Introduction  a  la  Collection  des  Memoires,  vol.  i. 

p.  336.      Sismondi  pays   httle   regard   to   it.      The  proofs 

alleged  by  Daru  for  the  existence  of  a  king  of  Britany 

named  Conan,  early  in  the  fifth  century,  would  throw  much 

doubt  on  the  Armorican  republic  ;    but  they  seem  to  me 

rather  weak.     Britany,  it  may  be  observed  by  the  way,  was 

never  subject  to  the  Merovingian  kings,  except  sometimes  in 

name.     Dubos  does  not  think  it  probable  that  there  was  any 

central  authority  in  what  he  calls  the  Armorican  confederacy, 

but  conceives  the  cities  to  have  acted  as  independent  states 

during  the  greater  part   of  the   fifth   century.      (Hist,  de 

I'Etabhssement,  &c.,  vol.  i.  p.  338.)     He  gives,  however,  an 

enormous  extent  to  Armorica,  supposing  it  to  have  comprised 

Aquitaine.     But,  though  the  contrary  has  been  proved,  it  is 

to  be  observed  that  Zosimus  mentions  other  provinces  of 

Gaul,  IrepoL  TaKarCiV  inapxlai,  as  well  as  Armorica.     Procopius, 


11 


110 


THE  FRANKS. 


NOTB8  TO 


i 


i 

I 

i. 


by  the  word  *App6pvxot,  seems  to  indicate  all  the  inhabitants 
at  least  of  Northern  Gaul ;  but  the  passage  is  so  ambiguous, 
and  his  acquaintance  with  that  history  so  questionable,  that 
little  can  be  inferred  from  it  with  any  confidence.  On  the 
whole,  the  history  of  Northern  Gaul  in  the  fifth  century 
is   extremely  obscure,  and  the   trustworthy   evidence  very 

scanty.  «jx  ,  j 

Sismondi  (Hist,  des  Fran9ais,  vol.  i.  p.  134)  has  a  good 
passage,  which  it  will  be  desirable  to  keep  in  mind  when  we 
launch  into  mediaeval  antiquities :  —  "  Ce  peu  des  mots  a 
donn4  matiere  k  d'amples  commentaires,  et  au  deyeloppement 
de  beaucoup  de  conjectures  ing^nieuses.  L'abbe  Dubos,  en 
expliquant  le  silence  des  historiens,  a  fond^  sur  des  sousenten- 
dus  une  histoire  assez  complete  de  la  republique  Armorique. 
Nous  serous  souvent  appel^s  k  nous  tenir  en  garde  contre 
le  zele  des  ^crivains  qui  ne  satisfait  point  Taridite  de  nos 
chroniques,  et  qui  y  suppleent  par  des  divinations.  Plus 
d'une  fois  le  lecteur  pourra  etre  surpris  en  voyant  k  combien 
peu  se  r^duit  ce  que  nous  savons  r^ellement  sur  un  4v^ne- 
ment  assez  c^lebre  pour  avoir  motiv^  de  gros  livres." 

Note  II.    Page  16. 

The  Franks  are  not  among  the  German  tribes  mentioned 
by  Tacitus,  nor  do  they  appear  in  history  before  the  year  240. 
Guizot  accedes  to  the  opinion  that  they  were  a  confederation 
of  the  tribes  situated  between  the  Rhine,  the  Weser,  and  the 
Main ;  as  the  Alemanni  were  a  similar  league  to  the  south 
of  the  last  river.*  Their  origin  may  be  derived  from  the 
necessity  of  defending  their  independence  against  Rome ;  but 
they  had  become  the  aggressors  in  the  period  when  we  read 
of  them  in  Roman  history ;  and,  hke  other  barbarians  in  that 
age,  were  often  the  purchased  allies  of  the  decUning  empire. 
Their  history  is  briefly  sketched  by  Guizot  (Essais  sur 
rHistoire  de  France,  p.  53),  and  more  copiously  by  other 
antiquarians,  among  whom  M.  Lehuerou,  the  latest  and  not 
the  least  original  or  ingenious,  conceives  them  to  have  been  a 
race  of  exiles  or  outlaws  from  other  German  tribes,  taking 
the  name  Franc  from  frech,  fierce  or  bold,*  and  settling  at 

1  Alemanni  is  generally  supposed  to  moires  de  I'Acaddmie  de  Bruxelles,  toL 

mean  "all  men."   Meyer,  however,  takes  iii.  p.  439.                 ^   .  v         ^-««  k« 

It  for  another  form  of  Arimanni,  from  "This  etymology  had  been  glTen  dj 

Heermanner,  soldiers.  —  Nouveaxix  M6-  Thierry,  or  was  of  older  origin. 


i 


«i 


Chap.  I. 


THE  FRANKS. 


Ill 


first,  by  necessity,  near  the  mouth  of  the  Elbe,  whence  they 
moved  onwards  to  seek  better  habitations  at  the  expense 
of  less  intrepid,  though  more  civilized  nations.  "Et  ainsi 
naquit  la  premiere  nation  de  I'Europe  moderne."  ^  Institutions 
Merovingiennes,  vol.  i.  p.  91. 

An  earlier  writer  considers  the  Franks  as  a  branch  of  the 
great  stock  of  the  Suevi,  mentioned  by  Tacitus,  who,  he  tells 
us,  "majorem  Germaniae  partem  obtinent,  propriis  adhuc 
nationibus  nominibusque  discreti,  quanquam  in  communi 
Suevi  dicuntur.  Insigne  gentis  obliquare  crinem,  nodoque 
substringere."  De  Moribus  German,  c.  38.  Ammianus 
mentions  the  Salian  Franks  by  name:  "Francos  eos  quos 
consuetudo  Salios  appellavit."  See  a  memoir  in  the  Trans- 
actions of  the  Academy  of  Brussels,  1824,  by  M.  Devez, 
"sur  I'etablissement  des  Francs  dans  la  Belgique." 

In  the  great  battle  of  Chalons,  the  Franks  fought  on  the 
Roman  side  against  Attila ;  and  we  find  them  mentioned 
several  times  in  the  history  of  Northern  Gaul  from  that  time. 
Lehuerou  (Institutions  Merovingiennes,  c.  11)  endeavors  to 
prove,  as  Dubos  had  done,  that  they  were  settled  in  Gaul, 
far  beyond  Tournay  and  Cambray,  under  Meroveus  and 
Childeric,  though  as  subjects  of  the  empire ;  and  Luden 
conjectures  that  the  whole  country  between  the  Moselle  and 
the  Somme  had  fallen  into  their  hands  even  as  early  as  the 
reign  of  Honorius.  (Gi^schichte  des  Deutschen  Volkes,  vol.  ii. 
p.  381.)  This  is  one  of  the  obscure  and  debated  points  in 
early  French  history.  But  the  seat  of  the  monarchy  appears 
clearly  to  have  been  estabUshed  at  Cambray  before  the  middle 
of  the  fifth  century. 

Note  III.    Page  16. 

This  theory,  which  is  partly  countenanced  by  Gibbon,  has 
lately  been  revived,  in  almost  its  fullest  extent,  by  a  learned 
and  spirited  investigator  of  early  history.  Sir  Francis  Pal- 
grave,  in  his  Rise  and  Progress  of  the  English  Commonwealth, 
i.  360 ;  and  it  seems  much  in  favor  with  M.  Raynouard,  in 
his  Histoire  du  Droit  Municipal  en  France.  M.  Lehuerou, 
in  a  late  work  (Histoire  des  Institutions  Merovingiennes  et 
Carolingiennes,  2  vols.,  1843),  has  in  a  great  measure  adopted 

1  As  M.  Lehuerou  helongs  to  what  is    quaries,  he  should  not  hare  brought  the 
Mlled  the  Roman  school  of  French  anti-    nation  from  beyond  the  Rhine. 


(?■ 


ife" 


112 


THE  FRANKS. 


Notes  to 


Chap.  I. 


THE  FRANKS. 


113 


it : «  Nous  croyons  devoir  declarer  que,  dans  notre  opinion, 

le'  livre  de  Dubos,  malgre  les  erreurs  trop  r^elles  qui  le 

d^parent,  et  Tesprit  de  systeme  qui  en  a  considerablement 

exao^ere  les  consequences,  est,  de  tons  ceux  qui  ont  aborde 

le  meme  probleme  au  xviii™  siecle,  celui  ou  la  question  des 

origines  Merovingiennes  se  trouve  le  plus  pres  de  la  veritable 

solution.     Get  aveu  nous  dispense  de  detailler  plus  longue- 

ment  les  obligations  que  nous  lui  avons.     EUes  se  reveleront 

d'ailleurs  suffisamment  d'elles-memes."     (Introduction,  p.  xi.) 

M.  Lehuerou  does  not,  however,  follow  his  celebrated  guide 

so  far  as  to  overlook   the   necessary   connection    between 

barbiirian   force   and  its   aggressive   character.      The   final 

establishment  of  the  Franks  in  Gaul,  according  to  him,  rested 

partly  on  the  concession  and  consent  of  the  emperors,  who 

had  invited  them  to  their  service,  and  rewarded  them,  as  he 

conceives,  with  lands,  while  the  progenitors  of  Clovis  bore  the 

royal  name,  partly  on  their  own  encroachments,  and  especially 

on  the  victory  of  that  prince  over  Syagrius  in  486.     (Vol.  i. 

p.  228.) 

It  may  be  alleged  against  Dubos  that  Clovis  advanced  mto 
the  heart  of  Gaul  as  an  invader;  that  he  defeated  in  battle  the 
lieutenant  of  the  emperor,  if  Syagrius  were  such ;  or,  if  we 
chose  to  consider  him  as  independent,  which  probably  in 
terms  he  was  not,  that  the  emperors  of  Constantinople  could 
merely  have  relinquished  their  authority,  because  they  had 
not  the  strength  to  enforce  it.  Gaul,  like  Britain,  in  that  age, 
had  become  almost  a  sort  of  derelict  possession,  to  be  seized 
by  the  occupant ;  but  the  title  of  occupancy  is  not  that  of 
succession.  It  may  be  true  that  the  Roman  subjects  of  Clovis 
paid  him  a  ready  allegiance ;  yet  still  they  had  no  alternative 

•but  to  obey. 

Twenty-five  years  elapsed,  during  which  the  kingdom  of 
the  Salian  Franks  was  prodigiously  aggrandized  by  the  sub- 
mission of  all  Northern  Gaul,  by  the  reduction  of  the  Ale- 
manni  on  the  right  bank  of  the  Rhine,  and  by  the  overthrow 
of  the  Visigoths  at  Vougle,  which  brought  almost  the  whole 
of  the  south  into  subjection  to  Clovis.  It  is  not  disputed  by 
any  one  that  he  reigned  and  conquered  in  his  own  right  No 
one  has  alleged  that  he  founded  his  great  dominion  on  any 
other  title  than  that  of  the  sword,  which  his  Frank  people 
alone  enabled  him  to  sustain.  But  about  two  years  before 
his  death,  as  Gregory  of  Tours  relates,  the  emperor  Anas- 


tasms  bestowed  upon  him  the  dignity  of  consul ;  and  this  has 
been  eagerly  caught  at  by  the  school  of  Dubos  as  a  fact  of 
high  importance,  and  as  establishing  a  positive  right  of 
sovereignty,  at  least  over  the  Romans,  that  is,  the  provincial 
inhabitants  of  Gaul,  which  descended  to  the  long  line  of  the 
Merovingian  house.  Su-  Francis  Palgrave,  indeed,*  more 
strongly  than  Dubos  himself,  seems  to  consider  the  French 
monarchy  as  deriving  its  pedigree  from  Rome  rather  than  the 
Elbe. 

The  first  question  that  must  naturally  arise  is,  as  to  the 
value  assignable  to  the  evidence  of  Gregory  of  Tours  re- 
specting the  gift  of  Anastasius.  Some  might  hesitate,  at 
least,  to  accept  the  story  in  all  its  circumstances.  Gregory  is 
neither  a  contemporary  nor,  in  such  a  point,  an  altonrether 
trustworthy  witness.  His  style  is  verbose  and  rhetorical; 
and,  even  in  matters  of  positive  history,  scanty  as  are  our 
means  of  refuting  him,  he  has  sometimes  exposed  his  i<mo- 
rance,  and  more  often  given  a  tone  of  improbability  to  his  nar- 
rative. An  instance  of  the  former  occurs  in  his  third  book 
respecting  the  death  of  the  widow  of  Theodoric,  contradicted 
by  known  history;  and  for  the  latter  we  may  refer  to  the 
language  he  puts  into  the  mouth  of  Clotilda,  who  urges  her 
husband  to  the  worship  of  Mars  and  Mercury,  divinities  of 
whom  he  had  never  heard. 

^  The  main  fact,  however,  that  Anastasius  conferred  the  dig- 
nity of  consul  upon  Clovis,  cannot  be  rejected.  Althouf^h  it 
has  been  alleged  that  his  name  does  not  occur  in  the  Consular 
Fasti,  this  seems  of  no  great  importance,  since  the  title  was 
merely  an  honorary  distinction,  not  connecting  him  with  the 
empire  as  its  subject  Guizot,  indeed,  and  Sismondi  conceive 
that  he  was  only  invested  with  the  consular  robe,  according  to 
what  they  take  to  have  been  the  usage  of  the  Byzantine 
^  court  But  Gregory,  by  the  words  codiciUos  de  considatu, 
seems  to  imply  a  formal  grant  Nor  does  the  fact  rest  solely 
on  his  evidence,  though  his  residence  at  Tours  would  put  him 
m  possession  of  the  local  tradition.  Hincmar,  the  famous 
bishop  of  Rheims,  has  left  a  Life  of  St.  Remy,  by  whom 
Uovis  was  baptized ;  and,  though  he  wrote  in  the  ninth 
century,  he  had  seen  extracts  from  a  contemporary  Life  of 
that  saint,  not  then,  he  says,  entirely  extant,  which  Life  may 
reasonably  be  thought  to  have  furnished  the  substance  of 
the  second  book  of  Gregory^s  history.     We  find  in  Hincmar 

Vnf.     T  a 


« 


VOL.  I. 


8 


114 


THE  FRANKS. 


Notes  to 


Chai    L 


THE  FRANKS. 


116 


the  language  of  Gregory  on  the  consulship  of  Clovis,  with  a 
little  difference  of  expression :  "  Cum  quibus  codicillis  etiam  illi 
Anastasius  coronam  auream  cum  gemmis,  et  tunicam  blateam 
misit,  et  ab  ea  die  consul  et  Augustus  est  appellatus."     (Rec 
des  Hist.  vol.  iii.  p.  379.)     Now,  the  words  of  Gregory  are  the 
following: — "  Igitur  ab  Anastasio  imperatore  codlcillos  de 
consulatu  accepit,  et  in  basilica  beati  Martini  tunica  blatea  in- 
dutus  est  et  clarayde,  imponens  vertici  diadema.    Tunc  ascenso 
equite,  aurum,  argentumque  in  itinere  illo,  quod  inter  portam 
atrii  basilicre  beati  Martini  et  ecclesiam  civitatis  est,  prsesenti- 
bus  populis  manu  propria  spargens,  voluntate  benignissima 
erogavit,  et  ab  ea  die   tanquam  consul  aut  Augustus  est  voci- 
tatus."     The  minuteness  of  local  description  implies  the  tra- 
dition of  the  city  of  Tours,  which  Gregory  would,  of  course, 
know,  and  renders  all  scepticism  as  to  the  main  story  very 
unreasonable.     Thus,  if  we  suppose  the  Life  of  St.  Remy  to 
have  been  the  original  authority,  Anastasius  will  have  sent  a 
crown  to  Clovis.    And  this  would  explain  the  words  of  Greg- 
ory, "imponens  vertici  diadema."     Such  an  addition  to  tlie 
dignity  of  consul  is,  doubtless,  remarkable,  and  might  of  itself 
lead  us  to  infer  that  the  latter  was  not  meant  in  its  usual 
sense.     This  passage  is  in  other  respects  more  precise  than  in 
Gregory;  it  has  not  the  indefinite  and  almost  unintelligible 
words  tanquam  consul,  and  has  et  instead  of  aut  Augustus ; 
which  latter  conjunction,  however,  in  low  Latin,  is  often  put 
for  the  former. 

But,  though  the  historical  evidence  is  considerably  strength- 
ened by  the  supposition  that  Gregory  copied  a  Life  of  St. 
Remigius  of  nearly  contemporary  date  with  the  event,  we  do 
not  find  all  our  difficulty  removed  so  as  to  render  it  implicit 
credence  in  every  particular.  That  Clovis  would  be  called 
consul  by  the  provincial  Romans  after  he  had  received  the 
title  from  Anastasius  is  very  natural ;  that  he  was  ever  calhid, 
even  by  them,  Augustus,  that  is,  Emperor,  except  perhaps  in 
a  momentary  acclamation,  we  may  not  unreasonably  scruple 
to  believe.  The  imperial  title  would  hardly  be  assumed  by 
one  who  pretended  only  to  a  local  sovereignty ;  nor  is  such  a 
usurpation  consistent  with  the  theory  that  the  Frank  chieftain 
was  on  terms  of  friendship  with  the  court  of  Constantinople, 
and  in  subordination  to  it.  One  or  other  hypothesis  must  sure- 
ly be  rejected.  If  Clovis  was  called  emperor  (and  when  did 
Augustus  bear  any  other  meaning  ?),  he  was  no  vicegerent  of 


Anastasius,  no  consul  of  the  empire.     But  the  most  material 
obsenations  that  arise  are,  —first,  that  the  dignity  of  consul 
was  merely  personal,  and  we  have  not  the  slightest  evidence 
that  any  of  the  posterity  of  Clovis  either  acquired  or  assumed 
It;  secondly  that  the  Franks  alone  were  the  source  of  power 
to  the  house  of  Meroveus.     "  The  a^jtual  and  legal  authority 
of  Clovis,    says  Gibbon,  "could  not  receive  any  new  acce^ 
sion  from  the  consular  dignity.     It  was  a  name,  a  shadow,  an 
empty  pageant ;  and,  if  the  conqueror  had  been  instructed  to 
claim  the  ancient  prerogatives  of  that  high  office,  they  must 
have  expired  with  the  period  of  its  annual  duration.     But  the 
Romans  were  disposed  to  revere  in  the  person  of  their  master 
that  antique  title  which  the  emperors  condescended  to  as- 
sume ;   the  barbarian  himself  seemed  to  contract  a  sacred 
obligation  to  Inspect  the  majesty  of  the  republic;  and  the 
successors  of  Theodosius,  by  soHciting  his  friendship,  tacitly 
torgaye  and  almost  ratified  the  usurpation  of  Gaul."     (Chap 
Xxxviii.)     It  does  not  appear  to  me,  therefore,  very  material 
towards  the  understanding  French  history,  what  was  the  in- 
tention of  Anastasius  in  conferring  the  name  of  consul  on  the 
king  of  the  Franks.     It  was  a  token  of  amity,  no  doubt;  a 
pledge,  perhaps,  that  the  court  of  Constantinople  renounced 
the  hope  of  asserting  its  pretensions  to  govern  a  province  so 
urecoverably  separated  from  it  as  Gaul;  but  were  it  even 
the  absolute  cession  of  a  right,  which,  by  the  usual  law  of 
nations,  required  something  far  more  explicit,  it  would  not 
affect  m  any  degree  the  real  authority  which  Clovis  had  won 
by  the  sword,  and  had  exercised  for  more  than  twenty  years 
over  the  unresisting  subjects  of  the  Roman  empire. 

A  different  argument  for  the  theory  of  devolution  of  power 
trom  the  Byzantine  emperor  on  the  Franks  is  founded  on  the 
cession  of  Justiman  to  Theodebert  king  of  Austrasia,  in  540. 
rrovence,  which  continued  in  the  possession  of  the  emperors 
for  some  time  after  the  conquest  of  Gaul  by  Qovis,  had  fallen 
nto  the  hands  of  the  Ostrogoths,  then  masters  of  Italy.  The 
alliance  of  the  Frank  king  was  sought  by  both  pai-ties,  at  the 
pnce  of  what  one  enjoyed  and  the  other  claimed  —  Provence, 
with  Its  wealthy  cities  of  IVIarseilles  and  Aries.  Theodebert 
was  no  very  g(x>d  ally,  either  to  the  Greeks  or  the  Goths; 
but  he  occupied  the  territory,  and  after  a  few  years  it  was 
formally  ceded  to  him  by  Justinian.  «  That  emperor,"  in  the 
words  of  Gibbon,  who  has  not  told  tie  history  very  exactly, 


I 

Ml 


116 


THE  FRANKS. 


Notes  to 


t1 


"  eenerously  yielding  to  the  Franks  the  sovereignty  of  the 
countries  beyond  the  Alps  which  they  ahready  possessed,  ah- 
solved  the  provincials  from  their  allegiance,  and  established, 
on  a  more  lawful,  though  not  more  solid  foundation,  the  throne 
of  the  Merovingians."     Procopius,  in  his  Greek  vamty,  pre- 
tends that  the  Franks  never  thought  themselves  secure  of 
Gaul   until  they  obtained  this  sanction  from  the  emperor. 
«  This  strong  declaration  of  Procopius,"  says  Gibbon,  "  would 
ahnost  suffice  to  justify  the  abb^  Dubos."     I  cannot,  however, 
rate  the  courage  of  that  people  so  low  as  to  believe  that  they 
feared  the  armies  of  Justinian,  which  they  had  lately  put  to 
flight  in  Italy ;  nor  do  I  know  that  a  title  of  sixty  years'  pos- 
session gains  much  legaUty  by  the  cession  of  one  who  had  as- 
serted no   claim   during   that  period.      Constantmople   had 
tacitly  renounced  the  western  provmces  of  Rome  by  her  ma- 
bility  to  maintain   them.     I  must,  moreover,  express   some 
doubt  whether  Procopius  ever  meant  to  say  that  Justmian  con- 
firmed to  the  Frank  sovereign  his  rights  over  the  whole  of 
Gaul.     He  uses,  indeed,  the  word  TaX)uag ;  but  that  should,  1 
think,  be  understood  according  to  the  general  sense  of  the 
passao^e,  which  would  hmit  its  meaning  to  Provence,  their 
recent  acquisition,  and  that  which  the  Ostrogoths  had  already 
relinquished  to  them.     Gibbon,  on  the  authority  of  Procopius, 
goes  on  to  say  that  the  gold  coin  of  the  Merovingian  kings, 
"by  a  singular  privilege,  which  was  denied  to  the  Pei^sian 
monarch,  obtained  a  legal  currency  in  the  empire."     But  this 
legal   currency  is   not  distinctly   mentioned    by   Procopius, 
though  he  strangely  asserts  that  it  was  not  lawful,  ov  iJ^/xtf, 
for  the  king  of  Persia  to  coin  gold  with  his  own  effigy,  as  if 
the  ^to  ot"  Constantinople  were  regarded  at  Seleucia.    There 
is  reason  to  believe  that  the  Goths,  as  well  as  Franks,  coined 
gold,  which  might  possibly  circulate  in  the  empire,  without 
having,  strictly  speaking,  a  legal  currency.     The  expressions 
of  Agathias,  quoted  above,  that  the  Franks  had  nearly  the 
same  form  of  government,  and  the  same  laws,  as  the  Romans, 
may  be  understood  as  a  mistaken  view  of  what  Procopius 
says  in  a  passage  which  will  be  hereafter  quoted,  and  which 
Agathias,  a  later  writer,  perhaps  has  followed,  that  the  Roman 
inhabitants   of   Gaul  retained   their  institutions   under  the 
Franks ;  which  was  certainly  true,  though  by  no  means  more 
60  than  under  the  Visigoths. 


Chat.  L 


THE  MEROVINGIAN  PERIOD. 


117 


Note  TV.    Page  19. 

It  ought,  perhaps,  to  be  observed,  that  no  period  of  ecclesi- 
astical  history,  especiaUy  in  France,  has  supplied  more  saints 
to  the  calendar.     It  is  the  golden  age  of  hagiology.     Thirty 
French  bishops,  under  Clovis  and  his  sons  aloneTare  vener- 
ated in  the  Roman  church ;  and  not  less  than  seventy-one 
saints,  during  the  same  short  period,  have  supplied  some  his- 
torical information,  through  their  Lives  in  Acta  Sanctorum. 
The  foundation  of  half  the  French  churches,"  says   Sis- 
raondi,     dates  from  that  epoch."     (Vol.  i.  p.  308.)     Nor  was 
^e  seventh  century  much  less  productive  of  that  harvest 
Of  the  service  which  the  Lives  of  the  Saints  have  rendered 
to  history,  as  well  as  of  the  incredible  deficiencies  of  its  ordi- 
nary sources,  some  notion  may  be  gained  by  the  strange  fact 
mentioned  in  Sismondi,  that  a  king  of  Austrasia,  Dagobert 
II.,  was  wholly  overlooked  by  historians ;  and  his  reign?  from 
674  to  678,  only  retrieved  by  some  learned  men  in  the  seven- 
teenth century,  through  the  Life  of  our  Saint  Wilfred,  who 
had  passed  through  France  on  his  way  to  Rome.     (Hist,  des 
Franpais,  vol.  li.  p.  51.)     But  there  is  a  diploma  of  this 
prince  in  Rec.  des  Hist.  vol.  iv.  p.  685. 

Sismondi  is  too  severe  a  censurer  of  the  religious  senti- 
ment  which  actuated  the  men  of  this  period.     It  did  not  pre- 
vent crimes,  even  in  those,  frequently,  who  were  penetrated 
Dy  It.     Jiut  we  cannot  impute  to  the  ascetic  superstition  of 
tne  sixth  and  seventh  centuries,  as  we  may  to  the  persecuting 
spirit  of  later  ages,  that  it  occasioned  them— crimes,  at  least 
which  stand  forth  in  history;  for  to  fraud  and  falsehood  it,  no 
question,  lent  its  aid.     The  Lives  of  the  Saints,  amidst  all  the 
mass  of  falsehood  and  superstition  which  incrusts  them,  bear 
witness  not  only  to  an  intense  piety,  which  no  one  will  dis- 
pute, but  to  much  of  charity  and  mercy  toward  man.     But, 
even  it  we  should  often  doubt  particular  facts  from  slender- 
ness  ot  proof,  they  are  at  least  such  as  the  compilers  of  these 
legends  thought  praiseworthy,  and  such  as  the  readers  of  them 
would  be  encouraged  to  imitate.* 

wi^o^7e^c^irte"r^^'S7S?p*ill'  "    fy.  P^^dence  supporting  the  faithftil  in 


1  I 


118 


THE  BiEROVINGIAN  PERIOD.  Notes  to 


!I 


li! 


St.  Bathilda,  of  Anglo-Saxon  birth,  queen  of  Clovis  11., 
redeeming  her  countrymen  from  servitude,  to  which  the  bar- 
barous manners  of  their  own  people  frequently  exposed  them, 
is  in  some  measure  a  set-off  against  the  tyrant  princes  of  the 
family  mto  which  she  had  come.  And  many  other  instances 
of  similar  virtue  are  attested  with  reasonable  probability. 
Sismondi  never  fully  leiu-ned  to  judge  men  according  to  a 
subjective  standard,  that  is,  their  own  notions  of  right  and 
wron<r ;  or  even  to  perceive  the  immediate  good  consequences 
of  many  principles,  as  well  as  social  institutions  connected 
with  them,  which  we  would  no  more  willingly  tolerate  at 
present  than  himself.  In  this  respect  Guizot  has  displayed  a 
more  philosophical  temper.  Still  there  may  be  some  caution 
necessary  not  to  carry  this  subjective  estimate  of  human 
actions  too  far,  lest  we  lose  sight  of  thehr  intrinsic  quality. 

We  have,  unfortunately,  to  set  against  the  saintly  legends 
an  enormous  mass  of  better-attested  crimes,  especially  of  op- 
pression and  cruelty.  Perhaps  there  is  hardly  any  history 
extending  over  a  century  which  records  so  much  of  this  with 
so  little  information  of  any  virtue,  any  public  spirit,  any  wis- 
dom, as  the  ten  books  of  Gregory  of  Tours.  The  seventh 
century  has  no  historian  equally  circumstantial ;  but  the  tale 
of  the  seventh  century  is  in  substance  the  same.  The  Ro 
man  fraud  and  perfidy  mingled,  in  baleful  confluence,  with 
the  ferocity  and  violence  of  the  Frank. 

"  Those  wild  men*s  vices  they  receiv'd, 
And  gave  them  back  their  own." 

If  the  church  was  deeply  tainted  with  both  these  classes  ot 
crime,  it  was  at  least  less  so,  especially  with  the  latter,  than 
the  rest  of  the  nation.  A  saint  might  have  many  faults ;  but 
it  is  strongly  to  be  presumed  that  mankind  did  not  canonize 
such  monsters  as  the  kings  and  nobles  of  whom  we  read 
almost  exclusively  in  Gregory  of  Tours.  A  late  writer,  actu- 
ated by  the  hatred  of  antiquity,  and  especially  of  kings, 
nobles,  and  priests,  which  is  too  much  the  popular  creed  of 
France,  has  collected  from  age  to  age  every  testimony  to  the 
wickedness  of  the  powerful.  His  proofs  are  one-sided,  and, 
consequently,  there  is  some  unfairness  in  the  conclusions ;  but 
the  facts  are,  for  the  most  part,  irresistibly  true.  (Dulaure, 
Hist,  de  Paris,  passim. 


fill 


Chap.  I. 


MAYORS  OF  THE  PALACE. 


119 


Note  V.    Page  20. 

The  Mayor  of  the  Palace  appears  as  the  first  officer  of  the 
crown  m  the  three  Frank  kingdoms  during  the  latter  half  of 
the  sixth  century.     He  had  the  command,  as   Guizot  sup- 
poses, of  the  Antrustions,  or  vassals  of  the  king.     Even  after- 
wards the  office  was   not,  as  this  writer  believes,  properly 
elective,  though  in  the  case  of  a  minority  of  the  kin^,  or 
upon  other  special  occasions,  the  leudes,  or  nobles,  cho°se  a 
^^IZ'     T^^  ^^^^  instance  we  find  of  such  an  election  was 
m  575,  when,  after  the  murder  of  Sigebert  by  Fredegonde, 
his  son  Childebert  being  an  infant,  the  Austrasian  leudes  chose 
Crogon  for  their  mayor.     There  seem,  however,  so  many  in- 
sUmces  of  elective  mayors  in  the  seventh  century,  that,  al- 
though the  royal  consent  may  probably  have  been  leoally 
requisite,  it  is  hard  to  doubt  that  the  office  had  fallen  into  the 
hands  of  the  nobles.     Thus,  in  641 : _" Flaochatus,  genera 
±rancus,  major-domus  in  regnum  Burgundise,  electione  ponti- 
ficum   et  cunctorum  ducum  a  Nantechilde  regina  in  hunc 
gradum  honoris  nobiliter  stabilitur."     (Fredegar.   Chron.  c. 
89.)     And  on  the  election  of  Ebroin :  — «  Franci  in  incertum 
vacillantes,  accepto  consilio,  Ebruinum  in  hujus  honoris  curam 
ac  dignitatem  statuunt."     (c.  92.)    On  the  death  of  Ebroin  in 
681,  "  Franci  Warratonem  virum  illustrem  in  locum  ejus  cum 
jussione   regis  majorem-domus  palatio  constituunt."     These 
two  instances  were  in  Neustria ;  the  aristocratic  power  was 
still  greater  in  the  other  parts  of  the  monarchy. 

Si<moiidi  adopts  a  very  different  theory,  clinging  a  little  too 
much  to  the  democratic  visions  of  Mably.     "If  we  knew 
better,"  he  says,  "  the  constitution  of  the  monarchy,  perhaps 
we  might  find  that  the  mayor,  like  the  Justiciary  of  Aragon 
was  the  representative,  not  of  the  great,  but  of  the  freemen, 
and  taken  generally  from  the  second  rank  in  society,  charged 
to  repress  the  excesses  of  the  aristocracy  as  well  as  of  the 
crown."     (Hist,  des  Franjais,  vol.  ii.  p.  4.)     Nothing  appears 
to  warrant  this  vague  conjecture,  which  Guizot  wholly  rejects, 
as  he  does  also  the  derivation  of  major-domus  from  mord- 
dohmen,  a  verb  signifying  to  sentence  to  death,  which  Sis- 
mondi brings  forward  to  sustain  his  fanciful  analogy  to  the 
Aragonese  justiciary. 

The  hypothesis,  indeed,  that  the  mayor  of  the  palace  was 


I 


i  i; 


/ 


120 


MAYORS  OF  THE  PALACE. 


Notes  10 


chosen  out  of  the  common  freeholders,  and  not  the  highest 
class,  is  not  only  contrary  to  everything  we  read  of  the  aristo- 
cratical  denomination  in  the  Merovingian  kingdoms,  but  to  a 
passage  in  Fredegarius,  to  which  probably  others  might  be 
added!  Protadius,  he  informs  us,  a  mayor  of  Brunehaut's 
choice,  endeavored  to  oppress  all  men  of  high  birth,  that  no 
one  might  be  found  capable  of  holding  the  charge  in  his  room 
(c.  27)!  This,  indeed,  was  in  the  sixth  century,  before  any 
sort  of  election  was  known.  But  in  the  seventh  the  power 
of  the  great,  and  not  of  the  people,  meets  us  at  every  turn. 
Mably  himself  would  have  owned  that  his  democracy  had 
then  ceased  to  exercise  any  power. 

The  Austrasian  mayors  of  tlie  palace  were,  from  the  reign 
of  Clotaire  11.,  men  of  great  power,  and  taken  from  the  house 
of  Pepin  of  Landen.     They  carried  forward,  uUimately  for 
their  own  aggrandizement,  the  aristocratic  system  which  had 
overturned  Brunehaut     Ebroin,  on  the  other  hand,  in  Neus- 
tria,  must  be  considered  as  keeping  up  the  struggle  of  the 
royal  authority,  which  he  exercised  in  the  name  of  several 
phantoms  of  kings,  against  the  encroachments  of  the  aristoc- 
racy, though  he  could   not    resist  them  with  final   success. 
Sismondi  (vol.  ii.  p.  64)  fancies  that  Ebroin  was  a  leader  of 
the  freemen  against  the  nobles.     But  he  finds  a  democratic 
party  everywhere ;  and  Guizot  justly  questions  the  conject- 
ure (Collection  des  Memoires,  vol.  ii.  p.  320).      Sismondi,  in 
consequence  of  this  hypothesis,  favors  Ebroin ;  for  whom  it 
may  be  alleged  that  we  have  no  account  of  his  character  but 
from  his  enemies,  chiefly  the  biographer  of   St.  Leger.     M. 
Lehuerou   sums  up  his   history  with  apparent   justice:  — 
"Ainsi   p^rit,  apres  une    administration    de  vingt    ans,  un 
honmie  remarquable  h  tous  egards,  mais  que  le  triomphe  de 
ses  ennemis  a  failli  desheriter  de  sa  gloire.     Ses  violences 
sont  peu  douteuses,  mais  son  genie  ne  Test  pas  davantage,  et 
rien  ne  prouve  mieux  la  teiTeur  qu*il  inspirait  aux  Austra- 
siens  que  les  injures  qu'ils  lui  ont  prodiguees."     (Institutions 
Carolingiennes,  p.  281.) 

Note  VI.  Page  20. 

Aribert,  or  rather  Caribert,  brother  of  Dagobert  I.,  was 
declared  king  of  Aquitaine  in  628 ;  but  or  his  death,  in  631, 
it  became  a  duchy  dependent  on  the  monarchy  under  his  two 


Chap.  I. 


AQUITAINE. 


121 


sons,  with  its  capital  at  Toulouse.  This  dependence,  however, 
appears  to  have  soon  ceased,  in  the  decay  of  the  Merovingian 
line ;  and  for  a  century  afterwards  Aquitaine  can  hardly  be 
considered  as  part  of  either  the  Neustrian  or  Austrasian 
kingdom.  "  L'ancienne  population  Romaine  travaillait  sans 
cesse  h  ressaisir  son  independance.  Les  Francs  avaient 
conquis,  mais  ne  possddaient  vraiment  pas  ces  contrees.  Des 
que  leurs  grandes  incursions  cessaient,  les  villes  et  les  cam- 
pagnes  se  soulevaient,  et  se  confederaient  pour  secouer  le  joug." 
(Guizot,  Cours  d'Hist.  Modeme,  ii.  229.)  This  important 
fact,  though  acknowledged  in  passing  by  most  historians,  has 
been  largely  illustrated  in  the  valuable  Histoire  de  la  Gaule 
Meridionals  by  M.  Fauriel. 

Aquiuiine,  in  its  fullest  extent,  extended  from  the  Loire 
beyond  the  Garonne,  with  the  exception  of  Touraine  and  the 
Orleannois.  The  people  of  Aquitaine,  in  this  large  sense 
of  the  word,  were  chiefly  Romans,  with  a  few  Goths.  The 
Franks,  as  a  conquering  nation,  had  scarcely  taken  up  their 
abode  in  those  provinces.  But  undoubtedly,  the  Merovingian 
kings  possessed  estates  m  the  south  of  France,  which  they 
liberally  bestowed  as  benefices  upon  their  leudesy  so  that  the 
chief  men  were  frequently  of  Frank  origin.  They  threw 
off,  nevertheless,  their  hereditary  attachments,  and  joined 
with  the  mass  of  their  new  countrymen  in  striving  for  the 
independence  of  Aquitaine.  After  the  battle  of  Testry, 
which  subverted  the  Neustrian  monarchy,  Aquitaine,  and 
even  Burgundy,  ceased  for  a  time  to  be  French  ;  under 
Charles  Martel  they  were  styled  the  Roman  countries. 
(Michelet,  ii.  9.) 

Eudon,  by  some  called  Eudes,  grandson  of  Caribert,  a 
prince  of  conspicuous  qualities,  gained  ground  upon  the 
Franks  during  the  whole  period  of  Pepin  Heristars  power, 
and  united  to  Aquitaine,  not  only  Provence,  but  a  new 
conquest  from  the  independent  natives,  Gascony.  Eudon 
obtained  in  721  a  far  greater  victory  over  the  Saracens  than 
that  of  Charles  Martel  at  Poitiers.  The  slaughter  was 
immense,  and  confessed  by  the  Arabian  writers  ;  it  even 
appears  that  a  funeral  solemnity,  in  commemoration  of  so 
great  a  calamity,  was  observed  in  Spain  for  four  or  five 
centuries  afterwards.  (Fauriel,  iii.  79.)  But  in  its  conse- 
quences it  was  far  less  important;  for  the  Saracens,  some 
years  afterwards,  returned  to  avenge  their  countrymen,  and 


■J 

'0 


f 

III 


122 


AUSTRASIA  AND  NEUSTRIA. 


Notes  to 


Chap.  I. 


THE  MEROVINGIAN  PERIOD. 


123 


Eudon  had  no  resource  but  in  the  aid  of  Charles  IMarteL 
After  the  retreat  of  the  enemy  it  became  the  necessary  price 
of  the  service  rendered  by  the  Frank  chieftain  that  Aquitaine 
acknowledged  his  sovereignty.  This,  however,  was  still  but 
nominal,  till  Pepin  determined  to  assert  it  more  seriously, 
and  after  a  long  war  overcame  the  last  of  the  ducal  Ime 
sprun^^  from  Clotaire  XL,  which  had  displayed,  for  almost  a 
centu?y  and  a  half,  an  energy  in  contrast  with  the  imbecility 
of  the  elder  branch.  Even  this,  as  M.  Fauriel  observes, 
was  little  more  than  a  change  in  the  reigning  family ;  the 
men  of  Aquitaine  never  lost  their  peculiar  nationality  ;  they 
remained  a  separate  people  in  Gaul,  a  people  distinguished 
by  their  character,  and  by  the  part  which  they  were  allied 
to  play  in  the  political  revolutions  of  the  age.    (Vol.  lu.  300.) 

Note  VII.    Page  20. 

Pepin  Heristal  was  styled  Duke  of  Austrasia,  but  assumed 
the  mayoralty  of  Neustria  after  his  great  victory  at  Testry 
in  687,  which  humbled  for  a  long  time  the  great  rival  branch 
of  the  monarchy.     But  he  fixed  his  residence  at  Cologne, 
and  his  family  seldom  kept  their  court  at  PiU-is.     The  Franks 
under  Pepin,  his  son  and  grandson,  "  seemed  for  a  second 
time,"  says  Sismondi,  "  to  have  conquered  Gaul ;  it  is  a  new 
invasion  of  the  language,  the  military  spirit,  and  the  manners 
of  Germany,  though  only  recorded  by  historians  as  the  vic- 
tory of  the  Austrasians  over  the  Neustrians  in  a  civil  war. 
The  chiefs  of  the  Carlovingian  family  called  themselves,  like 
their  predecessors,  kings  of  the  Franks  :    they  appear  as 
legitimate  successors  of  Clovis  and  his  family ;   yet  all  is 
clmnged  in  their  spirit  and  their  manners."    (Vol.  ii.  p.  170.) 
This  revival  of  a  truly  German  spirit  in  the  French  mon- 
archy had  net  been  sufficiently  indicated  by  the  historians  of 
the  eighteenth  century.    It  began  with  the  fall  of  Brunehaut, 
which  annihilated  the  scheme,  not  peculiar  to  herself,  but 
carried  on  by  her  with  remarkable  steadiness,  of  establishing 
a  despotism  analogous  to  that  of  the  empire.     The  Roman 
policy  expired  with  her ;  Clotaire  II.  and  Dagobert  I.  were 
merely  kings  of  barbarians,  exercising  what  authority  they 
might,  but  on  no  settled  scheme  of  absolute  power.     Their 
successors    were    unworthy    to   be    mentioned ;    though   in 
Neustria,   through   their  mayors  of  the   palace,  the   royal 


authority  may  liave  been  apparently  better  maintained  than 
m  the  eastern  portion  of  the  kingdom.  The  kingdoms  of 
Austrasia  and  Neustria  rested  on  different  bases.  In  the 
former  the  Franks  were  more  numerous,  less  scattered,  and 
as  far  as  we  can  perceive,  had  a  more  considemble  nobility! 
Ihey  had  received  a  less  tincture  of  Roman  policy.  They 
7Zl  TT."^  the  mother  country,  which  had  been,  as  the 
R^^rln/    "^"'^  '^  T"'"^  of  perpetually  recruited  vigor. 

te  n  {'  ^  "^Ti^"'.  ^""'"^^  ^^  '^^  Nemtri^  monarchy, 
had  aho  a  powerful  aristocracy,  but  not  in  so  great  a  de-rei 
probably,  of  Frank,  or  even  barbarian  descent.     The  baX 

tfnT  T'l  ^^"^  '.r''^  ^P^^'^^'  ^'  ^^^  ^^"  <^^  Brunehaut  had 
thpl,-n  ^  ^^'^';^ /^?  restoration  of  a  barbaric  supremacy  to 
the  kingdom  of  Clovis ;  and  the  benefices  granted  by  Charles 
Martel  were  the  third.  It  required  the  inteifei  Jce  of  the 
^^  crir^  '"  ^;>'^fi^m»ng  the  throne  of  the  younger  Pepin, 
and  still  miore  the  splendid  qualities  of  CharlemagSe,  to  keep 

of 'inT''  T^-  ^*.^'?l'  'i'"  '^^^^  ^""^^^'^y  ^^^1  the  dominion 
SL/-  ;•  u  "^^'^^  ^"iportant  to  keep  in  our  minds  this 
distinction  between  Austrasia  and  Neustria,  subsisting  for 

^riT'  f^'  '"^  ^^""^^""^y  '^P^^^^^'  ^P^^king  without  exact 
geographical  precision,  by  that  of  Germany  and  France. 

Note  Vni.    Page  21. 

The  Merovingian  period  is  so  briefly  touched  in  the  text, 

ILX'  1^^'  '"^  ^^  ""^'y  ^''^'''''^y  apprehended  by  every 
reader.  I  may  assist  the  memory  to  sketch  rather  a  better 
outhne,  distributing  the  period  into  the  following  divisions  :- 

r  K  /•  ^^'^  ""{  ^^'''''^ ^^^  Frank  monarchy  is  estab- 
lished m  Gaul;   the  Romans  and  Visigoths  are  subdued  • 

und"pf  r'^'  ^">  ^^""'^^  ^""'^^  ^'  ^'  '^''^^^y  recognized  ai 
TntPr^-     r'^P''"^  the  Franks  and  Romans,  withoSt  greatly 
mtermmghng,  preserve  in  the  main  their  separate  institutions. 
11.  llie  reigns  of  his  four  sons,  till  the  death  of  Clotaire  I 
the  survivor,  in  561.  -  A  period  of  great  Z^n^^^en^ 

rhuringia,  Suabia  and  Bavaria  on  the  other  side  of  the 
Rhine,  are  annexed  to  their  dominions ;  while  every  crime 
disgraces  the  royal  line,  and  in  none  more  than  in  Sre  L 

fo„r  t^n  /^  /^^^^^i''°  among  his  four  sons  ensues:  the 
four  kmgdoms  of  Paris,  Soissons,   Orleans,  and  Australia 


I 


t 


124 


THE  MEROVINGIAN  PERIOD. 


Notes  to 


Cbap.  I. 


SUBJECTION  OF  THE  SAXONS. 


125 


revive ;  but  a  new  partition  of  these  is  required  by  the  re- 
cent conquests,  and  Gontran  of  Orleans,  without  resigning 
that  kingdom,  removes  his  residence  to  Burgundy.     The 
four  kingdoms  are  reduced  to  three  by  the  death  of  Canbert 
of  Paris!  one,  afterwards  very  celebrated  by  the  name  Neus- 
tria,^  between  the  Scheldt  and  the  Loire,  is  formed  under 
Chilperic,  comprehendmg  those  of  I^a^^.^/^^^So^^^^^^^    ^^■ 
ribert  of  Paris  had  taken  Aquitaine,  which  at  his  death  was 
divided  among  the  three  survivors;  Australia  ^as  t^e  por- 
tion  of  Sigebert.    This  generation  was  fruitful  of  still  more 
crimes  than  the  last,  redeemed  by  no  golden  glory  of  con- 
;^t.    Fredegonde,  the  wife  of  Chilperic,  diffuses  a  ba  eful 
licrht  over  this  period.     But  while  she  tyrannizes  with  little 
control  in  the  west  of  France,  her  rival  and  sister  m  crime, 
Brunehaut,  wife  of  Sigebert  and  mother  of  Thierry  11.  his 
successor,  has  to  encounter  a  powerful  opposition  from  the 
Australian  aristocracy  ;  and  in  this  part  of  the  monarchy  a 
new  feature  develops  itself;  the  great  proprietors,  or  nobil- 
ity,  act  systematically  with  a  view  to  restrain  the  royal  pow- 
er    Brunehaut,  after  many  vicissitudes,  and  after  having 
seen  her  two  sons  on  the  thrones  of  Australia  and  Burgun- 
dy,  falls  into  the  hands  of  Clotaire  n.,  km-  of  the  other 
division,  and  is  sentenced  to  a  cruel  death.     Clotaire  unites 
the  three  Frank  kingdoms. 

IV.  Rei^s  of  Clotaire  II.  and  lus  son  Dagobert  1.—  I  He 
royal  power,  though  shaken  by  the  Austrasian  aristocracy,  is 
still  effective.  Dagobert,  a  prince  who  seems  to  have  rather 
excelled  most  of  his  family,  and  to  whose  munificence  sev- 
eral extant  monuments  of  architecture  and  the  arts  are  reter- 
red,  endeavours  to  stem  the  current.  He  was  the  last  ot  the 
Merovmdans  who  appears  to  have  possessed  any  distinctive 
character ;  the  Insensaii  follow.  After  the  reign  of  Dago- 
bert most  of  the  provmces  beyond  the  Loire  iall  oft,  as  it 
may  be  said,  from  the  monarchy,  and  hardly  belong  to  it  tor 

*  V^  The  fifth  period  begins  with  the  accession  of  CIotis 
n.,  son  of  Dagobert,  m  638,  and  terminates  ^'^^  J^P'S 
Heristal's  victory  over  the  Neustrians  at  Testry,  m  bi5/.    ii 

1  Neustria,  or  Western  France,  is  first  Tours,  as  I  find  ^7  *{«»  »fde^'^  J^^^i 

nientfoneJin  a  diploma  of  Childebert,  ^^^^^^.^^Xl^^^^^'^^ofT^^ 

with  the  date  of  658.    But  the  genuine-  much  used  till  after  the  aeatn 

ness  of  this  has  been  denied :  the  word  haut,  la  Wtf. 
nerer  occurs  in  the  history  of  Gregory  of 


is  distinguished  by  the  apparent  equality  of  the  two  remain- 
ing kingdoms,  Burgundy  having  now  fallen  into  that  of 
Neustria,  and  by  the  degradation  of  the  royal  line,  in  each 
alike,  into  puppets  of  the  mayors  of  the  palace.  It  is,  in 
Austrasia,  the  triumph  of  the  aristocracy,  among  whom  the 
bishops  are  still  more  prominent  than  before.  Ebroin  holds 
the  mayoralty  of  Neustria  with  an  unsteady  command ;  but 
m  Austrasia  the  progenitors  of  Pepin  Hcristal  grow  up  for 
two  generations  in  wealth  and  power,  till  he  becomes  the  ac- 
knowledged chief  of  that  part  of  the  kingdom,  beaiing  the 
title  of  duke  instead  of  mayor,  and  by  the  battle  of  Testry 
puts  an  end  to  the  independence  of  Neustria. 

^  VI.  From  this  time  the  family  of  Pepin  is  virtually  sover- 
eign in  France,  though  at  every  vacancy  kings  of  the  royal 
house  are  placed  by  them  on  the  throne.  Charies  Martel, 
mdeed,  son  of  Pepin,  is  not  acknowledged,  even  in  Aus- 
trasia, for  a  short  time  after  his  father's  death,  and  Neustria 
attempts  to  regain  her  independence ;  but  he  is  soon  called 
to  power,  defeats,  like  his  father,  the  western  Franks,  and  be- 
comes, in  ahnost  as  great  a  degree  as  his  grandson,  the  foun- 
der of  a  new  monarchy.  So  completely  is  he  recognized  as 
sovereign,  though  not  with  the  name  of  king,  that  he  divides 
France,  as  an  inheritance,  among  his  three  sons.  But  soon 
one  only,  Pepin  the  Short,  by  fortune  or  desert,  becomes 
possessor  of  this  goodly  bequest.  In  752  the  new  dynasty 
acquires  a  legal  name  by  the  coronation  of  Pepin. 

Note  IX.    Page  24. 

The  true  cause,  M.  Michelet  observes  (Hist,  de  France, 
ii.  39),  of  the  Saxon  wars,  which  had  begun  under  Charles 
Martel,  and  were  in  some  degree  defensive  on  the  part  of 
the  Franks,  was  the  ancient  antipathy  of  race,  enhanced  by 
^e  growing  tendency  to  civilized  habits  among  the  latter. 
This,  indeed,  seems  suiEcient  to  account  for  the  conflict,  with- 
out any  national  antipathy.  It  was  that  which  makes  the 
Red  Indian  perceive  an  enemy  in  the  Anglo-American,  and 
the^  Australian  savage  in  the  Englishman.  The  Saxons,  in 
their  deep  forests  and  scantily  cultivated  plains,  could  not 
bear  fixed  boundaries  of  land.  Their  gau  was  indefinite ; 
the  mansus  was  certam ;  it  annihilated  the  barbarian's  only 
method  of  combining  liberty  with  possession  of  land,  —  the 


126 


SUBJECTION  OF  THE  SAXONS. 


Notes  to 


s 


right  of  shifting  his  occupancy.*  It  is  not  probable,  from 
subsequent  events,  that  the  Saxons  held  very  tenaciously  by 
their  religion;  but  when  Christianity  first  offered  itself,  it 
came  in  the  train  of  a  conqueror.  Nor  could  Christianity, 
according  at  least  to  the  ecclesiastical  system,  be  made  com- 
patible with  such  a  state  of  society  as  the  German  in  that 
age.  Hence  the  Saxons  endeavored  to  bum  the  first 
churches,  thus  drawing  retaliation  on  their  own  idols. 

The  first  apostles  of  Germany  were  English ;  and  of  these 
the  most  remarkable  was  St.  Boniface.     But  this  had  been 
in  the  time  of  Charles  Martel  and  Pepin.     The  labors  of 
these  missionaries  were  chiefly  in  Thuringia,  Franconia,  and 
Bavaria,  and  were  rewarded  with  great  success.     But  we 
may  here  consider  them  only  in  their  results  on  the  Frank 
monarchy.    Those  parts  of  Germany  had  long  been  subject 
to  Austrasia,  but,  except  so  far  as  they  furnished  troops, 
scarcely  formed  an  integrant  portion  of  that  kingdom.     The 
subjection  of   a  heathen  tribe  is  totally  different  from  that  of 
a  Christian  province.     With  the  Church  came  churches,  and 
for  churches  there  must  be  towns,  and  for  towns  a  magistra- 
cy, and  for  magistracy  law  and  the  means  of  enforcing  it. 
How  different  was  the  condition  of  Bavaria  or  Hesse  in  the 
ninth  century  from  that  of  the  same  countries  in  the  sev- 
enth !     Not  outlying  appendages  to  the  Austrasian  monarchy, 
hardly  counted  among  its  subjects,  but  capable   of  stand- 
ing by  themselves,  as  coordinate  members  of  the  empire, 
an  equipoise  to  France  herself,  full  of  populous  to^vns,  weal- 
thy nobles  and  prelates,  better  organized  and  more  flourish- 
ing states  than  their  neighbors  on  the  left  side  of  the  Rhine. 
Charlemagne  founded  eight  bishoprics  in  Saxony,  and  dis- 
tributed the  country  into  dioceses. 


Note  X.    Page  25. 


The  project  of  substituting  a  Frank  for  a  Byzantine  sov- 
ereign was  by  no  means  new  in  800.  Gregory  H.,  by  a  let- 
ter to  Charles  Martel  in  741,  had  offered  to  renounce  his 
allegiance  to  the  empire,  placing  Rome  under  the  protection 
of  the  French  chief,  with  the  title  of  consul  or  senator. 


1  Mlchelet  refers  to  arimm,  who  is  ex-    the  age  of  Tacitus  lons^er  than  Ckrman 
ecUent  authority.    The  Saxons  are  likely    tribes  on  the  Rhine  and  Main, 
to  have  maintain  td  the  old  customs  of 


Chap.  I. 


CILARLEMAGNE. 


127 


The  immediate  government  he  doubtless  meant  to  keep  in 
die  hands  of  the  Holy  See.  He  supplicated,  at  the  same 
time,  for  assistance  against  the  Lombards,  which  was  the 
principal  motive  for  this  offer.  Charles  received  the  pro- 
posal with  pleasure,  but  his  death  ensued  before  he  had  time 
to  take  any  steps  towards  fulfilling  so  glorious  a  destiny. 
When  Charlemagne  acquired  the  rank  of  Patrician  at  Rome 
in  78  J,  we  may  consider  this  as  a  part  performance  of  Greg- 
ory 11.  s  engagement,  and  the  supreme  authority  was  vir- 
tually m  the  hands  of  the  king  of  the  Franks;  but  the 
renunciation  of  allegiance  toward  the  Greek  empire  had  never 
positively  taken  place,  and  there  are  said  to  have  been  some 
tokens  of  recognition  of  its  nominal  sovereignty  ahnost  to 
the  end  of  the  century.  ^    ^ 

It  is  contended  by  Sir  F.  Palgrave  that  Charlemagne  was 
^osen  by  the  Romans  as  lawful  successor  of  Constantine 
v.,  whom  his  mother  Irene  had  dethroned  in  795,  the  usage 

A  Ar  ^^^''l  ^^"^^  ""^^^^  admitted  a  female  soverei|i. 
And  for  this  he  quotes  two  ancient  chronicles,  one  of  whi?h, 
however,  appears  to  have  been  copied  from  the  other.  It  is 
indeed  true,  which  he  omits  to  mention,  that  Leo  HL  had  a 
singular  scheme  of  a  marriage  between  Charles  and  Irene, 
which  would  for  a  time  have  unitod  the  empire.  The  pro- 
Gr^kM  ^^^"^^^  "^^^^^  ^"*  prudently  rejected  by  the 

It  remains  nevertheless  to  be  shown  by  what  right  Leo 
m.,  cum  omm  Christiano  populo,  that  is,  the  priests  and 
populace  of  degenerate  Rome,  could  dispose  of  the  entire 
empire,  or  affect  to  place  a  stranger  on  the  throne  of  Con- 
stantinople ;  for  if  Charles  were  the  successor  of  Constan- 
tme  v.,  we  must  draw  this  conclusion.  Rome,  we  should 
Keep  m  mind,  was  not  a  jot  more  invested  with  authority 
than  any  other  city;  the  Greek  capital  had  long  taken  her 
place;  and  m  every  revolution  of  new  Rome,  the  decrepit 
mother  had  without  hesitation  obeyed.  Nor  does  it  seem  to 
me  exceedingly  material,  if  the  case  be  such,  that  Charle- 
ma^e  was  not  styled  emperor  of  the  West,  or  successor 

l.f'YTn  ?  '^  ^"^^^"^^  *^^^  ^'^  ^^Pire^  relatively  to 
that  ot  the  Greeks,  wa^  western ;  and  we  do  not  find  that 
eiJier  he  or  his  famUy  ever  claimed  an  exclusive  right  to 
\he  imperial  title  The  pretension  would  have  been  diamet- 
ncaUy  opposed  both  to  prescriptive  right  and  actual  posses- 


128 


CHARLEMAGNE. 


NOTXS  TO 


Bion.     He  wrote  to  the  emperor  Nicephorus,  successor  of 
Irene,   as  fratemitas  vestra ;   but  it  is  believed  that  the 
Greeks  never  recognized  the  title  of  a  western  barbarian. 
In   a  later  age,  indeed,  some  presumed  to  reckon  the  em- 
peror of  Constantinople  among  kings.     A  writer  of  the  four- 
teenth century  says,  in  French,  — "Or  devez  savoir  qu'il  ne 
doit  estre  sur  terre  qu*un  seul  empereur,  combien  que  celui 
de  Constantinople  estime  estre  seul  empereur ;  mais  non  est, 
il  n'est  fors  seulement  qu'un  roy."     (Ducange,  voc.  Impera- 
tor,  which  is  worth  consulting.)     The  kings  of  France  and 
Castile,  as  well  as  our  own  Anglo-Saxon  monarchs  m  the 
tenth  century,  and  even  those  of  Bulgaria,  sometimes  as- 
sumed the  imperial  title.     But  the  Anglo-Saxons  preferred 
that  of  Basileus,  which  was  also  a  Byzantine  appellation. 

The  probable  design  of  Charlemagne,  in  accepting  the 
title  of  emperor,  was  not  only  to  extend  his  power  as  far  as 
possible  in  Italy,  but  to  invest  it  with  a  sort  of  sacredness 
and  prescriptive  dignity  in  the  eyes  of  his  barbarian  subjects. 
These  had  been  accustomed  to  hear  of  emperors  as  some- 
thing superior  to  kings ;  they  were  themselves  fond  of  pom- 
pous°  titles,  and  the  chancery  of  the  new  Augustus  soon 
borrowed  the  splendid  ceremonial  of  the  Byzantme  court. 
His  councillors  approached  him  on  their  knees,  and  kissed 
his  feet.     Yet  it  does  not  appeal-  from  history  that  his  own 
royal  power,  certainly  very  considerable  before,  was  much 
enhanced  after  it  became  imperial.     He  still  took  the  advice, 
and  legislated  with  the  consent,  of  his  leudes  and  bishops ; 
in  facChe  continued  to  be  a  German,  not  a  Roman,  sover- 
eign.     In    the  reign  of  his  family  this  prevalence  of  the 
Teutonic  element  in  the  Carlovingian  pohty  became  more 
and    more    evident;    the  bishops  themselves,  barbarian  in 
origin  and  in  manners,  cannot  be  reckoned  in  the  opposite 

^cale 

This  was  a  second  faUure  of  the  attempt,  or  at  least  the 
scheme,  of  governing  barbarians  upon  a  Roman  theory. 
The  first  had  been  tried  by  the  sons  of  Clovis,  and  the  high- 
spirited  Visigoth  Brunchaut.  But  the  associations  of  Roman 
authority  with  the  imperial  name  were  too  striking  to  be  lost 
forever;  they  revived  again  in  the  twelfth  and  thirteenth 
centuries  with  the  civil  law,  and  gained  strength  with  the 
Ghibelin  faction  in  Italy.  Even  in  France  and  England,  as 
many  think,  they  were  by  no  means  ineffectual;  though  it 


Chap.  I. 


HEREDITAKY  SUCCESSION. 


129 


was  necessary  to  substitute  the  abstract  principle  of  royaltv 
for  the  Lex  Regia  of  the  Roman  empire.  ' 

Note  XI.    Page  27. 

A  question  of  the  utmost  importance  had  been  passed 

TwaTthar  of  r*"'A  °^  Charlemagne  to  the  imperiaf  titfe 
It  was  that  of  hereditary  succession.  No  allusion,  as  far  as 
I  have  found,  was  made  to  this  in  the  irregular  act  by  which 
tin^'  ^'^  '">'  ^^^<^\^eA  the  Roman  people,  transferred 
theu-  allegiance  from  Constantinople  to  Aix-la-Chapelle.  It 
was  indeed  certain  that  the  empire  had  not  only  passed  for 

Sr '^  n  t^  *'*""  "^  ^"Sustus,  but  ever  lince  that  of 
Diocletian  had  been  partible  among  the  imperial  family  at 
the  wiU  of  the  possessor.  Yet  the  whole  proceeding  was  so 
fnTp  V  .w  P'"«'«"'!o°3  of  the  Holy  See  implied  in  it  so 
mdeflmte,  that    some  might  doubt  whether   Charles   had 

KJ#  t  u-  "^^  "'''"  "■  momentous  consideration,  how 
tar  his  Frank  subjects,  accustomed  latterly  to  be  consulted  on 

T^,^?„  the  femUy,  positively  recognized  at  the  accession  of 
repin,  and  liable  to  become  jealous  of  Roman  theories  of 
government,  would  acquiesce  in  a  simple  devolution  of  the 
title  on  the  eldest  bom  as  his  legal  bu-thright.  In  the  first 
prospective  arrangement,  accordingly,  which  Charles  made 
lor  the  succession,  that  at  Thionville,  in  806,  a  partition 
among  his  three  sons  was  designed,  with  the  largest  share 
reserved  for  the  eldest.  But  though  Italy,  by  which  he 
Z^tT  ^^  ^"'i""'  ^mbardy,  was  given  to  one  of  the 
PvS'  ^^  •'•*'*,?  ^^  ^  description  of  the  boundaries  to 

Ravenna,  become,  by  Pepin's  donation,  the  patrimony  of  St. 
reter;  nor  13  there  the  least  aUusion  to  the  title  of  emperor. 

h^Z   ^      \^^^  *^^'  ^®  relmquished  the  eternal  city  to  its 
b.»hop,  though    styling    himself,  in  this   very  instrument, 

tinon^^P'"''.^"'^  •^^'"S  M'erallygLed  not  Z! 
nroh,ir  I.  f  .*^™'<«y  by  that  dignity?  It  is  surely  more 
probable  that  he  reserved  the  sovereignty  over  Rome  to  be 
annexed  to  the  rank  of  emperor  wheSv^r  he  sZTd  'obtaS 
that  for  his  eldest  son.  And  on  the  death  of  this  son,  and  of 
his  next  brother,  some  years  afterwards,  the  whole  succession 


130 


HEREDITARY  SUCCESSION. 


Notes  to 


Chap.  I. 


THE  CARL0VINGL4lNS. 


131 


devolvinf'  on  Louis  the  Debonair,  Charlemagne  presented 
this  prince  to  the  great  Placitum  of  the  nobles  and  bishops 
at  Aix-la-Chapelle  in  813,  requesting  them  to  name  hira  king 
and  emperor.  No  reference  was  made  to  the  pope  tor  his 
approbation ;  and  thus  the  German  principle  of  sovereignty 
crained  a  decisive  victory  over  the  Roman.  Ii  some  claim 
of  the  pope  to  intermeddle  with  the  empire  was  intimated  at 
the  coronation  of  Louis  at  Rheims  by  Stephen  II.  m  816, 
which  does  not  seem  certain,  it  could  only  have  been  through 
the  pop-^'s  knowledge  of  the  personal  submissiveness  to 
ecclesiastical  power  which  was  the  misfortune  of  that  prince. 
He  had  certainly  borne  the  imperial  title  from  his  lather  s 

death.  , 

In  the  division  projected  by  Louis  in  817,  to  take  place  on 
his  death,  and  approved  by  an  assembly  at  Aix,  a  considera- 
ble supremacy  was  reserved  for  the  future  emperor ;  he  was 
constituted,  in  effect,  a  sort  of  suzerain,  without  whose  con- 
sent the  younger  brothers  could  do  nothing  important.     Thus 
the  integrity  of  the  empire  was  maintained,  which  had  been 
lost  in  the  scheme  of  Charlemagne  in  806.     But  M.  Fauriel 
(vol.  iv.  p.  83)  reasonably  suspects  an  ecclesiastical  influence 
In  su<»<Testing  this  measure  of  817,  which  was  an  overt  act 
of  the°Roman,  or  imperial,  against  the  barbarian  party.     If 
the  latter  consented  to  this  in  817,  it  was  probably  either 
because  they  did  not  understand  it,  or  because  they  trusted 
to  setting  it  aside.     And,  as  is  well  known,  the  course  of 
events  soon  did  this  for  them.    "  It  is  indisputable,"  says 
Ranke,  "  that  the  order  of  succession  to  the  throne,  which 
Louis  the  Pious,  in  utter  disregard  of  the  warnings  of  his 
faithful  adherents,  and  in  opposition  to  all  German  modes  of 
thinking,  established  in  the  year  817,  was  principally  brought 
about  by  the  influence  of  the  clergy."     (Hist,  of  Reforma- 
tion, Mrs.  Austin's  translation,  vol.  i.  p.  9.)     He  attributes 
the   concurrence  of   that  order,  in  the   subsequent  revolt 
a^^ainst  Louis,  to  the  endeavors  he  had  made  to  deviate  from 
the  provisions  of  819  in  favor  of  his  youngest  son,  Charles 
the  Bald. 

Note  XII.    Page  31. 

The  second  period  of  Carlovingian  history,  or  that  which 
elapsed  from  the  reign  of  Charles  the  Bald  to  the  accession 


of  Hugh  Capet,  must  be  reckoned  the  transitional  state 
through  scenes  of  barbarous  anarchy,  from  the  artS' 
scheme  devised  by  Charlemagne,  in  which  the  Rom„d 
German  e  ements  of  civil  policy  were  rather  ir^nflfct 
than  m  union,  to  a  new  state  of  society -the  feudal,  S 

tion  Tnd  nf  !l  1  r'  ""l  ^"^^P^^°  l^olioy  from  disintegra- 
tion  and  of  elaborating  the  moral  and  constitutional  princi- 
ples upon  which  it  afterwards  rested.  ^ 

This  period  exhibits,  upon  the  whole,  a  faUure  of  the 
o'^Se'Srl'Th'^  '^  Charlemagne  fo^  the  reg^neratSn' 
cLncern^f  h^  proceeded  very  much  from  the  common 

Llf  ^{  hereditary  succession,  especially  when  not  coun- 
terbalanced by  established  powers  independent  of  it.  Three 
tfmelTun  f  "^^^\^^^  y^^  '^^  Fat,  and  the  Simple  1^' 

ness  thP  nnhrf    ?  "^^'^  ^^  ^^'^  pusillanimity  and  weak- 

SS  TU^J^T"."^  ''^'^'  '^'  ^P^^^*  ^^  the  seventh 
century  They  entered  into  a  coaHtion  with  the  bishons 
though  Charles  the  Bald  had  often  sheltered  himself  beS 
the  crosier;  and  they  compelled  his  son,  Louis  the  Ste^- 
merer  not  only  to  confirm  their  own  privileges  and  thos^f 
the  Church,  but  to  style  himself  "  King,  by  the  ^race  of  On^ 
aiid  election  of  the  /eople;"  which,  inierLco'Xg  o^S 
established  constitution,  wa^  no  more  than  truth,  since  the 
absolute  right  to  succession  was  only  in  the  family. '  The  ina- 
bihty  of  the  crown  to  protect  its  subjects  from  their  hivld^^ 
rendered  this  assumption  of  aristocratic  independen™^ 

tSt^Th:"^- .  ^'  '^'  '^'  ''  '^'^y^  SismLdi  weU  sajt 
Srcas  o?  fhf"^  ^r^^"'  °'^.'"^^^^  bodies  sprung  from  the 
f^r^  u    ^   F"^^^  ^^P"*^-     France,  so  defenceless  under 

930  Shf^  '^'  ^1  J^^^'f'  ^"^^^^^  ^^^^  ^«tles  before 
and'ai^pV'""''"'^  the  fable  of  Deucalion;  she  sowed  stones, 
and  ajined  men  rose  out  of  them.     The  lords  surrounded 

ceased  before,  they  would  have  met  with  a  much  more  deter- 
mmed  resis  ance  than  in  the  preceding  century,  (ffist  des 
Fran9ais,  ni.  218,  378 ;  iv.  9.)  ^ 

of  ^!!!''S'''^W^  ^^  *^^  throne,  the  promise 

out  of  n        ^i!  ^  ^T°'  ^^^t  they  would  neve^  elect  a  king 

l^rfi^TjT.!"^^^'  '^""^^  ^^^^^^  ^'^  two  or  three  occ^ 
sions  m  the  tenth  century,  seems  to  have  retained  its  hold 


i 


TRANSITION  PERIOD  OF 


NOTBS  TO 


132 

Degiimuip  iv  r-.-jp,  a  man  of  considerable  vigor, 

last  half-century ;  and  iiudes,  a  man  ui  v  ^^ 

possessed  several  counties  in  the  best  P^^sof  France  IM 
^tion  had  no  altenmtive  but  to  ^^'""^Xen  a  numerous 
Yet,  when  Charles  ^tt^-*  the  ag«  o^^^^^^^^  ^^^oM 
party  supported  his  « i'™  *»  *«   Z^ity  of  abilities  be- 

fifrr.S:ir  hS  -  "^»-  j^^ 

£';^;  latoed  him,  seems  to  have  -  g-f  P^-TdoS 
facto  any  more  than  de  jure  to  be  ^^^X/lI  to  the  son 
Ly  historian  give  the  appellation  of  Robert  II.  to  the  son 
Xf  Hncrh  Oaoet      The  father  of  Hugh  Capet,  ttugn  me 
Great  tn  of ^^ber^  and  nephew  of  Eudes,  being  count  of 
S3  Orleans,  who  had  bestowed  the  cro>vn  on  h« 
Kerilaw  ^ddph  of  Burgundy,  instead  of  wearmgi 
Umself  pmd  such  deference  to  the  prejudices  of  at  lea't  the 
5onW  the  nation  in  favor  of  the  house  of  Chariem^e 
S  he  procured  the  election  of  I^»'^  ^^T  J"  of  CI  a.les 
»!.<.  <5imT>lp  a  bov  of  thirteen  years,  and  then  an  exue  m 
ELS'^r^m  wU  circumstlce  he  has  borne  the  name 

of  Sutremer     And  though  he  did  not  _,':«>|^/'^^°^  j^^f 
opposition  from  his  powerful  vassal,  he  died  m  possession 


Cbjlt.  I. 


THE  CARLOVINGIANS. 


133 


the  crown,  and  traasmitted  it  to  be  worn  by  his  son  Lothaire. 
and  his  grandson  Louis  V.  It  was  on  the  death  of  this  ka^ 
young  man  that  Hugh  Capet  thought  it  time  to  set  a^ide  Te 

ktX°L  ^^'■^'''  "^^  >*',  ^^S''  "°<=1«'  ^d  call  himself 
fang,  with  no  more  national  consent  than  the  prelates  and 

barons  who  depended  on  him  might  afford;  principallv  it 

seems,  through  the  adherence  of  Adalberon   LhblK'of 

Rheims,  a  city  m  which  the  kings  were  ah-eady  wont  to 

^IZ  Y  T"'^-;  ^""''  ''  *«  "^"""^l  import^ce  which 
a  mere  y  local  privilege  may  sometimes  bestow.  Even  the 
voice  of  the  capital,  regular  or  tumultuous,  which  in  so  many 
revolutions  has  determined  the  obedience  of  a  nation,  may 
be  considered  as  little  more  than  a  local  superiority. 

A  writer  distinguished  among  living  historians,  M.  Thi- 
rfhiT„f""1^  "^  ''A'"  «"  *®  revolutions  of  two  centuries 
,W=  ,  r'^^  °^  ^^^  ^°^^'  *^t  '^'  *e  ancient  inhab- 
itant^ to  the  Franks  or  Germans.     The  latter  were  reore- 

RrlY."'?,''""^^  f  Charlemagne;  the  foiwr  bv  th^? of 
^t.      A  S-""?'  .*'"^"=''  '^  ^'*"'">t  descendants,  Eudes, 

Skh  M  T?""*"  *'  f"'"'-  ^"^  '^'  ^^'"■y  of  races,  to' 
which  M.  Thierry  is  always  partial,  and  recurs  on  mslny 

onions,  has  seemed  to  the  judicious  and  impartial  Guizot 

the  most  satisfactory  of  all  that  have  been  devised  to  eluci- 

fl  i?,  f  1i  ■;  *°°^^.  P"';''^'  *•''*"«•'  ^^  <loes  not  embrace  it 
to  Its  full  extent  (Hist  de  la  Civilisation  en  France,  Lecon 
24)  Sismondi  (vol.  in.  p.  58)  had  said  in  1821,  what  he 
had  probably  wntten  as  early  as  M.  Thierry :  "  La  guerre 
entre  diaries  et  ses  deux  freres  fut  celle  des  peuples  romains, 

r„,'i3fi  f  T  '^•'•'^r'  '^  J^-S  germanique;  la  quereUe 
insigniflante  des  rois  fut  soutenue  avee  ardeur,  parce  qu'eUe 
sunissait  k  la  querelle  des  peuples;  et  tons  ces  pr^jug^s  hos- 
tiles  qui  sattachent  toujours  aux  differences  des  langues  et 
des  raoeurs,  donnerent  de  la  Constance  et  de  I'achamement 

Su^  sun  to  *rr"    ™^  f'^'^l'  '°'^^'='''  *«  -  eariie~cS 
but  stiU  to  the  same  conflict  of  races  which  M.  Thieiry  has 

taken  as  the  basis  of  the  resistance  made  by  the  Neustrian 

provinces  to  the  later  Carlovingians.    Thierry  finds  a  sTS 

contes   in  the  wars  of  Louis  the  Debonair.^  In  this" 

compelled  to  suppose  that  the  Neustrian  Pranks  fell  in  with 

the  Gauls,  among  whom  they  lived.     But  it  may  well  be 

doubted  whether  the  distinction  of  Frank  descentf  and  coe! 

sequently  of  national  supremacy,  was  obliterated  in  the  first 


134 


TRANSITION  PERIOD  OF 


Notes  to 


Chap.  I. 


THE  CARLOVINGIANS. 


135 


part  of  the  nintli  century.    The  name  of  Franci  was  always 
applied  to  the  whole  people ;  the  kings  are  always  reges 
Francorum ;  so  that  we  might  in  some  respects  rather  say 
that  the  Gauls  or  Romans  had  been  merged  in  the  dommant 
races  than  the  reverse.     Wealth,  also,  and  especially  that 
sprin^in<^  from  hereditary  benefices,  was  chiefly  in  the  hands 
of  Mie  barbarians ;  they  alone,  as  is  generally  believed,  so 
Ion'  as  the  distinction  of  personal  law  subsisted,  were  sum- 
moned to  county  or  national  assemblies ;  they  perhaps  re- 
tained, in  the  reign  of  Louis  the  Debonair,  though  we  cannot 
speak  decisively  as  to  this,  their  original  language.     It  has 
been  observed  that  the  famous  oath  in  the  Romance  language, 
pronounced  by  Louis  of  Germany  at  the  treaty  of  Strasburg, 
hi  842,  and  addressed  to  the  army  of  his  brother  Charles  the 
Bald,  bears  more  traces  of  the  southern,  or  Provencal,  than 
of  the  northern  dialect ;  and  it  is  probable  that  the  inhabitants 
of  the  southern  provinces,  whatever  might  have  been  the 
origin  of  their  ancestors,  spoke  no  other.     This  would  not 
be  conclusive  as  to  the  Neustrian  Franks.     But  this  is  a 
disputable  question.  . 

A  remarkable  presumption  of  the  superiority  still  retained 
by  the  Franks  as  a  nation,  even  in  the  south  of  France,  may 
be  drawn  from  the  Placitum,  at  Carcassonne,  in  918.    ( Vais- 
sette.  Hist,  de  Languedoc,  vol.  ii.  Append,  p.  56;  Meyer,  In- 
stitutions  Judiciaires,  vol.  i.  p.  419.)     In  this  we  find  named 
six  Roman,  four  Gothic,  and  eight  Salian  judges.     It  is  cer- 
tain that  these  judges  could  not  have  been  taken  relatively 
to  the  population  of  the  three  races  in  that  part  of  France. 
Does  it  not  seem  most  probable  that  the  Franks  were  still 
reckoned  the  predominant  people?     Probably,  however,  the 
personal  distinction,  founded  on  difference  of  laws,  expired 
earlier  in  Neustria;  not  that  the  Franks  fell  into  the  Roman 
jurisprudence,  but  that  the  original  natives  adopted  the  feu- 
dal customs. 

This  specious  theory  of  hostile  races,  in  order  to  account 
for  the  downfall  of  the  Carlovingian,  or  Austrasian,  dynasty, 
has  not  been  unanimously  received,  especially  in  the  extent 
to  which  Thierry  has  urged  it.  M.  Gaudet,  the  French 
editor  of  Richer  (a  contemporary  historian,  whose  narrative 
of  the  whole  period,  from  the  accession  of  Eudes  to  tho 
death  of  Hugh  Capet,  is  published  by  Pertz  in  the  Monu- 
menta  Germanise  Historica,  vol.  iii.,  and  contains  a  great 


quantity  of  new  and  interesting  facts,  especially  from  a.d. 
966  to  987),  appeals  to  this  writer  in  contradiction  of  the 
hypothesis  of  M.  Thierry.  The  appeal,  however,  is  not  solely 
upon  his  authority,  since  the  leading  circumstances  were 
sufficiently  known ;  and,  to  say  the  truth,  I  think  that  more 
has  been  made  of  Richer's  testimony  in  this  particular  view 
than  it  will  bear.  Richer  belonged  to  a  monastery  at  Rheims, 
and  his  father  had  been  a  man  of  some  rank  in  the  confi- 
dence of  Louis  IV.  and  Lothaire.  He  had,  therefore,  been 
nursed  in  respect  for  the  house  of  Charlemagne,  though,  with 
deference  to  his  editor,  I  do  not  perceive  that  he  displays  any 
repugnance  to  the  change  of  dynasty. 

Though  the  differences  of  origin  and  language,  so  far  as 
they  existed,  might  be  by  no  means  unimportant  in  the  great 
revolution  near  the  close  of  the  tenth  century,  they  cannot 
be  relied  upon  as  sufficiently  explaining  its  cause.  The  par- 
tisans of  either  family  were  not  exclusively  of  one  blood. 
The  house  of  Capet  itself  was  not  of  Roman,  but  probably 
of  Saxon  descent.  The  difference  of  races  had  been  much 
effaced  after  Charles  the  Bald,  but  it  is  to  be  remembered 
that  the  great  beneficiaries,  the  most  wealthy  and  potent 
families  in  Neustria  or  France,  were  of  barbarian  origin. 
One  people,  so  far  as  we  can  distinguish  them,  was  by  far 
the  more  numerous ;  the  other,  of  more  influence  in  poUtical 
affairs.  The  personal  distinction  of  law,  however,  which  had 
been  the  test  of  descent,  appears  not  to  have  been  preserved 
in  the  north  of  France  much  after  the  ninth  century ;  and 
the  Roman,  as  has  been  said  above,  had  yielded  to  the  bar- 
baric element —  to  the  feudal  customs.  The  Romance  lan- 
guage, on  the  other  hand,  had  obtained  a  complete  ascenden- 
cy ;  and  that  not  only  in  Neustria,  or  the  parts  west  of  the 
Somme,  but  tliroughout  Picardy,  Champagne,  and  part  of 
Flanders.  But  if  we  were  to  suppose  that  these  regions  were 
still  in  some  way  more  Teutonic  in  sentiment  than  Neustria, 
we  certainly  could  not  say  the  same  of  those  beyond  the 
Loire.  Aquitaine  and  Languedoc,  almost  wholly  Roman,  to 
use  the  ancient  word,  or  French,  as  they  might  now  be  called, 
among  whose  vine-covered  hills  the  barbarians  of  the  Lower 
Rhine  had  hardly  formed  a  permanent  settlement,  or,  having 
done  so,  had  early  cast  off*  the  slough  of  their  rude  manners, 
had  been  the  scenes  of  a  long  resistance  to  the  Merovingian 
dynasty.     The  tyranny  of  Childeric  and  Clotau-e,  the  bar- 


136 


TRANSinON  PERIOD  OF 


Notes  to 


barism  of  the  Frank  invaders,  had  created  an  indelible 
hatred  of  their  yoke.  But  they  submitted  without  reluctance 
to  the  more  civilized  government  of  Charlemagne,  and  dis- 
played a  spontaneous  loyalty  towards  his  line.  Never  did 
they  recognize,  at  least  without  force,  the  Neustrian  usurpers 
of  the  tenth  century,  or  date  their  legal  instruments,  in  truth 
the  chief  sign  of  subjection  that  they  gave,  by  any  other 
year  than  that  of  the  Carlovingian  sovereign.  If  Charles 
the  Simple  reaped  Uttle  but  this  nominal  allegiance  from  hifl 
southern  subjects,  he  had  the  satisfaction  to  reflect  that  they 
owned  no  one  else. 

But  a  rapacious  aristocracy  had  pressed  so  hard  on  the 
weakness  of  Charles  the  Bald  and  his  descendants  that,  the 
kingdom  being  wholly  parcelled  in  great  fiefs,  they  had  not 
the  resources  left  to  reward  self-interested  services  as  before, 
nor  to  resist  a  vassal  far  superior  to  themselves.     Laon  was 
much  behind  Paris  in  wealth  and  populousness,  and  yet  even 
the  two  capitals  were  inadequate  representatives  of  the  pro- 
portionate strength  of  the  king  and  the  count.     Power,  as 
simply  taken,  was  wholly  on  one  side ;  yet  on  the  other  was 
prejudice,  or  rather  an  abstract  sense  of  hereditary  right ; 
and  this  sometimes  became  a  source  of  power.     But  the  long 
greatness  of  one  family,  its  manifest  influence  over  the  suc- 
cession to  the  throne,  the  conspicuous  men  whom  it  produced 
in  Eudes  and  Hugh  the  Great,  had  silently  prepared  the 
way  for  a  revolution,  neither  unnatural  nor  premature,  nor  in 
any  way  dangerous  to  the  public  interests.     It  is  certainly 
probable  that  the  Neustrian  French  had  come  to  feel  a 
greater  sympathy  with  the  house  of  Capet  than  with  a  line 
of  kings  who  rarely  visited  their  country,  and  whom  they 
could  not  but  contemplate  as  in  some  adverse  relation  to  their 
natural  and  popular  chiefs.     But  the  national  voice  was  not 
greatly  consulted  in  those  ages.    It  is  remarkable  that  sev- 
eral writers  of  the  nineteenth  century,  however  they  may 
sometimes  place  the  true  condition  of  the  people  in  a  vivid 
light,  are  constantly  relapsing   into  a  democratic  theory. 
They  do  not  by  any  means  underrate  the  oppressed  and 
almost  servile  condition  of  the  peasantry  and  burgesses,  when 
it  is  their  aim  to  draw  a  picture  of  society ;  yet  in  reasoning 
on  a  political  revolution,  such  as  the  decline  and  fall  of  the 
German  dynasty,  they  ascribe  to  these  degraded  classes  both 
ihe  will  and  the  power  to  effect  it.     The  proud  nationality 


Chap.  I. 


nm  CARLOVINGIANS. 


137 


which  spumed  a  foreign  line  of  princes  could  not  be  felt  bv 
M  mipoverished  and  afflicted  commonalty.     Yet  when  M 
Ihierry  alludes  to  the  rumor  that  the  family  of  Capet  wai 
sprung  from  the  commons  (some  said,  as  we  read  in  Dante 
from  a  butcher),  he  adds,  -  «  Cette  opinion,  qui  se  conserva 
durant  plusieurs  siecles,  ne  fut  pas  nuisible  h  sa  cause," --as 
It  there  had  been  as  effective  atiers-^tat  in  987  as  800  years 
afterwards.     If,  however,  we  are  meant  only  to  seek  this 
sentiment  among   the  nobles  of  France,  I  fear  that  self- 
interest,  personal  attachments,  and  a  predominant  desire  of 
maintaining  their  independence   against    the   crown,  were 
motives  far  more  in  operation  than  the  wish  to  hear  the  king 
speak  French  instead  of  German.  ^ 

It  seems,  upon  the  whole,  that  M.  Thierr/s  hypothesis, 
countenanced  as  it  is  by  M.  Guizot,  will  not  afford  a  com- 
plete explanation  of  the  history  of  France  between  Charles 
the  Fat  and  Hugh  Capet.    The  truth  is,  that  the  accidents  of 
personal  character  have  more  to  do  with  the  revolutions  of 
nations  than  either  philosophical  historians  or  democratic 
politicians  like  to  admit.     If  Eudes  and  Hugh  the  Great 
had  been  born  m  the  royal  line,  they  would  have  preserved 
lar  better  the  royal  power.     If  Charies  the  Simple  had  not 
raised  too  high  a  favorite  of  mean  extraction,  he  mi«rht  have 
retained  the  nobles  of  Lorraine  and  Champagne  in  their 
fidelity.      If  Adalberon,  archbishop  of  Rheims,  had  been 
loyal  to  the  house  of  Chariemagne,  that  of  Capet  would  not 
at  least  so  soon,  have  ascended  the  throne.    If  Louis  V  had 
lived  some  years,  and  left  a  son  to  inherit  the  lineal  ridiL 
the   more  precarious  claim  of   his  uncle  would  not  have 
undergone  a  disadvantageous  competition  with  that  of  a  vig- 
orous usurper.     M.  Gaudet  has  well  shown,  in  his  notice  on 
Kiclier,  that  the  opposition  of  Adelberon  to  Charles  of  Lor- 
raine was  wholly  on  personal  grounds.     No  hint  is  given  of 
any  national  hostility ;  but  whatever  of  national  approbation 
was  given  to  the  new  family,  and  doubtless  in   Neustrian 
l^rance  it  was  very  prevalent,  must  rather  be  ascribed  to 
then-  own  reputation  than  to  any  peculiar  antipathy  towards 
their  competitor.     Hugh  Capet,  it  is  recorded,  never  wore 
the  crown,  though  styling  himself  king,  and  took  care  to 
procure,  in  an  assembly  held  in  Paris,  the  election  of  his 
son  Kobert  to  succeed  hun;  an  example  which  was  followed 
tor  several  reigns. 


138 


THE  NORMANS. 


Notes  to 


ii:! 


A  late  Belgian  writer,  M.  Gerard,  in  a  spirited  little  work, 
*  La  Barbaric  Franque  et  la  Civilisation  Romaine  *  (Brux- 
elles,  1845),  admitting  the  theoiy  of  the  conflict  of  races, 
indignantly  repels  the  partisans  of  what  has  been  called  the 
Roman    element.      Thierry,  Michelet,    and    even    Guizot, 
are  classed  by  him  as  advocates  of  a  corrupted  race  of 
degenerate    provincials,   who    called    themselves    Romans, 
endeavoring  to  set  up  their  pretended  civilization  against  the 
free  and  generous  spirit  of  the  barbarians  from  whom  Europe 
has  derived  her  proudest  inheritance.     Avoiding  the  aristo- 
cratic arrogance  of  BoulainvilUers,  and  laughing  justly  at  the 
pretensions  of  modem  French  nobles,  if  any  such  there  are, 
which  I  disbelieve,  who  vaunt  their  descent  as  an  order  from 
the  race  of  Franks,  he  bestows  his  admiration  on  the  old 
Austrasian  portion  of  the  monarchy,  to  which,  as  a  Belgian, 
he  belongs.     But  in  his  persuasion  that  the  two  races  were 
in  distinct  opposition  to  each  other,  and  have  continued  so 
ever  since,  he  hardly  falls  short  of  ISIichelet. 

I  will  just  add  to  this  long  note  a  caution  to  the  reader, 
that  it  relates  only  to  the  second  period  of  the  Cariovingian 
kings,  that  from  888  to  987.  In  the  reigns  of  Louis  the 
Debonair  and  Charles  the  Bald  I  do  not  deny  that  the  desu:e 
for  the  separation  of  the  empire  was  felt  on  both  sides.  But 
this  separation  was  consummated  at  Verdun  in  843,  except 
that,  the  kingdom  of  Lorraine  being  not  long  afterwards  dis- 
membered, a  small  portion  of  the  modern  Belgium  fell  into 
that  of  France. 

Note  XIH.    Page  35. 

The  cowardice  of  the  French,  during  the  Norman  incur- 
sions of  the  ninth  century,  has  struck  both  ancient  and 
modem  writers,  considering  that  the  invaders  were  by  no 
means  numerous,  and  not  better  armed  than  the  inhabitants. 
No  one,  says  Paschasius  Radbert,  could  have  anticipated 
that  a  kingdom  so  powerful,  extensive,  and  populous,  would, 
have  been  ravaged  by  a  handful  of  barbarians.  (Mem.  de 
FAcad.  des  Inscr.  vol.  xv.  p.  639.)  Two  hundred  Normans 
entered  Paris,  in  865,  to  take  away  some  wine,  and  retired 
unmolested ;  their  usual  armies  seem  to  have  been  only  of  a 
few  hundreds.  (Sismondi,  vol.  iii.  p.  170.)  Michelet  even 
fencies  that  the  French  could  not  have  fought  so  obstmately 


Chap.  I. 


THE  NORMANS. 


139 


at  Fontenay  as  historians  relate,  on  account  of  the  effeminacy 
which  ecclesiastical  influence  had  produced.     This  is  rather 
an  extravagant  supposition.     But  panic  is  very  contagious, 
and  sometimes  falls  on  nations  by  no  means  deficient  in  gen- 
eral  courage.     It  is  to  be  remembered  that  the  cities,  even 
Pans,  were  not  fortified  (Mem.  de  I'Acad.  vol.  xvii.  p.  289)  • 
that  the  government  of  Charies  the  Bald  was  imbecHe;  that 
no  efforts  were  made  to  array  and  discipline  the  people ;  that 
the  feudal  polity  was  as  yet  incomplete  and  unorganized. 
i.an  it  be  an  excessive  reproach,  that  the  citizens  fled  from 
tiieir  dwellings,  or  redeemed  them  by  money  from  a  terrible 
toe  against  whoni  then-  mere  superiority  of  numbers  furnished 
no   security?      Every  instance   of    barbarous    devastation 
aggravated  the  general  timidity.     Aquitaine  was  in  such  a 
state  that  the  pope  removed  the  archbishop  of  Bordeaux  to 
Bourges,  because  his  province  was  entirely  wasted  by  the 
pagans.     (Sismondi,  vol.  iii.  p.  210.)     Never  was  France  in 
so  deplorable  a  condition  as  under  Charles  the  Bald ;  the 
Imty  seem  to  have  deserted  the  national  assemblies;  almost 
aU  his  capitularies  are  ecclesiastical;  he  was  the  mere  ser- 
vant of  his  bishops.     The  clergy  were  now  at  then-  zenith ; 
r     .  /r     }^^''  supposed  that,  noble  families  becoming 
extinct  (for  few  names  of  la^inen  appear  at  this  time  in  his^ 
tory),  the  Church,  which  always  gained  and  never  lost,  took 
the  ascendant  m  national  councils.     And  this  contributed  to 
render  the  nation  less  wariike,  by  depriving  it  of  its  natural 
leaders.     It  might  be  added,  according  to  Sismondi's  very 
probable    suggestion,   that  the   faith  in   rehcs,  encoura-ed 
by  the  Church,  lowered  the  spirit  of  the  people.     (Vol  iii 
passim;    mchelet,  vol.  ii.  p.  120,  et  post.)      And  it  is  a 
quality  of  superstition  not  to  be  undeceived  by  experience, 
borne  have  attributed  the  weakness  of  France  at  this  period 
to  the  bloody  battle  of  Fontenay,  in  841.     But  if  we  should 
suppose  the  loss  of  the  kingdom  on  that  day  to  have  been 
forty  thousand,  which  is  a  high  reckoning,  this  would  not 
explam  the  want  of  resistance  to  the  Normans  for  half  a 
century.  ^^ 

The  beneficial  effect  of  the  cession  of  Normandy  has  hard- 
ly been  put  by  me  in  sufficiently  strong  terms.  No  measure 
was  so  conducive  to  the  revival  of  France  from  her  abase- 
ment  m  the  nmth  century.  The  Normans  had  been  dis- 
tmgmshed  by  a  peculiar  ferocity  towards  priests ;  yet  when 


140 


THE  NORMANS. 


Notes  to 


Chaf.  i. 


THE    CAPETS. 


141 


their  conversion  to  Christianity  was  made  the  condition  of 
their  possessing  Normandy,  they  were  ready  enough  to  com- 
ply, and  m  another  generation  became  among  the  most 
devout  of  the  French  nation.  It  may  be  observed  that  pagan 
superstitions,  though  they  often  take  great  hold  on  the  imag- 
ination, seldom  influence  the  conscience  or  sense  of  duty; 
they  are  not  definite  or  moral  enough  for  such  an  effect, 
which  belongs  to  positive  religions,  even  when  false.  And  as 
their  eflScacy  over  the  imagination  itself  is  generally  a  good 
deal  dependent  on  local  associations,  it  is  likely  to  be  weak- 
ened by  a  change  of  abode.  But  a  more  certain  explana- 
tion of  the  new  zeal  for  Christianity  which  spining  up  among 
the  Nonnans  may  be  found  in  the  important  circumstance, 
that,  having  few  women  with  them,  they  took  wives  (they 
had  made  widows  enough)  from  the  native  inhabitants. 
These  taught  their  own  faith  to  their  children.  They  taught 
also  their  own  language ;  and  in  no  other  manner  can  we  so 
well  account  for  the  rapid  extinction  of  that  of  Scandinavia 
in  that  province  of  France. 

Sismondi  discovers  two  causes  for  the  determination  of  the 
Normans  to  settle  peaceably  in  the  territory  assigned  to 
them ;  the  devastation  which  they  had  made  along  the  coast, 
rendering  it  difiicult  to  procure  subsistence ;  and  the  growing 
spirit  of  resistance  in  the  French  nobility,  who  were  fortify- 
ing their  castles  and  training  their  vassals  on  every  side. 
But  we  need  not  travel  far  for  an  inducement  to  occupy  the 
fine  lands  on  the  Seine  and  Eure.  Piracy  and  plunder  had 
become  their  resource,  because  they  could  no  longer  find  sub- 
sistence at  home ;  they  now  found  it  abundantly  in  a  more 
genial  climate.  They  would  probably  have  accepted  the 
game  terms  fifty  years  before. 

Note  XIV.    Page  36. 

This  has  been  put  in  the  strongest  language  by  Sismondi, 
Thierry,  and  other  writers.  Guizot,  however,  thinks  that  it 
has  been  urged  too  far,  and  that  the  first  four  Capetians  were 
not  quite  so  insignificant  in  their  kingdom  as  has  been 
asserted.  "When  we  look  closely  at  the  documents  and 
events  of  their  age,  we  see  that  they  have  played  a  more 
important  part,  and  exerted  more  influence,  than  is  ascribed 
to  them.     Read  their  history;  you  will  see  them  interfere 


u 


incessantly,  whether  by  arms  or  by  negotiation,  in  the  affairs 
of  the  county  of  Burgundy,  of  the  county  of  Anjou,  of  the 
county  of  Maine,  of  the  duchy  of  Guienne ;  in  a  word,  in 
the  affairs  of  all  their  neighbors,  and  even  of  very  distant 
fiefs.     No  other  suzerain  certainly,  except  the  dukes  of  Nor- 
mandy, who  conquered  a  kingdom,  took  a  part  at  that  time 
80  frequently,  and  at  so  great  a  distance  from  the  centre  of 
his  domains.     Turn  over  the  letters  of  contemporaries,  for 
example  those  of  Fulbert  and  of  Yves,  bishops  of  Chartres, 
or  those  of  William  III.  duke  of  Guienne,  and  many  others, 
you   will  see  that    the  king  of  France  was  not  without 
importance,  and  that  the  most  powerful  suzerains  treated  him 
with  great  deference."     He  appeals  especially  to  the  extant 
act  of  the  consecration  of  Philip  I.,  in  1059,  where  a  duke 
of  Guienne  is  mentioned  among  the  great  feudataries,  and 
asks  whether  any  other  suzerain  took  possession  of  his  rank 
with  so  much  solemnity.    (Civilisation  en  France,  Lejon  42.) 
"  As  there  was  always  a  country  called  France  and  a  French 
people,  so  there  was  always  a  king  of  the  French ;  very  far 
indeed  from  ruling  the  country  called  his  kingdom,  and  with- 
out influence  on  the  greater  part  of  the  population,  but  yet  no 
foreigner,  and  with  his  name  inscribed  at  the  head  of  the 
deeds  of   all  the  local   sovereigns,  as  one  who  was  their 
superior,  and  to  whom  they  owed  several  duties."     (Lepon 
43.)     It  may  be  observed  also  that  the  Church  recognized 
no  other  sovereign ;   not  that  all  the  bishops  held  of  him, 
for  many  depended  on  the  great  fiefs,  but  the  ceremony  of 
consecration  gave  him  a  sort  of  religious  character,  to  which 
no  one  else  aspired.    And  Suger,  the  politic  minister  of  Louis 
VI.  and  Louis  VII.,  made  use  of  the  bishops  to  maintain  the 
royal  authority  in   distant  provinces.     (Leyon   42.)     This 
nevertheless  rather  proves  that  the  germ  of  future  power 
was  in  the  kingly  office  than  that  Hugh,  Robert,  Henry,  and 
Philip   exercised  it.      The  most    remarkable   instance  of 
authority  during  their  reigns  was  the  war  of  Robert  in  Bur 
gundy,  which  ended  in  his  bestowing  that  great  fief  on  his 
brother.     I  have  observed  that  the  duke  of  Guienne  sub- 
scribes a  charter  of  Henry  I.  in  1051.    (Rec.  des  Historiens, 
vol.  xi.  p.  589.)    Probably  there  are  other  instances.    Henry 
uses  a  more  pompous  and  sovereign    phraseology  in  hw 
diplomas  than  his  father;    the  young  lion  was  trying  his 
roar. 


142 


THE  KNIGHTS  TEMPLARS. 


NOTBS    TO 


Chap.  I. 


THE  KNIGHTS  TEMPLARS. 


143 


I  concur  on  the  whole  in  thinking  with  M.  Guizot,  that  in 
shunning  the  language  of  uninformed  historians,  who  spoke 
of  all  kings  of  France  as  equally  supreme,  it  had  become 
usual  to  depreciate  the  power  of  the  first  Capetians  rather 
too  much.  He  had,  however,  to  appearance,  done  the  ?ame 
a  few  years  before  the  delivery  of  these  lectures,  in  1829  ; 
for  in  his  Collection  of  Memoirs  (vol.  i.  p.  6,  published  in 
1825),  he  speaks  rather  differently  of  the  first  four  reigns :  — 
"  Cest  Tepoque  oil  le  royaume  de  France  et  la  nation  fran- 
9aise  n'ont  existe,  k  vrai  dire,  que  de  nom."  He  observes, 
also,  that  the  chroniclers  of  the  royal  domain  are  peculiarly 
meagre,  as  compared  with  those  of  Normandy. 

Note  XV.    Page  56. 

It  may  excite  surprise  that  in  any  sketch,  however  slight, 
of  the  reign  of  Philip  IV.,  no  mention  should  be  made  of  an 
event,  than  which  none  in  his  life  is  more  celebrated  —  the 
fate  of  the  Knights  Templars.  But  the  truth  is,  that  when 
I  first  attended  to  the  subject,  almost  forty  years  since,  I 
could  not  satisfy  my  mind  on  the  disputed  problem  as  to  the 
guilt  imputed  to  that  order,  and  suppressed  a  note  which  I 
had  written,  as  too  inconclusive  to  afford  any  satisfactory  deci- 
sion. Much  has  been  published  since  on  the  Continent,  and 
the  question  has  assumed  a  different  aspect ;  though,  perhaps, 
I  am  not  yet  more  prepared  to  give  an  absolutely  determi- 
nate judgment  than  at  first. 

The  general  current  of  popular  writers  in  the  eighteenth 
century  was  in  favor  of  the  innocence  of  the  Templars ;  in 
England  it  would  have  been  almost  paradoxical  to  doubt  of 
it  The  rapacious  and  unprincipled  character  of  Philip,  the 
submission  of  Clement  V.  to  his  will,  the  apparent  incredi- 
bility of  the  charges  from  their  monstrousness,  the  just  prej- 
udice against  confessions  obtained  by  torture  and  retracted 
afterwards  —  the  other  prejudice,  not  always  so  just,  but  in 
the  case  of  those  not  convicted  on  fair  evidence  deserving  a 
better  name  in  favor  of  assertions  of  innocence  made  on  the 
scaffold  and  at  the  stake  —  created,  as  they  still  preserve,  a 
strong  willingTiess  to  disbelieve  the  accusations  which  came 
so  suspiciously  before  us.  It  was  also  often  alleged  that  con- 
temporary writers  had  not  given  credit  to  these  accusations, 
and  that  in  countries  where  the  inquiry  had  been  less  iniq- 


uitously  conducted  no  proof  of  them  was  brought  to  light 
Of  these  two  grounds  for  acquittal,  the  former  is  of  little 
value  in  a  question  of  legal  evidence,  and  the  latter  is  not 
quite  so  fully  established  as  we  could  desire. 

Raynouard,  who  might  think  himself  pledged  to  the  vin- 
dication of  the  Knights  Templars  by  the  tragedy  he  had 
written  on  their  fate,  or  at  least  would  naturally  have  thus 
imbibed  an  attachment  to  their  cause,  took  up  their  defence 
in  a  History  of  the  Procedure.     This  has  been  reckoned  the 
best  work  on  that  side,  and  was  supposed  to  confirm  their 
innocence.     The  question  appears  to  have  assumed  some- 
thing of  a  party  character  in  France,  as  most  history  does ; 
the  honor  of  the  crown,  and  still  more  of  the  church,  had 
advocates  ;  but  there  was  a  much  greater  number,  especially 
among  men  of  letters,  who  did  not  like  a  decision  the  worse 
for  being  derogatory  to  the  credit  of  both.     Sismondi,  it  may 
easily  be  supposed,  scarcely  treats  it  as  a  question  with  two 
sides ;  but  even  Michaud,  the  firm  supporter  of  church  and 
crown,  in  his  History  of  the  Crusades,  takes  the  favorable 
view.     M.  Michelet,  however,  not  under  any  bias  towards 
either  of  these,  and  manifestly  so  desirous  to  acquit  the 
Templars  that  he  labors  by  every  ingenious  device  to  elude 
or  explain  away  the  evidence,  is  so  overcome  by  the  force 
and  number  of  testimonies,  that  he  ends  by  admitting  so 
much  as  leaves  little  worth  contending  for  by  their  patrons. 
He  is  the  editor  of  the  "  Proces  des  Tcmpliers,"  in  the  "  Doc- 
umens  Inedits,  1841,"  and  had  previously  given  abundant  evi- 
dence of  his  acquaintance  with  the  subject  in  his  "  Histoire  de 
France,"  vol.  iv.  p.  243,  345.     (Bruxelles  edition.) 

But  the  great  change  that  has  been  made  in  this  process, 
as  carried  forward  before  the  tribunal  of  public  opinion  from 
age  to  age,  is  owmg  to  the  production  of  fresh  evidence. 
The  deeply-learned  orientalist,  M.  von  Hammer,  now  count 
Hammer  Purgstall,  in  the  sixth  volume  of  a  work  published  at 
Vienna  in  1818,  with  the  title  "Mines  de  I'Orient  exploitees,"  ^ 
inserted  an  essay  in  Latm,  "Mysterium  Baphometis  Revela- 
tum,  seu  Fratres  Militiae  Templi  qua  Gnostici  et  quidem 
Ophiani,  Apostasice,  Idolodulise,  et  Impuritatis  convicti  per 
ipsa  eorum  Monumenta."  This  is  designed  to  establish  the 
identity  of  tlie  idolatry  ascribed  to  the  Templars  with  that  of 

*  I  give  this  French  title,  but  there  is    memoirs  are  either  in  that  language  or 
also  a  German  title-page,  as  most  of  the    in  Latin 


144 


THE  KNIGHTS  TEMPLARS. 


Notes  to 


the  ancient  Gnostic  sects,  and  especially  with  those  denomi- 
nated Ophites,  or  worshippers  of  the  serpent ;  and  to  prove 
also  that  the  extreme  impurity  which  forms  one  of  the  revolt- 
ing and  hardly  credible  charges  adduced  by  Philip  IV.  ia 
similar  in  all  its  details  to  the  practice  of  the  Gnostics. 

This  attack  is  not  conducted  with  all  the  coolness  which 
bespeaks  impartiality ;  but  the  evidence  is  startling  enough 
to  make  refutation  apparently  difficult.  The  first  part  of  the 
proof,  which  consists  in  identifying  certain  Gnostic  idols,  or, 
as  some  suppose,  amulets,  though  it  comes  much  to  the  same, 
with  the  description  of  what  are  called  Baphometic,  in  the 
proceedings  against  the  Templars,  published  by  Dupuy,  and 
since  in  the  "  Documens  Inedits,"  is  of  itself  sufficient  to  raise 
a  considerable  presumption.  We  find  the  word  metis  con- 
tinually on  these  images,  of  which  Von  Hammer  is  able  to 
describe  twenty-four.  Baphomet  is  a  secret  word  ascribed 
to  the  Templars.  But  the  more  important  evidence  is  that 
furnished  by  the  comparison  of  sculptures  extant  on  some 
Gnostic  and  Ophitic  bowls  with  those  in  churches  built  by 
the  Templars.  Of  these  there  are  many  in  Germany,  and 
some  in  France.  Von  Hammer  has  examined  several  in  the 
Austrian  dominions,  and  collected  accounts  of  others.  It  is 
a  striking  fact  that  in  some  we  find,  concealed  from  the  com- 
mon observer,  images  and  symbols  extremely  obscene ;  and 
as  these,  which  cannot  here  be  more  particularly  adverted  to, 
betray  the  depravity  of  the  architects,  and  cannot  be  explained 
away,  we  may  not  so  much  hesitate  as  at  first  to  believe  that 
impiety  of  a  strange  kind  was  mingled  up  with  this  turpi- 
tude. The  presumptions,  of  course,  from  the  absolute  iden- 
tity of  many  emblems  in  churches  with  the  Gnostic  supersti- 
tions in  their  worst  form,  grow  stronger  and  stronger  by 
multiplication  of  instances ;  and  though  coincidence  might  be 
credible  in  one,  it  becomes  infinitely  improbable  in  so  many. 
One  may  here  be  mentioned,  though  among  the  slightest 
resemblances.  The  Gnostic  emblems  exhibit  a  peculiar  form 
of  cross,  T ;  and  this  is  common  in  the  churches  built  by  the 
Templars.  But  the  freemasons,  or  that  society  of  architects 
to  whom  we  owe  so  many  splendid  churches,  do  not  escape 
M.  von  Hammer's  ill  opinion  better  than  the  Templars. 
Though  he  conceives  them  to  be  of  earlier  origin,  they  had 
drunk  at  the  same  foul  spring  of  impious  and  impure  Gnos- 
ticism.    It  is  rather  amusing  to  compare  the  sympathy  of 


Chap.  I. 


THE  KNIGHTS  TEMPLARS. 


145 


OUT  own  modem  ecclesiologists  with  those  who  raised  the 
mediasval  cathedrals,  their  impUcit  confidence  in  the  piety 
which  ennobled  the  conceptions  of  these  architects,  with  the 
following  passage  in  a  memoir  by  M.  von  Hammer,  "  Sur 
deux  Coffrets  Gnostiques  du  moyen  Age,  du  cabinet  de  M. 
le  due  de  Blacas.     Paris,  1832." 

"  Les  architectes  du  moyen  age,  inities  dans  tous  les  my- 
steres  du  Gnosticisme  le  plus  deprave,  se  plaisaient  a  en  mul- 
tiplier les  symboles  au  dehors  et  au  dedans  de  leurs  eglises ; 
symboles  dont  le  veritable  sens  n'etait  entendu  que  des  adeptes, 
et  devaient  rester  voiles  aux  yeux  des  profanes.  Des  figures 
scandaleuses,  semblables  a  celles  des  eglises  de  Montmorillon 
et  de  Bordeaux,  se  retrouvent  sur  les  eglises  des  Terapliers 
k  Eger  en  Boheme,  h  Schongrabern  en  Autriche,  £i  Fornuovi 
pres  de  Parme,  et  en  d'autres  lieux;  nommement  le  chien 
(canis  aut  gattus  niger)  sur  les  bas-reliefs  de  Teglise  gnostique 
d'Erfurt."  (p.  9.)  The  Stadinghi,  heretics  of  the  thirteenth 
century,  are  charged,  in  a  bull  of  Gregory  IX.,  with  exactly 
the  same  profaneness,  even  including  the  black  cat,  as  the 
Templars  of  the  next  century.  This  is  said  by  von  Hammer 
to  be  confirmed  by  sculptures,     (p.  7.) 

The  statutes  of  the  Knights  Templars  were  compiled  in 
1128,  and,  as  it  is  said,  by  St.  Bernard.  They  have  been 
published  in  1840  from  manuscripts  at  Dijon,  Rome,  and 
Paris,  by  M.  Maillard  de  Chambure,  Conservateur  des  Ar- 
chives de  Bourgogne. 

The  title  runs  —  "  Regies  et  Statuts  secrets  des  Templiers." 
But  as  the  French  seems  not  so  ancient  as  the  above  date, 
they  may,  perhaps,  be  a  translation.  It  will  be  easily  sup- 
posed that  they  contain  nothing  but  what  is  pious  and  austere. 
The  knights,  however,  in  their  intercourse  with  the  East, 
fell  rapidly  into  discredit  for  loose  morals  and  many  vices ; 
so  that  Von  Hammer  rather  invidiously  begins  his  attack 
upon  them  by  arguing  the  a  priori  probability  of  what  he  is 
about  to  allege.  Some  have  accordingly  endeavored  to  steer 
a  middle  course ;  and,  discrediting  the  charges  brought  gener- 
ally against  the  order,  have  admitted  that  both  the  vice  and 
the  irreligion  were  truly  attributed  to  a  great  number.  But 
this  is  not  at  all  the  question  ;  and  such  a  pretended  compro- 
mise is  nothing  less  than  an  acquittal.  The  whole  accusa- 
tions which  destroyed  the  order  of  the  Temple  relate  to  its 
secret  rites,  and  to  the  mode  of  initiation.     If  these  were  not 

VOL.  I.  10 


146 


JOAN  OF  ARC. 


Notes  to 


Chap.  L 


JOAN  OF  ARC. 


147 


stained  by  the  most  infamous  turpitude,  the  unhappy  knights 
perished  innocently,  and  the  guilt  of  their  death  lies  at  the 
door  of  Philip  the  Fair. 

The  novel  evidence  furnished  by  sculpture  against  the 
Templars  has  not  been  universally  received.  It  was  early 
refuted,  or  attempted  to  be  refuted,  by  Raynouard  and  other 
French  writers.  "  II  est  reconnu  aujourd'hui,  meme  en  Alle- 
magne,"  says  M.  Chambure,  editor  of  the  Regies  et  Statuts 
secrets  des  Templiers,  "  que  le  pr(^tendu  culte  baphometique 
n'est  qu'une  chimere  de  ce  savant,  fondee  sur  un  erreur  de 
numismatique  et  d'architectonographie."  (p.  82.)  As  I  am 
not  competent  to  form  a  decisive  opinion,  I  must  leave  this 
for  the  more  deeply  learned.  The  proofs  of  M.  von  Ham- 
mer are  at  least  very  striking,  and  it  is  not  easy  to  see  how 
they  have  been  overcome.  But  it  is  also  necessary  to  read 
the  answer  of  Raynouard  in  the  "  Journal  des  Savans  "  for 
1819,  who  has  been  partially  successful  in  repelling  some  of 
his  opponent's  arguments,  though  it  appeared  to  me  that  he 
had  left  much  untouched.  It  seems  that  the  architectural 
evidence  is  the  most  positive,  and  can  only  be  resisted  by 
disproving  its  existence,  or  its  connection  with  the  Free- 
masons and  Templars.  [1848.] 

Note  XVI.    Page  88. 

I  have  followed  the  common  practice  of  translating  Jeanne 
d*Arc  by  Joan  of  Arc.  It  has  been  taken  for  granted  that 
Arc  is  the  name  of  her  birthplace.     Southey  says, — 

"  She  thought  of  Arc,  and  of  the  dingled  brook 
Whose  waves,  oft  leaping  in  their  crajjgy  course, 
Made  dance  the  low-hung  willow's  dripping  twigs  ; 
And,  where  it  spread  into  a  glassy  lake, 
Of  that  old  oak,  which  on  the  smooth  expanse 
Imaged  its  hoaiy  mossy-mantled  boughs." 

And  in  another  place,  — 


"her  mind's  eye 


Beheld  Domr^my  and  the  plains  of  Arc." 

It  does  not  appear,  however,  that  any  such  place  as  Arc 
exists  in  that  neighborhood,  though  there  is  a  town  of  that 
name  at  a  considerable  distance.  Joan  was,  as  is  known,  a 
native  of  the  village  of  Domremy  in  Lorraine.  The  French 
writers  all  call  her  Jeanne  d'Arc,  with  the  exception  of  one, 


I 


t 


M.  Michelet  (vii.  62),  who  spells  her  name  Dave,  which  in  a 
person  of  her  birth  seems  more  probable,  though  I  cannot 
axicount  for  the  uniform  usage  of  an  apostrophe  and  capital 
letter. 

I  cannot  pass  Southe/s  "  Joan  of  Arc  "  without  rendering 
homage  to  that  early  monument  of  his  geniu?,  which,  per- 
haps, he  rarely  surpassed.  It  is  a  noble  epic,  never  languid, 
and  seldom  diffuse ;  full  of  generous  enthusia.'^m,  of  magnifi- 
cent inventions,  and  with  a  well-constructed  foble,  or  rather 
selection  of  history.  Michelet,  who  thinks  the  story  of  the 
Maid  unfit  for  poetry,  had  apparently  never  read  Southey ; 
but  the  author  of  an  article  in  the  "  Biographic  Universelle  " 
says  very  well,  — "  Le  poeme  de  M.  Southey  en  Anglais, 
intitule  *  Joan  of  Arc,'  est  la  tentative  la  plus  heureuse  que 
les  Muses  aient  faites  jusqu'ici  pour  celebrer  Theroine  d'Or- 
leans.  C'est  encore  une  des  singularites  de  son  histoire  de 
voir  le  genie  de  la  poesie  Anglaise  inspirer  de  beaux  vers  en 
son  honneur,  tandis  que  celui  de  la  poesie  Fran9aise  a  et^ 
jusqu'ici  rebelle  h  ceux  qui  ont  voulu  la  clianter,  et  n*a 
favorise  que  celui  qui  a  outrage  sa  memoire."  If,  however, 
the  muse  of  France  has  done  little  justice  to  her  memory,  it 
has  been  reserved  for  another  Maid  of  Orleans,  as  she  has 
well  been  styled,  in  a  different  art,  to  fix  the  image  of  the 
first  in  our  minds,  and  to  combine,  in  forms  only  less  en- 
during than  those  of  poetry,  the  purity  and  in.spu-ation  with 
the  unswerving  heroism  of  the  inmiortal  Joan. 


148 


STATE  OF  ANCIENT  GERMANY.    Chap.  U.  Part  I 


CHAPTER   n. 

ON  THE  FEUDAL  SYSTEM,  ESPECIALLY  IN  PRANCE. 


PART  I. 


State  of  Ancient  Germany— Effects  of  the  Conquest  of  Gaul  by  the  Franks  — Ten- 
ures of  Land  -  Distinction  of  Laws  -  Constitution  of  the  ancient  Snk  MonSl 
tiirJ'^r''''^  E^^tablishment  of  Feudal  Tenures  -  Principles  o^ a  FeuSI 
Relation  — Ceremonies  of  Homage  and  investiture  — Military  Service- Feuda 
£w-Boots  '  ^^'  ^^'^"^»^'P'  &c. -Different  specie7of  Fii^-SuS 


Political 
state  of 
ancient 
Germany 


Germany,  in  the  age  of  Tacitus,  was  divided  among  a 
number  of  independent  tribes,  differing  gi'eatly  in 
population  and  importance.  Their  country,  over- 
spread with  forests  and  morasses,  afforded  no 
large  proportion  of  arable  land.  Nor  did  they 
ever  occupy  the  same  land  two  years  in  succession,  if  what 
Cajsar  tells  us  may  be  believed,  that  fresh  allotments  were 
annually  made  by  the  magistrates.^  But  this  could  not  have 
been  an  absolute  abandonment  of  land  once  cultivated,  which 
Horace  ascribes  to  the  migratory  Sc>^hians.  The  Germans 
had  fixed  though  not  contiguous  dwellings ;  and  the  inhabi- 
tants of  the  gau  or  township  must  have  continued  to  till  the 
same  fields,  though  it  might  be  with  varying  rights  of  sepa- 
rate property.^  They  had  kings  elected  out  of  particular 
tamihes ;  and  other  chiefs,  both  for  war  and  administration  of 
justice,  whom  merit  alone  recommended  to  the  public  choice 
But  the  power  of  each  was  greatly  limited ;  and  the  deci^ 
sion  of  all  leadmg  questions,  though  subject  to  the  previous 


I  Magistratas  ac  principes  in  annos 
smgulos  gentibus  cognationibusque  ho- 
minum,  qui  una  coierunt,  quantum  iis, 
et  quo  loco  visum  est,  attribuunt  agri,  at- 
que  anno  post  alio  transire  cogunt.  Cas- 
Bar,  1.  vi.  Tacitus  confirms  this  :  Arva 
per  annos  mutant.    De  Mor.  Germ.  c. 


2  Caesar  has  not  written,  probably, 
with  accurate  knowledge,  when  he  says, 
Vita  omnis  in  venationibus  et  studiis  rei 
xnilitaris  consiatit Agricultur« 


non  student,  nee  quisquam  agri  modum 
certum  aut  fines  proprios  habct.  De 
Bello  GaUico.  1.  vi.  These  expressions 
may  bo  taken  so  as  not  to  contradict 
Tacitus.  But  Luden,  who  had  exam- 
ined the  ancient  history  of  his  coun- 
ty with  the  most  per:*cvcring  diligence, 
observes  that  Capsar  knew  nothing  of  the 
Germans,  except  what  he  had  collected 
concerning  the  Suevi  or  the  Marcomanni. 
Geschichte  der  Doutachea  Volkcr,  I.  48L 


Feudal  System.    PARTITION  OF  CONQUERED  LANDS.         14^ 

deliberation  of  the  chieftains,  sprung  from  the  free  voice  of  a 
popular  assembly.^     The  principal  men,  however,  of  a  Ger- 
man  tribe  fuUy  partook  of  that  estunation  which  is  alwavs 
the  reward  of  valor  and  commonly  of  birth.      They  were 
surrounded  by  a  cluster  of  youths,  the  most  gaUant  and  am- 
bitious of  the  nation,  their  pride  at  home,  their  protection  in 
the  field  ;  whose  ambition  was  flattered,  or  gratitude  concilia^ 
ted,  by  such  presents  as  a  leader  of  barbarians  could  confer 
These  were  the  institutions  of  the  people  who  overthrew  the 
empire  of  Rome,  congenial  to  the  spirit  of  infant  societies, 
oad  such  as  travellers  have  found  among  nations  in  the  sami 
stage  of  manners  throughout  the  world.     And  although,  in 
the  lapse  of  lour  centuries  between  the  ages  of  Tacitus  and 
Uovis,  some  change  was  wrought  by  long  intercourse  with 
the  liomans,  yet  the  foundations  of  their  poUtical  system 
were  unshaken.    If  the  Salic  laws  were  in  the  main  drawn 
up  before  the  occupation  of  Gaul  by  the  Franks,  as  seems 
me  better  opinion,  it  is  manifest  that  lands  were  held  by  them 
m  determmate  several  possession ;  and  in  other  respects  it  is 
impossible  that  the  manners  described  by  Tacitus  should  not 
nave  undergone  some  alteration.^ 

When  these  tribes  from  Germany  and  the  neighboring 
countries  poured  down  upon  the  empire,  and  began  p  ,.,. 
to  form  permanent  settlements,  they  made  a  par- of  landTin 
tition  of  the  lands   in   the  conquered   provinces  pS'cS*^ 
between  themselves   and  the   origmal  possessors. 
Ihe  Burgundians  and  Visigoths  took  two  thirds  of  then-  re- 
spective conquests,  leaving  the  remainder  to  the  Roman  pro- 
prietor.    ii.ach  Burgundian  was  quartered,  under  the  gentle 
name  of  guest,  upon  one  of  the  former  tenants,  whose  reluc- 
^,   8  ^Ji:^  ^^  confined  him  to  the  smaller  portion  of  his 
estate.      The  Vandals  in  Africa,  a  more  furious  race  of  plun- 
derers, seized  all  the  best  lands.^    The  Lombai-ds  of  Italy 

>  De  minoribus  rebus  principes  consul- 
tant, de  majoribus  omnes ;  ita  tamen,  ut 
ea  quoque,  quorum  penes  plebem  arbi- 
trium  est  apud  principes  pertractentur. 
Tac  de  Mor.  Germ.  c.  xi.  AcidaUus  and 
Oroti us  contend  for  pratrartentur :  which 
would  be  neater,  but  the  same  sense  ap- 
pears  to  be  conveyed  by  the  common 
reading.  ^  "^uiuu 

-  [Note  I.] 

»  Leg.  Burgund.  c.  64,  65.  Sir  F.  Pal- 
gnive  has  produced  a  passage  from  the 
Theodosian  code,  vii.  ^  6,  which  illus- 


trates this  use  of  the  word  hospes.  It 
was  given  to  the  military  quartered  up- 
on the  inhabitants  anywhere  in  the  em- 
pire, and  thus  transferred  by  analogy  to 
the  barbarian  occupants.  It  was  need- 
less, I  should  think,  for  him  to  prove 
that  these  acquisitions,  "  better  consid- 
ered as  allodial  laws,"  did  not  contain  the 
germ  of  feudality.  •'  There  is  no  Gothic 
feudality  unless  the  parties  be  connected 
by  the  mutual  bond  of  vassalage  and 
seigniory."  Eng.  Commonw.  i.  600. 
*  Procopius  de  BeUo  Vandal.  1. 1,  c.  6 


150 


ALODIAL  AND  SALIC  LANDS.     Chap.  U.  Part  L 


took  a  third  part  of  the  produce.  We  cannot  discover  any 
mention  of  a  similar  arrangement  in  the  laws  or  history  of 
the  Franks.  It  is,  however,  clear  that  they  occupied,  by 
public  allotment  or  individual  pillage,  a  great  portion  of  the 
lands  of  France.^ 

The  estates  possessed  by  the  Franks  as  their  property 
Alodial  and  Were  termed  alodial ;  a  word  which  is  sometimes 
Salic  lands,  restricted  to  such  as  had  descended  by  inheritance.* 
These  were  subject  to  no  burden  except  that  of  public  defence. 
They  passed  to  all  the  children  equally,  or,  in  their  failure, 
to  the  nearest  kindred.^  But  of  these  alodial  possessions 
there  was  a  particular  species,  denominated  Salic,  from  which 
females  were  expressly  excluded.  What  these  lands  were, 
and  what  was  the  cause  of  the  exclusion,  has  been  much 
disputed.  No  solution  seems  more  probable  than  that  the 
ancient  lawgivers  of  the  Sahan  Franks  prohibited  females 
from  inheriting  the  lands  assigned  to  the  nation  upon  its 
conquest  of  Gaul,  both  in  compliance  with  their  ancient 
usages,  and  in  order  to  secure  the  military  service  of  every 
proprietor.     But  lands  subsequently  acquired  by  purchase  or 


1  [Note  II.] 

*  Alodial  lands  are  commonly  opposed 
to  beneficiary  or  feudal ;  the  former  being 
strictly  proprietary,  while  the  latter  de- 
pended upon  a  superior.  In  this  sense 
the  word  is  of  continual  recurrence  in 
ancient  histories,  laws,  and  instruments. 
It  sometimes,  however,  bears  the  sense 
of  inheritance^  and  this  seems  to  be  its 
meaning  in  the  fiimous  62nd  chapter  of 
the  Salic  law ;  do  Alodis.  Alodium  in- 
terdum  opponitur  comparato,  says  Du 
Cange,  in  formulis  vcteribus.  Hence, 
in  the  charters  of  the  eleventh  century, 
hereditary  fiefs  are  frequently  termed 
alodia.  Kecueil  des  Historiens  de  France, 
t.  xi.  preface.  Vaissctte,  Hist,  de  Lan- 
guedoc,  t.  ii.  p.  109. 

Alodium  has  by  many  been  derived 
from  All  and  oc/A,  property.  (Du  Cange, 
et  alii.)  But  M.  Guizot,  with  some  posi- 
tiveness,  brings  it  from  loos^  lot;  thus 
confining  the  word  to  lands  acquired  by 
lot  on  the  conquest.  But  in  the  first 
place  this  assumes  a  regular  partition  to 
have  been  made  by  the  Franks,  which 
he,  in  another  place,  as  has  been  seen, 
does  not  acknowledge  ;  and  secondly, 
Alodium^  or,  in  its  earlier  form,  Alodis, 
is  used  for  all  hereditary  lands.  (See 
Grimm,  Deutsche  Rechts  AlterthUmer, 
p.  492.)  In  the  Orkneys,  where  feudal 
tenures  were  not  introduced,  the  alodial 
proprietor  is  called  an  udaller^  thus  lend- 


ing probability  to  the  former  derivation 
of  alod;  since  it  is  only  an  inversion  of 
the  words  all  and  odk ;  but  it  seems  also 
to  corroborate  the  notion  of  Luden,  as  it 
had  been  of  Leibnitz,  that  the  word  adel 
or  ethel,  applied  to  designate  the  nobler 
class  of  Germans,  had  originally  the  same 
sense ;  it  distinguished  absolute  or  alo- 
dial property  from  that  which,  though 
belonging  to  freemen,  was  subject  to 
some  conditions  of  dependency.  (Gesch. 
des  Deutschen  Volkes,  vol.  i.  p.  719.) 

The  word  sors,  which  seems  to  have 
misled  several  writers,  when  applied  to 
land  means  only  an  integral  patrimony, 
as  it  means  capital  opposed  to  interest 
when  applied  to  money.  It  is  common 
in  the  civil  law,  and  is  no  more  than  the 
Greek  /cA//pof ;  but  it  had  been  peculiarly 
applied  to  the  lands  assigned  by  the 
Romans  to  the  soldiery  after  a  conquest, 
which  some  suppose,  I  know  not  on 
what  evidence,  to  have  been  by  lot. 
(Du  Cange,  voc.  Sors.)  And  hence  this 
term  was  most  probably  adopted  by  the 
barbarians,  or  rather  those  who  rendered 
their  laws  into  Latin.  If  the  Teutonic 
word  loos  was  sometimes  used  for  a 
mansus  or  manor,  as  M.  Guizot  informs 
us,  it  seems  most  probable  that  this  waa 
a  literal  tninslation  of  jorj,  bearing  with 
it  the  secondary  sense. 

3  Leg.  Salicae,  c.  62. 


Feudal  System.      ALODIAL  AND  SALIC  LANDS. 


151 


other  means,  though  equally  bound  to  the  public  defence, 
were  relieved  from  the  severity  of  this  rule,  and  presumed 
not  to  belong  to  the  class  of  Salic.^  Hence,  in  the  Ripuary 
law,  the  code  of  a  tribe  of  Franks  settled  upon  the  banks  of 
the  Rhine,  and  differing  rather  in  words  than  in  substance 
from  the  Salic  law,  which  it  serves  to  illustrate,  it  is  said  that 
a  woman  cannot  inherit  her  grandfather's  estate  (haireditas 
aviatica),  distinguishing  such  family  property  from  what  the 
father  might  have  acquired.^  And  Marculfus  uses  expressions 
to  the  same  effect.  There  existed,  however,  a  right  of  setting 
aside  the  law,  and  admitting  females  to  succession  by  testiS 
ment.  It  is  rather  probable,  from  some  passages  in  the 
Burgundian  code,  that  even  the  lands  of  partition  (sortes 
Burgundionum)  were  not  restricted  to  male  heirs.*    And  the 


1  By  the  German  customs,  women, 
though  treated  with  much  respect  and 
delicacy,  were  not  endowed  at  their 
marriage.  Dotem  non  uxor  marito,  sed 
maritus  uxori  confert.  Tacitus,  c.  18. 
A  similar  principle  might  debar  them  of 
inheritance  in  fixed  possessions.  Certain 
it  is  that  the  exclusion  of  females  was 
not  unfrequent  among  the  Teutonic 
nations.  We  find  it  in  the  laws  of  the 
Thuringians  and  of  the  Saxons;  both 
ancient  codes,  though  not  free  from  in- 
terpolation. Leibnitz,  Scriptorus  Kerum 
Brunswicensium,  t.  i.  p.  81  and  83. 
But  this  usage  was  repugnant  to  the 
principles  of  Roman  law,  which  the 
Franks  found  prevailing  in  their  new 
country,  and  to  the  natural  feeling  which 
leads  a  man  to  prefer  his  own  descend- 
ants to  collateral  heirs.  One  of  the  pre- 
cedents in  Marculfus  (I.  ii.  form.  12)  calls 
the  exclusion  of  females,  diuturua  et 
impia  consuetudo.  In  another  a  father 
addresses  his  daughter:  Omnibus  non 
habetur  incognitum,  quod,  sicut  lex 
Salica  coutinet,  de  rebus  meis,  quod  mihi 
ex  alode  parent U7n  meoriim  obvenii,  apud 
gcrmanos  tuos  filios  meos  minime  In  haj- 
reditato  succedere  poteras.  Formulae 
Marculfo  adjectaj,  49,  These  precedents 
are  supposed  to  have  been  compiled  about 
the  latter  end  of  the  seventh  century. 

The  opinion  expressed  in  the  text,  that 
the  terra  Salica,  which  females  could  not 
inherit,  was  the  land  acquired  by  the 
barbarians  on  their  first  conquest.  Is  con- 
finned  by  SLsmondi  (i.  196)  and  by  Gui- 
zot (Es.sais  sur  I'Uist.  de  France,  p.  94). 
M.  Guerard,  however,  the  learned  editor 
of  the  chartulary  of  Chartres  (Documens 
In^dits,  1840,  p.  22),  is  persuaded  that 
Salic  land  was  that  of  the  domain,  from 
sakij  the  hall  or  principal  residence,  as 


opposed  to  the  portion  of  the  estate 
which  was  occupied  by  tenants,  benefici- 
ary or  servile.  This,  he  says,  he  has 
proved  in  another  work,  which  I  have 
not  seen.  Till  I  have  done  so,  much 
doubt  remains  to  me  as  to  this  explana- 
tion. Montesquieu  had  already  started 
the  same  theory,  which  Guizot  justly,  as 
it  seems,  calls  "incomplete  et  hypoth6- 
tique."  Besides  other  objections,  it 
seems  not  to  explain  the  manifest  iden- 
tity between  the  terra  Salica  and  the 
hcereditas  aviatica  of  the  Ripuarian  law, 
or  the  alodis  parentum  of  Marculfus.  I 
ought,  however,  to  mention  a  remark  of 
Grimm,  ^  that,  throughout  the  Frank 
domination,  German  countries  made  use 
of  the  words  terra  Salica.  In  them  it 
could  not  mean  lands  of  partition  or 
assignment,  but  mere  alodia.  And  he 
thinks  that  it  may,  in  most  cases,  be  in- 
terpreted of  the  terra  dominicalis.  (Deut- 
sche llcchts  AlterthUmer,  p.  493.) 

M.  Fauriel  maintains  (Hist,  de  la  Gaule 
Mcridion.  ii.  18)  that  the  Salic  lands 
were  beneficiary,  as  opposed  to  the  alo- 
dial. But  the  "haereditas  aviatica"  is 
repugnant  to  this.  Marculfus  distinctly 
opposes  alodia  to  comparala,  and  limits 
the  exclusion  of  daughters  to  the  former 
According  to  one  of  the  most  recent  in- 
quirers, "  terra  Salica  "  wjis  all  the  land 
held  by  a  Salian  Frank  (Lehuerou,  i.  86). 
But  the  same  objections  apply  to  this  so- 
lution; in  addition  to  which  it  may  be 
said  that  the  whole  Salic  law  relates  to 
that  people,  while  "  terra  Salica  "  is 
plainly  descriptive  of  a  peculiar  charac- 
ter of  lands. 

2  C.  56. 

3  I  had  in  former  editions  asserted  the 
contrary  of  this,  on  the  authority  of  Leg. 
Burgurd.  c.  78,  which  seemed  to  limit 


152 


ROMAN  NATIVES  OF  GAUL.    Chap.  II.  Part  1, 


Roman 
natives  of 
Oaul. 


Visigoths  admitted  women  on   equal  terms   to  the   whole 
inheritance.^ 

A  controversy  has  been  maintained  in  France  as  to  the 
condition  of  the  Romans,  or  rather  the  provincial 
inhabitants  of  Gaul,  after  the  invasion  of  Clovis. 
But  neither  those  who  have  considered  the  Franks 
as  barbarian  conquerors,  enslaving  the  former  possessors,  nor 
the  Abbe  Dubos,  in  whose  theory  they  appear  as  allies  and 
friendly  inmates,  are  warranted  by  historical  facts,  though 
more  approximation  to  the  truth  may  be  found  in  the  latter 
hypothesis.  On  the  one  hand,  we  find  the  Romans  not  only 
possessed  of  property,  and  governed  by  their  o^vn  laws,  but 
admitted  to  the  royal  favor  and  the  highest  offices ;  ^  while  the 
bishops  and  clergy,  who  were  generally  of  that  nation,'  grew 
up  continually  in  popular  estimation,  in  riches,  and  in  temporal 
sway.     Yet  it  is  undeniable  that  a  marked  line  was  drawn 


the  succession  of  estates,  called  sortes,  to 
male  heirs.  But  the  expressions  are  too 
ohscure  to  warrant  this  inference;  and 
M.  Guizot  (Essais  sur  Tllist.  de  France, 
vol.  i.  p.  95)  refers  to  the  14th  chapter 
of  the  same  code  for  the  opposite  propo- 
sition. But  this,  too,  ia  not  absolutely 
clear,  as  a  general  rule. 

1  [Note  III.] 

2  Daniel  conjectures  that  Clotaire  I. 
was  the  first  who  admitted  Romans  into 
the  army,  which  had  previously  been 
composed  of  Franks.  From  this  time  we 
find  many  in  high  military  command. 
(Hist,  de  la  Milice  Fnincoise,  t.  i.  p.  11.) 
It  seems  by  a  passage  in  Gregory  of 
Tours,  quoted  by  Dubos  ( t.  iii.  p. 
547),  that  some  Romans  affected  the  bar- 
barian character  by  letting  their  hair 
grow.  If  this  were  generally  permitted, 
it  would  be  a  stronger  evidence  of  ap- 
proximation between  the  two  races  than 
any  that  Dubos  has  adduced.  Montes- 
quieu certainly  takes  it  for  granted  that 
a  Roman  might  change  his  law,  and  thus 
become  to  all  material  intents  a  Frank. 
(Esprit  des  Loix,  1.  xxviii.  c.  4.)  But  the 
passage  on  which  he  relics  is  read  differ- 
ently in  the  manuscripts.    [Note  IV.j 

3  The  barbarians  by  degrees,  got  hold 
of  bishoprics.  In  a  list  of  thirty-four 
bishops  or  priests,  present  at  a  council 
in  506,  says  M.  Fauriel  (iii.  459),  the 
Dames  are  all  Roman  or  Greek.  This 
was  at  Agde.  in  the  dominion  of  the  Vis- 
igoths. In  511  a  council  at  Orleans  ex- 
hibits one  German  name.  But  at  the 
fifth  council  of  Paris,  in  577,  where  for- 
ty-five bishops  attended,  the  Romans  are 
indeed  much  the  more  numerous,  but 


mingled  with  barbaric  names,  fix  of 
whom  M.  Thierry  mentions.  (Recits  des 
Temps  Merovingicns,  vol.  ii.  p.  183.)  In 
585,  at  Macon,  out  of  sixty-three  names 
but  six  are  German.  Fauriel  a.sserta 
that,  in  a  diploma  of  Clovis  II.  dated 
653,  there  are  but  five  Roman  names  out 
of  forty-five  witnesses  ;  and  hence  he  in- 
fers that,  by  this  time,  the  Franks  had 
seized  on  the  Church  as  their  spoil,  fill- 
ing it  with  barbarian  prelates.  But  on 
reference  to  Rec.  des  Uist.  (iv.  636),  I 
find  but  four  of  the  witues^cs  to  this  in- 
strument qualified  as  episcopus :  and  of 
these  two  have  Roman  names.  The  ma- 
jority may  have  been  laymen  for  any  ev- 
idence which  the  diploma  presents.  In 
one,  however,  of  Clovis  III.,  dated  693 
(id.  p.  672),  I  find,  among  twelve  bishops, 
only  three  names  which  appear  Roman. 
We  cannot  always  judge  by  the  modern- 
ization of  a  proper  name.  St.  Leger 
sounds  well  enough ;  but  in  his  Life  we 
find  a  "  Beat  us  Leodegarius  ex  progenio 
celsa  Francorum  ac  nobilissima  exortus." 
Greek  names  are  exceedingly  common 
among  the  bishops;  but  these  cannot 
mislead  an  attentive  reader. 

This  inroad  of  Franks  into  the  Church 
probably  accelerated  the  utter  prostration 
of  intellectual  power,  at  least  in  its  liter- 
ary manifestation,  which  throws  so  dark 
a  shade  over  the  seventh  century.  And 
it  still  more  unquestionably  tended  to 
the  secular,  the  irregular,  the  warlike 
character  of  the  higher  clergy  in  France 
and  Germany  for  many  following  centu- 
ries. Some  of  these  bishops,  according 
to  Gregory  of  Tours,  were  profligate  bar- 
barians. 


Feudal  System.        DISTINCTION  OF  LAWS. 


153 


I 


t 


at  the  outset  between  the  conquerors  and  the  conquered. 
Though  one  class  of  Romans  retained  estates  of  their  own] 
yet  there  was  another,  called  tributary,  who  seem  to  have 
cultivated  those  of  the  Franks,  and  were  scarcely  raised  above 
the  condition  of  predial  servitude.  But  no  distinction  can  be 
more  unequivocal  than  that  which  was  established  between 
the  two  nations,  in  the  weregild,  or  composition  for  homicide. 
Capital  punishment  for  murder  was  contrary  to  the  spirit 
of  the  Franks,  who,  like  most  barbarous  nations,  would  have 
thought  the  loss  of  one  citizen  ill  repaired  by  that  of  another. 
The  weregild  was  paid  to  the  relations  of  the  slain,  according 
to  a  legal  rate.  This  was  fixed  by  the  Salic  law  at  six 
hundred  solidi  for  an  Antrustion  of  the  king ;  at  three  hun- 
dred for  a  Roman  conviva  regis  (meaning  a  man  of  sufficient 
rank  to  be  admitted  to  ihe^  royal  table)  ;  ^  at  two  hundred  for 
a  common  Frank ;  at  one  hundred  for  a  Roman  possessor 
of  lands ;  and  at  forty-five  for  a  tributary,  or  cultivator  of 
another's  property.  In  Burgundy,  where  religion  and  length 
of  settlement  had  introduced  different  ideas,  murder  was 
punished  with  death.  But  other  personal  injuries  were 
compensated,  as  among  the  Franks,  by  a  fine,  graduated 
according  to  the  rank  and  nation  of  the  aggrieved  party.^ 
The  barbarous  conquerors  of  Gaul  and  Italy  were  guided 
by  notions  very  different  from  those  of  Rome,  who  Distinction 
had  imposed  her  own  laws  upon  all  the  subjects  of  ^^  ^^^s- 
her  empire.     Adhering  in  general  to  their  ancient  customs, 


1  This  phrase  was  borrowed  from  the 
Romans.    The  Theodosian  code  speaks  of 
those  (jui  divinis  epulis  adhibentur,  et 
adorandi  principes  facultatem  autiquitus 
meruerunt.   .Gamier,  Origine  du  Gou- 
vemement  Fruui^ais  (in  Leber's  Collec- 
tion des  Meilleures  Dissertation.^  relatives 
?oiv^^^^  ^^  France,  1838,  vol.  v.   p. 
187).     This  memoir  by  Gamier,   which 
obtained  a  prize  from  the  Academy  of  In- 
scriptlons  in  1761,  is  a  learned  disquisi- 
tion on  the  relation  between  the  Frank 
monarchy  and  the  usages  of  the  Roman 
empu-e;    incUning  considerably  to    the 
school  of  Dubos.     I  only  read  it  in  1851  • 
it  puts  some  things  in  a  just  light ;  yet 
the  impression  which  it  leaves  is  that  of 
one-sifJedness.    The  author  does  not  ac- 
count for  the  continued  distinction  be- 
tween the  Franks  and  Romans,  testified 
by  the  language  of  history  and  of  law. 
Gamier  never  once  alludes  to  the  most 
striking  circumstance,  the  inequality  of 
composition  for  homicide. 


To  return  to  the  words  conviva  regis, 
it  seems  not  probable  that  they  should 
be  limited  to  those  who  actually  had 
feasted  at  the  royal  table;  they  naturally 
include  the  senatorial  families,  one  of 
whom  would  receive  that  honor  if  he 
should  present  himself  at  court. 

2  Leges  Salir-ne,  c.  43  ;   Leges  Bui^un- 
dionum,  tif.  2.     Murder  and  robbery 
were  made  capital  by  Childebert  king  of 
Paris;  but  Francus  was  to  be  sent  for 
trial  iii  the  royiil  court,  ihbilior  persona 
in  loco  pendntiir.    Baluz,  t.  i.  p.  17.    I 
am    inclined    to   think  that  the  word 
Francus  docs  not  absolutely  refer  to  the 
nation  of  the  party,  but  rather  to  his 
rank,  as  opposed   to  debilior  persona  ; 
and  consequently,   that  it  had  already 
acquired  the  sense  of  freeman  or  free-bom 
(ingeuuus),  which  is  perhaps  "its  strict 
meaning.      Du    Cange,    voc.    Francus, 
quotes  the  passage  in  this  sense.    [Nois 
IV.] 


154 


DISTINCTION  OF  LAWS. 


Chaf.  n.  Part  I 


Feudai.  System.     PROVINCIAL  GOVERNMENT. 


155 


without  desire  of  improvement,  they  left  the  former  habita- 
tions in  unmolested  enjoyment  of  their  civil  institutions.  The 
Frank  was  judged  by  the  Salic  or  the  Ripuary  code ;  the 
Gaul  followed  that  of  Theodosius.^  This  grand  distinction  of 
Roman  and  barbarian,  according  to  the  law  which  each  fol- 
lowed, was  common  to  the  Frank,  Burgundian,  and  Lombard 
kingdoms.  But  the  Ostrogoths,  whose  settlement  in  the  em- 
pire and  advance  in  civihty  of  manners  were  earlier,  inclined 
to  desert  their  old  usages,  and  adopt  the  Roman  jurispru- 
dence.^ The  laws  of  the  Visigoths,  too,  were  compiled  by 
bishops  upon  a  Roman  foundation,  and  des^igned  as  an  uniform 
code,  by  which  both  nations  should  be  governed.®  The  name 
of  Gaul  or  Roman  was  not  entirely  lost  in  that  of  French- 
man, nor  had  the  separation  of  their  laws  ceased,  even  in  the 
provinces  north  of  the  Loire,  till  after  the  time  of  Charle- 
magne.* Ultimately,  however,  the  feudal  customs  of  succes- 
sion, which  depended  upon  principles  quite  remote  from  those 
of  the  civil  law,  and  the  rights  of  territorial  justice  which  the 
barons  came  to  possess,  contributed  to  extirpate  the  Roman 
jurisprudence  in  that  part  of  France.  But  in  the  south,  from 
whatever  cause,  it  survived  the  revolutions  of  the  middle 
ages ;  and  thus  arose  a  leading  division  of  that  kingdom  into 
pays  coutumiers  and  pays  du  droit  ecrit ;  the  former  regulated 
by  a  vast  variety  of  ancient  usages,  the  latter  by  the  civil  law.*^ 


1  Inter  Romanos  negotia  causarum  Ro- 
manis  Lejpbus  prcecipimus  tenninari. 
Edict.  Clotair.  1.  circ.  6G0.  Baluz.  Ca- 
pitul.  t.  i.  p.  7- 

3  Giannone,  1.  iii,  c.  2. 

3  Hist,  de  Languedoc,  t.  i.  p.  242. 
Heineccius,  Hist.  Juris  Ocrman.  c.  i.  s. 
15. 

<  Suger,  in  his  Life  of  Louis  VI.,  uses 
the  expression,  lex  Salica  (Recueil  des 
Historiens,  t.  xU.  p.  24);  and  I  have 
some  recollection  of  h.iTing  met  with  the 
like  words  in  other  writings  of  as  mod- 
em a  date.  But  I  am  not  convinced  that 
the  original  Salic  code  was  meant  by  this 
phrase,  which  may  have  been  applied  to 
the  local  feudal  custom.''.  The  capitula- 
ries of  Charlemagne  are  frequently  term- 
ed lex  Salica.  Many  of  these  are  copied 
from  the  Theodosian  code. 

5  This  division  is  very  ancient,  being 
found  in  the  edict  of  Pistes,  under 
Charles  the  Bald,  in  864 ;  where  we  read, 
in  illis  regionibus,  quae  legem  Romanam 
pequuntur.  (Recueil  des  Historiens,  t. 
vii.  p.  664.)  Montesquieu  thinks  that 
the  Romaa  law  fell  into  disuse  in  the 


north  of  France  on  account  of  the  supe- 
rior advantages,  particularly  in  point  oi 
composition  for  oflences.  annexed  to  the 
Salic  law;  while  that  of  the  Visigoths 
being  more  equal,  the  Romans  under 
their  government  had  no  inducement  to 
quit  their  own  code.  (Esprit  des  Loix,  1. 
xxviii.  c.  4.)  But  it  does  not  appear  that 
the  Visigoths  had  any  peculiar  code  ot 
laws  till  after  their  expulsion  from  the 
kingdom  of  Toulouse.  They  then  re- 
tained only  a  small  strip  of  territory  in 
France,  about  Narbonne  and  Montpel- 
lier. 

However,  the  distinction  of  men  Re- 
cording to  their  laws  was  preserved  for 
many  centuries,  both  in  France  and 
Italy.  A  judicial  proceeding  of  the  ye*r 
918,  published  by  the  historians  of  Lan- 
guedoc (t.  ii.  Appendix,  p.  56),  proves 
that  the  Roman,  Gothic,  and  Salle  codes 
were  then  kept  perfectly  separate,  and 
that  there  were  distinct  Judges  for  the 
three  nations.  The  Gothic  law  is  refer- 
red to  as  an  existing  authority  in  a  char- 
ter of  1070.  Idem,  t.  iii.  p.  274;  De 
Marca,  Marca  Hispanica,  p.  1159.    Wo- 


The  kingdom  of  Clovis  was  divided  into  a  number  of  dis- 
tricts, each  under  the  government  of  a  count,  a  Provincial 
name  familiar  to  Roman  subjects,  by  which  they  Jf^u '^^^^ 
rendered  the  graf  of  the  Germans.^     The  author-  French 
ity  of  this  officer  extended  over  all  the  inhabitants,  ^"^p^'*- 
as  well  Franks  as  natives.     It  was  his  duty  to  administer 
justice,  to  preserve  tranquillity,  to  collect  the  royal  revenues, 
and  to  lead,  when  required,  the  free  propi-ietors  into  the  field.* 
The  title  of  a  duke  implied  a  higher  dignity,  and  commonly 
gave  authority  over  several  counties.*     These  offices  were 
originally  conferred  during  pleasure ;  but  the  claim  of  a  son 
to  succeed  his  father  would  often  be  found  too  plausible  or 
too  formidable  to  be  rejected,  and  it  is  highly  probable  that, 
even  under  the  Merovingian  kings,  these  provincial  governors 
had  laid  the  foundations  of  that  independence  which  was  des- 
tined to  change  the  countenance  of  Europe.*     The  Lombard 


men  in  Italy  upon  marriage  usually 
changed  their  law  and  adopted  that  of 
their  husband,  returning  to  their  own  in 
widowhood;  but  to  this  there  are  excep- 
tions. Charters  are  found  as  late  as  the 
twelfth  century  with  the  expression,  qui 

Erofessus  sum  lege  Longobardici  [aut] 
fge  Sailed  [aut]  lege  Alemannorum  vi- 
Tere.  But  soon  afterwards  the  distinc- 
tions were  entirely  lost,  partly  through 
the  prevalence  of  the  Roman  law,  and 
partly  through  the  multitude  of  local 
statutes  in  the  Italian  cities.  Muratori, 
Antiquitjites  Italiae  Dissertat.  22;  Du 
Cange,  v.  Lex.  Heineccius,  Historia  Ju- 
ris Oormanici,  c.  ii.  s.  51.     [Note  V.] 

1  The  word  graf  was  not  always  equiv- 
alent to  comes;  it  took  in  some  coun- 
tries, as  in  England,  the  form  gerefa,  and 
Stood  for  the  vkecomts  or  sheriff,  the 
count  or  alderman's  deputy.  Some  have 
derived  it  from  grau,  on  Uie  hypothesis 
that  the  ciders  presided  in  the  German 
assemblies. 

a  Marcnlfi  Formulae,  1.  i.  82. 

'llouard,  the  learned  translator  of 
Littleton  ( Anciens  Loix  des  Francois, 
i.  i.  p.  6),  supposes  thece  titles  to  have 
been  applied  indifferently.  But  the  con- 
trary is  easily  proved,  and  especially  by 
a  line  of  Fortunatus,  quoted  by  Du  Cange 
and  others. 

Qui  modo  dat  Comitis,  det  tibi  Jura 
Duels. 
The  cause  of  M.  Houard's  error  may  per- 
haps be  worth  noticing.  In  the  above- 
cited  form  of  Marculfus,  a  precedent  (in 
law  language)  is  given  for  the  appoint- 
ment of  a  duke,  count,  or  patrician. 
The  material  part  being  the  same,  it  was 


only  necessary  Uijill  up  the  blanks,  as  we 
should  call  it,  by  inserting  the  proper 
designation  of  ofiSce.  It  is  expressed 
therefore,  actionem  comitatus,  dncatus, 
aut  patriciatus,  in  pago  illo,  quam  ante- 
cessor tuus  tile  usque  nunc  visus  est 
egisse,  tibi  agendum  regendumque  com- 
missimus.  Montesquieu  has  fallen  into 
a  similar  mistake  (1.  xxx  c.  16),  forget- 
ting for  a  moment,  like  Ilouard,  that 
these  instruments  in  Marculfus  were  not 
records  of  real  transactions,  but  general 
forms  for  future  occasion. 

The  office  of  patrician  is  rather  more 
obscure.  It  seems  to  have  nearly  cor- 
responded with  what  was  afterwards  call- 
ed mayor  of  the  palace,  and  to  have 
implied  the  command  of  all  the  royal 
forces.  Such  at  least  were  Celsus  and 
hLs  successor  Mummolus  under  Gontran. 
This  is  probable  too  from  analogy.  The 
patrician  was  the  highest  officer  in  the 
Roman  empire  from  the  time  of  Constan- 
tine,  and  we  know  how  much  the  Franks 
themselves,  and  still  more  their  Gaulish 
subjects,  affected  to  imitate  the  style  of 
the  imperial  court. 

This  office  was,  as  £ir  as  I  recollect, 
confined  to  the  kingdom  of  Burgundy ; 
but  the  Franks  of  this  kingdom  may 
have  borrowed  it  from  the  Burgundians, 
ae  the  latter  did  from  the  empire.  Mar- 
culfus gives  a  form  for  the  grant  of  the 
office  of  patrician,  which  seems  to  have 
differed  only  in  local  extent  of  authority 
from  that  of  a  duke  or  a  count,  which 
was  the  least  of  the  three ;  aji  the  same 
formula  expressing  their  fiinctions  is 
sufficient  for  all. 

4  That  the  offices  of  count  and  duke 


156 


THE  FRENCH  SUCCESSION.    Chap.  H.  Part  L 


FxtDAL  System. 


CLOVIS. 


157 


dukes,  those  especially  of  Spoleto  and  Benevento,  acquired 
very  early  an  hereditary  right  of  governing  their  provinces, 
and  that  kingdom  became  a  sort  of  federal  aristocracy.* 
The  throne  of  France  was  always  filled  by  the  royal  house 
of  Meroveus.  However  complete  we  may  imagine 
Succession    ^^^  elective  rights  of  the  Franks,  it  is  clear  that  a 


to  the 


French  fundamental  law  restrained  them  to  this  family, 
monarc  y.  g^^j^^  indeed,  had  been  the  monarchy  of  their  an- 
cestors the  Germans;  such  long  continued  to  be  those  of 
Spain,  of  England,  and  perhaps  of  all  European  nations. 
The  reigning  family  was  immutable ;  but  at  every  vacancy 
the  heir  awaited  the  confirmation  of  a  popular  election, 
whether  that  were  a  substantial  privilege  or  a  mere  cere- 
mony. Exceptions,  however,  to  the  lineal  succession  are 
rare  in  the  history  of  any  country,  unless  where  an  infant 
heir  was  thought  unfit  to  rule  a  nation  of  freemen.  But,  in 
fact,  it  is  vain  to  expect  a  system  of  constitutional  laws 
rigidly  observed  in  ages  of  anarchy  and  ignorance.  Those 
antiquaries  who  have  maintained  the  most  opposite  theories 
upon  such  points  are  seldom  in  want  of  particular  instances 
to  support  their  respective  conclusions.* 


were  originally  but  temporary  may  be 
inferred  from  several  passages  in  Gregory 
of  Tours;  as  1.  v.  c.  37,  1.  viii.  c.  18. 
But  it  seems  by  the  laws  of  the  Aleman- 
ni,  c.  35,  that  the  hereditary  succession 
of  their  dukes  was  tolerably  established 
at  the  beginning  of  the  seventh  century, 
when  their  code  was  promulgated.  The 
Bavarians  chose  their  own  dukes  out  of 
one  family,  as  is  declared  in  their  laws; 
tit.  ii.  c.  1,  and  c.  20.  (Lindebrog,  Co- 
dex Legum  Antiquarum.)  This  the  em- 
peror Henry  II.  confirms:  Nonne  scitis 
(he  says),  Bajuarios  ab  initio  ducem  eli- 
gendi  liberam  habere  potestatem  ?  (Dit- 
mar,  apud  Schmidt,  Hist,  des  Allemauds, 
t.  ii.  p.  404.)  Indeed  the  consent  of 
these  German  provincial  nations,  if  I 
may  use  the  expression,  seems  to  have 
been  always  required,  as  in  an  independ- 
ent monarchy.  Ditmar,  a  chronicler  of 
the  tenth  century,  says  that  Eckard  waa 
made  duke  of  Tiioringia  totius  populi 
consensu.  Pfeffel,  Abrege  Chronologique 
t.  i.  p.  184.  With  respect  to  France, 
properly  so  called,  or  the  kingdoms  of 
Neustria  and  Burgundy,  it  may  be  less 
easy  to  prove  the  existence  of  hereditary 
offices  under  the  Merovingians.  But  the 
feebleness  of  their  government  makes  it 
probable  that  so  natural  a  system  of  dis- 
organization had   not  failed  to  ensue. 


The  Helvetian  counts  appear  to  have 
been  nearly  independent  as  early  as  this 
period.  (Planta's  Hist,  of  the  Helvetic 
Confederacy,  chap,  i.) 

1  Giaunone,  1.  iv.     [NOTE  VI.] 

2  Hottoman  (Franco-Gallia,  c.  vi.)  and 
Boulainvilliers  (Etat  de  la  France)  seem 
to  consider  the  crown  as  absolutely  elec- 
tive. The  Abbe  Vertot  (Mumoires  de 
I'Acad.  des  Inscriptions,  t.  iv  )  maintains 
a  limited  right  of  election  within  the 
reigning  family.  M.  de  Foncemagne  (t. 
i.  and  t.  viii.  of  the  same  collection)  as- 
serts a  strict  hereditJiry  descent.  Neither 
perhaps  sufficiently  distinguishes  acts  of 
violence  from  those  of  right,  nor  observes 
the  changes  in  the  French  constitution 
between  Clovis  and  Childeric  III. 

It  would  now  be  admitted  by  the 
majority  of  French  antiquaries,  that  the 
nearest  heir  would  not  have  a  strict  tight 
to  the  throne ;  but  if  he  were  of  full  age 
and  in  lineal  descent,  his  expectation 
would  be  such  as  to  constitute  a  moral 
claim  never  to  be  defeated  or  contested, 
provided  no  impediment,  such  as  his  mi- 
nority or  weakness  of  mind,  stood  in  the 
way.  After  the  middle  of  the  seventh 
century  the  mayors  of  the  palace  selected 
whom  they  would.  As  it  is  still  clearer 
from  history  that  the  Carlovingian  kings 
did  not  assume  the  crown  without  an 


Clevis  was  a  leader  of  barbarians,  who  respected  his  vaJor 
and  the  rank  which  they  had  given  him,  but  were  j^^^i^. 
incapable  of  servile  feelings,  and  jealous  of  their  aSSonty 
common  as  well  as  individual  rights.     In  order  to  °^  ^^°^- 
appreciate  the  power  which  he  possessed,  it  has  been  custom- 
ary with  French  writers  to  bring  forward  the  well-known 
story  of  the  vase  of  Soissons.     When  the  plunder  vase  of 
taken  in  Clovis's  invasion  of  Gaul  was  set  out  in  Soissons. 
this  place  for  distribution,  he  begged  for  himself  a  precious 
vessel  belonging  to  the  church  of  Rheims.     The  army  hav- 
ing expressed  their  willingness  to  consent,  "  You  shall  have 
nothing  here,"  exclaimed  a  soldier,  striking  it  with  his  battle- 
axe,  "  but  what  falls  to  your  share  by  lot."     Clovis  took  the 
vessel  without  marking  any  resentment,  but  found  an  oppor- 
tunity, next  year,  of  revenging  himself  by  the  death  of  the 
soldier.     The  whole  behavior  of  Clovis  appears  to  be  that 
of  a   barbarian    chief,   not   daring  to  withdraw   anything 
from  the  rapacity,  or  to  chastise  the  rudeness,  of  his  follow- 
ers. 

But  if  such  was  the  liberty  of  the  Franks  when  they  first 
became  conquerors  of  Gaul,  we  have  good  reason  p^^^^  ^^ 
to  beheve  that  they  did  not  long  preserve  it.     A  thTkLgs 
people  not  very  numerous  spread  over  the  spacious  ^^'^^^^«- 
provinces  of  Gaul,  wherever  lands  were  assigned  to  or  seized 
by  them.     It  became  a  burden  to  attend  those  general  assem- 
blies of  the  nation  which  were  annually  convened  in  the 
month  of  March,  to  deUberate  upon  public  business,  as  well 
as  to  exhibit  a  muster  of  military  strength.     After  some 
time  it  appears  that  these  meetings  drew  together  only  the 
bishops,  and  those  invested  with  civil  offices.^     The  ancient 


election,  we  may  more  probably  suppose 
this  to  have  been  the  ancient  constitu- 
tion. The  passages  in  Gregory  of  Tours 
which  look  like  a  mere  hereditary  succes- 
sion such  as,  Quatuor  filii  regnum  ac- 
cipiunt  ft  tnter  se  aquA  lance  tlividunt, 
do  not  exclude  a  popular  election,  which 
he  would  consider  a  mere  formality,  and 
which  in  that  case  must  have  been  little 
more. 

I  must  admit,  however,  that  M.  Guizot, 
whose  authority  Is  deservedly  so  high, 
gives  more  weight  to  lineal  inheritance 
than  many  others  have  done ;  and  con- 
sequently treats  the  phrases  of  historians 
seeming  to  imply  a  choice  by  the  people 
•s  merely  recognitions  of  a  legal  right. 
"  The  principle  of  hereditary  right,"  he 


says,  "  must  have  been  deeply  implanted 
when  Pepin  was  forced  to  obtain  the 
pope's  sanction  before  he  ventured  to 
depose  the  Merovingian  prince,  obscure 
and  despised  as  he  was."    (Essais  sux 
THist.  de  France,  p.  298.)     But  surely 
this  is  not  to  the  point.     Childeric  III. 
was  a  reigning  king;  and,  besides  this, 
the  question  is  by  no^eans  as  to  the 
right  of  the  Merovingian  family  to  the 
throne,  which  no  one  disputes,  but  as  to 
that  of  the  nearest  heir.     The  case  was 
the  same  with  the  second  dynasty.     The 
Franks  bound  themselves  to  the  family 
of  Pepin,  not  to  any  one  heir  within  it. 
1  Dubos,  t.  iii.  p.  327;  Mably,  Obserr. 
sur  I'Hifltoire  de  France,  I.  i.  c.  3. 


158 


POWER  OF  THE  KINGS.        Chap.  II.  Part  L 


Feudal  Ststem. 


MAYORS  OF  THE  PALACE. 


159 


inhabitants  of  Gaul,  having  little  notion  of  political  liberty, 
were  unlikely  to  resist  the  most  tyrannical  conduct.    Many 
of  them  became  officers  of  state,  and  advisers  of  the  sover- 
eign, whose  ingenuity  might  teach  maxims  of  despotism  un- 
known in  the  forests  of  Germany.     We  shall  scarcely  wrong 
the  bishops  by  suspecting  them  of  more  pliable  courtliness 
than  was  natural  to  the  long-haired  warriors  of  Clovis.^    Yet 
it  is  probable  that  some  of  the  Franks  were  themselves  in- 
strumental in  this  change  of  their  government.     The  court 
of  the  JMerovingian  kings  was  crowded  with  followers,  who 
have  been  plausibly  derived  from  those  of  the  German  chiefs 
described  by  Tacitus ;  men  forming  a  distinct  and  elevated 
class  in  the  state,  and  known  by  the  titles  of  Fideles,  Leudes, 
and  Antrustiones.     They  took  an  oath  of  fidelity  to  the  king, 
upon  then-  admission  into  that  rank,  and  were  commonly 
remunerated  with  gifts  of  land.     Under  different  appellations 
we  find,  as  some  antiquaries  think,  this  class  of  courtiers  in 
the  early  records  of  Lombardy  and  England.     The  general 
name  of  Vassals  (from  Gwas,  a  Celtic  word  for  a  servant)  is 
applied  to  them  in  every  country.'     By  the  assistance  of 
these  faithful  supporters,  it  has  been  thought  that  the  regal 
authority  of  Clovis's  successors  was  insured.*     However  tliis 
may  be,  the  annals  of  his  more  immediate  descendants  ex- 
hibit a  course  of  oppression,  not  merely  displayed,  as  will 
often   happen   among  uncivilized  people,  though  free,   in 
acts  of  private  injustice,  but  in  such  general  tyranny  as  is 
incompatible  with  the  existence  of  any  real  checks  upon  the 
sovereign.* 

But  before  the  middle  of  the  seventh  century  the  kings  ot 


1  Gregory  of  Tours,  throughout  his 
history,  talks  of  the  royal  power  in  the 
tone  of  Louis  XIV. 's  court.  If  wo  were 
obliged  to  believe  all  we  read,  even  the 
vase  of  Soissous  would  bear  witness  to 
the  obedience  of  the  Franks. 

«  The  Gasindi  of  Italy  and  the  Anglo- 
Saxon  royal  Thane  appear  to  correspond, 
more  or  less,  to  the  Antrustions  of  France. 
The  word  Thane,  however,  as  will  be 
geen  in  another  chapter,  was  used  in  a 
Tery  extensive  sense,  and  comprehended 
all  free  proprietors  of  land.  That  of 
Leudes  seems  to  imply  only  subjection, 
and  is  frequently  applied  to  the  whole 
body  of  a  nation,  as  well  as,  in  a  stricter 
sense,  to  the  king's  personal  vassals. 
This  name  they  did  not  acquire,  origin- 
ally, by  possessing  benefices ;  but  rather, 


by  being  vassals  or  servants,  became  the 
object  of  beneiiciary  don.itions.  In  one 
of  Marculfus's  precedents,  1.  i.  t.  18,  we 
have  the  form  by  which  an  Antrustion 
was  created.  See  du  Cange,  under  these 
several  words,  and  Muratori's  thirteenth 
dissertation  on  Italian  Antiquities.  The 
Gardingi  sometimes  mentioned  in  the 
laws  of  the  Visigoths  do  not  appear  to  be 
of  the  same  description. 

3  Bean t us  .  .  .  vaUatus  in  domo  sua, 
ab  hominibus  regis  interfectus  est.  Greg. 
Tur.  1.  viii.  c.  11.  A  few  spirited  retain- 
ers were  sufficient  to  execute  the  man- 
dates of  arbitrary  power  among  a  barbar- 
ous disunited  people. 

4  This  is  more  fully  discussed  in  NOTB 

vn. 


this  line  had  fallen  into  that  contemptible  state  ^^  ^^^^^ 
which  has  been  described  in  the  last  chapter,  of  the  royal 
The  mayors  of  the  palace,  who  from  mere  officers  u^j^A  of 
of  the  court  had  now  become  masters  of  the  kin"^-  ^^^  paia«e. 
dom,  were  elected  by  the  Franks,  not  indeed  the  whole  body 
of  that  nation,  but  the  provincial  governors  and  considerable 
proprietors  of  land.^  Some  inequality  there  probably  existed 
from  the  beginning  in  the  partition  of  estates,  and  this  had 
been  greatly  increased  by  the  common  changes  of  property, 
by  the  rapine  of  those  savage  times,  and  by  royal  munifi- 
cence. Thus  arose  that  landed  aristocracy  which  became  the 
most  striking  feature  in  the  political  system  of  Europe  dur- 
ing many  centuries,  and  is,  in  fact,  its  great  distinction,  both 
from  the  despotism  of  Asia,  and  the  equality  of  republican 
governments. 

There  has  been  some  dispute  about  the  origin  of  nobility 
in  France,  which  might  perhaps  be  settled,  or  at 
least  better  understood,  by  fixing  our  conception  of  °  *^* 
the  term.  In  our  modern  acceptation  it  is  usually  taken  to 
imply  certain  distinctive  privileges  in  the  political  order, 
inherent  in  the  blood  of  the  possessor,  and  consequently  not 
transferable  like  those  which  property  confers.  Limited  to 
this  sense,  nobility,  I  conceive,  was  unknown  to  the  con- 
querors of  Gaul  till  long  after  the  downfall  of  the  Roman 
empire.  They  felt,  no  doubt,  the  common  prejudice  of  man- 
kind in  favor  of  those  whose  ancestry  is  conspicuous,  when 
compared  with  persons  of  obscure  birth.  This  is  the  pri- 
mary meaning  of  nobility,  and  perfectly  distinguishable  from 
the  possession  of  exclusive  civil  rights.     Those  who  are 


*  The  revolution  which  ruined  Brune- 
haut  was  brought  about  by  the  defection 
of  her  chief  nobles,  especially  Warnachar, 
mayor  of  Austrasia.  Upon  Clotaire  II. 's 
victory  over  her  he  was  compelled  to  re- 
ward these  adherents  at  the  expense  of 
the  monarchy.  Warnachar  was  made 
mayor  of  Burgundy,  with  an  oath  from 
the  king  never  to  dispossess  him  (Frede- 
garius,  c.  42.)  In  626  the  nobility  of 
Burgundy  declined  to  elect  a  mayor, 
which  seems  to  have  been  considered  as 
their  right.  From  this  time  nothing  was 
done  without  the  consent  of  the  aristoc- 
racy. Unless  we  ascribe  all  to  the  dif- 
ferent ways  of  thinking  in  Gregory  and 
Fredegarius,  the  one  a  Roman  bishop, 
the  other  a  Frank  or  Burgundian,  the 
goremment  was  altogether  changed. 


It  might  even  be  surmised  that  the 
crown  was  considered  as  more  elective 
than  before.  The  author  of  Gesta  Regum 
Francorum,  an  old  chronicler  who  lived 
in  those  times,  changes  his  form  of  ex- 
pressing a  king's  accession  from  that  of 
Clotaire  II.  Of  the  earlier  kings  he  says 
only,  regnum  recepit.  But  of  Clotaire, 
Franci  quoque  prsedictum  Clotairium 
regem  parvulum  supra  se  in  regnum  sta- 
tuerunt.  Again,  of  the  accession  of 
Dagobert  I. :  Austrasii  Franci  superiores, 
congreg^ti  in  unum,  Dagobertum  supra 
se  in  regnum  statuunt.  In  another 
place,  Decedente  prajfato  rege  Clodoveo, 
Franci  Clotairium  seniorem  puerum  ex 
tribus  sibi  regem  statuerunt.  Several 
other  instances  might  be  quoted. 


160 


THE  NOBILITY. 


Chap.  U.  Part  i. 


ft  I 


acquainted  with  the  constitution  of  the  Roman  republic  will 
recollect  an  instance  of  the  difference  between  these  two 
species  of  hereditary  distinction,  in  the  patricii  and  the 
nobiks.  Though  I  do  not  think  that  the  tribes  of  Grerman 
origin  paid  so  much  regard  to  genealogy  as  some  Scandinavian 
and  Celtic  nations  (else  the  beginnings  of  the  greatest  houses 
would  not  have  been  so  enveloped  in  doubt  as  we  find  them), 
there  are  abundant  traces  of  the  respect  in  which  families 
of  known  antiquity  were  held  among  them.^ 

But  the  essential  distinction  of  ranks  in  France,  perhaps 
also  in  Spain  and  Lombardy,  was  founded  upon  the  posses- 
sion of  land,  or  upon  civil  employment.  The  aristocracy  of 
wealth  preceded  that  of  birth,  which  indeed  is  still  chiefly 
dependent  upon  the  other  for  its  importance.  A  Frank  of 
large  estate  was  styled  a  noble;  if  he  wasted  or  was 
despoiled  of  his  wealth,  his  descendants  fell  into  the  mass  of 
the  people,  and  the  new  possessor  became  noble  in  his  stead. 
Families  were  noble  by  descent,  because  they  were  rich  by 
the  same  means.  Wealth  gave  them  power,  and  power  gave 
them  preeminence.  But  no  distinction  was  made  by  the 
Salic  or  Lombard  codes  in  the  composition  for  homicide,  the 
great  test  of  political  station,  except  in  favor  of  the  king's 
vassals.  It  seems,  however,  by  some  of  the  barbaric  codes, 
those  namely  of  the  Burgundians,  Visigoths,  Saxons,  and 
the  English  colony  of  the  latter  nation,^  that  the  free  men 
were  ranged  by  them  into  two  or  three  classes,  and  a  differ- 
ence made  in  the  price  at  which  their  lives  were  valued :  so 
that  there  certainly  existed  the  elements  of  aristocratic  privi- 
leges, if  we  cannot  in  strictness  admit  their  completion  at  so 
early  a  period.  The  Antrustions  of  the  kings  of  the  Franks 
were  also  noble,  and  a  composition  was  paid  for  their  mur- 
der, treble  of  that  for  an  ordinary  citizen ;  but  this  was  a 


1  The  antiquity  of  French  nobility  is 
maintained  temperately  by  Schmidt,  Hist, 
des  AUemands,  t.  i.  p.  361,  and  with 
acrimony  by  Montesquieu,  Esprit  des 
Loix,  1.  XXX.  c.  25.  Neither  of  them 
proves  any  more  than  I  haye  admitted. 
The  expression  of  Ludovicus  Pius  to  his 
freedman,  Rex  fecit  te  liberum,  non 
nobilem  ;  quod  impossibile  est  post  liber- 
tatem,  is  very  intelligible,  without  imag- 
ining a  privilejEfed  class.  Of  the  practi- 
cal regard  paid  to  birth,  indeed,  there 
are  many  proofs.  It  seems  to  have  been 
a   recommendation    in    the   choice   of 


bishops.  (Maroulfi  Formulae,  1. 1,  c.  4, 
cum  notis  Blgnonii,  in  Baluzii  Capitu- 
laribus.)  It  was  probably  much  con- 
sidered in  conferring  dignities.  Frede- 
garius  says  of  Protadius,  mayor  of  the 
palace  to  Brunehaut,  Quoscunque  genere 
nobiles  rcperiebat,  tota<<  humiliare  cons- 
batur,  ut  nuUus  reperiretur,  qui  gradum, 
quem  arripuerat,  potuisset  assumere. 
[Note  VIII.] 

2  Leg.  Burgund.  tit.  26;  Leg.  Visigoth, 
1.  ii.  t.  2,  C.4  (in  Lindebrog.);  Du  Gauge, 
voc.  Adalingus,  nobilis }  Wilkins,  Leg. 
Ang.  Sax.  passim 


Feudal  System.      FISCAL  LANDS— BENEFICES. 


161 


personal,  not  an  hereditary  distinction.  A  link  was  wanting 
to  connect  their  eminent  privileges  with  their  posterity ;  and 
this  Imk  was  to  be  supplied  by  hereditary  benefices. 

Besides  the  lands  distributed  among  the  nation,  others 
were  reserved  to  the  crown,  partly  for  the  support  Fiscal 
of  its  dignity,  and  partly  for  the  exercise  of  its  i»°<^- 
munificence.  These  are  called  fiscal  lands;  they  were  dis- 
persed over  different  parts  of  the  kingdom,  and  formed  the 
most  regular  source  of  revenue.^  But  the  greater  portion 
of  them  were  granted  out  to  favored  subjects,  under  the 
name  of  benefices,  the  nature  of  which  is  one  of  the  most 
important  points  in  the  policy  of  these  ages.  Benefices 
were,  it  is  probable,  most  frequently  bestowed  upon  gg^^^^^g 
the  professed  courtiers,  the  Antrustiones  or  Leudes, 
and  upon  the  provincial  governors.  It  by  no  means  appears 
that  any  conditions  of  military  service  were  expressly 
annexed  to  these  grants :  but  it  may  justly  be  presumed  that 
such  favors  were  not  conferred  without  an  expectation  of 
some  return ;  and  we  read  both  in  law  and  history  that  bene- 
ficiary tenants  were  more  closely  connected  with  the  crown 
than  mere  alodial  proprietors.  Whoever  possessed  a  bene- 
fice was  expected  to  serve  his  sovereign  in  the  field.  But  of 
alodial  proprietors  only  the  owner  of  three  mansi  was  called 
upon  for  personal  service.  Where  there  were  three  posses- 
sors of  single  mansi,  one  went  to  the  army,  and  the  others 
contributed  to  his  equipment.'^  Such  at  least  were  the  regu- 
lations of  Charlemagne,  whom  I  cannot  believe,  with  Mably, 
to  have  relaxed  the  obligations  of  military  attendance. 
After  the  peace  of  Coblentz,  in  860,  Charles  the  Bald 
restored  all  alodial  property  belonging  to  his  subjects,  who 
had  taken  part  against  him,  but  not  his  own  beneficiary 
grants,  which  they  were  considered  as  having  forfeited. 

Most  of  those  who  have  written  upon  the  feudal  system 
lay  it  down  that  benefices  were  originally  precari-  Theu- 
ous  and  revoked  at  pleasure  by  the  sovereign ;  that  ®^^"'- 


1  The  demesne  lands  of  the  crown  are 
continually  mentioned  in  the  early  writ- 
ers ;  the  kinf?s,  in  journeying  to  differ- 
ent parts  of  their  dominions,  took  up 
their  abode  in  them.  Charlema^e  is 
Tcry  full  in  his  directions  as  to  their 
management.  Capitularia,  a.d.  797,  et 
oUbi. 

3  Capital.  Gar.  Mag.  ann.  807  and  812. 

VOL.  I.  11 


I  cannot  define  the  precise  area  of  a 
mansus.  It  consisted,  according  to  Du 
Cange,  of  twelve  jup;era;  but  what  he 
meant  by  a  juger  I  know  not.  The  an- 
cient Roman  juger  was  about  five  eighths 
of  an  acre ;  the  Parisian  arpent  was  a 
fourth  more  than  one.  This  would 
make  a  difference  as  two  to  one. 


162 


EXTENT  OF  BENEFICES.   Chai'.  II.  Pakt  L 


they  were  afterwards  granted  for  life ;  and  at  a  subsequent 
period  became  hereditary.  No  satisfactory  proof,  however, 
appears  to  have  been  brought  of  the  first  stage  in  this  prog- 
ress.^ At  least,  I  am  not  convinced  that  beneficiary  grants 
were  ever  considered  as  resumable  at  pleasure,  unless  where 
some  delinquency  could  be  imputed  to  the  vassal.  It  is  pos- 
sible, though  I  am  not  aware  of  any  documents  which  prove 
it,  that  benefices  may  in  some  instances  have  been  granted 
for  a  term  of  years,  since  even  fiefs  in  much  later  times  were 
occasionally  of  no  greater  extent.  Their  ordmary  duration, 
however,  was  at  least  the  life  of  the  possessor,  after  which 
they  reverted  to  the  fisc*  Nor  can  I  agree  with  those  who 
deny  the  existence  of  hereditary  benefices  under  the  first 
race  of  French  kings.  The  codes  of  the  Burgundians,  and 
of  the  Visigoths,  which  advert  to  them,  are,  by  analogy,  wit- 
nesses to  the  contrary.^  The  precedents  given  in  the  forms 
of  Marculfus  (about  660)  for  the  grant  of  a  benefice,  contain 
very  full  terms,  extending  it  to  the  heirs  of  the  beneficiary.* 
And  Mably  has  plausibly  inferred  the  perpetuity  of  bene- 
fices, at  least  in  some  instances,  from  the  language  of  the 
treaty  at  Andely  in  587,  and  of  an  edict  of  Clotaire  II.  some 
years  later.*  We  can  hardly  doubt  at  least  that  children 
would  put  in  a  very  strong  claim  to  what  their  father  had 
enjoyed ;   and  the  weakness  of  the  crown  in  the  seventh 


UNOTB  IX.] 

2  The  following  passage  firom  Gregory 
of  Tours  seems  to  prove  that,  although 
sons  were  occasionally  permitted  to  suc- 
ceed their  fathers,  an  indulgence  which 
easily  grew  up  into  a  right,  the  crown 
had,  in  his  time,  an  unquestionable  re- 
version after  the  death  of  its  original 
beneficiary.  Hoc  tempore  et  Wandc- 
linus,  nutritor  Childeberti  regis  obiit;  sed 
in  locum  ejus  nuUus  est  subrogatus,  eo 
quod  regina  mater  curam  velit  propriam 
habere  de  filio.  Quescunque  de  fisco 
meruit^  fisci  juribus  sunt  relata.  Obiit 
his  diebus  Bodegesilus  dux  plenus 
dierum;  sed  nihil  de  facultate  ejus  filiis 
minutum  est.  1.  viii.  c.  22.  Gregory's 
work,  however,  does  not  go  farther  than 
6d5. 

3  Leges  Burgundiorum,  tit.  i.;  Leges 
Visigoth.  1.  V.  tit.  2. 

*Marculf.  form.  xii.  and  xiv.  I.  1. 
This  precedent  was  in  use  down  to  the 
eleventh  century  :  its  expressions  recur 
in  almost  every  charter.  The  earliest 
instance  I  have  seen  of  an  actual  grant 
to  a  private  person  is  of  Charlemagne  to 


one  John,  in  795.    Baluzii  Capitularia, 
t.  ii.  p.  1400. 

^  Quicquid  antefati  reges  ecclesiis  aut 
fidclibus  suis  contulerunt,  aut  adhuc 
conferre  cum  justitii  Deo  propitiante 
voluerint,  stabihter  conservetur ;  et  quic- 
quid unicuique  fidelium  in  utri usque 
regno  per  legem  et  justitiam  redhibetur, 
nullum  ei  prcjudicium  ponatur,  sed 
liceat  res  debitas  possidere  atque  reci- 
pere.  Et  si  aiiquid  unicuique  per  in- 
terregna sine  culpa  sublatum  est, 
audientil  babita  restauretur.  Et  de  eo 
quod  per  muniflcontias  prtecedentium 
regum  unusquisque  usque  ad  transitum 
gloriosa)  memoriae  domini  Chlotha- 
charii  regis  possedit,  cum  securitat© 
possideat ;  et  quod  exinde  fidelibus  per- 
sonis  ablatum  est,  de  pnesenti  recipiat. 
Foedus  Andeliacum,  in  Qregor.  Turon. 

I.  ix.  c.  20. 

Quaecunque  ecclesise  vel  clericis  vcl 
quibuslibet  personis  a  gloriosoe  memoria) 
praefatis  principibus  munificcntise  largi- 
tate  collata;  sunt,  omni  flrmitatc  per- 
durent.    Edict.  Chlotachar  I.  vel  potiua 

II.  in  Recueil  des  Historiens,  t.  iv.  p.  lift. 


Feudal  System. 


SUBINFEUDATION. 


163 


1 

j' 


century  must  have  rendered  it  difficult  to  reclaun  its  prop- 
erty. 

A  natural  consequence  of  hereditary  benefices  was  that  those 
who  possessed  them  carved  out  portions  to  be  held  subinfeu- 
of  themselves  by  a  similar  tenure.  Abundant  proofs  da*»o°- 
of  this  custom,  best  known  by  the  name  of  subinfeudation, 
occur  even  in  the  capitularies  of  Pepin  and  Charlemagne. 
At  a  later  period  it  became  universal ;  and  what  had  begun 
perhaps  through  ambition  or  pride  was  at  last  dictated  by 
necessity.  In  that  dissolution  of  all  law  which  ensued  after 
the  death  of  Charlemagne,  the  powerful  leaders,  constantly 
engaged  in  domestic  warfare,  placed  their  chief  dependency 
upon  men  whom  they  attached  by  gratitude,  and  bound  by 
strong  conditions.  The  oath  of  fidelity  which  they  had  taken, 
the  homage  which  they  had  paid  to  the  sovereign,  they 
exacted  from  their  own  vassals.  To  render  mihtary  service 
became  the  essential  obligation  which  the  tenant  of  a  benefice 
undertook ;  and  out  of  those  ancient  grants,  now  become  for 
the  most  part  hereditary,  there  grew  up  in  the  tenth  century, 
both  in  name  and  reaUty,  the  system  of  feudal  tenures.^ 

This  revolution  was  accompanied  by  another  still  more 
important     The  provincial  governors,  the  dukes  ^ 
and  counts,  to  whom  we  may  add  the  marquises  or  o/prS?incL 
margraves  intrusted  with  the  custody  of  the  fron-  Bovemors. 
tiers,  had  taken  the  lead  in  all  pubUc  measures  after  the 
decline  of  the  Merovingian  kings.    Charlemagne,  duly  jealous 
of  their  ascendency,  checked  it  by  suffering  the  duchies  to 
expire  without  renewal,  by  granting  very  few  counties  hered- 
itarily, by  removing  the  administration  of  justice  from  the 
hands  of  the  counts  into  those  of  his  own  itinerant  judges, 
and,  if  we  are  not  deceived  in  his  pohcy,  by  elevatmg  the 
ecclesiastical  order  as  a  counterpoise  to  that  of  the  nobility. 
Even  m  his  time,  the  faults  of  the  counts  are  the  constant 
theme  of  the  capitularies ;  their  dissipation  and  neglect  of 
duty,  their  oppression  of  the  poorer  proprietors,  and  their 
artful  attempts  to  appropriate  the  crown  lands  situated  within 
their  territory.^    If  Charlemagne  was  unable  to  redress  those 
evils,  how  much  must  they  have  increased  under  his  posterity! 
That  great  prince  seldom  gave  more  than  one  county  to  the 

i  [NoM  X.l  t.  il.  p.  158;  Qaillard,  Vie  de  Charlem.  fc 

«  Capitulana  Car.  Mag.  et  Lud.  Pii.    lii.  p.  118. 
passim  J  Schmidt,  Hist,  des  Allexaands, 


164 


CHANGE  OF  TENURES.      Chap.  H.  Part  1. 


same  person ;  and  as  they  were  generally  of  moderate  size, 
coextensive  with  episcopal  dioceses,  there  was  less  danger,  if 
this  policy  had  been  followed,  of  their  becoming  independent.* 
But  Louis  the  Debonair,  and,  in  a  still  greater  degree,  Charles 
the  Bald,  allowed  several  counties  to  be  enjoyed  by  the  same 
person.  The  possessors  constantly  aimed  at  acquiring  private 
estates  within  the  limits  of  their  charge,  and  thus  both 
rendered  themselves  formidable,  and  assumed  a  kind  of  patri- 
monial right  to  their  dignities.  By  a  capitulary  of  Charles 
the  Bald,  a.d.  877,  the  succession  of  a  son  to  the  father's 
county  appears  to  be  recognized  as  a  known  usage.*  In  the 
next  century  there  followed  an  entire  prostration  of  the  royal 
authority,  and  the  counts  usurped  their  governments  as  little 
sovereignties,  with  the  domains  and  all  regalian  rights,  subject 
only  to  the  feudal  superiority  of  the  king.*  They  now  added 
the  name  of  the  county  to  their  o^vn,  and  their  wives  took  the 
appellation  of  countess.*  In  Italy  the  independence  of  the 
dukes  was  still  more  complete ;  and  although  Otho  the  Great 
and  his  descendants  kept  a  stricter  rein  over  those  of  Ger- 
many, yet  we  find  the  great  fiefs  of  their  empire,  throughout 
the  tenth  century,  granted  almost  invariably  to  the  male  and 
even  female  heirs  of  the  last  possessor. 

Meanwhile,  the  alodial  proprietors,  who  had  hitherto  formed 
Change  of  the  Strength  of  the  state,  fell  into  a  much  worse  con- 
in^  ^"'°  dition.  They  were  exposed  to  the  rapacity  of  the 
tenures.  counts,  who,  whether  as  magisti'ates  and  governors, 
or  as  overbearing  lords,  had  it  always  in  their  power  to  harass 
them.  Every  district  was  exposed  to  continual  hostilities ; 
sometimes  from  a  foreign  enemy,  more  often  from  the  owners 
of  castles  and  fastnesses,  which,  in  the  tenth  century,  under 
pretence  of  resisting  the  Normans  and  Hungarians,  served 
the  purposes  of  private  war.  Against  such  a  system  of  rapine 
the  mihtary  compact  of  lord  and  vassal  was  the  only  effectual 
shield  ;  its  essence  was  the  reciprocity  of  service  and  protec- 
tion.   But  an  insulated  alodialist  had  no  support ;  his  tbrtunes 


»  Vaissette,  Hist,  de  Languedoe,  t.  i.  p. 
687,  700,  and  not.  87. 

«  Balurii  Capitularia,  t.  ii.  p.  263,  269. 
This  is  a  questionable  point,  and  most 
French  antiquaries  consider  this  &mou3 
capitulary  as  the  foundation  of  an  hered- 
ituy  right  in  counties.  I  am  inclined 
to  think  that  there  was  at  least  a  practice 
Of  succession  which  is  implied  and  guar- 
•nteed  bj  this  proyision.    [Not*  VI.] 


*  It  appears,  by  the  record  of  a  process 
in  918,  that  the  counts  of  Toulouse  had 
already  so  far  usurped  the  rights  of  their 
sovereign  as  to  claim  an  estate  on  th« 
ground  of  its  being  a  royal  benefice.  Hist 
de  Languedoe,  t.  ii.  Appen.  p.  56 

*  Vaissette,  Hist,  do  Languedoe,  t.  i.  p. 
588,  and  infr4,  t.  U.  p.  38, 109,  and  Ap 
pendiz,  p.  56. 


Feudal  System.    PERSONAL  COMMENDATION. 


165 


were  strangely  changed  since  he  claimed,  at  least  in  right,  a 
share  in  the  legislation  of  his  country,  and  could  compare 
with  pride  his  patrimonial  fields  with  the  temporary  benefices 
of  the  crown.  Without  law  to  redress  his  injuries,  without 
the  royal  power  to  support  his  right,  he  had  no  course  left 
but  to  compromise  with  oppression,  and  subject  himself,  in 
return  for  protection,  to  a  feudal  lord.  During  the  tenth  and 
eleventh  centuries  it  appears  that  alodial  lands  in  France  had 
chiefly  become  feudal :  that  is,  they  had  been  surrendered  by 
their  proprietors,  and  received  back  again  upon  the  feudal 
conditions  ;  or  more  frequently,  perhaps,  the  owner  had  been 
compelled  to  acknowledge  himself  the  man  or  vassal  of  a 
suzerain,  and  thus  to  confess  an  original  grant  which  had 
never  existed.*  Changes  of  the  same  nature,  though  not 
perhaps  so  extensive,  or  so  distinctly  to  be  traced,  took  place 
in  Italy  and  Germany.  Yet  it  would  be  inaccurate  to  assert 
that  the  prevalence  of  the  feudal  system  has  been  unlimited;  in 
a  great  part  of  France  alodial  tenures  always  subsisted ;  and 
many  estates  in  the  empire  were  of  the  same  description.^ 

There  are,  however,  vestiges  of  a  very  universal  custom 
distmguishable  from   the   feudal   tenure  of  land, 
though  so  analogous  to  it  that  it  seems  to  have  pZ^Z""* 
nearly  escaped  the  notice  of  antiquaries.     From  Jpjnmenda- 
this  silence  of  other  writers,  and  the  great  obscu- 
rity of  the  subject,  I  am  ahnost  afraid  to  notice  what  several 
passages  in  ancient  laws  and  instruments  concur  to  prove,  that, 
besides  the  relation  established  between  lord  and  vassal  by 


1  Hist,  de  Languedoe,  t.  ii.  p.  109.  It 
must  bo  confessed  that  there  do  not  occur 
so  mauy  specific  instances  of  this  con- 
version of  alodial  tenure  into  feudal  as 
might  bo  expected,  in  order  to  warrant 
the  supposition  in  the  text.  Several 
record-^,  however,  are  quoted  by  Robert- 
son, Hist.  Charles  V.,  note  8j  and  others 
may  be  found  in  diplomatic  collections. 
A  precedent  for  surrendering  alodial 
property  to  the  king,  and  receiving  it 
back  as  his  benefice,  appears  even  in 
Marcultus,  1.  i.  form  13.  The  county  of 
Cominges,  between  the  Pyrenees,  Tou- 
louse, and  Bigorre,  was  alodial  till  1244. 
when  it  was  put  under  the  feudal  protec- 
tion of  the  count  of  Toulouse.  It  de- 
volved by  escheat  to  the  crown  in  1443 
Villaret,  t.  xv.  p.  346. 

In  many  early  charters  the  king  con- 
firms  the  possession  even  of  alodial  prop- 
•rty  for  greater  security  in  lawless  times ; 


and,  on  the  other  hand,  in  those  of  the 
tenth  and  eleventh  centuries,  the  word 
alodium  is  continually  used  for  a  feud,  or 
hereditary  benefice,  which  renders  this 
subject  still  more  obscure. 

2  The  maxim,  Nulle  terre  sans  seig- 
neur, was  so  far  from  being  universally 
received  in  France,  that  in  almost  all 
southern  provinces,  or  pays  du  droit 
ecrit,  lands  were  presumed  to  be  alodial, 
unless  the  contrary  was  shown,  or,  as  it 
was  called,  franc-aleux  sans  titre.  The 
parliaments,  however,  seem  latterly  to 
have  inclined  against  this  presumption, 
and  have  thrown  the  burden  of  proof 
on  the  party  claiming  alodiality.  For 
this  see  Denisart,  Dictionnaire  des  De- 
cisions, art.  Franc-aleu.    [Note  XI.] 

In  Germany,  according  to  Du  Cange 
voc.  Baro,  there  was  a  distinction  be- 
tween Barones  and  Semper-Baronesj  tha 
latter  holding  their  \a.nds  alodially. 


/ 


166 


PERSONAL  COMMENDATION.    Chap.  U.  Part  I 


beneficiary  grants,  there  was  another  species  more  personal, 
and  more  closely  resembling  that  of  patron  and  client  in  the 
Roman   republic.     This  was  usually  called  commendation; 
and  appears  to  have  been  founded  on  two  very  general  princi- 
ples, both  of  which  the  distracted  state  of  society  inculcated. 
The  weak  needed  the  protection  of  the  powerful ;  and   the 
government  needed  some  security  for  pubHc  order.     Even 
before  the  invasion  of  the  Franks,  Salvian,  a  writer  of  the 
fifth  century,  mentions  the  custom  of  obtaining  the  protection 
of  the  great  by  money,  and  blames  their  rapacity,  though  he 
allows  the  natural  reasonableness  of  the  practice.*     The  dis- 
advantageous condition  of  the  less  powerful  freemen,  which 
ended  in  the  servitude  of  one  part,  and  in  the  feudal  vassalage 
of  another,  led  such  as  fortunately  still  preserved  their  alodial 
property  to  insure  its  defence  by  a   stipulated  payment  of 
money.     Such  payments,  called  Salvamenta,  may  be  traced 
m  extant  charters,  chiefly  indeed  of  monasteries.^    In  the  case 
of  private  persons  it  may  be  presumed  that  this  voluntaiy 
contract  was  frequently  changed  by  the  stronger  party  into 
a  perfect  feudal  dependence.     From  this,  however,  as  I  im- 
agine, it  probably  differed,  in  being  capable  of  dissolution  at 
the  mferior's  pleasure,  without  incurring  a  forfeiture,  as  well 
as  in  having  no  relation  to  land.     Homage,  however,  seems  to 
have  been  incident  to  commendation,  as  well  as  to  vassalage. 
Military  service  was  sometimes  the  condition  of  this  engage- 
ment.    It  was  the  law  of  France,  so  late  at  least  as  the°com- 
mencement  of  the  third  race  of  kings,  that  no  man  could  take 
a  part  in  private  wars,  except  in   defence  of  his  own   lord. 
This  we  learn  from  an  historian  about  the  end  of  tlie  tenth 
century,  who  relates  that  one  Erminfrid,  having  been  released 
from  his  homage  to  count  Burchard,  on  ceding^the  fief  he  had 
held  of  him  to  a  monastery,  renewed  the  ceremony  on  a  war 
breaking  out  between  Burchard  and  another  nobleman,  where- 
in he  was  desirous  to  give  assistance ;  since,  the  author  ob- 
serves, it  is  not,  nor  has  been,  the  practice  in  France,  for  any 
man  to  be  concerned  in  war,  except  in  the  presence  or  by  the 
command  of  his  lord.'     Indeed,  there  is  reason  to  infer,  from 
the  capitularies  of  Charles  the  Bald,  that  every  man  was 
bound  to  attach  himself  to  some  lord,  though  it  was  the  priv- 
ilege of  a  freeman  to  choose  his  own  superior.*    And  this  is 


>  Du  Gauge,  v.  Salyamentum. 
•Ibid. 


superior. 

•Recueil  des  Historiens,  t.  x.  p.  856. 
*  Uniuquisque  liber  homo  post  moi« 


Feudal  System.    EDICT  OF  CONE  /VD  THE  SALIC. 


167 


f 


strongly  supported  by  the  analogy  of  our  Anglo-Saxon  laws, 
where  it  is  frequently  repeated  that  no  man  should  continue 
without  a  lord.  There  are,  too,  as  it  seems  to  me,  a  great 
nuniber  of  passages  in  Domesday-book  which  confirm  this 
distinction  between  personal  commendation  and  the  benefi- 
ciary tenure  of  land.  Perhaps  I  may  be  thought  to  dwell  too 
prolixly  on  this  obscure  custom ;  but  as  it  tends  to  illustrate 
those  mutual  relations  of  lord  and  vassal  which  supplied  the 
place  of  regular  government  in  the  polity  of  Europe,  and  has 
seldom  or  never  been  explicitly  noticed,  its  introduction 
seemed  not  improper. 

It  has  been  sometimes  said  that  feuds  were  first  rendered 
hereditary  in  Germany  by  Conrad  11.,  surnamed  Edict  of 
the    Salic.     This   opinion   is   perhaps   erroneous.  J^he^Sic. 
But  there  is  a  famous  edict  of  that  emperor  at 
IVIilan,  in  the  year  1037,  which,  though  immediately  relating 
only  to  Lombardy,  marks  the  full  maturity  of  the  system,  and 
the  last  stage  of  its  progress.*     I  have  remarked  already  the 
custom  of  subinfeudation,  or  grants  of  lands  by  vassals  to  be 
held  of  themselves,  which  had  grown  up  with  the  growth  of 
these  tenures.     There  had  occurred,  however,  some  disagree- 
ment, for  want  of  settled  usage,  between  these  inferior  vas- 
sals and  their  immediate  lords,  which  this  edict  was  expressly 
designed  to  remove.     Four  regulations  of  great  importance 
are  established  therein :  that  no  man  should  be  deprived  of 


tem  domJni  sui,  licentiam  babcat  se  com- 
mcndandi  inter  haec  tria  regna  ad  quem- 
cunque  voluerit.  Similiter  et  ille  qui 
nondumalicui  commendatiis  est.  Baluzii 
Oapitulmia,  t.  i.  p.  443.  a.d.  806.  Vo- 
lumus  etiam  ut  unusquisque  liber  homo 
in  noatro  regno  eeniorem  qualcm  voluerit 
in  nobis  et  in  nostris  fldelibus  recipiat. 
Capit.  Car.  Calvi,  a.d.  877.  Et  volumus 
ut  cujuscunque  nostrum  homo,  in  cujus- 
cunquc  regno  sit,  cum  seniore  suo  in 
liostem.  vel  aliis  suis  utllitatibus  pergat. 
Ibid.     See  too  Baluze,  t.  i.  p.  536,  637. 

By  the  Establishments  of  St.  Louis, 
c.  87,  every  stranger  coming  to  settle 
within  a  barony  was  to  acknowledge  the 
baron  as  lord  within  a  year  and  a  day,  or 
pay  a  fine.  In  some  places  he  even  be- 
came the  serf  or  villein  of  the  lord. 
Ordonnances  des  Rois,  p.  187.  Upon  this 
jealousy  of  unknown  settlers  which  per- 
vades the  policy  of  the  middle  ages,  was 
founded  the  droit  d'aubaine,  or  right  to 
their  movables  after  their  decease.  See 
preface  to  Ordonnancea  des  Rois.  t.  i. 
p.  16. 


The  article  Commendatio  in  Du  Gauge's 
Glossary  furnishes  some  hints  upon  thia 
subject,  which,  however,  that  author 
does  not  seem  to  have  fully  apprehended. 
Carpentier,  in  his  Supplement  to  the 
Glossary,  under  the  word  Vassaticum, 
gives  the  clearest  notice  of  it  that  I  have 
anywhere  found.  Since  writing  the 
above  pages  I  have  found  the  subject 
touched  by  M.  de  Montlosier,  Hist,  de  la 
Monarchic  Francaise,  t.  i.  p.  864.  [Notb 
XI.] 

1  Spelman  tells  us,  in  his  Treatise  of 
Feuds,  chap,  ii.,  thatConradus  SaUcus,a 
French,  emperor,,  but  of  German  descent 
[wliat  can  this  mean?],  went  to  Rome 
about  915  to  fetch  his  crown  from  Pope 
John  X.  when,  according  to  him,  the 
succession  of  a  son  to  his  father's  fief 
was  first  conceded.  An  almost  unparal- 
leled blunder  in  so  learned  a  writer ! 
Conrad  the  Salic  was  elected  at  Worms  in 
1024,  crowned  at  Rome  by  John  XIX.  in 
1027,  and  made  thiB  edict  at  Milan  in 
1037. 


168     PRINCIPLES  OF  FEUDAL  RELATION.    Chap.  H.  Pakt  L 

his  fief,  whether  held  of  the  emperor  or  a  mesne  lord,  but  by 
the  laws  of  the  empire  and  the  judgment  of  his  peers ;  ^  that 
from  such  judgment  an  immediate  vassal  might  appeal  to  his 
sovereign ;  that  fiefs  should  be  inherited  by  sons  and  their 
children,  or,  in  their  failure,  by  brothers,  provided  they  were 
feuda  'patema,  such  as  had  descended  from  the  father ;  *  and 
that  the  lord  should  not  alienate  the  fief  of  his  vassal  with- 
out his  consent.* 

Such  was  the  progress  of  these  feudal  tenures,  which  deter- 
mined the  political  character  of  every  European  monarchy 
where  they  prevailed,  as  well  as  formed  the  foundations  of  its 
jurisprudence.  It  is  certainly  inaccurate  to  refer  this  sys- 
tem, as  is  frequently  done,  to  the  destruction  of  the  Roman 
empire  by  the  northern  nations,  though  in  the  beneficiary 
grants  of  those  conquerors  we  trace  its  beginning.  Four  or 
five  centuries,  however,  elapsed,  before  the  alodial  tenures, 
which  had  become  incomparably  the  more  general,  gave  way, 
and  before  the  reciprocal  contract  of  the  feud  attained  its 
maturity.  It  is  now  time  to  describe  the  legal  qualities  and 
effects  of  this  relation,  so  far  only  as  may  be  requisite  to  un- 
derstand its  influence  upon  the  political  system. 

The  essential  principle  of  a  fief  was  a  mutual  contract  of 
Principles  support  and  fidehty.  Whatever  obligations  it  laid 
of  a  feudal  upou  the  vassal  of  service  to  liis  lord,  correspond- 
ing duties  of  protection  were  imposed  by  it  on  the 
lord  towards  his  vassal.*  If  these  were  transgressed  on  ei- 
ther side,  the  one  forfeited  his  land,  the  other  his  seigniory  or 
rights  over  it.    Nor  were  motives  of  interest  left  alone  to 


1  Nisi  secundum  constitutionem  ante- 
cessorumnostrorum,et  judicium  parium 
suorum ;  the  rery  expressions  of  Magna 
Oharta. 

a  "  Gerardus  notcth,"  says  Sir  H.  Spel- 
man,  "  that  this  law  settled  not  the  feud 
upon  the  eldest  son,  or  any  other  son  of 
the  feudatary  particularly ;  but  left  it  in 
the  lord's  election  to  please  himself  with 
which  he  would."  But  the  phrase  of  the 
edict  runs,  filios  ejus  bcneficium  tenere : 
which,  when  nothing  more  is  said,  can 
only  mean  a  partition  among  the  sons. 

3  The  last  provision  may  seem  strange 
at  so  advanced  a  period  of  the  system  ; 
yet,  according  to  Giannone,  feuds  were 
still  revocable  by  the  lord  in  some  parts 
of  Lombardy.  Istoria  di  Napoli,  1.  xiii. 
c.  3.  It  seems,  however,  no  more  than 
had  been  already  enacted  by  the  first 
clause  of  this  edict.   Another  interpreta- 


tion is  possible;  namely,  that  the  lord 
should  not  alienate  his  own  seigniory 
without  his  vassal's  consent,  which  was 
agreeable  to  the  feudal  tenures.  This, 
indeed,  would  be  putting  rather  a  forced 
construction  on  the  words  ne  domino 
feudum  militis  alienarc  liceat. 

*  Crag.  Jus  Feudale,  1.  ii.  tit.  11.  Beau 
manoir,  Coutumes  de  Beauvoisis,  c.  IxL 
p.  311 ;  Ass.  de  Jerus.  c.  217 ;  Lib.  Feud 
1.  ii.  tit.  26,  47. 

Upon  the  mutual  obligation  of  the  lord 
towards  his  vassal  seems  to  be  founded 
the  law  of  warranty,  which  compelled 
him  to  make  indemnification  where  the 
tenant  was  evicted  of  his  land.  This 
obligation,  however  unreasonable  it  may 
appear  to  us,  extended,  according  to  the 
feudal  lawyers,  to  cases  of  mere  dona- 
tion. Crag.  1.  ii.  tit.  4;  BuUer's  Notei 
on  Co.  Litt.  p.  365. 


Feudal  System.    PRINCIPLES  OF  FEUDAL  RELATION.        169 

operate  in  securing  the  feudal  connection.     The  associations 
founded  upon  ancient  custom  and  friendly  attachment,  the 
impulses  of  gratitude  and  honor,  the  dread  of  infamy,  the 
sanctions  of  religion,  were  all  employed  to  strengthen  these 
ties,  and  to  render  them  equally  powerful  with  the  relations 
of  nature,  and  far  more  so  than  those  of  political  society.     It 
is  a  question,  agitated  among  the  feudal  lawyers,  whether  a 
vassal  is  bound  to  follow  the  standard  of  his  lord  against  his 
own  kindred.^     It  was  one  more  important  whether  he  must 
do  so  against  the  king.     In  the  works  of  those  who  wrote 
when  the  feudal  system  was  declining,  or  who  were  anxious  to 
maintain  the  royal  authority,  this  is  commonly  decided  in  the 
negative.    Littleton  gives  a  form  of  homage,  with  a  reserva- 
tion of  the  allegiance  due  to  the  sovereign ;  ^  and  the  same 
prevailed  in  Normandy  and  some  other  countries.®    A  law  of 
Frederic  Barbarossa  enjoins  that  in  every  oath  of  fealty  to  an 
inferior  lord  the  vassal's  duty  to  the  emperor  should  be  ex- 
pressly reserved.     But  it  was  not  so  during  the  height  of 
the  feudal  system  in  France.     The  vassals  of  Henry  II.  and 
Richard  I.  never  hesitated  to  adhere  to  them  against  the  sov- 
ereign, nor  do  they  appear  to  have  incurred  any  blame  on 
that  account.     Even  so  late  as  the  age  of  St.  Louis,  it  is  laid 
down  in  his  Establishments,  that,  if  justice  is  refused  by  the 
king  to  one  of  his  vassals,  he  might  summon  his  own  tenants, 
under  penalty  of  forfeiting  their  fiefs,  to  assist  him  in  obtain- 
ing redress   by  arms.*     The  count  of  Britany,   Pierre  de 
Dreux,  had  practically  asserted  this  feudal  right  during  the 
minority  of  St.  Louis.     In  a  public  instrument  he  announced 
to  the  world,  that,  having  met  with  repeated  injuries  from  the 
regent,  and  denial  of  justice,  he  had  let  the  king  know  that  he 


1  Crag.  1.  ii.  tit.  4. 

2  Sect.  Ixxxv. 

•  Houard,  Anc.  Loix  des  Francis,  p. 
114.  See  too  an  instance  of  this  reserva- 
tion in  llecucil  des  Uistoriens,  t.  xi. 
447. 

♦  Si  le  sire  dit  a  son  homme  lige, 
Venez  vous  en  avec  moi.  je  veux  guer- 
royer  mon  seigneur,  qui  mo  denio  le 
jugement  de  sa  cour,  le  vassal  doit  re- 
pondre,  J'irai  scavoir  s'il  est  ainsi  que 
vous  me  dites.  Alors  il  doit  aller  trou- 
ver  le  superieur,  et  luy  dire.  Sire,  le 
gentilhomme  de  qui  je  tiens  mon  fief  se 
plaint  quo  vous  lui  refuscz  justice ;  je 
viens  pour  en  scavoir  la  verite ;  car  je 
suis  semonc^  de  marcher  en  guerre  cen- 


tre vous.  Si  la  reponse  est  que  volon- 
tiers  il  fera  droit  en  sa  cour,  I'homme 
n'est  point  oblig6  de  deferer  ii  la  requisi- 
tion du  sire ;  mais  il  doit,  ou  le  suivrOj 
ou  le  rcsoudre  4  perdre  son  fief,  si  le  chef 
seigneur  persiste  dans  son  refus.  Eta- 
blissemcns  de  St.  Louis,  c.  49.  I  have 
copied  this  from  Velly,  t.  vi.  p.  213,  who 
has  modernized  the  orthography,  which 
is  almost  unintelligible  in  the  Ordonnan- 
ces  des  Rois.  One  MS.  gives  the  reading 
Roi  instead  of  Seigneur.  And  the  law 
certainly  applies  to  the  king  exclusively ; 
for,  in  case  of  denial  of  justice  by  a 
mesne  lord,  there  was  an  appeal  to  the 
king's  court,  but  from  his  injury  there 
could  be  no  appeal  but  to  the  sword. 


170 


FEUDAL  CEREMONIES.       -Chap.  H.  Part  i. 


Feudal  Ststem. 


MILITARY  SERVICE. 


171 


2.  Fealty. 


no  longer  considered  himself  as  his  vassal,  but  renounced  his 
homage  and  defied  him.^ 

The  ceremonies  used  in  conferring  a  fief  were  principally 
Ceremo-  three  —  homage,  fealty,  and  investiture.  1.  The 
nies  of—  first  was  designed  as  a  significant  expression  of 
1.  Homage,  ^^^q  submission  and  devotedness  of  the  vassal  tow- 
ards his  lord.  In  performing  homage,  his  head  was  uncov- 
ered, his  belt  ungirt,  his  sword  and  spurs  removed ;  he  placed 
his  hands,  kneeling,  between  those  of  the  lord,  and  promised 
to  become  his  man  from  thenceforward ;  to  serve  him  with 
life  and  limb  and  worldly  honor,  faithfully  and  loyally,  in 
consideration  of  the  lands  which  he  held  under  him.  None 
but  the  lord  in  person  could  accept  homage,  which  was  com- 
monly concluded  by  a  kiss.*  2.  An  oath  of  fealty 
was  indispensable  in  eveiy  fief;  but  the  ceremony 
was  less  peculiar  than  that  of  homage,  and  it  might  be  re- 
ceived by  proxy.  It  was  taken  by  ecclesiastics,  but  not  by 
minors;  and  in  language  differed  little  from  the  form  of 
3.  investi-  homage.®  3.  Investiture,  or  the  actual  conveyance 
ture.  Qf  feudal  lands,  was  of  two  kinds ;  proper  and  im- 

proper. The  first  was  an  actual  putting  in  possession  upon 
the  ground,  either  by  the  lord  or  his  deputy ;  which  is  called, 
in  our  law,  livery  of  seisin.  The  second  was  symbolical, 
and  consisted  in  the  delivery  of  a  turf,  a  stone,  a  wand,  a 
branch,  or  whatever  else  might  have  been  made  usual  by 
the  caprice  of  local  custom.  Du  Cange  enumerates  not  less 
than  ninety-eight  varieties  of  investitures.* 

Upon  investiture,  the  duties  of  the  vassal  commenced. 
Obligations  Thcsc  it  is  impossible  to  define  or  enumerate; 
of  a  vassal,  ^ecausc  the  services  of  miHtary  tenure,  which  is 
chiefly  to  be  considered,  were  in  their  nature  uncertain,  and 


1  Da  Cange,  Observations  sur  Join- 
▼ille,  in  Collection  des  Memoires,  t.  1.  p. 
196.  It  was  always  necessary  for  a  vassal 
to  renounce  his  homage  before  ho  niide 
war  on  his  lord,  if  he  would  avoid  the 
shame  and  penalty  of  feudal  treason. 
After  a  reconciliation  the  homage  was 
renewed.  And  in  this  no  distinction  was 
made  between  the  king  and  another  su- 
perior. Thus  Henry  II.  did  homage  to 
the  king  of  France  in  1188,  having  re- 
nounced his  former  obligation  to  him  at 
the  commencement  of  the  preceding  war. 
Mat.  Paris,  p.  126. 

2  Du  Caoge,  Hominiom,  and  Carpen- 
tier's  Supplement,  id.    voc.    Littleton, 


8. 85.  Assises  de  Jerusalem,  c.  204 ;  Crag. 
1.  i.  tit.  11;  Recueil  des  Historiens,  t.  ii. 
preface,  p.  174.  Homagium  per  para- 
gium  was  unaccompanied  by  any  feudal 
obligation,  and  distinguished  from  ho- 
magium ligeum,  which  carried  with  it  an 
obligation  of  fidelity.  The  dukes  of  Nor- 
mandy rendered  only  homage  per  para 
gium  to  the  kings  of  France,  and  received 
the  like  from  the  dukes  of  Britany.  In 
liege  homage  it  was  usual  to  make  reser- 
vations of  allegiance  to  the  king,  or  any 
other  lord  whom  the  homager  hud  previ 
ously  acknowledged. 

3  Littl.  s.  91;  Du  Cange.  voc.  Fidelitaa. 

*  Du  Cange,  voc.  Investitura. 


"\1 


distinguished  as  such  from  those  incident  to  feuds  of  an  infe- 
rior description.  It  was  a  breach  of  faith  to  divulge  the 
lord's  counsel,  to  conceal  from  him  the  machinations  of  others, 
to  injure  his  person  or  fortune,  or  to  violate  the  sanctity  of 
his  roof  and  the  honor  of  his  family.^  In  battle  he  was 
bound  to  lend  his  horse  to  his  lord,  when  dismounted ;  to 
adhere  to  his  side,  while  fighting ;  and  to  go  into  captivity  as 
a  hostage  for  him,  when  taken.  His  attendance  was  due  to 
the  lord's  courts,  sometimes  to  witness,  and  sometimes  to 
bear  a  part  in,  the  administration  of  justice.* 

The  measure,  however,  of  military  service  was  generally 
settled  by  some  usage.     Forty  days  was  the  usual  Limitations 
term  during  which  the  tenant  of  a  knight's  fee  was  of  military 
bound  to  be  in  the  field  at  his  own  expense.^    This  ^'^'''^' 
was  extended  by  St.  Louis  to  sixty  days,  except  when  the 
charter  of  infeudation  expressed  a  shorter  period.     But  the 
length  of  service  diminished  with  the  quantity  of  land.     For 
half  a  knight's  fee  but  twenty  days  were  due ;  for  an  eighth 


1  Assises  de  Jerusalem,  c.  265.    Home 
ne  doit  i.  la  feme  de  sou  seigneur,  ne  k  sa 
fiUe  requerre  vilainie  de  son  cors,  ne  k  sa 
Eoeur  tant  com  elle  est  demoiselle  en  son 
hostel.    I  mention  this  part  of  feudal 
duty  on  account  of  the  light  it  throws  on 
the  statute  of  treasons,  25  E.  III.     One 
of    the  treasons   therein  specified   is,  si 
omne   viol;ist  la  compaigne  le  roy,   ou 
leis;n6  file  le  roy  nient  marid  ou  la  com- 
paigne leigne  fttz  et  heire  le  roy.     Those 
who,  like  Sir  E.  Coke  and  the  modern 
lawyers  in  general,  explain  this  provision 
by  the  political  danger  of  confusing  the 
royal  blood,  do  not  apprehend  its  spirit. 
It  would  be  absurd,  upon  such  grounds, 
to  render  the  violation  of  the  king's  eldest 
daughter  treasonable,  so  long  only  as  she 
remains  unman  ied,  when,  as  is  obvious, 
the  danger  of  a  spurious  L^sue  inheriting 
could  not  arise.    I  consider  this  provision 
therefore  as  entirely  founded  upon  the 
feudal  principles,  which  make  it  a  breach 
of  faith  (that  is,  in  the  primary  sense  of 
the  word,  a  treason)  to  sully  the  honor 
of  the  lord  in  that  of  the  near  relations 
who  were  immediately  protected  by  resi- 
dence in  his  house.     If  it  is  asked  why 
this  should  be  restricted  by  the  statute 
to  the  person  of  the  eldest  daughter,  I 
can  only  answer  that  this,  which  is  not 
more  reasonable  according  to  the  com- 
mon political  interpretation,  is  analogous 
to  many  feudal  customs  in  our  own  and 
other  countries,  which  attribute  a  sort 
of  superiority  in  dignity  to  the  eldest 
daughter. 


It  may  be  objected  that  in  the  reign  of 
Edward  III.  there  was  little  left  of  the 
feudal  principle  in  any  part  of  Europe, 
and  least  of  all  in  England.  But  the 
statute  of  treasons  is  a  declaration  of  the 
ancient  law,  and  comprehends,  undoubt- 
edly, what  the  judges  who  drew  it  could 
find  in  records  now  perished,  or  in  legal 
traditions  of  remote  antiquity.  Similar 
causes  of  forfeiture  are  enumerated  in 
the  Libri  Feudorum,  1.  i.  tit.  5,  and  1.  ii. 
tit.  24.  In  the  Est  iblishments  of  St. 
liouis,  c.  61,  52,  it  is  said  that  a  lord 
seducing  his  vassal's  daughter  intrusted 
to  his  custody  lost  hLs  seigniory ;  a  vassal 
guilty  of  the  same  crime  towards  the 
family  of  his  suzerain  forfeited  his  land. 
A  proof  of  the  tendency  which  the  feudal 
law  had  to  purify  public  morals,  and  to 
create  that  sense  of  indignation  and  re- 
sentment with  which  we  now  regard 
such  breaches  of  honor. 

a  Assises  de  Jerusalem,  c.  222.  A  vas- 
sal, at  least  in  many  places,  was  bound 
to  reside  upon  his  fief,  or  not  to  quit  it 
without  the  lord's  consent.  Du  Cange, 
voc.  Reseantia,  Remanentia,  Recueil  dos 
Historiens,  t.  xi.  preface,  p.  172. 

3  In  the  kingdom  of  Jerusalem  feudal 
service  extended  to  a  year.  Assises  de 
Jerusalem,  c.  230.  It  is  obvious  that 
this  was  founded  on  the  peculiar  circum- 
stances of  that  state.  Service  of  castle 
guard,  which  was  common  in  the  north 
of  England,  was  performed  without  lim- 
itation of  tune.  Lyttelton's  Henry  U. 
vol.  ii.  p.  184. 


172 


MILITARY  SERVICE. 


Chap.  II.  PAitr  1. 


Feudal  Ststbm. 


FEUDAL  INCIDENTS. 


173 


part,  but  five ;  and  when  this  was  commuted  for  an  escuage 
or  pecuniary  assessment,  the  same  proportion  was  observed.* 
Men  turned  of  sixty,  public  magistrates,  and,  of  course,  wo- 
men, were  free  from  personal  service,  but  obliged  to  send 
their  substitutes.  A  failure  in  this  primary  duty  incurred 
perhaps  strictly  a  forfeiture  of  the  fief.  But  it  was  usual  for 
the  lord  to  inflict  an  amercement,  known  in  England  by  the 
name  of  escuage.*  Thus,  in  Philip  III.*s  expedition  against 
the  count  de  Foix  in  1274,  barons  were  assessed  for  their 
default  of  attendance  at  a  hundi*ed  sous  a  day  for  the  ex- 
penses which  they  had  saved,  and  fifty  sous  as  a  fine  to  the 
king ;  bannerets,  at  twenty  sous  for  expenses,  and  ten  as  a 
fine ;  knights  and  squires  in  the  same  proportion.  But  ba- 
rons and  bannerets  were  bound  to  pay  an  additional  assess- 
ment for  every  knight  and  squire  of  their  vassals  whom  they 
ought  to  have  brought  with  them  into  the  field.'  The  regu- 
lations as  to  the  place  of  service  were  less  uniform  than 
those  which  regarded  time.  In  some  places  the  vassal  was 
not  bound  to  go  beyond  the  lord's  territory,*  or  only  so  far  as 
that  he  might  return  the  same  day.  Other  customs  com- 
pelled him  to  follow  his  chief  upon  all  his  expeditions.* 


1  Dn  Cange,  voc.  Feudum  militui ; 
Membrum  Loricae.  Stuart's  View  of  So- 
ciety, p.  382.  This  division  by  knight's 
fees  id  perfectly  familiar  in  the  feudal 
law  of  England.  But  I  must  confess  my 
inability  to  adduce  decisive  evidence  of  it 
in  that  of  France,  with  the  usual  excep- 
tion of  Normandy.  According  to  the 
natural  principle  of  fiefs,  it  might  seem 
that  the  same  personal  service  would  be 
required  from  the  tenant,  whatever  were 
the  extent  of  his  land.  William  the 
Conqueror,  it  is  said,  distributed  this 
kingdom  into  about  60,000  parcels  of 
nearly  equal  value,  from  each  of  which 
the  service  of  a  soldier  was  due.  He  may 
possibly  have  been  the  inventor  of  this 
politic  arrangement.  Some  rule  must, 
however,  have  been  observed  in  all  coun- 
tries in  fixing  the  amercement  for  ab- 
sence, which  could  only  be  equitable  if 
it  bore  a  just  proportion  to  the  value  of 
the  fief.  And  the  principle  of  the  knight's 
fee  was  so  convenient  and  reasonable, 
that  it  is  likely  to  have  been  adopted  in 
imitation  of  England  by  other  feudal 
countries.  In  the  roll  of  Philip  III.'s 
expedition,  aa  will  appear  by  a  note  im- 
mediately below,  there  are,  I  think,  sev- 
eral presumptive  evidences  of  it;  and 
though  this  is  rather  a  late  authori- 
ty to  establish  a  feudal  principle,  yet 


I  have  yentuied  to  assume  it  in  the 
text. 

The  knight's  fee  was  fixed  in  England 
at  the  annual  value  of  20/.  Every  estate 
supposed  to  be  of  this  value,  and  entered 
as  such  in  the  rolls  of  the  exchequer,  waa 
bound  to  contribute  the  service  of  a 
soldier,  or  to  pay  an  escuage  to  the  amount 
assessed  upon  knights'  fee. 

2  Littleton,  1.  ii.  c.  3;  Wright's  Tenures, 
p.  121. 

3  Du  Chesne,  Script.  Rerum  Gallica< 
rum,  t.  V.  p.  553.  Daniel,  Ilistoire  de  la 
Milice  Fran<joise,  p.  72.  The  following 
extracts  from  the  muster-roll  of  this  ex- 
pedition will  illustrate  the  varieties  of 
feudal  obligations.  Johannes  d'Ormoy 
debet  servitium  per  quatuor  dies.  Jo« 
hanncs  3Ialet  debet  servitium  per  viginti 
dies,  pro  quo  servitio  misit  liichardum 
Tichet.  Guido  de  Laval  debet  servitium 
duorum  militum  et  dimidii.  Dominus 
Sabrandus  dictus  Chubot  diclt  quod  non 
debet  scr\'itium  domino  regi,  nisi  in  co- 
mitatu  Pictaviensi,  et  ad  sumptus  regis, 
tamen  venit  ad  preces  regis  cum  tribus 
multibus  et  ducnlecim  scutiferis.  Guido 
de  Lusigniaco  Dom.  de  Pierac  dicit,  quod 
non  debet  aUquid  regi  practerhomagium. 

^  This  was  the  custom  of  Boauvoisla 
Beaumanoir,  c.  2. 
6  Du  Cange,  et  Carpentier,  toc.  Hostis. 


These  inconvenient  and  varying  usages  betrayed  the  origin 
of  the  feudal  obligations,  not  founded  upon  any  national  pol- 
icy, but  springing  from  the  chaos  of  anarchy  and  intestine 
war,  which  they  were  well  calculated  to  perpetuate.  For 
the  public  defence  their  machinery  was  totally  unserviceable, 
until  such  changes  were  wrought  as  destroyed  the  character 
of  the  fabric. 

Independently  of  the  obligations  of  fealty  and  service 
which  the  nature  of  the  contract  created,  other  Feudal 
advantages  were  derived  from  it  by  the  lord,  which  incidents. 
have  been  called  feudal  incidents :  these  were,  1.  Reliefs.   2. 
Fines  upon  alienation.      3.  Escheats.      4.  Aids;  to  which 
may  be  added,  though  not  generally  established,  5.  Ward- 
ship, and  6.  ^larriage. 

1.  Some  writers  have  accounted  for  Reliefs  in  the  follow- 
ing manner.  Benefices,  whether  depending  upon  ^^^^ 
the  crown  or  its  vassals,  were  not  originally  granted 
by  way  of  absolute  inheritance,  but  renewed  from  time  to  time 
upon  the  death  of  the  possessor,  till  long  custom  grew  up  into 
right.  Hence  a  sum  of  money,  something  between  a  price 
and  a  gratuity,  would  naturally  be  offered  by  the  heir  on 
receiving  a  fresh  investiture  of  the  fief;  and  length  of  time 
might  as  legitimately  turn  this  present  into  a  due  of  the  lord, 
as  it  rendered  the  inheritance  of  the  tenant  indefeasible. 
This  is  a  very  specious  account  of  the  matter.  But  those 
who  consider  the  antiquity  to  which  hereditary  benefices  may 
be  traced,  and  the  unreserved  expressions  of  those  instru- 
ments by  which  they  were  created,  as  well  as  the  undoubted 
fact  that  a  large  proportion  of  fiefs  had  been  absolute  alodial 
inheritances,  never  really  granted  by  the  superior,  will  per- 
haps be  led  rather  to  look  for  the  origin  of  rehefs  in  that 
rapacity  with  which  the  powerful  are  ever  ready  to  oppress 
the  feeble.  When  a  feudal  tenant  died,  the  lord,  taking  ad- 
vantage of  his  own  strength  and  the  confusion  of  the  family, 
would  seize  the  estate  into  his  hands,  either  by  the  right  of 
force,  or  under  some  litigious  pretext.  Against  this  violence 
the  heir  could  in  general  have  no  resource  but  a  compromise ; 
and  we  know  how  readily  acts  of  successful  injustice  change 
their  name,  and  move  demurely,  like  the  wolf  in  the  fable, 
under  the  clothing  of  law.  Reliefs  and  other  feudal  inci- 
dents are  said  to  have  been  established  in  France  *  about  the 

1  Ordonnances  des  Rois  de  France,  t.  i.  preface,  p.  10. 


-««■■ 


174 


FEUDAL  INCroENTS. 


Chap.  II.  Pakt  I. 


Feudal  System.      FINES   UPON  ALIENATION. 


175 


J 

'I 


latter  part  of  the  tenth  century,  and  they  certainly  appear  in 
the  famous  edict  of  Conrad  the  Salic,  in  1037,  which  recognizes 
the  usage  of  presenting  horses  and  arms  to  the  lord  upon  a 
change  of  tenancy.^  But  this  also  subsisted  under  the  name 
of  heriot,  in  England,  as  early  as  the  reign  of  Canute. 

A  reUef  was  a  sum  of  money  (unless  where  charter  or 
custom  introduced  a  different  tribute)  due  from  every  one  of 
full  age,  taking  a  fief  by  descent.  This  was  in  some  countries 
arbitrary,  or  ad  misericordiam,  and  the  exactions  practised 
under  this  pretence  both  upon  superior  and  inferior  vassals 
ranked  amongst  the  gi*eatest  abuses  of  the  feudal  policy. 
Henry  I.  of  England  promises  in  his  charter  that  they  shall  in 
future  be  just  and  reasonable ;  but  the  rate  does  not  appear  to 
have  been  finally  settled  till  it  was  laid  down  in  Magna  Charta 
at  about  a  fourth  of  the  annual  value  of  the  fief.  We  find  also 
fixed  reliefs  among  the  old  customs  of  Normandy  and  Beau- 
voisis.  By  a  law  of  St.  Louis,  in  1245,^  the  lord  was 
entitled  to  enter  upon  the  lands,  if  the  heir  could  not  pay  the 
relief,  and  possess  them  for  a  year.  This  right  existed 
unconditionally  in  England  under  the  name  of  primer  seisin, 
but  was  confined  to  the  king.' 

2.  Closely  connected  with  reliefs  were  the  fines  paid  to  the 
Fines  upon  lord  upou  the  alienation  of  his  vassal's  feud ;  and 
•Uenation.  indeed  we  frequently  find  them  called  by  the  same 
name.  The  spirit  of  feudal  tenure  established  so  intimate  a 
connection  between  the  two  parties  that  it  could  be  dissolved 
by  neither  without  requiring  the  other's  consent.  K  the  lord 
transferred  his  seigniory,  the  tenant  was  to  testify  his  concur- 
rence ;  and  this  ceremony  was  long  kept  up  in  England  under 
the  name  of  attornment.  The  assent  of  the  lord  to  his  vas- 
sal's ahenation  was  still  more  essential,  and  more  difficult  to 
be  attained.  He  had  received  his  fief,  it  was  supposed,  for 
reasons  peculiar  to  himself,  or  to  his  family;  at  least  his 


1  Serrato  usu  Talvassoram  majorum 
In  tradendis  armis  cquisque  suis  seniori- 
bus.  This,  among  other  reasons,  leads 
me  to  doubt  the  received  opinion  that 
Italian  fiefs  were  not  hereditary  before 
the  promulgation  of  this  edict. 

a  Ordonnances  des  Rois,  p.  55. 

3  Du  Cange,  v.  Placitum,  Relevium, 
Sporla.  By  many  customs  a  relief  was 
due  on  every  change  of  the  lord,  as  well 
as  of  the  vassal,  but  this  was  not  the 
case  in  England.  Beaumont  speaks  of 
relie&  as  due  only  on  collateral  succes- 


sion. CoQtumes  de  Beauvoisis,  c.  27.  And 
this,  according  to  Du  Cange,  was  the 
general  rule  in  the  customary  law  of 
France.  In  Anjou  and  Maine  they  were 
not  even  due  upon  succession  between 
brothers.  Ordonnances  des  llois,  t.  i.  p. 
58.  And  M.  de  Pastorct,  in  his  valuable 
preface  to  the  sixteenth  volume  of  that 
collection,  says  it  was  a  rule  that  the 
king  had  nothing  upon  lineal  succession 
of  a  flcf,  whether  in  the  ascending  or  de- 
scending line,  but  la  boucke  etUs  maim; 
i.  e.  homage  and  fealty :  p.  20. 


i 


heart  and  arm  were  bound  to  his  superior ;  and  his  service 
was  not  to  be  exchanged  for  that  of  a  stranger,  who  might 
be  unable  or  unwilling  to  render  it.  A  law  of  Lothaire  H. 
in  Italy  forbids  the  alienation  of  fiefs  without  the  lord's  con- 
sent* This  prohibition  is  repeated  in  one  of  Frederic  I., 
and  a  similar  enactment  was  made  by  Roger  king  of  Sicily.'' 
By  the  law  of  France  the  lord  Avas  entitled,  upon  every 
alienation  made  by  his  tenant,  either  to  redeem  the  fief  by 
paying  the  purchase-money,  or  to  claim  a  certain  part  of  the 
value,  by  way  of  fine,  upon  the  cliange  of  tenancy.^  In 
England  even  the  practice  of  subinfeudation,  which  was  more 
conlbnnable  to  the  law  of  fiefs  and  the  military  genius  of  the 
system,  but  injurious  to  the  suzerains,  who  lost  thereby  their 
escheats  and  other  advantages  of  seigniory,  was  checked  by 
Magna  Chai-ta,*  and  forbidden  by  the  statute  18  Edward  I., 
called  Quia  Emptores,  which  at  the  same  time  gave  the 
liberty  of  alienating  lands,  to  be  holden  of  the  grantor's  im- 
mediate lord.  The  tenants  of  the  crown  were  not  included 
in  this  act;  but  that  of  1  Edward  IH.  c.  12,  enabled  them 
to  alienate,  upon  the  payment  of  a  composition  into  chancery, 
which  was  fixed  at  one  thu-d  of  the  annual  value  of  the 
lands.* 

These  restraints,  placed  for  the  lord's  advantage  upon  the 
transfer  of  feudal  property,  are  not  to  be  confounded  with 
those  designed  for  the  protection  of  heirs  and  preservation 


1  Lib.  Feudorum,  1.  ii.  tit.  9  and  52. 
This  was  principally  levelled  at  the  prac- 
tice of  aliinatingfeudal property  in  favor 
of  the  church,  which  was  called  pro 
anim3L  judicare.  Kadevicus  in  Gcstis 
Frederic  I.  1.  iv.  c.  7;  Lib.  Feud.  1.  i. 
Ut.  7, 16, 1.  ii.  tit.  10. 

2  Qiannone,  1.  ii.  c.  5. 

3  Du  Cange,  v.  Reaccapitum,  I'lacitum, 
Rachatum .  Pastoret,  prdlkce  au  seizieme 
tome  des  Ordonnances,  p.  20 ;  Houard, 
Diet,  du  Droit  Normand,  art.  Fief  Ar- 
gou,  Inst,  du  Droit  Francois,  1.  ii.  c.  2. 
In  Bcaumauoir's  age  and  district  at 
least,  subinfeudation  without  the  lord's 
license  incurred  a  forfeiture  of  the  land  ; 
and  his  reason  extends  of  course  more 
strongly  to  alienation.  Coutumes  de 
Beauvoisis,  c.  2;  Velly,  t.  vi.  p.  187. 
But,  by  the  general  law  of  feuds,  the 
former  was  strictly  regular,  while  the 
tenant  forfeited  his  land  by  the  lat- 
ter. Craig  mentions  this  distinction 
as  one  for  which  he  is  perplexed  to 
account.  Jus  Feudale,  1.  iii.  tit.  3,  p. 
682.    It  Is,  however,  perfectly  intelligi- 


ble upon  the  original  principles  of  feudal 
tenure. 

*  Dalrymple  seems  to  suppose  that  the 
32d  chapter  of  Magna  Charta  relates  to 
alienation  and  not  to  subinfeudation. 
Essay  on  Feudal  Property,  edit.  1758,  p. 
83.  See  Sir  E.  Coke,  2  Inst.  p.  G5,  601 ; 
and  Wright  on  Tenures,  contri.  Mr. 
Ilargravo  observes  that  "  the  history  of 
our  law  with  respect  to  the  powers  of 
alienation  before  the  statute  of  Quia 
Emptoi-es  terrarum  is  very  much  involv- 
ed  in  obscurity."  Notes  on  Co.  Lit.  43, 
a.  In  Glanville's  time  apparently  a  man 
could  only  alienate  (to  hold  of  himself) 
rationabilcm  partem  de  terrisuS,  1.  vii.  c. 
1.  But  this  may  have  been  in  favor  of 
the  kindred  as  much  as  of  the  lord.  Dal- 
rymple's  Essay,  ubi  suprji. 

It  is  probable  that  Coke  is  mistaken 
in  supposing  that  "at  the  common  law 
the  tenant  might  have  made  a  feoffment 
of  the  whole  tenancy  to  be  holden  of  the 
lord." 

6  2  Inst.  p.  66 ;  Blackstone's  Commen- 
taries, vol.  ii.  c.  5. 


/ 


176 


FEUDAL    INCroENTS  : 


Chap.  II.  Pakt  I. 


^ 


of  families.  Such  were  the  jus  protimeseos  in  the  books  of 
the  fiefs,^  and  retrait  Ugnager  of  the  French  law,  which  gave 
to  the  relations  of  the  vendor  a  preemption  upon  the  sale 
of  any  fief,  and  a  right  of  subsequent  redemption.  Such 
was  the  positive  prohibition  of  alienating  a  fief  held  by  de- 
scent from  the  father  (feudum  patemum),  without  the  consent 
of  the  kindred  on  that  line.^  Such,  too,  were  the  still  more 
rigorous  fetters  imposed  by  the  English  statute  of  entails, 
which  precluded  all  lawful  alienation,  till,  after  two  centuries, 
it  was  overthrown  by  the  fictitious  process  of  a  common 
recovery.  Though  these  partake  in  some  measure  of  the 
feudal  spirit,  and  would  form  an  important  head  in  the  legal 
history  of  that  system,  it  will  be  sufficient  to  allude  to  them 
m  a  sketch  which  is  confined  to  the  development  of  its  polit- 
ical influence. 

A  custom  very  similar  in  effect  to  subinfeudation  was 
the  tenure  by  frerage,  which  prevailed  in  many  parts  of 
France.  Primogeniture,  in  that  extreme  which  our  com- 
mon law  has  established,  was  unknown,  I  believe,  in  every 
country  upon  the  Continent.  The  customs  of  France  found 
means  to  preserve  the  dignity  of  families,  and  the  indivisi- 
bihty  of  a  feudal  homage,  without  exposing  the  younger  sons 
of  a  gentleman  to  absolute  beggary  or  dependence.  Baronies, 
indeed,  were  not  divided ;  but  the  eldest  son  was  bound  to 
make  a  provision  in  money,  by  way  of  appanage,  for  the 
other  children,  in  proportion  to  his  circumstances  and  their 
birth.®  As  to  inferior  fiefs,  in  many  places  an  equal  partition 
was  made ;  in  others,  the  eldest  took  the  chief  portion,  gen- 
erally two  thirds,  and  received  the  homage  of  his  brothers 
for  the  remaining  part,  which  they  divided.  To  the  lord  of 
whom  the  fief  was  held,  himself  did  homage  for  the  whole.* 
In  the  early  times  of  the  feudal  policy,  when  military  ser- 
vice was  the  great  object  of  the  relation  between  lord  and 


1  Lib.  Feud.  1.  t.  1. 13.  There  were 
analojjies  to  this  jus  irpoTLfiTjaEU>z  in 
the  Roman  law,  and,  still  more  closely, 
in  the  constitutions  of  the  latter  By- 
zantine emperors. 

3  Alienatio  feuJi  patemi  non  valet 
etiam  domini  voluntate,  nisi  agnatls  con- 
Bentjpntibus.  Lib.  Feud,  apud  Wri<»iit 
on  Tenures,  p.  108, 156. 

3  Du  Cange,  v.  Apanamentum,  Baro. 
Baronie  ne  depart  mie  entre  freres  se 
leur  pere  ne  leur  a  lait  partio ;  mes  li 
ainsnez   doit    faire  ayenant  bienfet  au 


puisn6,  et  si  doit  les  fllles  maricr.    Eta- 
blissem.  de  St.  Louis,  c.  24. 

*  This  was  also  the  law  of  Flanders 
and  Uainault.  Martenne,  Thesaurus 
Anecdotor,  t.  i.  p.  1092.  The  customs  as 
to  succession  were  exceedingly  various, 
as  indeed  they  continued  to  be  until  the 
late  generalization  of  French  law.  Re- 
cueil  des  Ilistor.  t.  ii.  pr^foce,  p.  108 : 
Hist,  de  Languedoc,  t.  II  p.  Ill,  511. 
In  the  former  work  it  is  said  that  primo- 
geniture was  introduced  by  the  Nor- 
mans from  Scandiuaria. 


Feudal.  Ststem. 


ESCHEATS— AIDS. 


177 


vassal,  this,  like  all  other  subinfeudation,  was  rather  advan- 
tageous to  the  former ;  for  when  the  homage  of  a  fief  was 
divided,  the  service  was  diminished  in  proportion.  Suppose, 
for  example,  the  obligation  of  military  attendance  for  an  entire 
manor  to  have  been  forty  days ;  if  that  came  to  be  equally 
split  among  two,  each  would  owe  but  a  service  of  twenty. 
But  if,  instead  of  being  homagers  to  the  same  suzerain,  one 
tenant  held  immediately  of  the  other,  as  every  feudatary 
might  summon  the  aid  of  his  own  vassals,  the  superior  lord 
would,  in  fact,  obtam  the  service  of  both.  Whatever  opposi- 
tion, therefore,  was  made  to  the  rights  of  subinfeudation  or 
frerage,  would  indicate  a  decay  in  the  military  character,  the 
living  principle  of  feudal  tenure.  Accordingly,  in  the  reign 
of  Philip  Augustus,  when  the  fabric  was  beginning  to  shake, 
we  find  a  confederate  agreement  of  some  principal  nobles 
sanctioned  by  the  king,  to  abrogate  the  mesne  tenure  of 
younger  brothers,  and  establish  an  immediate  dependence  of 
each  upon  the  superior  lord.*  This,  however,  was  not  uni- 
versally adopted,  and  the  original  frerage  subsisted  to  the  last 
in  some  of  the  customs  of  France.^ 

3.  As  fiefs  descended  but  to  the  posterity  of  the  first  taker, 
or  at  the  utmost  to  his  kindred,  they  necessarily  „  ^   , 

,  ..  /.*'/,,.  •'   Escheats 

became  sometimes  vacant  for  want  of  heirs ;  es-  and 
pecially  where,  as  in  England,  there  was  no  power  *^'^«»*«- 
of  devismg  them  by  will.  In  this  case  it  was  obvious  that 
they  ought  to  revert  to  the  lord,  from  whose  property  they 
had  been  derived.  These  reversions  became  more  frequent 
through  the  forfeitures  occasioned  by  the  vassal's  delinquency, 
either  towards  his  superior  lord  or  the  state.  Various  cases 
are  laid  down  in  the  Assises  de  Jerusalem,  where  the  vassal 
forfeits  his  land  for  a  year,  for  his  life,  or  forever.*  But 
under  rapacious  kings,  such  as  the  Norman  line  in  England, 
absolute  forfeitures  came  to  prevail,  and  a  new  doctrine  was 
introduced,  the  corruption  of  blood,  by  which  the  heir  was 
effectually  excluded  from  deducing  his  title  at  any  distant 
time  through  an  attainted  ancestor. 

4.  Reliefs,  fines  upon  alienation,  and  escheats,  seem  to  be 
natural  reservations  in  the  lord's  bounty  to  his  vas- 
sal.    He  had  rights  of  another  class  which  princi-  ^^' 
pally  arose  out  of  fealty  and  intimate  attachment    Such  were 

1  Ordonnances  des  Rois,  t.  i.  p.  29. 

>  n"o^^°o^V  ^i«»f*-  ni-  BUT  JoinviUe ;  Beauman.  c.47. 
'  C.  200, 201. 

VOL.  1.  12 


178 


FEUDAL  INCIDENTS. 


Chap.  II.  Part  I. 


the  aids  wliich  lie  was  entitled  to  call  for  in  certain  prescribed 
circumstances.  These  depended  a  great  deal  upon  local  cus- 
tom, and  were  often  extorted  unreasonably.  Du  Cange  men- 
tions several  as  having  existed  in  France ;  such  as  an  aid  for 
the  lord's  expedition  to  the  Holy  Land,  for  marrying  liis  sister 
or  eldest  son,  and  for  paying  a  relief  to  his  suzerain  on  taking 
possession  of  his  land.^  Of  these,  the  last  appears  to  have 
been  the  most  usual  in  England.  But  this,  and  other  aids 
occasionally  exacted  by  the  lords,  were  felt  as  a  severe 
grievance ;  and  by  Magna  Charta  three  only  are  retained ; 
to  make  the  lord's  eldest  son  a  knight,  to  marry  his  eldest 
daughter,  and  to  redeem  his  person  from  prison.  They  were 
restricted  to  nearly  the  same  description  by  a  law  of  William 
I.  of  Sicily,  and  by  the  customs  of  France.*  These  feudal 
aids  are  deserving  of  our  attention,  as  the  beginnings  of  tax- 
ation, of  which  for  a  long  time  they  in  a  great  measure 
answered  the  purpose,  till  the  craving  necessities  and  covetous 
pohcy  of  kings  substituted  for  them  more  durable  and  onerous 
burdens. 

I  might  here,  perhaps,  close  the  enumeration  of  feudal 
incidents,  but  that  the  two  remaining,  wardship  and  marriage, 
though  only  partial  customs,  were  those  of  our  own  country, 
and  tend  to  illustrate  the  rapacious  character  of  a  feudal  aris- 
tocracy. 

5.  In  England,  and  in  Normandy,  which  either  led  the 
way  to,  or  adopted,  all  these  English  institutions, 
*■  the  lord  had  the  wardship  of  his  tenant  during 
minority.'  By  virtue  of  this  right  he  had  both  the  care  of  his 
person  and  received  to  his  own  use  the  profits  of  the  estate. 
There  is  something  in  this  custom  very  conformable  to  the 
feudal  spirit,  since  none  was  so  fit  as  the  lord  to  train  up  his 
vassal  to  arms,  and  none  could  put  in  so  good  a  claim  to  enjoy 
the  fief,  while  the  military  service  for  which  it  had  been 
granted  was  suspended.  This  privilege  of  guardianship  seems 
to  have  been  enjoyed  oy  the  lord  in  some  parts  of  Germany ;  * 
but  in  the  law  of  France  the  custody  of  the  land  was  intrusted 
to  the  next  heir,  and  that  of  the  person,  as  in  socage  tenures 
among  us,  to  the  nearest  kindred  of  that  blood  which  could 

1  Da  Cange,  voc.  Auxilium.  162 ;  Argon,  Inst,  au  Droit  Francois,  1.  L 

2  Qiannone,  1.  xii.  c.  6;  Velly,  t.  vi.  p.    c.  6;  Houard.  Anciennes  Loix  des  Fran* 
200 ;  Ordonnanccs  des  Rois,  t.  i.  p.  138,  t.    ^ois,  t.  i.  p.  147. 

xvi.  preface.  *  Schilter,Institutiones  Juris  Feud&lis, 

*  Bficueil  des  Historiens,  t.  zi.  pr^f.  p.    p.  86. 


Feudal  System.       WARDSHIP  — MARRIAGE. 


179 


I 


I 


not  inherit.*  By  a  gross  abuse  of  this  custom  in  England,  the 
right  of  guardianship  in  chivalry,  or  temporary  possession  of 
the  lands,  was  assigned  over  to  strangers.  This  was  one  of 
the  most  vexatious  parts  of  our  feudal  tenures,  and  was  never, 
perhaps,  more  sorely  felt  than  in  their  last  stage  under  the 
Tudor  and  Stuart  families. 

6.  Another  right  given  to  the  lord  by  the  Norman  and 
English  laws,  was  that  of  marriage,  or  of  tendering  . 
a  husband  to  his  female  wards  while  under  age, 
whom  they  could  not  reject  without  forfeiting  the  value  of  the 
marriage ;  that  is,  as  much  as  any  one  would  give  to  the 
guardian  for  such  an  alliance.  This  was  afterwards  extended 
to  male  wards,  and  became  a  very  lucrative  source  of  extor- 
tion to  the  crown,  as  well  as  to  mesne  lords.  This  custom 
seems  to  have  had  the  same  extent  as  that  of  wardships.  It 
is  found  in  the  ancient  books  of  Germany,  but  not  of  France.* 
The  kings,  however,  and  even  inferior  lords,  of  that  country, 
required  their  consent  to  be  solicited  for  the  marriage  of  their 
vassals'  daughters.  Several  proofs  of  this  occur  m  the  history 
as  well  as  in  the  laws  of  France  ;  and  the  same  prerogative 
existed  in   Germany,  Sicily,  and  England.*     A  still  more 


1  Du  Cange,  y.  Custodia;  Assises  de 
Jerusalem,  c.  178;  Etablissemens  de  St. 
Louis,  c.  17  ;  Beiiumanoir,  c.  15  ;  Argou, 
1.  i.  c.  6.  The  second  of  these  uses  nearly 
the  same  expression  as  Sir  John  Fortescue 
in  accounting  for  the  exclusion  of  tho 
next  heir  from  guardianship  of  the  per- 
son; that  mauvuisc  couroitise  li  fairoit 
fiiire  la  garde  du  loup. 

I  know  not  any  mistake  more  usual  in 
English  writers  who  have  treated  of  the 
feudal  law  than  that  of  supposing  that 
guardianship  in  chivalry  was  an  univer- 
sal custom.  A  charter  of  1198,  in  Rymer, 
t.  i.  p.  105,  seems  indeed  to  imply  that 
the  incidents  of  garde  noble  and  of  mar< 
riage  existed  in  the  Isle  of  Oleron.  But 
Eleanor,  by  a  later  instrument,  grants 
that  the  inhabitants  of  that  island  should 
have  the  wardship  and  marriage  of  their 
heirs  without  any  interposition,  and  ex- 
pressly abrogates  all  the  evil  customs 
that  her  husband  had  introduced :  p.  112. 
From  hence  I  should  infer  that  Henry  II. 
had  endeavored  to  impose  these  feudal 
burdens  (which  perhaps  were  then  new 
even  in  England)  upon  his  continental 
dominions,  liadulphus  de  Diceto  tells  us 
of  a  claim  made  by  him  to  the  wardship 
of  Cbiteauroux  in  Berry,  which  could 
not  legally  have  been  subject  to  that 
enstom     Tw-vsden.  X  Scriptores,  p.  699. 


And  he  set  up  pretensions  to  the  custody 
of  the  duchy  of  Britauy  after  the  death 
of  his  son  Geoffrey.  This  might  perhaps 
be  justified  by  the  law  of  Normandy,  on 
which  Britany  depended.  But  Philip 
Augustus  made  a  similar  claim.  In  fact, 
these  political  assertions  of  right,  prompt- 
ed by  ambition  and  supported  by  force, 
are  bad  precedents  to  establish  rules  of 
jurisprudence.  Both  Philip  and  Heniy 
were  abundantly  disposed  to  realize  so 
convenient  a  prerogative  as  that  of  guar- 
dianship in  chivalry  over  the  fiefs  of  their 
vassals.  Lyttleton's  Henry  II.  vol.  iii.  p. 
441. 

3  Schilter,  ubi  supr^.  Du  Cange,  voc. 
Disparagare,  seems  to  admit  this  feudal 
right  in  France ;  but  the  passages  he 
quotes  do  not  support  it.  See  also  the 
word  Maritagium.  [M.  Guizot  has  how- 
ever observed  (Hist,  de  la  Civilisation  en 
France,  Le^jon  39)  that  the  feudal  inci- 
dents of  guardianship  in  chivalry  by 
marriage  were  more  frequent  than  I  seem 
to  suppose.  The  customary  law  was  so 
variable,  that  it  is  dangerous  to  rely  on 
particular  instances,  or  to  found  a  gen- 
eral negative  on  their  absence.    1848.] 

s  Ordonnances  des  Rois,  t.  i.  p.  156 ; 
Assises  de  Jerus.  c.  180,  and  Than- 
massiere's  note;  Du  Cange,  ubi  suprik; 
GlanviL  1.  vii.  c.  12 ;  Oiannone,  1.  :d.  o. 


180 


FEUDAL  INCIDENTS.       Chap.  II.  Part  I 


remarkable  law  prevailed  in  the  kingdom  of  Jerusalem.  The 
lord  might  summon  any  female  vassal  to  accept  one  of  three 
whom  he  should  propose  as  her  husband.  No  other  condition 
seems  to  have  been  imposed  on  him  in  selecting  these  suitors 
than  that  they  should  be  of  equal  rank  with  herself.  Neither 
the  maiden's  coyness  nor  the  widow's  affliction,  neither  aver- 
sion to  the  proffiered  candidates  nor  love  to  one  more  favored, 
seem  to  have  passed  as  legitimate  excuses.  One,  only  one 
plea,  could  come  from  the  lady's  mouth  who  was  resolute  to 
hold  her  land  in  single  blessedness.  It  was,  that  she  was  past 
sixty  years  of  age  ;  and  after  this  unwelcome  confession  it  is 
justly  argued  by  the  author  of  the  law-book  which  I  quote, 
that  the  lord  could  not  decently  press  her  into  matrimony.* 
However  outrageous  such  an  usage  may  appear  to  our  ideas, 
it  is  to  be  recollected  that  the  peculiar  circumstances  of  that 
little  state  rendered  it  indispensable  to  possess  in  every  fief  a 
proper  vassal  to  fulfil  the  duties  of  war. 

These  feudal  servitudes  distinguish  the  maturity  of  the 
system.  No  trace  of  them  appears  in  the  capitularies  of 
Charlemagne  and  his  family,  nor  in  the  instruments  by  which 
benefices  were  granted.  I  believe  that  they  did  not  make 
part  of  the  regular  feudal  law  before  the  eleventh,  or,  per- 
haps, the  twelfth  century,  though  doubtless  partial  usages 
of  this  kind  had  g^o^vn  up  antecedently  to  either  of  those 
periods.  If  I  am  not  mistaken,  no  allusion  occurs  to  the 
lucrative  rights  of  seigniory  in  the  Assises  de  Jerusalem, 
which  are  a  monument  of  French  usages  in  the  eleventh 
century.  Indeed,  that  very  general  commutation  of  akxlial 
property  into  tenure  which  took  place  between  the  middle  of 
the  ninth  and  eleventh  centuries  would  hardly  have  been 
effected  if  fiefs  had  then  been  liable  to  such  burdens  and 
80  much  extortion.  In  half-barbarous  ages  the  strong  are 
constantly  encroaching  upon  the  weak ;  a  truth  which,  if  it 
needed  illustration,  might  find  it  in  the  progress  of  the  feudal 
system. 

We  have  thus  far  confined  our  inquiry  to  fiefs  holden  on 
terms  of  military  service ;  since  those  are  the  most  ancient 


6;  Wright  on  Tenures,  p.  94.  St.  Louis 
In  return  declared  that  he  would  not 
marry  his  own  daughter  without  the 
consent  of  his  barons.  Joinville,  t.  il.  p. 
140.  Henry  I.  of  England  had  promised 
the  same.  The  guardian  of  a  female 
minor  was  obliged  to  give  security  to  her 


lord  not  to  marry  her  without  his  non- 
sent.  EtablLssemena  de  St.  I^ui.s,  c.  63. 
1  Ass.  de  Jerus.  c.  224.  I  must  observe 
that  Lauriere  says  this  usage  prevailed 
en  plusieurs  licux,  though  he  quotes  no 
authority.  —  Ordouuaucea  des  Roia,  p. 
155. 


Feudal  System.    PROPER  AND  IMPROPER  FEUDS. 


181 


and  regular,  as  well  as  the  most  consonant  to  the  p^^^  and 
spirit  of  the  system.  They  alone  were  called  proper  improper 
feuds,  and  all  were  presumed  to  be  of  this  descrip-  ^^  ' 
tion  until  the  contrary  was  proved  by  the  charter  of  investi- 
ture. A  proper  feud  was  bestowed  without  price,  without 
fixed  stipulation,  upon  a  vassal  capable  of  serving  personally 
in  the  field.  But  gradually,  with  the  help  of  a  little  legal  in- 
genuity, improper  fiefs  of  the  most  various  kinds  were  intro- 
duced, retaining  little  of  the  characteristics,  and  less  of  the 
spirit,  which  distinguished  the  original  tenures.  Women,  if 
indeed  that  were  an  innovation,  were  admitted  to  inherit 
them ;  ^  they  were  granted  for  a  price,  and  without  reference 
to  military  service.  The  language  of  the  feudal  law  was 
applied  by  a  kind  of  metaphor  to  almost  every  transfer  of 
property.  Hence  pensions  of  money  and  allowances  of  pro- 
visions, however  remote  from  right  notions  of  a  fief,  were 
sometimes  granted  under  that  name ;  and  even  whjere  land 
was  the  subject  of  the  donation,  its  conditions  were  often 
lucrative,  often  honorary,  and  sometimes  ludicrous.^ 

There  is  one  extensive  species  of  feudal  tenure  which  may 
be  distinctly  noticed.  The  pride  of  wealth  in  the  j.|efg  ^f 
middle  ages  was  principally  exhibited  in  a  multi-  office- 
tude  of  dependents.  The  court  of  Charlemagne  was  crowded 
with  officers  of  every  rank,  some  of  the  most  eminent  of 
whom  exercised  functions  about  the  royal  person  which  would 
have  been  thought  fit  only  for  slaves  in  the  palace  of  Augus- 
tus or  Antonine.  The  freebom  Franks  saw  nothing  menial 
in  the  titles  of  cup-bearer,  steward,  marshal,  and  master  of 
the  horse,  which  are  still  borne  by  the  noblest  families  in 
many  parts  of  Europe,  and,  till  lately,  by  sovereign  princes 
in  the  empire.*  From  the  court  of  the  king  this  favorite 
piece  of  magnificence  descended  to  those  of  the  prelates  and 


>. 


J  Women  did  not  inherit  flefe  in  the 
German  empire.  ^Vhether  they  were 
ever  excluded  trom  succession  in  France 
1  know  not;  the  genius  of  a  military 
tenure,  and  the  old  Teutonic  customs, 
preserved  in  the  Salic  law,  seem  adverse 
to  their  possession  of  feudal  lands ;  yet 
the  practice,  at  least  from  the  eleventh 
century  downwards,  does  not  support 
the  theory. 

sCrag.  Jus  Feudale,  1.  I.  tit.  10;  Du 
Cange,  voc.  Feudum  de  Camer3L,  &c.  In 
the  tn-.ity  between  Henry  I.  of  England 
and  liobert  count  of  Flanders,  a.d.  1101. 


the  king  stipulates  to  pay  annually  400 
marks  of  silver,  in  /eodo,  for  the  mili- 
tary service  of  his  ally.  Rymer,  Foede- 
ra,  t.  i.  p.  2. 

3  The  count  of  Anjou,  under  Louis  VI., 
claimed  the  office  of  Great  Seneschal  of 
France ;  that  is,  to  carry  dishes  to  the 
king's  table  on  state  days.  (SismfTidi, 
V.  135.)  Thus  the  feudal  notions  of 
grand  serjeanty  prepared  the  way  for  the 
restoration  of  royal  supremacy,  as  the 
military  tenures  had  impaired  it.  The 
wound  and  the  remedy  came  from  the 
same  lance.     If  the  feudal  system 


182 


FIEFS  OF  OFFICE. 


Chap.  II.  Pabt  L 


barons,  who  surrounded  themselves  with  household  officers 
called  ministerials ;  a  name  equally  applied  to  those  of  a  ser- 
vUe  and  of  a  liberal  description.^  The  latter  of  these  were  re- 
warded with  grants  of  lands,  which  they  held  under  a  feudal 
tenure  by  the  condition  of  performing  some  domestic  service 
to  the  lord.  What  was  called  in  our  law  grand  serjeanty 
affords  an  instance  of  this  species  of  fief.*  It  is,  however,  an 
instance  of  the  noblest  kind ;  but  Muratori  has  given  abun- 
dance of  proofs  that  the  commonest  mechanical  arts  were  car^ 
ried  on  in  the  houses  of  the  great  by  persons  receiving  lands 
upon  those  conditions.' 

These  imperfect  feuds,  however,  belong  more  properly  to 
the  history  of  law,  and  are  chiefly  noticed  in  the  present 
sketch  because  they  attest  the  partiality  manifested  during 
the  middle  ages  to  the  name  and  form  of  a  feudal  tenure. 
In  the  regular  military  fief  we  see  the  real  principle  of  the 
system,  which  might  originally  have  been  defined  an  alliance 
of  free  landholders  arranged  in  degrees  of  subordination, 
according  to  their  respective  capacities  of  affording  mutual 
support. 

The  peculiar  and  varied  attributes  of  feudal  tenures  natu 
Feudal  law-    rally  gave  rise  to  a  new  jurisprudence,  regulating 
*>«>^-  territorial  rights  in  those  parts  of  Europe  which 

had  adopted  the  system.  For  a  length  of  time  this  rested  in 
traditionary  customs,  observed  in  the  domains  of  each  prince 
or  lord,  without  much  regard  to  those  of  his  neighbors. 
Laws  were  made  occasionally  by  the  emperor  in  Germany 
and  Italy,  which  tended  to  fix  the  usages  of  those  countries. 
About  the  year  1170,  Girard  and  Obertus,  two  Milanese 
lawyers,  published  two  books  of  the  law  of  fiefs,  wliich  ob- 
tained a  great  authority,  and  have  been  regarded  as  the 
groundwork  of  that  jurisprudence.*  A  number  of  subse- 
quent commentators  swelled  this  code  with  their  glosses  and 


incompatible  with  despotism,  and  even, 
while  in  its  full  vigor,  with  legitimate 
authority,  it  kept  alive  the  sense  of  a 
supreme  chief,  of  a  superiority  of  rank, 
of  a  certaiu  subjection  to  an  hereditary 
sovereign,  not  yet  testified  by  unlimited 
obedience,  but  by  homage  and  loyalty. 

I  Schmidt,  Hist,  des  Allemands,  t.  iii. 
J».92;  DuCange,  V.  Familia,Miuisteriale3. 

*"Thi3  tenure,"  says  Littleton,  "is 
where  a  man  holds  his  lands  or  tene- 
ments of  our  sovereign  lord  the  king  by 
inch  services  as  he  ought  to  do  in  his 


proper  person  to  the  king,  as  to  carry 
the  banner  of  the  king,  or  his  lance,  or 
to  lead  his  array,  or  to  bo  his  marshal, 
or  to  carry  his  sword  before  him  at  his 
coronation,  or  to  be  his  sewer  at  his  cor- 
onation, or  his  carver,  or  his  butler,  or 
to  be  one  of  his  chamberlains  at  the  re- 
ceipt of  his  exchequer,  or  to  do  other 
like  services."    Swt.  153. 

3  Antiq.  Ital.  Dissert.  11,  ad  finem. 

*  Giannone,  Ist.  di  Napoli,  1.  xiii.  c.  8. 
The  Libri  Feudorum  are  printed  In  most 
editions  of  the  Corpu3  Juris  Ci villa. 


Feudal  System. 


FEUDAL  LAW-BOOKS. 


183 


opinions,  to  enlighten  or  obscure  the  judgment  of  the  imperial 
tribunals.  These  were  chiefly  civilians  or  canonists,  who 
brought  to  the  interpretation  of  old  barbaric  customs  the 
principles  of  a  very  different  school.  Hence  a  manifest 
change  was  wrought  in  the  law  of  feudal  tenure,  which  they 
assimilated  to  the  usufruct  or  the  emphyteusis  of  the  Roman 
code ;  modes  of  property  somewhat  analogous  in  appearance, 
but  totally  distinct  in  principle,  from  the  legitimate  fief. 
These  Lombard  lawyers  propagated  a  doctrine  which  has 
been  too  readily  received,  that  the  feudal  system  originated 
in  their  country ;  and  some  writers  upon  jurisprudence,  such 
as  Duck  and  Sir  James  Craig,  incline  to  give  a  preponder- 
ating authority  to  their  code.  But  whatever  weight  it  may 
have  possessed  within  the  Hmits  of  the  empire,  a  different 
guide  must  be  followed  in  the  ancient  customs  of  France  and 
England.*  These  were  fresh  from  the  fountain  of  that  curi- 
ous polity  with  which  the  stream  of  Roman  law  had  never 
mingled  its  waters.  In  England  we  know  that  the  Norman 
system  established  between  the  Conquest  and  the  reign  of 
Henry  II.  was  restrained  by  regular  legislation,  by  paramount 
courts  of  justice,  and  by  learned  writings,  from  breaking  into 
discordant  local  usages,  except  in  a  comparatively  small  num- 
ber of  places,  and  has  become  the  principal  source  of  our 
common  law.  But  the  independence  of  the  French  nobles 
produced  a  much  greater  variety  of  customs.  The  whole 
number  collected  and  reduced  to  certainty  in  the  sixteenth 
century,  amounted  to  two  hundred  and  eighty-five,  or,  omit- 
ting those  inconsiderable  for  extent  or  peculiarity,  to  sixty. 
The  earliest  written  customary  in  France  is  that  of  Beam, 
which  is  said  to  have  been  confirmed  by  Viscount  Gaston  IV. 
in  1088.*  Many  others  were  written  in  the  two  subsequent 
ages,  of  which  the  customs  of  Beauvoisis,  compiled  by  Beau- 


i 


1  Giannone  explicitly  contrasts  the 
French  and  Lombard  laws  respecting 
flefe.  The  latter  was  the  foundation  of 
the  Libri  Feudorum,  and  formed  the 
common  law  of  Italy.  The  former  was 
introduced  by  Roger  Guiscard  into  his 
dominions,  in  three  books  of  constitu- 
tions, printed  in  Lindebrog's  collection. 
There  were  several  material  differences, 
trhich  Giannone  enumerates,  especially 
the  Norman  custom  of  primogeniture. 
Ist.  di  Nap.  1.  xi.  c.  5. 

2  There  are  two  editions  of  this  curious 
old  code;  one  at  Pau,  in  1552,  repub- 


lished with  a  fresh  title-page  and  per- 
mission of  Henry  IV.  in  1602  ;  the  other 
at  Lescars,  in  1633.  These  laws,  as  we 
read  them,  are  subsequent  to  a  revision 
made  in  the  middle  of  the  sixteenth  cen- 
tury in  which  they  were  more  or  less 
corrected.  The  basis,  however,  is  un- 
questionably very  ancient.  We  even 
find  the  composition  for  homicide  pre- 
served in  them,  so  that  murder  was  not 
a  capital  offence  in  Beam,  though  rob- 
bery was  such.  —  Rubrica  de  Homicidis, 
Art.  xxxi.  See  too  Rubrica  de  Poenis. 
Art.  i.  and  ii 


184 


FEUDAL  LAW-BOOKS.         Chap.  H.  Pabt  L 


Fbui>al  SrsTKM.      ANALYSIS  OF  FEUDAL  SYSTEM. 


185 


manoir  under  Philip  III.,  are  the  most  celebrated,  and  con^ 
tain  a  mass  of  information  on  the  feudal  constitution  and 
manners.  Under  Charles  VII.  an  ordinance  was  made  for 
the  formation  of  a  general  code  of  customary  law,  by  ascer- 
taining forever  in  a  written  collection  those  of  each  district ; 
but  the  work  was  not  completed  till  the  reign  of  Charles  IX. 
This  was  what  may  be  called  the  common  law  of  the  pays 
coutumiers,  or  northern  division  of  France,  and  the  rule  of 
all  their  tribunals,  unless  where  controlled  by  royal  edicts. 


PART  n. 

Analyolfl  of  the  Feudal  System  —Its  local  Extent —View  of  the  different  Orders  of 
Society  during  the  Feudal  Ages  —  Nobility  —  their  Ranks  and  Privileges  — 
Clergy  —  Freemen  —  Serfs  or  Villeins  —  Comparative  State  of  France  and  Ger- 
many—  Privileges  enjoyed  by  the  French  Vassals  —  llight  of  coining  Money  — 
and  of  private  War  —  Immunity  from  Taxation  —  Historical  View  of  the  Royal 
Revenue  in  France  —  Methods  adopted  to  augment  it  by  Depreciation  of  the 
Coin,  &c.  —  Legislative  Power — its  State  under  the  Merovingian  Kings,  and 
Charlemagne  —  His  Councils  —  Suspension  of  any  general  Legislative  Authority 
during  the  Prevalence  of  Feudal  Principles  —  the  King^s  Council  —  Means 
adopted  to  supply  the  Want  of  a  National  Assembly  —  Gradual  Progress  of  the 
King's  Legislative  Power  —  Philip  IV.  assembles  the  States-General  —  Theii 
Powers  limited  to  Taxation  —  States  under  the  Sons  of  Philip  IV.  —  States  of 
1355  and  1356  —  They  nearly  effect  an  entire  Revolution — The  Crown  recovers 
its  Vigor  —  States  of  1380,  under  Charles  VI. — Subsequent  Assemblies  unde< 
Charles  VI.  and  Charles  VII.  —  The  Crown  becomes  more  and  more  absolute  — 
Louis  XI.  —  States  of  Tours  in  1484  —  Historical  View  of  Jurisdiction  in  France 

—  Its  earliest  Stage  under  the  first  Race  of  Kings,  and  Charlemagne  —  Territorial 
Jurisdiction—  Feudal  Courts  of  Justice  —  Trial  by  Combat  —  Code  of  St.  Louis 

—  The  Territorial  Jurisdictions  give  way — Progress  of  the  Judicial  Power  of 
the  Crown  —  Parliament  of  Paris  —  Peers  of  France  —  Increased  Authority  of 
the  Parliament  —  Registration  of  Edicts  —  Causes  of  the  Decline  of  the  Feudal 
S3'8tem  —  Acquisitions  of  Domain  by  the  Crown  —  Charters  of  Incorporation 
granted  to  Towns — Their  previous  Condition  —  First  Charters  in  the  Twelfth 
Century  —  Privileges  contained  in  them  —  Military  Service  of  Feudal  Tenants 
commuted  for  Money  —  Hired  Troops  —  Change  in  the  Military  System  of  Europe 

—  General  View  of  the  Advantages  and  Disadvantages  attending  the  FeudiaJ 
System. 

The  advocates  of  a  Roman  origin  for  most  of  the  institu- 
tions which  we  find  in  the  kingdoms  erected  on  the  ruins  of 
the  empire  are  naturally  prone  to  magnify  the  analogies  to 
feudal  tenure  which  Rome  presents  to  us,  and  even  to  deduce 
it  either  from  the  ancient  relation  of  patron  and  client,  and 
that  of  personal  commendation,  which  was  its  representative  in 
a  later  age,  or  from  the  frontier  lands  granted  in  the  third 
century  to  the  Laeti,  or  barbarian  soldiers,  who  held  them, 
doubtless,  subject  to  a  condition  of  military  service.  The 
usage  of  commendation  especially,  so  frequent  in  the  fifth 
century,  before  the  conquest  of  Gaul,  as  well  as  afterwards, 
does  certainly  bear  a  strong  analogy  to  vassalage,  and  I  have 
already  pointed  it  out  as  one  of  its  sources.  It  wanted,  how- 
ever, that  definite  relation  to  the  tenure  of  land  which  dis- 
tinguished the  latter.  The  royal  Antrustio  (whether  the 
word  commendatiLs  were  applied  to  him  or  not)  stood  bound 
by  gratitude  and  loyalty  to  his  sovereign,  and  in  a  very  differ- 


186 


ANALYSIS  OF  FEUDAL  SYSTEM.  Chap.  U.  Part  II 


ent  degree  from  a  common  subject ;  but  he  was  not  perhaps 
strictly  a  vassal  till  he  had  received  a  territorial  benefice.* 
The  complexity  of  subinfeudation  could  have  no  analogy  in 
commendation.     The  grants  to  veterans  and  to  the  Lajtl  are 
so  far  only  analogous  to  fiefs,  that  they  established  the  prin- 
ciple of  holding  lands  on  a  condition  of  military  service.    But 
this  service  was  no  more  than  what,  both  under  Charlemagne 
and  in  England,  if  not  in  other  times  and  places,  the  alodial 
freeholder  was  bound  to  render  for  the  defence  of  the  realm ; 
it  was  more  commonly  required,  because  the  lands  were  on  a 
barbarian  frontier ;  but  the  duty  was  not  even   very  analo- 
gous to  that  of  a  feudal  tenant.^     The  essence  of  a  fief  seems 
to  be,  that  its  tenant  owed  fealty  to  a  lord,  and  not  to  the  state 
or  the  sovereign  ;  the  lord  might  be  the  latter,  but  it  was  not, 
feudally  speaking,  as  a  sovereign  that  he  was  obeyed.     This 
is,  therefore,  sufficient  to  warrant  us  in  tracing  the  real  theory 
of  feuds  no  higher  than  the  Merovingian  history  in  France  ; 
their  full  establishment,  as  has  been  seen,  is  considerably 
later.     But  the  preparatory  steps  in  the  constitutions  of  the 
declining  empire  are  of  considerable  importance,  not  merely 
as  analogies,  but  as  predisposing  circumstances,  and  even 
germs  to  be  subsequently  developed.     The  beneficiary  tenure 
of  lands  could  not  well  be  brought  by  the  conquerors  from 
Germany;  but   the  donatives  of  arms   or   precious   metals 
bestowed  by  the  chiefs  on  their  followers  were  also  analogous 
to  fiefs ;  and,  as  the  Roman  institutions  were  one  source  of 
the  law  of  tenure,  so  these  were  another. 

It  is  of  great  importance  to  be  on  our  guard  against  seeming 
analogies  which  vanish  away  when  they  are  closely  observed. 
We  should  speak  inaccurately  if  we  were  to  use  the  word 
feudal  for  the  service  of  the  Irish  or  Highland  clans  to  their 
chieftain  ;  their  tie  was  that  of  imagined  kindred  and  respect 
for  birth,  not  the  spontaneous  compact  of  vassalage.  Much 
less  can  we  extend  the  name  of  feud,  though  it  is°sometimes 


»  Thb  word  "vasaal"    is   used  very 
Indefinitely;  it   means,  in   its  original 


consequebantur,  ut  delntibus  quoque  ob- 
noxii  essent  et  Icgionibus  insererentur. 


sense,  only  a  servant  or  dependant.    But    (Not.  ad  Cod.  Theod.  1.  Tii.  Ut  20  c  12  1 
in   the  continental   iwnrHa  of  hi«*^n,.inQ     a:.  v-„^»«<,    r.„t w*.  *.u,  i..  a*.; 


in  the  continental  records  of  histories 
we  commonly  find  it  applied  to  feudal 
tenants. 

2  If  Gothofred  is  right  in  his  construc- 
tion of  the  tenure  of  these  Lseti,  they  were 
not  even  generally  liable  to  this  part  of 
our  trinoda  necessitas,  but  only  to  con- 
scription for  the  legions.  Et  ea  tamen 
conditione  terras   illia  excolendas  Lseti 


Sir  Francis  Palgrave,  however,  says,— 
"  The  duty  of  bearing  arms  was  in.«epani- 
bly  connected  with  the  property."  ( Eng- 
lish Commonwealth,  1.  354.)  this  is  too 
equivocal ;  but  he  certainly  means  more 
than  Gothofred  ;  he  supposes  a  permanent 
universal  obligation  to  render  service  in 
all  public  warfare. 


Feudal  System. 


ITS  EXTENT. 


187 


strangely  misapplied,  to  the  polity  of  Poland  and  Russia. 
All  the  Polish  nobles  were  equal  in  rights,  and  independent 
of  each  other ;  all  who  were  less  than  noble  were  in  servitude. 
No  government  can  be  more  opposite  to  the  long  gradations 
and  mutual  duties  of  tlie  feudal  system.^ 

The  regular  machinery  and  systematic  establishment  of 
feuds,  in  fact,  may  be  considered  as  almost  confined  ,.^x„„.  «* 

1        1       .    .  n    /-^i      -I  1  txtent  or 

to  tlie  dominions  oi    Charlemagne,  and  to  those  the  feudal 

countries  which  afterwards  derived  it  from  thence.  ^^^^^' 
In  England  it  can  hardly  be  thought  to  have  existed  in  a 
complete  state  before  the  Conquest.  Scotland,  it  is  supposed, 
borrowed  it  soon  after  from  her  neighbor.  The  Lombards  of 
Benevento  had  introduced  feudal  customs  into  the  Neapolitan 
provinces,  which  the  Norman  conquerors  afterwards  perfected. 
Feudal  tenures  were  so  general  in  the  kingdom  of  Aragon, 
that  I  reckon  it  among  the  monarchies  which  were  founded 
upon  that  basis.^  Charlemagne's  empire,  it  must  be  remem- 
bered, extended  as  far  as  the  Ebro.  But  in  Castile*  and 
Portugal  they  were  very  rare,  and  certainly  could  produce  no 


1  In  civil  history  many  instances  might 
be  found  of  feudal  ceremonies  in  countries 
not  regulated  by  the  feudal  law.  Thus 
Seldcn  has  published  an  infeudation  of  a 
vayvod  of  Moldavia  by  the  king  of  Poland, 
A.D.  1485,  in  the  regular  forms,  vol.  iii.  p. 
514.  But  these  political  fiefs  have  hardly 
any  connection  with  the  general  system, 
and  merely  denote  the  subordination  of 
one  prince  or  people  to  another. 

2  It  is  probable  that  feudal  tenure  was 
aa  ancient  in  the  north  of  Spain  as  in  the 
contiguous  provinces  of  France.  But  it 
seems  to  have  chiefly  prevailed  in  Aragon 
about  the  twelfth  and  thirteenth  centu- 
ries, when  the  Moors  south  of  the  Ebro 
were  subdued  by  the  enterprise  of  private 
nobles,  who,  after  conquering  estates  for 
themselves,  did  homage  for  them  to  the 
king.  James  I.,  upon  the  reduction  of 
Valencia,  granted  lands  by  way  of  fief,  on 
condition  of  defending  that  kingdom 
against  the  Moors,  and  residing  person- 
ally upon  the  estate.  Many  did  not  per- 
form this  engagement,  and  were  deprived 
of  the  lands  in  consequence.  It  appears 
by  the  testament  of  this  monarch  that 
feudal  tenures  subsisted  in  every  part  of 
his  dominions.  —  Martenne,  Thesaurus 
Anecdotorum,  t.  i.  p.  1141, 1155.  An  edict 
of  Peter  II.  in  1210  prohibits  the  aliena- 
tion of  emphyteuses  without  the  lord's 
consent.  It  is  hard  to  say  whether  regular 
flefe  are  meant  by  this  word.  —  De  Marca, 
Marca  Uispanica,  p.  1896.    This  author 


says  that  there  were  no  arriere-flefs  in 
Catalonia. 

The  Aragonese  fiefs  appear,  however,  to 
have  dififered  from  those  of  other  countries 
in  some  respects.  Zurita  mentions  fiefe 
according  to  the  custoin  of  Italy, -which,  he 
explains  to  be  such  as  were  liable  to  the 
Tisual  feudal  aids  for  marrying  the  lord's 
daughter,  and  other  rccasions.  We  may 
infer,  therefore,  that  these  prestations 
were  not  customary  i  -i  Aragon.  —  Anales 
de  Aragon,  t.  ii.  p.  62. 

3  What  is  said  of  a  assalage  in  Alfonzo 
X.'s  code,  Las  siete  pr.rtidas,  is  short  and 
obscure :  nor  am  I  certain  that  it  meant 
anything  more  than  voluntary  commen- 
dation, the  custom  mentioned  in  the 
former  part  of  this  chapter,  from  which 
the  vassal  might  depart  at  pleasure.  See, 
however,  Du  Cange,  v.  Honor,  where 
authorities  are  given  for  the  existence  of 
Castilian  fiefs  ;  and  I  have  met  with 
occasional  mention  of  them  in  history. 
I  believe  that  tenures  of  this  kind  were 
introduced  in  the  fourteenth  and  fifteentlx 
centuries  ;  but  not  to  any  great  extent. 
—  Marina,  Teoria  de  las  Cortes,  t.  iii.  p.  14. 

Tenures  of  a  feudal  nature,  as  I  collect 
from  Freirii  Institut.  .Turis  Lusitani,  torn, 
ii.  1. 1  and  3,  existed  in  Portugal,  though 
the  jealousy  of  the  cro^vn  prevented  the 
system  from  being  established.  There 
were  even  territorial  jurisdictions  in  tliat 
kingdom,  though  not,  at  least  originally, 
in  Castile. 


188 


NOBILITY. 


Chap.  n.  Paiit  n. 


political  effect  Benefices  for  life  were  sometimes  granted  in 
the  kingdoms  of  Denmark  and  Bohemia.^  Neither  of  these, 
however,  nor  Sweden,  nor  Hungary,  come  under  the  descrip- 
tion of  countries  influenced  by  the  feudal  system.^  That 
system,  however,  after  all  these  limitations,  was  so  extensively 
diffused,  that  it  might  produce  confusion  as  well  as  prolixity 
to  pursue  collateral  branches  of  its  history  in  all  the  countries 
where  it  prevailed.  But  this  embarrassment  may  be  avoided 
without  any  loss,  I  trust,  of  important  information.  The 
English  constitution  will  find  its  place  in  another  portion  of 
these  volumes ;  and  the  political  condition  of  Italy,  after  the 
eleventh  century,  was  not  much  affected,  except  in  the  king- 
dom of  Naples,  by  the  laws  of  feudal  tenure.  I  shall  confine 
myself,  therefore,  chiefly  to  France  and  Gennany ;  and  far 
more  to  the  former  than  the  latter  country.  But  it  may  be 
expedient  first  to  contemplate  the  state  of  society  in  its  various 
classes  during  the  prevalence  of  feudal  principles,  before  we 
trace  their  influence  upon  the  national  government. 

It  has  been  laid  down  already  as  most  probable  that  no 
Classes  of  proper  aristocracy,  except  that  of  wealth,  was 
Society.  kno^vn  under  the  early  kings  of  France ;  and  it 
Nobiuty.  was  hinted  that  hereditary  benefices,  or,  in  other 
words,  fiefs,  might  supply  the  link  that  was  wanting  between 
personal  privileges  and  those  of  descent.  The  possessors  of 
beneficiary  estates  were  usually  the  richest  and  most  con- 
spicuous individuals  in  the  estate.  They  were  immediately 
connected  with  the  crown,  and  partakers  in  the  exercise  of 
justice  and  royal  counsels.  Their  sons  now  came  to  inherit 
this  eminence;  and,  as  fiefs  were  either  inalienable,  or  at 
least  not  very  frequently  alienated,  rich  families  were  kept 
long  in  sight ;  and,  whether  engaged  in  public  affairs,  or  living 
with  magnificence  and  hospitality  at  home,  naturally  drew  to 
themselves  popular  estimation.  The  dukes  and  counts,  who 
had  changed  their  quality  of  governors  into  that  of  lords  over 


1  Daniae  regni  politicus  status.  Elzevir, 
1629.  Stransky,  Respublica  Bohemica, 
lb.  In  one  of  the  oldest  Danish  historians, 
Sweno,  I  have  noticed  this  expression : 
Waldemarus,  patris  tunc  potitus  feodo. 
Langebek,  Scrip.  Kerum  Danic,  t.  i.  p.  62. 
By  this  he  means  the  duchy  of  Sleswic, 
not  a  flef.  but  an  honor  or  government 
possessed  by  Waldemar.  Saxo  Qrammat- 
Icus  calls  it,  more  classically,   paternao 

Eraefecturae   dignitas.     Sleswic  was,  in 
iter  times,  sometimes  held  as  a  flef;  but 


this  does  not  in  the  least  imply  that 
lands  in  Denmark  proper  were  feudal,  of 
which  I  find  no  evidence. 

3  Though  there  were  no  feudal  tenures 
in  Sweden,  yet  the  nobility  and  others 
were  exempt  from  taxes  on  condition  of 
serving  the  king  with  a  horse  and  arms 
at  their  own  expense  ;  and  a  distinction 
was  taken  between  liber  and  tributnrius. 
But  any  one  of  the  latter  might  become 
of  the  former  class,  or  vice  versa.  —  Suecia 
descriptio.    Elzevir,  1631,  p.  92. 


Feudal  System. 


NOBILITY. 


189 


the  provinces  intrusted  to  them,  were  at  the  head  of  this 
noble  class.  And  in  imitation  of  them,  their  own  vassals,  as 
well  as  those  of  the  crown,  and  even  rich  alodialists,  assumed 
titles  from  their  towns  or  castles,  and  thus  ai-ose  a  number  of 
petty  counts,  barons,  and  viscounts.  This  distinct  class  of 
nobility  became  coextensive  with  the  feudal  tenures.*  For 
the  military  tenant,  however  poor,  was  subject  to  no  tribute ; 
no  prestation,  but  service  in  the  field ;  he  was  the  companion 
of  his  lord  in  the  sports  and  feasting  of  his  castle,  the  peer  of 
his  court ;  he  fought  on  horseback,  he  was  clad  in  the  coat  of 
mail,  while  the  commonalty,  if  summoned  at  all  to  war,  came 
on  foot,  and  with  no  armor  of  defence.  As  everything  in  the 
habits  of  society  conspired  with  that  prejudice  which,  in  spite 
of  moral  philosophers,  will  constantly  raise  the  profession  of 
arms  above  all  others,  it  was  a  natural  consequence  that  a 
new  species  of  aristocracy,  founded  upon  the  mixed  consider- 
ations of  birth,  tenure,  and  occupation,  sprung  out  of  the 
feudal  system.  Every  possessor  of  a  fief  was  a  gentleman, 
though  he  owned  but  a  few  acres  of  land,  and  furnished  his 
slender  contribution  towards  the  equipment  of  a  knight.  In 
the  Libri  Feudorum,  indeed,  those  who  were  three  degrees 
removed  from  the  emperor  in  order  of  tenancy  are  considered 
as  ignoble ;  *  but  this  is  restrained  to  modern  investitures ;  and 
in  France,  where  subinfeudation  was  carried  the  farthest,  no 
such  distinction  has  met  my  observation.* 

There  still,  however,  wanted  something  to  ascertain  gentili- 
ty of  blood  where  it  was  not  marked  by  the  actual  tenure  of 
land.  This  was  supplied  by  two  innovations  devised  in  the 
eleventh  and  twelfth  centuries  —  the  adoption  of  surnames 
and  of  armorial  bearings.  The  first  are  commonly  referred 
to  the  former  age,  when  the  nobility  began  to  add  the  names 
of  their  estates  to  their  own,  or,  having  any  way  acquired  a 
distinctive  appellation,  transmitted  it  to  their  posterity.*     As 


1  M.  Qu^rard  observes  that  in  the 
Chartulary  of  Chartres,  exhibiting  the 
usages  of  the  eleventh  and  beginning 
of  the  twelfth  centuries,  "  La  noblesse 
s'y  montre  compldtement  constitutee  ; 
c'est  k  dire,  privilegiee  et  hereditaire. 
EUr  peut  fetre  divisee  en  haute,  moyenne, 
et  basse."  By  the  first  he  understands 
those  who  held  immediately  of  the  crown  ; 
the  middle  nobility  were  mediate  vassals, 
but  had  rights  of  jurisdiction,  which  the 
lower  had  not.  (Prolegomfenes  4  la 
Gartulaire   de  Chartres,  p.  30.) 


8  L.  ii.  1. 10. 

3  The  nobility  of  an  alodial  possession, 
in  France,  depended  upon  its  right  to 
territorial  jurisdiction.  Hence  there 
were  franc-aXeux  nobles  and  franc-aleux 
rotuners ;  the  latter  of  which  were  sub- 
ject to  the  jurisdiction  of  the  neighbor- 
ing lord.  Loiseau,  Traite  des  Seigneuries, 
p.  76.  Denisart,  Dictionnaire  des  Deci- 
sions, art.  Franc-aleu. 

4  Mabillon,  Traite  de  Diplomatique, 
1  ii.  c.  7.  The  authors  of  the  Nouveau 
Traits   de  Diplomatique,  t.  ii.  p.  568, 


190 


NOBILITY. 


Chap.  II.  Part.  II. 


r^e  ^h^  V  ?/'^"  immemorially  used  both  in  war  and 
peace.  The  shields  of  ancient  warriors,  and  devices  imon 
corns  or  sea  s,  bear  no  distant  rescmblanc^  to  mode™  blaTo" 
17.  iJut  the  general  introduction  of  such  bearino'*  o. 
hereditary  distinctions,  has  been  sometimes  attributeTto  t^ut 
naments,  wherein  the  champions  were  distinguished  b?fm,c^ 
ful  devices ;  sometimes  to  the  crusades,  where  a  muI.iUide  of 
all  nations  and  languages  stood  in  need  of  some  visible  token 
to  denote  the  banners  of  their  respective  chiefs.  iTfoctthe 
have  T./n^''  of  heraldry  point  to  both  these  sources  'and 
have  been  borrowed  in  part  from  each.'    Heredilarv  arms 

be'm.^^^'oT.hrr!^  "f  •'^  PT^'^  familierSe  the 
evfr  Tfv  k!  "■''^""'  •'^"""■y-  F««»  'bat  time,  how- 
ever,  they  became   very  general,  and  have  contributed   to 

tSs'iiLr' "'  "^'^'^  -'''''  ^^^  ">«  ^~  of 


toace  the  use  of  surnamea  in  a  few  in- 
stances even  to    the  beginning  of  the 

i^S.i?^"'"''^,'-  ^""^  ^^^y  ^^d  not  become 
&nS  '  '^♦^'^ording  to  them,  tiil  the  thir- 

M.  Ouerard  finds  a  few  hereditary  sur- 
names m  the  eleventh  century  and  many 
that  were  personal.  (Cartulaire  de  Char- 
tres  p.93.)  The  latter  are  not  sumamos 
Ifav  K '  V"'  1"''^^  ^^"'^-  A  good  many 
Z^ w  •^''"?'^.  '"^  Domesday,  Is  that  of 
SH    n  *  u  H'*^^t^*^"^^'"«'  Malet  in  Suf- 

Yorkshire,  besides  thc-^e  with  de,  which 
of  course  is  a  local  desi{?nation,  but  be- 
came hereditary.  j  "««.  «m. 

xx!  J!^579*^^  ^'^''^'  ^^^  I°«crfptions,  t. 

^nLV^^^"^"*.?®  unwilling  to  make  a 
negative  assertion  peremptorily  in  a  mat- 
ter of  mere  antiquarian  research  :  but  I 
am  not  aware  of  any  decisive  evidence 
that  hereditary  arms  were  borne  in  the 
twelfth  century,  except  by  a  very  few 

km,  Traite  de  Diplomatique,  I.  U.  c.  18. 
Those  of  Geoffrey  the    Fair,  count  of 

hi".^^'  M^°  "^'^"^  ^°  "^'  ^^  extant  on 
his  shie  d ;  azure,  four  lions  rampant  or 
Hist.  Litt^rairo  de  la  France,  tSi.  p 
ibo.    If  arms  had  been  considered  as 
hereditary  at  that  time,  this  should  be 
the  bearing  of  England,  which,  as  we  aU 
know    differs  considerably.    Louis  VII 
"pnnkled  his  seal  and  coin  with  fleurs-de^ 
lys,  a  very  ancient  device,  or  rather  oma- 

Hmoi'  *  n"^  .'v®  ^™«  ""^  ^*iat  are  some- 
tunes  called  bees.  The  golden  omamaatg 


found  in  the  tomb  of  Chllderio  I.  at 
Tournay    which  may  be   seen   in   the 

fl?.?^^^  °f  ^'^l^'  ^^y  pa"  either  for 
fleurs-de-lys  or  bees.  Charles  V.  reduced 
the  number  to  three,  and  thus  fixed  the 
arms  of  France.  The  counts  of  Tou- 
louse u.sed  their  cross  in  the  twelfth  age : 
but  no  other  arms.  Vaissctto  tells  us,  can 
be  traced  in  Languedoc  so  far  back.  T 
ni.  p.  514. 

Amorial  bearings  were  in  use  among 
the  Saracens  during  the  later  cru.«»ades  • 

i'  S^^Pnii^^'.*  P^'"^.  »°  Joinville,  t.  i! 
p.  88  (Collect,  des  Mimoires),  and  Du 
Cange  s  note  upon  it.   Perhaps,  however, 

ir?hf ""/  ^'V*  ^^'^  '^^"Pted  '"  imitation 
of  the  Franks,  hke  the  ceremonies  of 
knighthood.  Vlllaiet  ingeniously  con- 
u^^T  *H'  i^*  separation  of  different 
branches  of  the  same  family  by  their 
settlements  in  Palestine  led  to  the  use  of 
hereditary  arms,  in  order  to  preserve  the 
connection.    T.  xi.  p.  113. 

M.  Sismondi,  I  observe,  seems  to  enter 
tohi  no  doubt  that  tlie  noble  liimilies  of 
Pisa,  including  that  whose  name  he  bears, 
had  their  armorial  distinctions  in  the 
beginning  of  the  twelfth  century.  Hist, 
des  Rcpub.  Ital.  t.  i.  p.  373.  It  is  at 
^Mt  probable  that  the  heraldic  devices 
VuZ^  *°*'®?'  1°  ^^'^  «"  i°  '^»v  part  of 
rrait^  de  Diplomatique,  t.  Iv.  p.  388,  in- 
Fi?n.^  ^!f  ^-^'Jitary  armJ^  even  In 

century,  though  without  producing  an» 
evidence  for  this.  *      ^ 


Feudal  System. 


ITS  PRIVILEGES. 


191 


When  the  privileges  of  birth  had  thus  been  rendered  ca- 
pable of  legitunate  proof,  they  were  enhanced  in  a  its  pnvi- 
great  degree,  and  a  line  drawn  between  the  high-  ^ege^. 
bom  and  ignoble  classes,  almost  as  broad  as  that  which  sepa- 
rated liberty  from  servitude.  All  offices  of  trust  and  power 
were  conferred  on  the  former ;  those  excepted  which  apper- 
tain to  the  legal  profession.  A  plebeian  could  not  possess  a 
fief  Such  at  least  was  the  original  strictness :  but  as  the 
aristocratic  principle  grew  weaker,  an  indulgence  was  ex- 
tended to  heirs,  and  afterwards  to  purchasers.*"^  They  were 
even  permitted  to  become  noble  by  the  acquisition,  or  at  least 
by  its  possession  for  three  generations.*  But  notwithstanding 
this  ennobling  quality  of  the  land,  which  seems  rather  of  an 
equivocal  description,  it  became  an  established  right  of  the 
crown  to  take,  every  twenty  years,  and  on  every  change  of 
the  vassal,  a  fine,  known  by  the  name  of  franc-fief,  from 
plebeians  in  possession  of  land  held  by  a  noble  tenure.*  A 
gentleman  in  France  or  Germany  could  not  exercise  any 
trade  without  derogating,  that  is,  losing  the  advantages  of  his 
rank.  A  few  exceptions  were  made,  at  least  in  the  former 
country,  in  favor  of  some  liberal  arts,  and  of  foreign  com- 
merce.* But  in  nothing  does  the  feudal  haughtiness  of  birth 
more  show  itself  than  in  the  disgrace  which  attended  unequal 
marriages.  No  children  could  inherit  a  territory  held  im- 
mediately of  the  empire  unless  both  their  parents  belonged  to 
the  higher  class  of  nobility.  In  France  the  offspring  of  a 
gentleman  by  a  plebeian  mother  were  reputed  noble  for  the 


1  We  have  no  English  word  that  con- 
veys the  full  sense  of  roturier.  How 
glorious  is  this  deficiency  in  our  political 
language,  and  how  different  are  the  ideas 
suggested  by  commoner  !  Itoturier,  ac- 
cording to  Du  Cange,  Is  derived  from 
rupturarius,  a  peasant,  ab  agrum  rum- 
pendo. 

»  The  Establishments  of  St.  Louis  for- 
bid this  innovation,  but  Bcaumanoir 
contends  that  the  prohibition  does  not 
extend  to  descent  or  marriage,  c.  48.  The 
roturier  who  acquired  a  fief,  if  ho  chal- 
lenged any  one,  fought  with  ignoble 
arms;  but  in  all  other  respects  was 
treated  as  a  gentleman.  Ibid.  Yet  a 
knight  was  not  obliged  to  do  homage  to 
the  roturier  who  became  his  superior  by 
the  acquisition  of  a  fief  on  which  he  de- 

Snded.    Carpontier,  Supplement,  ad  Du 
.ng8,  Toc.  Ilomagium. 
«  Etablisseniens  do  St.  Louis,  c.  143, 
•sd  note,  in  Ordonnances  dee  liois,  t.  i. 


See  also  preface  to  the  same  volume,  p. 
sii.  According  to  Mably,  the  possession 
of  a  fief  did  not  cease  to  confer  nobility 
(analogous  to  our  barony  by  tenure)  till 
the  Ordonnances  des  Blois  in  1579.  Ob- 
servations sur  I'llist.  de  France,  1.  iii.c.  1 
note  6.  But  Lauriere,  author  of  the  pre- 
face above  cited,  refers  to  Bouteiller,  a 
writer  of  the  fourteenth  century,  to  prove 
that  no  one  could  become  noble  without 
the  king's  authority.  The  contradiction 
will  not  much  perplex  us,  when  we  re- 
flect on  the  disposition  of  lawyers  to  as- 
cribe all  prerogatives  to  the  crown,  at 
the  expense  of  territorial  proprietors  and 
of  ancient  customary  law. 

*  The  right,  originally  perhaps  usurpa- 
tion, called  franc  fief,  began  under  Philip 
the  Fair.  Ordonnances  des  Rois,  t.  i.  p. 
324 ;  Denisart,  art.  Franc-fief. 

6  Houard,  Diet,  du  Droit  Normand. 
Encyclopedic,  art  Noblesse.  Argou,  L 
ii.  c.  2. 


192 


NOBILITY. 


Chap.  U.  Part  1L 


capable  of  simDle  km^rhthnn^    ^  ^\  chivalry,  though 

eight,  aixteiror^'Sr  nlr  ^r^'f '°  ^^^  «'"' 
coats  borne  by  pater^l  anH  ^T      ,   ^  quarters,  that  is,  of 

pn^ctice  still  LLtrS  GerTnr"     """"""'''  ""^  "'^  ^'°« 

their  rank  t^^'^:;  Zl  SSrofll ""  ''"  ""'  <^^"^« 
ereigns  as  have  been  necer^S ^^h  /  f  '■'^«P««"^e  soy- 
land  the  baronies  by  tennrf  ^  w  f^^^que"'  ages.  In  Eng- 
the  lands  upon  whid.  thev  r„f  ''.' °"?  '°  ""^  ^'»«  <=''^'.«" 
the  crown.  BuTthe  S  W*''  ^t  T'  '''^""  granted  by 
thirteenth  cem^y  Wnf ,  "^"■''  ^'^'"'^  ""^  ^n^  of  'hi 
nobles  bythe"r^^namhor?v^'T'M  P""'*=°''  of  creating 

and  had  as  S)v'ouf  f  m^rn]'^^^T  '^'^  '^^"^^^^^^  ^^^  ^^^^^ility, 
had  a  »  S^^^  the  same  ^e 

pendence  of  the  territorial  aSmcv°  '^L^'''"'^,  ^"^  ^"^^- 
jnaUy  connected  with  ancient     neT.7;ndS^^^^^^^^  ">^- 

became  common  to  the  low-bom  cr^tuTet  TZ  ^  ''T:''' 
consequently  part  of  their  title  t™nect  Th?T  '  """^  ^"'' 
I  have  observed  above    nretPmlpri  !F  ?      i    ^  lawyers,  as 

exist  without  a  royTconceSr  Th^^^^^^^  ""'^''^7  ,^""^^  '^^^ 
in  return  for  their  ovoUn?ff?*       ^^  acquired  themselves, 

itj  by  the  exerc^     St^al^^^^^^  '^''''  ^^^^ 

airy  again  mxve  rise  to  a°vn«?-^*       ^  institutions  of  chiv- 

J  <^       gave  rise  to  a  vast  increase  of  gentlemen,  knight- 


»  Nobility,  to  a  certain   dejrree    wa^ 

not  only  by  the  custom  of  Champagne 
but  m  all  parts  of  France-  thatWhi 
mne  were  -  gentilhomiSes  du  faft  de  'leur 
corps,"  and  could  possess  fie&  :  but  savl 
Beaumanoir,  ''  la  gentilesse  paV  laquelie 

"^r.y'r:t'TtJ^''  .en^irdoTS 
I«-^'  .  S-  ■'■Qere  was  a  proverbial 
JJ^im  in  French  law.  rather  emphatTc 
ti»an  decent,  to  express  the  derivatiou  of 


Sra'^h^r^^'^-'-^  Of  freedom 
'  Beaumanoir,  c.  45 :  Du  Pathm  tm- 

3  f  Note  XII.] 


Feudal  System. 


DIFFERENT  ORDERS. 


193 


hood,  on  whomsoever  conferred  by  the  sovereign,  beino  a 
sufficient  passport  to  noble  privileges.  It  was  usual,  perhaps, 
to  grant  previous  letters  of  nobility  to  a  plebeian  for  whom  the 
honor  of  knighthood  was  designed. 

In  this  noble  or  gentle  class  there  were  several  gradations. 
All  those  in  France  who  held  lands  immediately  dependin<y 
upon  the  crown,  whatever  titles  they  might  bear,  were  com- 
prised in  the  order  of  barons.  These  were  origi-  Different 
nally  the  peers  of  the  king's  court ;  they  possessed  o'^ders  of 
<he  higher  territorial  jurisdiction,  and  had  the  right  ^°  ^"'^' 
of  carrying  their  own  banner  into  the  field.*  To  these  cor- 
responded the  Valvassores  majores  and  Capitanei  of  the  em- 
pire. In  a  subordinate  class  were  the  vassals  of  this  high 
nobility,  who,  upon  the  Continent,  were  usually  termed  Va- 
vassors  —  an  appellation  not  unknown,  though  rare,  in  Eng- 
land.^ The  Chatelains  belonged  to  the  order  of  Vavassors, 
as  they  held  only  arriere  fiefs ;  but,  having  fortified  houses, 
from  which  they  derived  their  name  (a  distinction  very  im- 
portant in  those  times),  and  possessing  ampler  rights  of  terri- 
torial justice,  they  rose  above  the  level  of  their  fellows  in  the 
scale  of  tenure.*     But  after  the  personal  nobility  of  chivah-y 


1  Beaumanoir,  c.  34;  Du  Cange,  v. 
Baro;  Etablissemens  de  St.  Louis,  1.  1. 
c.  24, 1.  ii.  c.  36.  The  xassals  of  inferior 
lords  were,  however,  called,  improperly, 
Barons,  both  in  France  and  England. 
Recueil  des  Historiens,  t.  xi.  p.  300; 
Madox,  Baronia  Anglica,  p.  133.  In 
perfect  strictness,  those  only  whose  im- 
mediate tenure  of  the  crown  was  older 
than  the  accession  of  Uugh  Capet  were 
barons  of  France  ;  namely,  Bourbon, 
Coucy,  and  Beaujeu,  or  Beaujolois.  It 
appears,  however,  by  a  register  in  the 
reign  of  Philip  Augustus,  that  fifty-nine 
were  reckoned  in  that  class  ;  the  feuda- 
tarics  of  the  Capetian  fiefs,  Paris  and 
Orleans  being  confounded  with  the  ori- 
ginal vassals  of  the  crown.  Du  Cange, 
voc.  Baro. 

2Du  Cange,  v.  Vavassor;  Velly  t.  vi. 
p.  151 ;  Madox,  Baronia  Anglica,  p.  135. 
There  is,  perhaps,  hardly  any  word  more 
loosely  used  than  Vavassor.  Bracton 
says,  Sunt  etiam  Vavassores,  magna)  dig- 
nitatis viri.  In  France  and  Germany 
they  are  sometimes  named  with  much 
less  honor.  Je  suis  un  chevalier  n6  de 
cest  part,  de  vavasseurs  et  de  basse  gent, 
says  a  romance.  This  is  to  be  explained 
by  the  poverty  to  which  the  subdivision 
of  fiefs  reduced  idle  gentlemen. 

Chaucer  concludes  his  picturesque  de- 

VOL.  I.  13 


scriptionof  the  Franklin,  in  the  prologue 
to  the  Canterbury  Tales,  thus  :  — 

"  Was  never  such  a  worthy  vavassor." 
This  has  perplexed  some  of  our  com- 
mentators, who,  not  knowing  well  what 
was  meant  by  a  franklin  or  by  a  vavassor, 
fancied  the  latter  to  be  of  much  higher 
quality  than  the  former.  The  poet,  how- 
ever, was  strictly  correct;  his  acquaint 
ance  with  French  manners  showed  him 
that  the  country  squire,  for  his  franklin 
is  no  other,  precisely  corresponded  to  the 
vavassor  in  France.  Those  who,  having 
been  deceived,  by  comparatively  modem 
law-books,  into  a  notion  that  the  word 
franklin  denoted  but  a  stout  yeoman,  in 
spite  of  the  wealth  and  rank  which 
Chaucer  assigns  to  him,  and  believing 
also,  on  the  authority  of  the  loose  phrase 
in  Bracton,  that  all  vavassors  were 
"  magnoe  dignitatis  viri,"  might  well  be 
puzzled  at  seeing  the  words  employed  as 
synonyms.  See  Todd's  Illustrations  of 
Qower  and  Chaucer  for  an  instance. 

3  Du  Cange,  v.  Castellanus  ;  Coutumes 
de  Poitou,  tit.  iii. ;  Jjoiseau  Traite  des 
Seigneuries,  p.  160.  \Vhoever  had  a  right 
to  a  castle  had  la  haute  justice  ;  this  be- 
ing so  incident  to  the  castle,  that  it  was 
transferred  along  with  it.  There  might, 
however,  be  a  Seigneur  haut-justicier  be- 
low the  Ohatelain ;  and  a  ridiculous  dis- 


194 


CLERGY. 


Chap.  n.  Pabt  1L 


Feudal  Ststem. 


FREEMEN. 


195 


became  the  object  of  pride,  the  Vavassors  who  obtained  knight- 
hood were  commonly  styled  bachelors ;  those  who  had  not  re- 
ceived that  honor  fell  into  the  class  of  squires/  or  damoiscaux. 
It  will  be  needless  to  dwell  upon  the  condition  of  the  info- 
ciergy.  "^'^  clergy,  whether   secular  or  professed,  as   it 

bears  little  upon  the  general  scheme  of  polity. 
The  prelates,  and  abbots,  however,  it  must  be  understood, 
were  completely  feudal  nobles.  They  swore  fealty  for  their 
lands  to  the  king  or  other  superior,  received  the  homage 
of  their  vassals,  enjoyed  the  same  immunities,  exercised  the 
same  jurisdiction,  maintained  the  same  authority,  as  the  lay 
lords  among  whom  they  dwelt.  Military  service  does  not 
appear  to  have  been  reserved  in  the  beneficiary  grants  made 
to  cathedrals  and  monasteries.  But  when  other  vassals  of  the 
crown  were  called  upon  to  repay  the  bounty  of  their  sover- 
eign by  personal  attendance  in  war,  the  ecclesiastical  tenants 
were  supposed  to  fall  within  the  scope  of  this  feudal  duty, 
which  men  little  less  uneducated  and  violent  than  their  com- 
patriots were  not  reluctant  to  fulfil.  Charlemagne  exempted 
or  rather  prohibited  them  from  personal  service  by  several 
capitularies.^  The  practice,  however,  as  every  one  who  has 
some  knowlege  of  history  will  be  aware,  prevailed  in  succeed- 
ing ages.  Both  in  national  and  private  warfare  we  find  very 
frequent  mention  of  martial  prelates.'  But,  contrary  as  this 
actual  service  might  be  to  the  civil  as  well  as  ecclesiastical 


tinction  was  made  as  to  the  number  of 
posts  by  which  their  gallows  might  be 
supported.  A  baron's  instrument  of  exe- 
cution stood  on  four  posts  ;  a  chSltelain^s 
on  three ;  while  the  inferior  lord  who 
happened  to  possess  la  haute  justice  was 
forced  to  hang  his  subjects  on  a  two- 
legged  machine.  Coutumes  de  Poitou  ; 
Du  Cange,  v.  Furca. 

Lauriere  quotes  from  an  old  manu- 
script the  following  short  scale  of  ranks : 
Due  est  la  premiere  dignity,  puis  comtes, 
puis  viscomtes,  et  puis  baron,  ct  puis 
chitclain,  et  puis  vavasseur,  et  puis 
citaen,  et  puis  villain.  Ordonnances  des 
Rois,  t.  i.  p.  277. 

1  The  sons  of  knights,  and  gentlemen 
not  yet  knighted,  took  the  appellation  of 
squires  in  the  twelfth  century.  Vaissette, 
Hist,  de  Lang.  t.  ii.  p.  613.  That  of  Da- 
moiseau  came  into  use  in  the  thirteenth. 
Id.  t.  iu.  p.  529.  The  latter  was,  I  think, 
more  usual  in  France.  Du  Cange  gives 
.little  information  as  to  the  word  squire, 
(Scutifer.)  "Apud  Anglos,"  he  says, 
"penultima   est    nobilitatis  descriptio, 


inter  Equitem  et  Generosum.  Quod  et 
alibi  in  usu  fuit."  Squire  was  not  used 
as  a  title  of  distinction  in  England  till 
the  reign  of  Edward  III.,  and  then  but 
sparingly.  Though  by  Henry  VI. 's  time 
it  was  grown  more  common,  yet  none 
assumed  it  but  the  sons  and  heirs  of 
knights  and  some  militarj-  men;  except 
officers  in  courts  of  justice,  who,  by  pa- 
tent or  prescription,  had  obtained  tliat 
addition  Spclman's  Posthumous  Works, 
p.  234. 

2  Mably,  1.  i.  c.  6;  Baluze,  1. 1,  p.  410, 
932,  987.  .\ny  bishop,  priest,  deacon,  or 
subdeacon  bearing  arms  was  to  be  de> 
graded  and  not  even  admitted  to  lay 
communion.    Id.  p.  932. 

3  One  of  the  latest  instances  probably 
of  a  fighting  bishop  is  Jean  Montaigu, 
archbishop  of  Sens,  who  was  killed  at 
Azincourt.  Monstrelet  says  that  he  was 
"  non  pas  en  estat  pontifical,  car  au  lieu 
de  mi*re  il  portoit  une  bacinet,  pour  dal- 
matique  portoit  un  haubergcon,  pour 
chasuble  la  piece  d'acier ;  et  au  lieu  dc 
crosse,  portoit  uno  hache."    Fol.  1S2 


laws,  the  clergy  who  held  military  fiefs  were  of  course  bound 
to  fulfil  the  chief  obligation  of  that  tenure  and  send  their 
vassals  into  the  field.     We  have  many  instances  of  their  ac- 
companying the  army,  though  not  mixing  in  the  conflict ;  and 
even  the  parish  priests  headed  the  militia  of  their  villages.* 
The  prelates,  however,  sometimes  contrived  to  avoid  this  mili 
tary  service,  and  the  payments  introduced  in  commutation  for 
it,  by  holding  lands  in  frank-almoigne,  a  tenure  which  ex- 
empted them  from  every  species  of  obligation  except  that  of 
saying  masses  for  the  benefit  of  the  grantor's  family.^     But, 
notwithstandmg  the  warlike  disposition  of  some  ecclesiastics, 
their  more   usual  inability  to  protect  the   estates  of  their 
churches  against  rapacious  neighbors  suggested  a  new  spe- 
cies of  feudal  relation  and  tenure.     The  rich  abbeys  elected 
an  advocate,  whose  business  it  was  to  defend  their  interests 
both  in  secular  courts  and,  if  necessary,  in  the  field.     Pepin 
and  Charlemagne  are  styled  Advocates  of  the  Roman  church. 
This,  indeed,  was  on  a  magnificent  scale ;   but  in  ordinary 
practice  the  advocate  of  a  monastery  was  some  neighboring 
lord,  who,  in  return  for  his  protection,  possessed  many  lucra- 
tive privileges,  and  very  frequently  considerable  estates  by 
way  of  fief  from  his  ecclesiastical  clients.     Some  of  these 
advocates  are  reproached  with  violating  their  obligation,  and 
becoming  the  plunderers  of  those  whom  they  had  been  re- 
tained to  defend.' 

The  classes  below  the  gentry  may  be  divided  into  freemen 
and  villeins.  Of  the  first  were  the  inhabitants  of  chartered 
towns,  the  citizens  and  burghers,  of  whom  more  will  be  said 
presently.  As  to  those  who  dwelt  in  the  country,  we  can 
have  no  difficulty  in  recognizing,  so  far  as  England  is  con- 
cerned, the  socagers,  whose  tenure  was  free,  though  not  so 
noble  as  knight's  service,  and  a  numerous  body  of  tenants 
for  term  of  life,  who  formed  that  ancient  basis  of  our  strength 
the  English  yeomanry.  But  the  mere  freemen  are  not  at 
first  sight  so  distinguishable  in  other  countries.  In  French 
records  and  law-books  of  feudal  times,  all  besides  the  gen- 
try are  usually  confounded  under  the  names  of  villeins  or 
hommes  de  pooste  (gens  potestatis).*    This  proves  the  slight 


» Daniel,  ffist.  de  la  MiUce  Fran^oise, 

b.  i.  p.  OO. 

2  Du  Cange,  Eleemosyna  Libera : 
Madox,  Baronia  Angl.  p.  115 ;  Coke  on 
lattletoD,  and  other  Rngijph  law-books. 


s  Du  Cange,  y.  Advocatus  ;  a  full  and 
useful  article.  Recueil  des  Historiens, 
t.  xi.  preface,  p.  184. 

*  Homo  potestatis,  non  nobilis  —  Ita 
nuncupantur,  quod  in  potestate  domini 


196 


SERFS  OB  VILLEINS.      Chap.  II.  Part  IL 


Feudal  Ststem. 


SERFS  OR  VILLEINS. 


197 


estimation  in  which  all  persons  of  ignoble  birth  were  consider- 
ed. For  undoubtedly  there  existed  a  great  many  proprietors 
of  land  and  others,  as  free,  though  not  as  privileged,  as  the  no- 
bility. In  the  south  of  France,  and  especially  Provence,  the 
number  of  freemen  is  remarked  to  have  been  greater  than  in 
the  parts  on  the  right  bank  of  the  Loire,  where  tlie  feudal 
tenures  were  almost  universal.^  I  shall  quote  part  of  a  pas- 
sage in  Beaumanoir,  which  points  out  this  distinction  of  ranks 
pretty  fully.  "It  should  be  known,"  he  says,^  "that  there 
are  three  conditions  of  men  in  this  world ;  the  first  is  that 
of  gentlemen ;  and  the  second  is  that  of  such  as  are  naturally 
free,  being  bom  of  a  free  mother.  All  who  have  a  right  to 
be  called  gentlemen  are  free,  but  all  who  are  free  are  not 
gentlemen.  Gentility  comes  by  the  father,  and  not  by  the 
mother ;  but  freedom  is  derived  from  the  mother  only  ;  and 
whoever  is  born  of  a  free  mother  is  himself  free,  and  has  free 
power  to  do  anything  that  is  lawful."  ' 

In  every  age  and  country  until  times  comparatively  recent, 
Serfeor  personal  servitude  appears  to  have  been  the  lot 
▼iiieins.  q£  ^  large,  perhaps  the  greater,  portion  of  man- 
kind. We  lose  a  good  deal  of  our  sympathy  with  the  spirit 
of  freedom  in  Greece  and  Rome,  when  the  importunate  rec- 
ollection occurs  to  us  of  the  tasks  which  might  be  enjoined, 
and  the  punishments  which  might  be  inflicted,  without  control 
either  of  law  or  opinion,  by  the  keenest  patriot  of  the  Comitia, 
or  the  Council  of  Five  Thousand.  A  similar,  though  less 
powerful,  feeling  will  often  force  itself  on  the  mind  when  we 
read  the  history  of  the  middle  ages.  The  Germans,  in  their 
primitive  settlements,  were  accustomed  to  the  notion  of 
slavery,  incurred  not  only  by  captivity,  but  by  crimes,  by 
debt,  and  especially  by  loss  in  gaming.  When  they  invaded 
the  Roman  empire  they  found  the  same  condition  established 
in  all  its  provinces.  Hence,  from  the  beginning  of  the  era 
now  under  review,  servitude,  under  somewhat  different  modes, 
was  extremely  common.  There  is  some  difficulty  in  ascer- 
taining its  varieties  and  stages.     In  the  Salic  laws,  and  in  the 

sunt  —  Opponuntur  viris  nobilibus ;  apud  to  many  tributes  and  opprei^iyo  claims 
Butilerium    Consuetudinarii    yocantur,    on  the  part  of  their  territorial  superiors, 


Coustumiers,  prestationibus  scilicet  ob-  we  cannot  be  surprised  that  they  are  coa 

noxii  et  opcris.    Du  Gauge,  v.  Potestas 

As  all  these  freemen  were  obliged,  by  the  actual  servitude. 

ancient  laws  of  France,  to  live  under  the  i  Heeren,    Essai    sor 


irotection  of  some  particular  lord,  and 
•und  great  difficulty  in  choosing  a  new 
of  residence,  ad  they  were  subject 


founded,  at  this  distance,  with  men  in 

lea    Croisadea, 


Capitularies,  we  read  not  only  of  Servi,  but  of  Tributarii, 
Lidi,  and  Coloni,  who  were  cultivators  of  the  earth  and  sub- 
ject to  residence  upon  their  lord's  estate,  though  not  destitute 
of  property  or  civil  rights.^    Those  who  appertained  to  the 
demesne  lands  of  the  crown  were  called  Fiscalini.     The  com- 
position for  the  murder  of  one  of  these  was  much  less  than 
that  for  a  freeman.^    The  number  of  these  servile  cultivators 
was  undoubtedly  great,  yet  in  those  early  times,  I  should  con- 
ceive, much  less  than  it  afterwards  became.     Property  was 
for  the  most  part  in  small  divisions,  and  a  Frank  who  could 
hardly  support  his  family  upon  a  petty  alodial  patrimony  was 
not  likely  to  encumber  himself  with  many  servants.     But  the 
accumulation  of  overgrown  private  wealth  had  a  natural  ten- 
dency to  make  slavery  more  frequent.     Where  the  small  pro- 
prietors lost  their  lands  by  mere  rapine,  we  may  believe  that 
their  liberty  was  hardly  less  endangered.^     Even  where  this 
was  not  the  case,  yet,  as  the  labor  either  of  artisans  or  of  free 
husbandmen  was  but  sparingly  in  demand,  they  were  often 
compelled  to  exchange  their  liberty  for  bread.*     In  seasons 
also  of  famine,  and  they  were  not  unfrequent,  many  freemen 
sold  themselves  to  slavery.     A  capitulary  of   Charles   the 
Bald  in  864  permits  their  redemption  at  an  equitable  price.* 
Others  became  slaves,  as  more  fortunate  men  became  vassals, 
to  a  powerful  lord,  for  the  sake  of  his  protection.    Many  were 
reduced  into  this  state  through   inability  to  pay  those  pe- 
cuniary compositions  for  offences  which  were  numerous  and 
sometimes  heavy  in  the  barbarian  codes  of  law ;  and  many 
more  by  neglect  of  attendance  on  military  expeditions  of  the 


p.  122. 

s  Coatumes  deBeauToisis,  o.  45,  p-  269 
s  [NOTI  XIU.] 


1  These  passages  are  too  numerous  for 
reference.  In  a  very  early  charter  in 
Martenne's  Thesauras  Anecdotorum,  t. 
i.  p.  20,  1  inds  are  granted,  cum  homini- 
bus  ibidem  permanentibus,  quos  colon- 
ario  ordine  vivere  constituimus.  Men 
of  this  class  were  called,  in  Italy,  Al- 
dioncs.  A  Lombard  capitulary  of  Charle- 
magne says,  Al  liones  el  lege  vivunt  in 
Italli  sub  servitute  dominorum  suorum, 
qui  Fiscalini,  vel  Lidi  vivunt  in  Francii. 
Muratori,  Dissert.  14.     [Note  XIV.] 

2  Originally  it  was  but  45  solidi 
(I«ges  Salicae,  c.  43),  but  Charlemagne 
raised  it  to  100.  Baluzii  Capitularia,  p. 
402.  There  are  several  provisions  in  the 
laws  of  this  great  and  wise  monarch  in 
fitvor  of  liberty.  If  a  lord  claimed  any 
one  cither  as  his  villein  or  slave  (colonus 
Bive  servus),  who  had  escaped  beyond 
hia  territory,  he  was  not  to  be  given  up 


till  strict  inquiry  had  been  made  in  the 
place  to  which  he  was  asserted  to  belong, 
as  to  his  condition,  and  that  of  his  fam 
ily :  p.  400.  And  if  the  villein  showed  a 
charter  of  enfranchisement,  the  proof 
of  its  forgery  was  to  lie  upon  the  lord. 
No  man's  liberty  could  be  questioned  in 
the  Hundred-court. 

3  Montesquieu  ascribes  the  increase  of 
personal  servitude  in  France  to  the  con- 
tinued revolts  and  commotions  under  th« 
two  first  dynasties,  1.  xxx.  c.  11. 

<  Du  Gauge,  v.  Obiioxatio. 

6  Baluzii  Capitularia.  The  Greek  trad- 
ers purchased  famished  wretches  on  the 
coasts  of  Italy,  whom  they  sold  to  the 
Saracens.  —  Muratori,  Annalia  d'ltalia, 
A.D.  785.  Much  more  would  persons  in 
this  extremity  sell  themselves  to  neigh- 
boring  lords. 


198 


SERFS  OR  VILLEINS.      Chap.  U.  Part  II. 


king,  the  penalty  of  which  was  a  fine  called  Heribann,  with 
the  alternative  of  perpetual  servitude.*  A  source  of  loss 
of  liberty  which  may  strike  us  as  more  extraordinary  was 
superstition ;  men  were  infatuated  enough  to  surrender  them- 
selves, as  well  as  their  properties,  to  churches  and  monaste- 
ries, in  return  for  such  benefits  as  they  might  reap  by  the 
prayers  of  their  new  masters.* 

The  characteristic  distinction  of  a  villein  was  his  obligation 

to  remain  upon  his  lord's  estate.     He  was  not  only  precluded 

from  selling  the  lands  upon  which  he  dwelt,  but  his  person 

was  bound,  and  the  lord  might  reclaim  him  at  any  time,  by 

suit  in   a  court  of  justice,  if  he  ventured   to   stray.     But, 

equally  liable  to   this  confinement,  there  were   two  classes 

of  villeins,  whose  condition  was  exceedingly  different.      In 

England,  at  least  from  the  reign  of  Henry  II.,  one  only,  and 

that  the  inferior  species,  existed ;  incapable  of  property,  and 

destitute    of   redress,   except  against  the    most  outrageous 

injuries.^    The  lord  could  seize  whatever  they  acquired  or 

inherited,  or  convey  them,  apart  from  the  land,  to  a  stranger. 

Their  tenure  bound  them  to  what  were  called  villein  services, 

ignoble  in  their  nature,  and  indeterminate  in  their  degree ; 

the  felling  of  timber,  the  carrying  of  manure,  the  repairing 

of  roads  for  their  lord,  who   seems   to  have  possessed  an 

equally  unbounded  right  over  their  labor  and  its  fruits.     But 

by  the   customs  of  France  and   Grermany,  persons  in  this 

abject  state  seem  to  have  been  called  serfs,  and  distinguished 

from  villeins,  Avho  were  only  bound  to  fixed  payments  and 

duties  in  respect  of  their  lord,  though,  as  it  seems,  without 

any  legal  redress  if  injured  by  him.*     "  Tlie  third  estate  of 

men,"  says  Beaumanoir,  in  the  passage   above   quoted,  "is 

that  of  such  as  are  not  free ;  and  these  are  not  all  of  one 

condition,  for  some  are  so  subject  to  their  lord  that  he  may 


*  Du  Cange,  Heribannum.  A  full  heri- 
bannum  was  60  solidi ;  but  it  was  some- 
times assessed  la  proportion  to  the  wealth 
of  the  party. 

»  Beaumanoir,  c.  45.  [Note  XV.] 
'  Littleton,  1.  ii.  c.  11.  Non  potest 
aliquis  (says  Glanvil),  in  villenagio  posi- 
tus,  libertatem  suam  propriis  denariis 
main  quserere  —  quia  omnia  catalla  cu- 
juslibet  nativi  intelliguntur  esse  in  po- 
testate  domini  sui.  —  1.  v.  c.  5. 

*  This  is  clearly  expressed  in  a  French 
law-book  of  the  thirteenth  century,  the 
Conseil  of  Pierre  des  Fontaines,  quoted 
by  Du  Cange,  too.  Villanus.    £t  sache 


bien  que  selon  Dieu  tu  n^as  mie  pleniero 
poeste  sur  ton  vilain.  Dont  se  tu  prcna 
du  sien  fors  les  droitos  redevancea  que 
te  doit,  tu  les  prens  contre  Dieu,  et  sur 
le  peril  de  fame  et  come  robierres.  £t 
ce  qu'on  dit  toutos  les  choses  que  vilains 
a,  sont  son  Seigneur,  c'est  voir  a  g:irder. 
Car  s'il  estoicnt  son  seigneur  propre,  U 
n^avoit  nvde  difference  entre  serf  et  vilain, 
mais  par  notre  usage  n'a  entro  toi  et  ton 
vilain  juge  fors  Dieu,  tant  com  il  eat  tea 
couchans  et  tes  levaiis,  s'il  n'a  autre  loi 
vers  toi  fors  la  commune.  This  seems 
to  render  the  distinction  little  more  than 
theoretical. 


Feudal  System.     ABOLITION  OF  VILLENAGE. 


199 


take  all  they  have,  alive  or  dead,  and  imprison  them,  when- 
ever he  pleases,  being  accountable  to  none  but  God ;  while 
others  are  treated  more  gently,  from  whom  the  lord  can  take 
nothing  but  customary  payments,  though  at  their  death  all 
they  have  escheats  to  him."^ 

Under  every  denomination  of  servitude,  the  children 
followed  their  mother's  condition ;  except  in  England,  where 
the  father's  state  determined  that  of  the  children ;  on  which 
account  bastards  of  female  villeins  were  born  free,  the  law 
presuming  the  Uberty  of  their  father.^  The  pro-  General 
portion  of  freemen,  therefore,  would  have  been  abolition  of 
miserably  diminished  if  there  had  been  no  reflux 
of  the  tide  which  ran  so  strongly  towards  slavery.  But  the 
usage  of  manumission  made  a  sort  of  circulation  between 
these  two  states  of  mankind.  This,  as  is  well  known,  was 
an  exceedingly  common  practice  with  the  Romans ;  and  is 
mentioned,  with  certain  ceremonies  prescribed,  in  the  Frankish 
and  other  early  laws.  The  clergy,  and  especially  several 
popes,  enforced  it  as  a  duty  upon  laymen;  and  inveighed 
against  the  scandal  of  keeping  Christians  in  bondage.*  As 
society  advanced  in  Europe,  the  manumission  of  slaves  grew 
more  frequent.*      By   the  indulgence  of   custom   in   some 


1  Beaumanoir,  c.  45;  Du  Cange,  Vil- 
lanus, Scrvus,  and  several  other  articles. 
Schmidt,  Hist,  des  Allemands,  t.  ii.  p. 
171,  435.  By  a  law  of  the  Lombards,  a 
free  woman  who  married  a  slave  might 
be  killed  by  her  relations,  or  sold ;  if 
they  neglected  to  do  so,  the  fisc  might 
claim  her  as  its  own. — Muratori,  Dis- 
sert. 14.  In  France  also  she  was  liable 
to  be  treated  as  a  slave.  —  Marculfi  For- 
mula;, 1.  ii.  29.  Even  in  the  twelfth  cen- 
tury it  was  the  iaw  of  Flanders  that 
whoever  married  a  villein  became  one 
himself  after  he  had  lived  with  her  a 
twelvemonth.  —  Ilecueil  des  Uistoriens, 
t.  xiii.  p.  350.  And,  by  a  capitulary  of 
Pepin,  if  a  man  married  a  villein  believ- 
ing her  to  be  free,  he  might  repudiate 
her  and  marry  another.  —  Baluze,  p. 
181. 

Villeins  themselves  could  not  marry 
without  the  lord's  license,  under  penalty 
of  forfeiting  their  goods,  or  at  least  of  a 
mulct.  — Du  Cange,  v.  Forismaritagiura. 
This  seems  to  be  the  true  origin  of  the 
£uuous  uiercheta  mulierum,  which  has 
been  ascribed  to  a  very  different  custom. 
—  Du  Cange,  v.  Mercheta  Mulierum; 
Dairy mple's  Annals  of  iScotland,  vol.  i. 
p.  812;  ArchsDologia,  vol.  xii.  p.  31. 

a  Iiitileton,  ».  188.     Bracton   indeed 


holds  that  the  spurious  issue  of  a  neif^ 
though  by  a  free  father,  should  be  a  vil- 
lein, quia  sequitur  conditionem  matris, 
quasi  vulgo  conceptus,  1.  i.  c.  6.  But 
the  laws  under  the  name  of  Henry  I. 
declare  that  a  son  should  follow  his 
father's  condition ;  so  that  this  peculiar- 
ity is  very  ancient  in  our  law.  —  Leges 
Hen.  I.  c.  75  and  77. 

3  Enfranchisements  by  testament  are 
very  common.  Thus  in  the  will  of  Se- 
niofred,  count  of  Barcelona,  in  966,  we 
find  the  following  piece  of  corrupt  Latin : 
De  ipsos  servos  uieos  et  ancillas,  illi  qui 
traditi  fuerunt  faciatis  illos  libros  propter 
remcdium  animae  meae;  et  alii  qui  fue 
runt  de  parentorum  meorum  remaneant 
ad  fratres  meos. — Marca  Hispanica,  p. 
887. 

<  No  one  could  enfranchise  his  villein 
without  the  superior  lord's  consent ;  for 
this  was  to  diminish  the  value  of  hiB 
land,  apeticer  le  fief.  —  Beaumanoir,  c. 
15.  Etablissemens  de  St.  Louis,  c.  34. 
It  was  necessary,  therefore,  for  the  villein 
to  obtain  the  suzerain's  confirmation ; 
otherwise  he  only  changed  masters  and 
escheated,  as  it  were,  to  the  superior* 
for  the  lord  who  had  granted  the  charter 
of  franchise  waa  estopped  from  claiming 
him  again. 


200 


ABOLITION  OF  VILLENAGE.    Chap.  II.  Part  II. 


places,  or  perhaps  by  original  convention,  villeins  might 
possess  property,  and  thus  purchase  their  own  redemption. 
Even  where  they  had  no  legal  title  to  property,  it  was 
accounted  inhuman  to  divest  them  of  their  little  possession 
(the  peculium  of  Roman  law),  nor  was  their  poverty,  per- 
haps, less  tolerable,  upon  the  whole,  than  that  of  the  modem 
peasantry  in  most  countries  of  Europe.  It  was  only  in 
respect  of  his  lord,  it  must  be  remembered,  that  the  villein, 
at  least  in  England,  was  without  rights ;  *  he  might  inherit, 
purchase,  sue  in  the  courts  of  law ;  though,  as  defendant  in 
a  real  action  or  suit  wherein  land  was  claimed,  he  misht 
shelter  himself  under  the  plea  of  villenage.  The  peasants 
of  this  condition  were  sometimes  made  use  of  in  war,  and 
rewarded  ^vith  enfranchisement ;  especially  in  Itidy,  where 
the  cities  and  petty  states  had  often  occasion  to  defend  them- 
selves with  their  own  population ;  and  in  peace  the  industry 
of  free  laborers  must  have  been  found  more  productive  and 
better  directed.  Hence  the  eleventh  and  twelfth  centuries 
saw  the  number  of  slaves  in  Italy  begin  to  decrease ;  early 
in  the  fifteenth  a  writer  quoted  by  Muratori  speaks  of  them 
as  no  longer  existing.^  The  greater  part  of  the  peasants  in 
some  countries  of  Germany  had  acquired  their  liberty  before 
the  end  of  the  thirteenth  century ;  in  other  parts,  as  well  as 
in  all  the  northern  and  eastern  regions  of  Europe,  they  re- 
mained in  a  sort  of  villenage  till  the  present  age.  Some 
very  few  instances  of  predial  servitude  have  been  discovered 
in  England  so  late  as  the  time  of  EHzabeth,'  and  perhaps 
they  might  be  traced  still  lower.  Louis  Hutin,  in  France, 
after  innumerable  particular  instances  of  manumission  had 
taken  place,  by  a  general  edict  in  1315,  reciting  that  his 
kingdom  is  denominated  the  kingdom  of  the  Franks,  that  he 
would  have  the  fact  to  correspond  with  the  name,  emancipates 
all  persons  in  the  royal  domains  upon  paying  a  just  composi- 
tion, as  an  example  for  other  lords   possessing  villeins  to 


1  Littleton,  s.  189.  Perhaps  this  ia  not 
applicable  to  other  countries.  Villeins 
were  incapable  of  being  received  as  wit- 
nesses against  freemen.  —  Recueil  des 
Hifitoriens,  t.  xiv.  prefSwe,  p.  66.  There 
are  some  charters  of  kings  of  France  ad- 
mitting the  serfs  of  particular  monas- 
teries to  give  evidence,  or  to  engage  in 
the  judicial  combat,  against  freemen.  — 
Ordonnances  des  Rois,  t.  i.  p.  3.  But  I 
do  not  know  that  their  testimony,  except 


against  their  lord,  was  ever  refused  !n 
England;  their  state  of  servitude  not 
being  absolute,  like  that  of  negroes  in 
the  West  Indies,  but  particular  and  rela- 
tive, as  ttiat  of  an  apprentice  or  hired 
servant.  This  subject,  however,  is  not 
devoid  of  obscurity. 

8  Dissert.  14. 

3  Barrington's  Observatione  on  the  An- 
cient Stututes,  p.  274. 


Feudal  SrsTEM. 


TENURES  OF  LANDS. 


201 


follow.^  Philip  the  Long  renewed  the  same  edict  three 
years  afterwards ;  a  proof  that  it  had  not  been  carried  into 
execution.*  Indeed  there  are  letters  of  the  former  prince, 
wherein,  considering  that  many  of  his  subjects  are  not  ap- 
prised of  the  extent  of  the  benefit  conferred  upon  them,  he 
directs  his  officers  to  tax  them  as  high  as  their  fortunes  can 
well  bear.* 

It  is  deserving  of  notice  that  a  distinction  existed  from  very 
early  times  in  the  nature  of  lands,  collateral,  as  it  were,  to 
that  of  persons.  Thus  we  find  mansi  ingenui  and  mansi 
serviles  in  the  oldest  charters,  corresponding,  as  we  may  not 
unreasonably  conjecture,  to  the  liberum  tenementum  and  vil- 
lenagium,  or  freehold  and  copyhold  of  our  own  law.  In 
France,  all  lands  held  in  roture  appear  to  be  considered  as 
villein  tenements,  and  are  so  termed  in  Latin,  though  many 
of  them  rather  answer  to  our  socage  freeholds.  But  although 
originally  this  servile  quality  of  lands  was  founded  on  the 
state  of  their  occupiers,  yet  there  was  this  particularity,  that 


1  Ordonnances  des  Rois,  t.  i.  p.  583. 
« Id.  p.  65-3. 

«  Velly,  t.  viii.  p.  38.  Philip  the  Fair 
had  emancipated  the  villeins  in  the  royal 
domains  throughout  Languedoc,  retain- 
ing only  an  annual  rent  for  their  lands, 
which  thus  became  censives^  or  emphy- 
teuses.  It  does  not  appear  by  the  charter 
that  he  sold  this  enfranchisement,  though 
there  can  be  little  doubt  about  it.  He 
permitted  his  vassals  to  follow  the  ex- 
ample —  Vaisfsette,  Hist,  de  Languedoc, 
t.  iv. ;  Appendix,  p.  3,  12. 

It  is  not  generally  known,  I  think, 
that  predial  servitude  was  not  abolished 
in  all  parts  of  Frauce  till  the  revolution. 
In  some  places,  says  Pasquier,  the  peas- 
ants are  taillables  i  volontc,  that  is,  their 
contribution  is  not  permanent,  but  as- 
sessed by  the  lord  with  the  advice  of 
prud'  hommes,  resseants  sur  les  lieux, 
according  to  the  peasant's  ability.    Oth- 
ers pay  a  fixed  sum.    Some  are  called 
serfs    de  poursuite,  who  cannot   leave 
their  habitations,  but  may  be  followed 
by  the  lord  into  any  part  of  France  for 
the  taille  upon  their  goods.     This  was 
the  case  in  part  of  Champagne  and  the 
Nivernois.     Nor   could   these  serfs,  or 
gens  de  mainmorte,  as  they  were  some- 
times called,  be  manumitted  without  let- 
ters patent  of  the  king,  purchased  by  a 
fine.  —  Uecherches  de  la  France,  1.  iv.  c.  5. 
Dubos  informs  us  that,  in  1615,  the  Tiers 
Etat  prayed  the  king  to  cause  all  serfs 
{hotnmes  de  pooste)  to  be  enfranchised 
on  paying  a  composition;  but  this  was 


not  complied  with,  and  they  existed  in 
many  parts  when  he  wrote.  —  Histoire, 
Critique,  t.  iii.  p.  298.  Argou,  in  his 
Institutions  du  Droit  Fran^;oi?,  confirms 
this,  and  refers  to  the  customaries  of  Ni- 
vernois and  Vitry,  1.  i.  c.  1.  And  M.  de 
Brcquigny,  in  his  preface  to  the  twelfth 
volume  of  the  collection  of  Ordonnances, 
p.  22,  says  that  throughout  almost  the 
whole  jurisdiction  of  the  parliament  of 
Bensan^on  the  peasants  were  attached 
to  the  soil,  not  being  capable  of  leaving 
it  without  the  lord's  consent ;  and  that 
in  some  places  he  even  inherited  their 
goods  in  exclusion  of  the  kindred.  I 
recollect  to  have  read  in  some  part  of 
Voltaire's  correspondence  an  anecdote 
of  his  interference,  with  that  zeal  against 
oppression  which  is  the  shining  side  of 
his  moral  character,  in  behalf  of  some 
of  these  wretched  slaves  of  Franche- 
comte. 

About  the  middle  of  the  fifteenth  cen- 
tury, some  Catalonian  serfs  who  had  es- 
caped into  France  being  claimed  by  their 
lords,  the  parliament  of  Toulouse  de- 
clared that  every  man  who  entered  the 
kingdom  en  criant  France  should  be* 
come  free.  The  liberty  of  our  kingdom 
is  such,  says  Mezeray,  that  its  air  com- 
municates freedom  to  those  who  breathe 
it,  and  our  kings  are  too  august  to  reign 
over  any  but  freemen.  Villaret,  t.  xv. 
p.  348.  How  much  pretence  Mezeray 
had  for  such  a  flourish  may  be  decided 
by  the  former  part  of  this  note. 


202 


STATE  OF  FRANCE  AND  GERMANY.   Chap.  H.  Part  U, 


lands  never  changed  their  character  along  with  that  of  the 
possessor;  so  that  a  nobleman  might,  and  often  did,  hold 
estates  in  roture,  as  well  as  a  roturier  acquire  a  fief.  Thus 
in  England  the  terre  tenants  in  villenage,  who  occur  in  our 
old  books,  were  not  villeins,  but  freemen  holding  lands  which 
had  been  from  time  immemorial  of  a  villein  quaHty. 

At  the  final  separation  of  the  French  from  the  German 
side  of  Charlemagne's  empire  by  the  treaty  of  Verdun  in 
843,  there  was  perhaps  hardly  any  difference  in  the  constitu- 

Compara-  ^^^"  ^^  ^^^  ^^^'^  kingdoms.  If  any  might  be  con- 
twestateof  jecturcd  to  havc  existed,  it  would  be  a  greater 
aSTny"^  independence  and  fuller  rights  of  election  in  the 
nobihty  and  people  of  Germany.  But  in  the 
lapse  of  another  century  France  had  lost  all  her  political 
unity,  and  her  kings  all  their  authority ;  while  the  Germanic 
empire  was  entirely  unbroken  under  an  effectual,  though  not 
absolute,  control  of  its  sovereign.  No  comparison  can  be 
made  between  the  power  of  Charles  the  Simple  and  Conrad 
the  First,  though  the  former  had  the  shadow  of  an  hereditary 
right,  and  the  latter  was  chosen  from  among  his  equals.  A 
long  succession  of  feeble  princes  or  usurpers,  and  destructive 
incursions  of  the  Normans,  reduced  France  almost  to  a  disso- 
lution of  society;  while  Germany,  under  Conrad,  Henry, and 
the  Othos,  found  their  arms  not  less  prompt  and  successful 
against  revolted  vassals  than  external  enemies.  The  high 
dignities  were  less  completely  hereditary  than  they  had 
become  in  France ;  they  were  granted,  indeed,  pretty  regu- 
larly, but  they  were  solicited  as  well  as  granted ;  while  the 
chief  vassals  of  the  French  crown  assumed  them  as  patrimo- 
nial sovereignties,  to  which  a  royal  investiture  gave  more  of 
ornament  than  sanction. 

In  the  eleventh  century  these  imperial  prerogatives  began 
to  lose  part  of  their  lustre.  The  long  struggles  of  the  princes 
and  clergy  against  Henry  IV.  and  his  son,  the  revival  of 
more  effective  rights  of  election  on  the  extinction  of  the  house 
of  Franconia,  the  exhausting  contests  of  the  Swabian  emper- 
ors in  Italy,  the  intrinsic  weakness  produced  by  a  law  of  the 
empire,  according  to  which  the  reigning  sovereign  could  not 
retaui  an  imperial  fief  more  than  a  year  in  his  hands,  gradu- 
ally  prepared  that  independence  of  the  German  aristocracy 
which  reached  its  height  about  the  middle  of  the  thirteenth 
century.     Durmg  this  period  the  French  crown  had  been 


Feudal  System. 


COINING  MONEY. 


203 


insensibly  gaining  strength ;  and  as  one  monarch  degenerated 
into  the  mere  head  of  a  confederacy,  the  other  acquired  un- 
limited power  over  a  soKd  kingdom. 

It  would  be  tedious,  and  not  very  instructive,  to  follow  the 
details  of  German  public  law  during  the  middle  ages;  nor 
are  the  more  important  parts  of  it  easily  separable  from  civil 
history.  In  this  relation  they  will  find  a  place  in  a  subse- 
quent chapter  of  the  present  work.  France  demands  a  more 
minute  attention ;  and  in  tracing  the  character  of  the  feudal 
system  in  that  country,  we  shall  find  ourselves  developing  the 
progress  of  a  very  different  polity. 

To  understand  in  what  degree  the  peers  and  barons  of 
France,  during  the  prevalence  of  feudal  principles, 
were  independent  of  the  crown,  we  must  look  at  oPthe^^ 
their  leading  privileges.     These  may  be  reckoned :  ^^°^^ 
1.  The  right  of  coining  money ;  2.  That  of  waging 
private  war ;  3.  The  exemption  from  all  public  tributes,  except 
the  feudal  aids;   4.  The  freedom  from  legislative  control; 
and,  5.  Tlie  exclusive  exercise  of  original  judicature  in  their 
dominions.     Privileges  so  enormous,  and  so  contrary  to  all 
principles  of  sovereignty,  might  lead  us,  in  strictness,  to  ac- 
count France  rather  a  collection  of  states,  partially  aUied  to 
each  other,  than  a  single  monarchy. 

1.  Silver  and  gold  were  not  very  scarce  in  the  first  ages 
of  the  French  monarchy ;  but  they  passed  more  coining 
by  weight  than  by  tale.  A  lax  and  ignorant  gov-  ^^^^y- 
emment,  which  had  not  learned  the  lucrative  mysteries  of  a 
royal  mint,  was  not  particularly  solicitous  to  give  its  subjects 
the  security  of  a  known  stamp  in  their  exchanges.^  In  some 
cities  of  France  money  appears  to  have  been  coined  by  pri- 
vate authority  before  the  time  of  Charlemagne ;  at  least  one 
of  his  capitularies  forbids  the  circulation  of  any  that  had  not 
been  stamped  in  the  royal  mint.  His  successors  indulged 
some  of  their  vassals  with  the  privilege  of  coining  money  for 
the  use  of  their  own  territories,  but  not  without  the  royal 
stamp.     About  the  beginning  of  the  tenth  century,  however, 


1  The  practice  of  keeping  fine  gold  and 
silyer  uncoined  prevailed  among  private 
persons,  as  well  as  in  the  treasury,  down 
to  the  time  of  Philip  the  Fair.  Nothing 
]»  more  common  than  to  find,  in  the  in- 
■truments  of  earlier  time,  payments  or 
fines  stipulated  by  weight  of  gold  or  sil- 
ver.   Le  Blanc  therefore  thii]^  that  lit- 


tle money  was  coined  in  France,  and  that 
only  for  small  payments.  —  Traits  des 
Monnoyes.  It  is  curious  that,  though 
there  are  many  gold  coins  extant  of  the 
first  race  of  kings,  yet  few  or  none  are 
preserved  of  the  second  or  third  before 
the  reign  of  Philip  the  Fair.  —  Du  Cange, 
T.  Sloneta. 


204 


COINING  MONET. 


Chaf.  n.  Pari  XL 


the  lords,  among  their  other  assumptions  of  independence, 
issued  money  with  no  marks  but  their  own.^  At  the  accession 
of  Hugh  Capet  as  many  as  a  hundred  and  fifty  are  said  to 
have  exercised  this  power.  Even  under  St.  Louis  it  was 
possessed  by  about  eighty,  who,  excluding  as  far  as  possible 
the  royal  coin  from  circulation,  enriched  themselves  at  their 
subjects*  expense  by  high  duties  (seigniorages),  which  they 
imposed  upon  every  new  coinage,  as  well  as  by  debasing  its 
standard.^  In  1185  Philip  Augustus  requests  the  abbot  of 
Corvey,  who  had  desisted  from  using  his  own  mint,  to  let  the 
royal  money  of  Paris  circulate  through  his  territories,  prom- 
ising that,  when  it  should  please  the  abbot  to  coin  money 
afresh  for  himself,  the  king  would  not  oppose  its  circulation.' 

Several  regulations  were  made  by  Louis  IX.  to  limit,  as 
far  as  lay  in  his  power,  the  exercise  of  this  baronial  privilege, 
and,  in  particular,  by  enacting  that  the  royal  money  should 
circulate  in  the  domains  of  those  barons  who  had  mints,  con- 
currently with  their  own,  and  exclusively  within  the  territories 
of  those  who  did  not  enjoy  that  right.  Philip  the  Fair 
established  royal  officers  of  inspection  in  every  private  mint 
It  was  asserted  in  his  reign,  as  a  general  truth,  that  no  subject 
might  coin  silver  money.*  In  fact,  the  adulteration  practised 
in  those  baronial  mints  had  reduced  their  pretended  silver  to 
a  sort  of  black  metal,  as  it  was  called  (moneta  nigra),  into 
which  Httle  entered  but  copper.  Silver,  however,  and  even 
gold,  were  coined  by  the  dukes  of  Britany  so  long  as  that 
fief  continued  to  exist.  No  subjects  ever  enjoyed  the  right 
of  coining  silver  in  England  without  the  royal  stamp  and 
superintendence^  —  a  remarkable  proof  of  the  restraint  in 
which  the  feudal  aristocracy  was  always  held  in  this  country. 

2.  The  passion  of  revenge,  always  among  the  most  ungov- 


1  Vaisaette,  Hist,  de  Languedoc,  t.  ii. 
p.  110 ;  Rec.  des  Historiens,  t.  xi.  pref. 
p.  180 ;  Du  Cange,  v.  Moneta. 

s  Le  Blanc,  Traite  des  Monnoyes,  p.  91. 

'  Du  Cange,  voc.  Moneta ;  Velly,  Hist, 
de  France,  t.  ii.  p.  93;  Villaret,  t.  xiv. 
p.  200. 

♦  Du  Cange,  v.  Moneta.  The  right  of 
debasing  the  coin  was  also  claimed  by 
this  prince  as  a  choice  flower  of  his 
crown.  Item,  abaisser  et  amen  user  la 
monnoye  est  privilege  especial  au  roy  de 
son  droit  royal,  si  que  a  luy  appartient, 
et  a  non  autre,  et  encore  en  un  seul  cas, 
c'est  a  Bcavoir  en  necessity,  et  lors  ne 
▼lent  pas  le  ganeg,  ne  conyertit  en  son 


profit  especial,  mais  en  profit  et  en  la 
defence  du  coram  un.  This  was  in  a  pro- 
cess commenced  by  the  king's  procureur- 
general  against  the  comte  de  Nevers,  for 
defacing  his  coin.  —  Le  Blanc,  Traite  des 
Monnoyes,  p.  92.  In  many  places  the 
lord  took  a  sum  from  his  tenants  every 
three  years,  under  the  name  of  mone- 
tagium  or  focagium,  in  lieu  of  debasing 
his  money.  This  was  finally  abolished 
in  1830.  —  Du  Cange.  v.  Monetagium. 

6  I  do  not  extend  this  to  the  fact:  for 
in  the  anarchy  of  Stephen's  reign  both 
bishops  and  barons  coined  money  for 
themselves  —  Hoveden,  p.  490. 


Feudal  System.     RIGHT  OF  PRIVATE  WAR. 


205 


emable  in  human  nature,  acts  with  such  violence  j^^^^it  of 
upon  barbarians,  that  it  is  utterly  beyond  the  con-  private 
trol  of  their  imperfect  arrangements  of  polity.  It 
seems  to  them  no  part  of  the  social  compact  to  sacrifice  the 
privilege  which  nature  has  placed  in  the  arm  of  valor. 
Gradually,  however,  these  fiercer  feelings  are  blunted,  and 
another  passion,  hardly  less  powerful  than  resentment,  is 
brought  to  play  in  a  contrary  direction.  The  earlier  object 
accordingly  of  jurisprudence  is  to  establish  a  fixed  atonement 
for  injuries,  as  much  for  the  preservation  of  tranquillity  as  the 
prevention  of  crime.  Such  were  the  weregilds  of  the  bar- 
baric codes,  which,  for  a  different  purpose,  I  have  already 
mentioned.^  But  whether  it  were  that  the  kindred  did  not 
always  accept,  or  the  criminal  offer,  the  legal  composition,  or 
that  other  causes  of  quarrel  occurred,  private  feuds  (faida) 
were  perpetually  breaking  out,  and  many  of  Charlemagne's 
capitularies  are  directed  against  them.  After  his  time  all 
hope  of  restraining  so  inveterate  a  practice  was  at  an  end ;  and 
every  man  who  owned  a  castle  to  shelter  him  in  case  of 
defeat,  and  a  sufficient  number  of  dependents  to  take  the  field, 
was  at  liberty  to  retaliate  upon  his  neighbors  whenever  he 
thought  himself  injured.  It  must  be  kept  in  mind  that  there 
was,  frequently,  either  no  jurisdiction  to  which  he  could 
appeal,  or  no  power  to  enforce  its  awards ;  so  that  we  may 
consider  the  higher  nobility  of  France  as  in  a  state  of  nature 
with  respect  to  each  other,  and  entitled  to  avail  themselves 
of  all  legitimate  grounds  of  hostility.  The  right  of  waging 
private  war  was  moderated  by  Louis  IX.,  checked  by  Philip 
IV.,  suppressed  by  Charles  VI. ;  but  a  few  vestiges  of  its 
practice  may  be  found  still  later.^ 

3.  In  the  modem  condition  of  governments,  taxation  is  a 


1  The  antiquity  of  compositions  for 
murder  is  illustrated  by  Iliad  S,  498, 
where,  in  the  description  of  the  shield  of 
Achilles,  two  disputants  are  represented 
wrangling  before  the  judge  for  the  were- 
gild  or  price  of  blood;  elveKa  noiv^g 
avdpbg  anoipdifuvov. 

3  The  subject  of  private  warfare  is 
treated  so  exactly  and  perspicuously  by 
Robertson,  that  I  should  only  waste  the 
reader's  time  by  dwelling  so  long  upon  it 
as  its  extent  and  importance  would  other- 
wise demand.  —  See  Hist,  of  Charles  V. 
vol.  i.  note  21.  Few  leading  passages  in 
the  monuments  of  the  middle  ages  rela- 
tiTe   to  this  subject  have  escaped  the 


penetrating  eye  of  that  historian;  and 
they  are  arranged  so  well  as  to  form  a 
comprehensive  treatise  in  small  compass. 
I  know  not  that  I  could  add  any  much 
worthy  of  notice,  unless  it  be  the  fol- 
lowing :  —  In  the  treaty  between  Philip 
Augustus  and  Richard  Coeur  de  Lion 
(1194),  the  latter  refused  to  admit  the 
insertion  of  an  article  that  none  of  the 
barons  of  either  party  should  molest  the 
other;  lest  he  should  infringe  the  cus- 
toms of  Poitou  and  his  other  dominions, 
in  quibus  consuetum  erat  ab  antique,  ut 
magnates  causas  proprias  invicem  gladiis 
allegarent.  —  Hoveden,  p.  741  (in  Sayillei 
Script.  Anglic.) 


206 


REVENUES  OF  FRANCE.     Ch.U".  II.  Part  II. 


Immunity 

from 

taxation. 

Revenues 

of  kings  of 

France. 


chief  engine  of  the  well-corapivcted  machinery 
which  regulates  the  system.  The  payments,  the 
prohibitions,  the  licenses,  the  watchfulness  of  col- 
lection, the  evasions  of  fraud,  the  penalties  and  for- 
feitures, that  attend  a  fiscal  code  of  laws,  present 
continually  to  the  mind  of  the  most  remote  and  humble  indi- 
vidual the  notion  of  a  supreme,  vigilant,  and  coercive  au- 
thority. But  the  early  European  kingdoms  knew  neither  the 
necessities  nor  the  ingenuity  of  modern  finance.  From  their 
demesne  lands  the  kings  of  France  and  Lombardy  supphed 
the  common  expenses  of  a  barbarous  court  Even  Charle- 
magne regulated  the  economy  of  his  farms  with  the  minute- 
ness of  a  steward,  and  a  large  portion  of  his  capitularies  are 
directed  to  this  object.  Their  actual  revenue  was  chiefly 
derived  from  free  gifts,  made,  according  to  an  ancient  German 
custom,  at  the  annual  assemblies^  of  the  nation,  from  amerce- 
ments paid  by  alodial  proprietors  for  default  of  military  ser- 
vice, and  from  the  freda,  or  fines,  accruing  to  the  judge  out 
of  compositions  for  murder.*  These  amounted  to  one  third 
of  the  whole  weregild ;  one  third  of  this  was  paid  over  by 
the  count  to  the  royal  exchequer.  After  the  feudal  govern 
ment  prevailed  in  France,  and  neither  the  heribannum  nor 
the  weregild  continued  in  use,  there  seems  to  have  been 
hardly  any  source  of  regular  revenue  besides  the  domanial 
estates  of  the  crown;  unless  we  may  reckon  as  such,  that 
during  a  journey  the  king  had  a  prescriptive  right  to  be 
supplied  with  necessaries  by  the  towns  and  abbeys  through 
which  he  passed;  commuted  sometimes  into  petty  regular 
payments,  called  droits  de  gist  et  de  chevauche.'  Hugh 
Capet  was  nearly  indigent  as  king  of  France,  though,  as 
count  of  Paris  and  Orleans,  he  might  take  the  feudal  aids  and 
reliefs  of  his  vassals.  Several  other  small  emoluments  of 
himself  and  his  successors,  whatever  they  may  since  have 
been  considered,  were  in  that  age  rather  seigniorial  than  royal. 
The  rights  of  toll,  of  customs,  of  alienage  (aubaine),  gener- 
ally even  the  regale  or  enjoyment  of  the  temporalities  of 
vacant  episcopal  sees  and  other  ecclesiastical  benefices,*  were 


1  Du  Cange,  Dissertation  quatri^mc  sur 
Joinville. 

a  Mably,  1.  i.  c.  2,  note  3 ;  Du  Cange 
▼oc.  Heribannum,  Fredum. 

aVelly,  t.  ii.  p.  329;  Villaret,  t.  xiv. 
p.  174-195 ;  Recueil  des  Historiens,  t.  xiv. 
preface,  p.  37.  The  last  is  a  perspicuous 
Mcount  of  the  royal  reyenne  In   the 


twelfth  century.  But  far  the  most  lu 
minous  view  of  that  subject,  for  the 
three  next  ages,  is  displayed  by  M.  de 
Pastorei  in  his  pre&ces  to  the  fifteenth 
and  sixteenth  volumes  of  the  Ordon- 
nances  des  Kois. 

4  The  duke  of  Burgundy  and  count  of 
Champagne  did  not  possess  the  regale. 


Fbudal  System.   EXACTIONS  FROM  THE  JEWS. 


207 


possessed  within  their  own  domains  by  the  great  feudataries  of 
the  crown.  They,  I  apprehend,  contributed  nothing  to  their 
sovereign,  not  even  those  aids  which  the  feudal  customs  en- 
joined.^ 

The  history  of  the  royal  revenue  in  France  is,  however, 
too  important  to  be  slightly  passed  over.  As  the  Exactions 
necessities  of  government  increased,  partly  through  J-om  the 
the  love  of  magnificence  and  pageantry  introduced  by 
the  crusades  and  the  temper  of  chivalry,  partly  in  consequence 
of  employing  hired  troops  instead  of  the  feudal  militia,  it 
became  impossible  to  defray  its  expenses  by  the  ordinary 
means.  Several  devices,  therefore,  were  tried,  in  order  to 
replenish  the  exchequer.  One  of  these  was  by  extorting 
money  from  the  Jews.  It  is  almost  incredible  to  what  a 
length  this  was  carried.  Usury,  forbidden  by  law  and  su- 
perstition to  Christians,  was  confined  to  this  industrious  and 
covetous  people.^  It  is  now  no  secret  that  all  regulations 
interfering  with  the  interest  of  money  render  its  terms  more 
rigorous  and  burdensome.  The  children  of  Israel  grew  rich 
in  despite  of  insult  and  oppression,  and  retaliated  upon  their 
Christian  debtors.  If  an  historian  of  Philip  Augustus  may 
be  believed,  they  possessed  almost  one  half  of  Paris.  Un- 
questionably they  must  have  had  support  both  at  the  court  and 
in  the  halls  of  justice.  The  policy  of  the  kings  of  France  was 
to  employ  them  as  a  sponge  to  suck  their  subjects'  money, 
which  they  might  afterwards  express  with  less  odium  than 
direct  taxation  would  incur.  Philip  Augustus  released  all 
Christians  in  his  dominions  from  their  debts  to  the  Jews, 
reserving  a  fifth  part  to  himself.*  He  afterwards  expelled  the 
whole  nation  from  France.  But  they  appear  to  have  returned 
again  —  whether  by  stealth,  or,  as  is  more  probable,  by  pur- 
chasing permission.  St.  Louis  twice  banished  and  twice  recall- 
ed the  Jews.  A  series  of  alternate  persecution  and  tolerance 
was  borne  by  this  extraordinary  people  with  an  invincible 
perseverance,  and  a  talent  of  accumulating  riches  which  kept 


But  it  was  enjoyed  by  all  the  other 
peers  ;  by  the  dulccs  of  Normandy,  Gui- 
ennc,  and  Britany ;  the  counts  of  Tou- 
louse, Poitou,  and  Flanders.  —  Mably, 
1.  iii.  c.  4;  Ilecueil  des  Historiens,  t.  ii. 
B.  229,  and  t.  xiv.  p.  53;  Ordonnances 
dM  Rois,  t.  i.  p.  621. 

1 1  have  never  met  with  any  instance 
of  •  relief,  aid,  or  other  feudal  contribu- 


tion paid  by  the  vassals  of  the  French 
crovra;  but  in  this  negative  proposition 
it  is  possible  that  I  may  be  deceived. 

2  The  Jews  were  celebrated  for  usury 
as  early  as  the  sixth  century.  —  Greg 
Turon.  1.  iv.  c.  12,  and  1.  vii.  c.  23. 

3  Rigord,  in  Du  Cliesne.  Hist.  Frano. 
Script,  t.  m.  p.  8. 


208 


DEBASEMENT  OF  THE  COIN.   Chap.  H.  Pakt  IL 


pace  with  their  plunderers  ;  till  new  schemes  of  finance  sup- 
plying the  turn,  they  were  finally  expelled  under  Charles  VL, 
and  never  afterwards  obtained  any  legal  establishment  in 
France.* 

A  much  more  extensive  plan  of  rapine  was  carried  on  by 
J. .  lowering    the    standard   of   coin.      Originally  the 

mentof  pound,  a  money  of  account,  was  equivalent  to 
the  com.  twelve  ounces  of  silver ;  ^  and  divided  into  twenty 
pieces  of  coin  (sous),  each  equal  consequently  to  nearly  three 
shillings  and  four  pence  of  our  new  English  money.*  At  the 
revolution  the  money  of  France  had  been  depreciated  in  the 
proportion  of  seventy-three  to  one,  and  the  sol  was  about 
equal  to  an  English  halfpenny.  This  was  the  effect  of  a 
long  continuance  of  fraudulent  and  arbitrary  government. 
The  abuse  began  under  Phihp  I.  in  1103,  who  alloyed  his 
silver  coin  with  a  third  of  copper.  So  good  an  example  was 
not  lost  upon  subsequent  princes ;  till,  under  St.  Louis,  the 
mark-weight  of  silver,  or  eight  ounces,  was  equivalent  to 
fifty  sous  of  the  debased  coin.  Nevertheless  these  changes 
seem  hitherto  to  have  produced  no  discontent ;  whether  it 
were  that  a  people  neither  commercial  nor  enlightened  did 
not  readily  perceive  their  tendency ;  or,  as  has  been  ingeni- 
ously conjectured,  that  these  successive  diminutions  of  the 
standard  were  nearly  counterbalanced  by  an  augmentation  in 
the  value  of  silver,  occasioned  by  the  drain  of  money  during 
the  crusades,  with  which  they  were  about  contemporaneous.* 
But  the  rapacity  of  Philip  the  Fair  kept  no  measures  with 
the  public;  and  the  mark  in  his  reign  had  become  equal 
to  eight  livres,  or  a  hundred  and  sixty  sous  of  money.     Dis- 


1  Villaret,  t.  ix.  p.  433.  Metz  con- 
tained, and  I  suppose  still  contains,  a 
great  many  Jews ;  but  Metz  was  not  part 
of  the  ancient  kingdom. 

3  In  every  edition  of  this  work,  till 
that  of  1846,  a  strange  misprint  has  ap- 
peared of  twenty  instead  of  twelve  ounces, 
as  the  division  of  the  pound  of  silver. 
Most  readers  will  correct  this  for  them- 
selves ;  but  it  is  more  material  to  observe 
that,  according  to  what  we  find  in  the 
Memoires  de  I'Acad.  des  Inscriptions 
(Nouvelle  Serie),  vol.  xiv.  p.  254,  the 
pound  in  the  time  of  Charlemagne  was 
not  of  12  ounces,  but  of  13J.  We  must, 
therefore,  add  one  ninth  to  the  value  of 
the  sol,  so  long  as  thi<;  continued  to  be 
the  case.  I  do  not  know  the  proofs  upon 
which  this  assertion  rests ;  but  the  fact 


seems  not  to  have  been  much  observed 
by  those  who  had  previously  written 
upon  the  subject. 

•*  Besides  this  silver  coin  there  was  a 
golden  sol,  worth  forty  pence.  Ijc  Blanc 
thinks  the  solidi  of  the  Salic  law  and 
capitukries  mean  the  latter  piece  of 
money.  The  denarius,  or  penny,  was 
worth  two  sous  six  deniers  of  modem 
French  coin. 

<  Villaret,  t.  xiv.  p.  198.  The  price  of 
commodities,  he  asserts,  did  not  rise  till 
the  time  of  St.  Louis.  If  this  be  said  on 
good  authority  it  is  a  remarkable  fact  : 
but  in  England  wo  know  very  little  of 
prices  before  that  period,  and  I  doubt  if 
their  history  has  been  better  traced  in 
France. 


Feudal  System. 


DIRECT  TAXATION. 


209 


satisfaction,  and  even  tumults,  arose  in  consequence,  and  he 
was  compelled  to  restore  the  coin  to  its  standard  under  SL 
Louis.^  His  successors  practised  the  same  arts  of  enriching 
their  treasury ;  under  Philip  of  Valois  the  mark  was  again 
worth  eight  livres.  But  the  film  had  now  dropped  from  the 
eyes  of  the  people ;  and  these  adulterations  of  money,  ren- 
dered more  vexatious  by  continued  recoinages  of  the  current 
pieces,  upon  which  a  fee  was  extorted  by  the  moneyers, 
showed  in  their  true  light  as  mingled  fraud  and  robbery .^ 

These  resources  of  government,  however,  by  no  means  su- 
perseded the  necessity  of  more  direct  taxation.  Direct 
The  kings  of  France  exacted  money  from  the  ro-  taxation. 
turiers,  and  particularly  the  inhabitants  of  towns,  within  their 
domains.  In  this  they  only  acted  as  proprietors,  or  suze- 
rains; and  the  barons  took  the  same  course  in  their  own 
lands.  Philip  Augustus  first  ventured  upon  a  stretch  of  pre- 
rogative, which,  in  the  words  of  his  biographer,  disturbed  all 
France.  He  deprived  by  force,  says  Rigord,  both  his  own 
vassals,  who  had  been  accustomed  to  boast  of  their  immuni- 
ties, and  their  feudal  tenants,  of  a  third  part  of  their  goods.' 
Such  arbitrary  taxation  of  the  nobility,  who  deemed  that  their 
military  service  discharged  them  from  all  pecuniary  burdens, 
France  was  far  too  aristocratical  a  country  to  bear.  It  seems 
not  to  have  been  repeated ;  and  his  successors  generally  pur- 
sued more  legitimate  courses.  Upon  obtaining  any  contribu- 
tion, it  was  usual  to  grant  letters-patent,  declaring  that  it  had 
been  freely  given,  and  should  not  be  turned  into  precedent  in 
time  to  come.  Several  of  these  letters-patent  of  Philip  the 
Fair  are  extant,  and  published  in  the  general  collection  of 


I  It  is  curious,  and  not  perhaps  unim- 
portant, to  learn  the  course  pursued  in 
adjusting  payments  upon  the  restora- 
tion of  good  coin,  which  happened  pret- 
ty frequently  in  the  fourteenth  century, 
when  the  States-General,  or  popular 
clamor,  forced  the  court  to  retract  its 
fraudulent  policy.  Le  Blanc  has  pub- 
lished peveral  ordinances  nearly  to  the 
same  effect.  One  of  Charles  VI.  explains 
the  method  adopted  rather  more  fully 
than  the  rest.  All  debts  incurred  since 
the  depreciated  coin  began  to  circulate 
were  to  be  paid  in  that  coin,  or  according 
to  its  value.  Those  incurred  previously 
to  its  commencement  were  to  be  paid  ac- 
cording to  the  value  of  the  money  cir- 
culating at  the  time  of  the  contract. 
Item,  que  tons  les  vrais  emprunts  fiiits 
en  dealers  sans  fraude  se  payeront  en 

VOL.  I.  1* 


telle  monnoye  comme  I'on  aura  em- 
prunte,  si  elle  a  plein  cours  au  temps 
du  payement,  et  sinon,  ills  payeront  en 
monnoye  coursable,  lors  selon  la  valeur 
et  le  prix  du  marc  d'or  ou  d'argent :  p. 
32. 

2  Continuator  Gul.  de  Nangis  in  Spici- 
legio,  t.  iii.  For  the  successive  changes 
in  the  value  of  French  coins  the  reader 
may  consult  Le  Blanc's  treatise,  or  the 
Ordonnances  des  Rois ;  also  a  disserta- 
tion by  Bonamy  in  the  Mem.  de  I'Acad. 
des  Inscriptions,  t.  xxxii ;  or  he  may  find 
a  aummarv  view  of  them  in  Du  Cange,  y. 
Moneta.  The  bad  coiise  luences  of  these 
innovations  are  well  treated  by  M.  de 
Pastoret,  in  his  elaborate  preface  to  the 
sixteenth  volume  of  the  Oricnnancef 
des  Rois,  p.  40- 

'  Du  Chesne,  t.  v.  p.  43. 


1 


210 


NO  SUPREME  LEGISLATION.    Chap.  H.  Part  IL 


ordinances.*     But  in  the  reign  of  this  monarch  a  great  inno- 
vation took  place  in  the  French  constitution,  which,  though  it 
principally  affected  the  method  of  levying  money,  may  seem 
to  fall  more  naturally  under  the  next  head  of  consideration. 
4.  There  is  no  part  of  the  French  feudal  policy  so  re- 
markable  as   the   entire   absence  of  all  supreme 
g^peme        legislation.     We  find  it  difficult   to  conceive  the 
legislative      existence   of  a  political    society,   nominally   one 
on  y.      jjjng^jQjj^  and  under  one  head,  in  which,  for  morc) 
than  three  hundred  years,  there  was  wanting  the  most  essen- 
tial attribute  of  government.     It  will  be  requisite,  however, 
to  take  this  up  a  little  higher,  and  inquire  what  was  the 
original  legislature  of  the  French  monarchy. 

Arbitrary  rule,  at  least  in  theory,  was  uncongenial  to  the 
character  of  the  northern  nations.  Neither  the 
kg^iative  power  of  making  laws,  nor  that  of  applying  them 
anembiiea  ^o  the  circumstanccs  of  particular  cases,  was  lefl  at 
the  discretion  of  the  sovereign.  The  Lombard 
kings  held  assembhes  every  year  at  Pavia,  where  the  chief 
officers  of  the  crown  and  proprietors  of  lands  deliberated 
upon  all  legislative  measures,  in  the  presence,  and  nominally 
at  least  with  the  consent,  of  the  multitude.^  Frequent  men- 
tion is  made  of  similar  public  meetings  in  France  by  the  his- 
torians of  the  Merovingian  kings,  and  still  more  unequivocally 
by  their  statutes.^  These  assemblies  have  been  called  parlia- 
ments of  the  Champ  de  Mars,  having  orginally  been  held  in 
the  month  of  March.  But  they  are  supposed  b^  many  to 
have  gone  much  into  disuse  under  the  later  Merovingian 
kings.  That  of  615,  the  most  important  of  which  any  traces 
remain,  was  at  the  close  of  the  great  revolution  which  pun 


1  Fasons  scavoir  et  recognoissons  que 
la  demicre  subvention  que  ils  nous  ont 
feite  (les  barons,  vassaux,  ct  nobles  d'Au- 
Tergne)  de  pure  grace  sans  ce  que  ils  y 
fussent  tenus  que  de  grace :  et  voulons  et 
leur  octroyones  que  les  autres  subven- 
tions que  ils  nous  ont  faites  ne  leur  facent 
nul  pjejudice,  es  choses  esquelles  ils  n'e- 
toient  tenus,  ne  par  ce  nul  nouveau  droit 
ne  nous  soit  acquis  ne  amenuisie.  —  Or- 
donnance  de  1304,  apud  Mably,  1.  iv.  c. 
3,  note  5.  See  other  authorities  in  the 
same  place. 

s  Liutprand,  king  of  the  Lombarda, 
Bays  thp.t  his  laws  sibi  placuisse  unik  cum 
omnibus  judicibus  de  Austria}  et  Neus- 
triae  partibus,  et  "ie  Tusciae  finibus,  cum 
reliquis  fidelibus  meis  I^uigobardis,  et 


omni  populo  asslstentc.  —  Muratori,  DLf 
scrt.  22. 

3  Mably,  I.  1.  c.  i.  note  1 ;  Lindebr^ 
Codex  Legum  Antiquarum,  p.  363,  3(w. 
The  following  pas.sage,  quoted  by  Mably 
(c.  ii.  n.  6),  from  the  preamble  of  the 
revised  Salic  law  under  Clotaire  II.,  is 
explicit:  Temporibus  Clotairii  regis  un^ 
cum  principibus  ruis,  id  est  33  ef  iscopis 
et  34  ducibus  et  79  comitibus,  vel  caetero 
populo  constituta  est.  A  remarkable  in- 
stance of  the  use  of  vel  instead  of  et, 
which  was  not  uncommon,  and  is  noticed 
by  Du  Cange,  under  the  word  Vel.  An- 
other proof  of  it  occurs  in  the  very  next 
quotation  of  Mablv  from  the  edict  of 
615 :  cum  pontificibus,  vel  cum  msgnis 
viris  optinuitibus. 


Feudal  System. 


LEGISLATIVE  ASSEMBLIES. 


211 


ished  Brunehaut  for  aspiring  to  despotic  power.  Whether 
these  assemblies  were  composed  of  any  except  prelates,  great 
landholders,  or  what  we  may  call  nobles,  and  the  Antrustions 
of  the  king,  is  still  an  unsettled  point.  Some  have  even  sup- 
posed, since  bishops  are  only  mentioned  by  name  in  the  great 
statute  of  Clotaire  II.  in  615,  that  they  were  then  present  for 
the  first  time ;  and  Sismondi,  forgetting  this  fact,  has  gone 
so  far  as  to  think  that  Pepin  first  admitted  the  prelates  to 
national  councils.^  But  the  constitutions  of  the  Merovingian 
kings  frequently  bear  upon  ecclesiastical  regulations,  and  must 
have  been  prompted  at  least  by  the  advice  of  the  bishops. 
Their  influence  was  immense;  and  though  the  Romans 
generally  are  not  supposed  to  have  been  admitted  by  right 
of  territorial  property  to  the  national  assemblies,  there  can  be 
no  improbability  in  presuming  that  the  chiefs  of  the  church, 
especially  when  some  of  them  were  barbarians,  stood  in  a 
different  position.  We  know  this  was  so  at  least  in  615,  and 
nothinjr  leads  to  a  conclusion  that  it  was  for  the  first  time. 

It  is  far  more  difficult  to  determine  the  participation  of  the 
Frank  people,  the  alodialists  or  liachimburgii,  in  these  as- 
semblies of  the  Field  of  March.  They  could  not,  it  is  said, 
easily  have  repaired  thither  from  all  parts  of  France.  But 
while  the  monarchy  was  divided,  and  all  the  left  bank  of  the 
Loire,  in  consequence  of  the  paucity  of  Franks  settled  there, 
was  hardly  connected  politically  with  any  section  of  it,  there 
does  not  seem  an  improbability  that  the  subjects  of  a  king  of 
Paris  or  Sois.sons  might  have  been  numerously  present  in 
those  capitals.  It  is  generally  allowed  that  they  attended 
with  annual  gifls  to  their  sovereign;  though  perhaps  these 
were  chiefly  brought  by  the  beneficiary  tenants  and  wealthy 
alodialists.  We  certainly  find  expressions,  some  of  which  I 
have  quoted,  indicating  a  popular  assent  to  the  resolutions 
takeij,  or  laws  enacted,  in  the  Field  of  March.  Perhaps  the 
most  probable  hypothesis  may  be  that  the  presence  of  the 
nation  was  traditionally  required  in  conformity  to  the  ancient 


1  Voltaire  (Essai  Bur  I'Histoirc  Uni- 
Terselle)  ascribes  this  to  the  elder  Pepin, 
•umauied  Ucristal,  and  quotes  the  An- 
nals of  Mctz  for  692  ;  but  neither  under 
that  year  nor  any  other  do  I  find  a  word 
to  the  purpose.  Yet  he  pompously  an- 
nounces this  88  "  an  epoch  not  regarded 
by  historians,  but  that  of  the  temporal 
Tower  of  the  church  in  Fi-ance  and  Ger- 
many."   Voltaire  knew  but  superficially 


the  early  French  history,  and  amused 
himself  by  questioning  the  most  public 
as  well  as  probable  facts,  such  as  the 
death  of  Brunehaut.  The  compliment 
which  Robertson  has  paid  to  Voltaire's 
historical  knowledge  is  much  exagger- 
ated relatively  to  the  mediaeval  period  ; 
the  latter  history  of  his  country  he  pos- 
sessed very  well. 


212 


LEGISLATIVE  ASSEMBLIES.     Chap.  IL  Part  11. 


Feddal  Stbtbm.    legislative  ASSEMBLIES. 


213 


German  usage,  which  had  not  been  formally  abolished; 
while  the  difficulty  of  prevailing  on  a  dispersed  people  to 
meet  every  year,  as  well  as  the  enhanced  influence  of  the 
king  through  his  armed  Antrustions,  soon  reduced  the  free- 
men to  little  more  than  spectators  from  the  neighboring  dis- 
tricts. We  find  indeed  that  it  was  with  reluctance,  and  by 
means  of  coercive  fines,  that  they  were  induced  to  attend  the 
mallus  of  their  count  for  judicial  purposes.^ 

Although  no  legislative  proceedings  of  the  Merovin'^ian 
hne  are  extant  after  615,  it  is  intimated  by  early  writers  Ihat 
Pepm  Heristal  and  his  son  Charies  Martel  restored  the 
national  council  after  some  interruption ;  and  if  the  languao^e 
of  certain  historians  be  correct,  they  rendered  it  considerably 
popular.^  "^ 

Pepin  the  younger,  after  his  accession  to  the  throne,  chang- 
ed the  month  of  this  annual  assembly  from  March  to  May ; 
and  we  have  some  traces  of  what  took  place  at  eight  sessions 
dunng  his  reign.«  Of  his  capitularies,  however,  one  only  is 
said  to  be  made  in  generali  papuli  conventu;  the  rest  are  en- 
acted in  synods  of  bishops,  and  all  without  exception  relate 
merely  to  ecclesiastical  affiiirs.*  And  it  must  be  owned  that, 
as  m  those  of  the  first  dynasty,  we  find  generally  mention  of 
the  optimates  who  met  in  these  conventions,  but  rarely  any 
word  that  can  be  construed  of  ordinary  freemen. 

Such,  indeed,  is  the  impression  conveyed  by  a  remarkable 
passage  of  Hincmar,  archbishop  of  Rheims,  during  the  time 
of  Charles  the  Bald,  who  has  preserved,  on  the  authority  of  a 
writer  contemporary  with  Chariemagne,  a  sketch  of  the 
Assemblies  Frankish  government  under  that  great  prince, 
held  by  Two  assemblies  (placita)  were  annually  held. 
In  the  first,  all  regulations  of  importance  to  the 


Oharle- 
magne 


»  Mably  generally  strives  to  make  the 
most  of  any  vestige  of  popular  govern- 
ment, and  Sismondi  is  not  exempt  from 
a  similar  bias.  He  overrates  the  liberties 
of  the  Franks.  "Leurs  dues  et  leurs 
comtes  6taient  ^lectifs :  leurs  generaux 
^taient  choisia  par  les  soldats,  leurs  grands 
iuges  ou  maires  par  les  hommes  libres  " 
(vol.  ii.  p.  87.)  But  no  part  of  these 
privil^es  can  be  inferred  from  the  exist- 
ing histories  or  other  documents.  The 
dukes  and  counts  were,  as  we  find  by 
Marculfus  and  other  evidence,  solely 
appointed  by  the  crown.  A  great  deal 
of  personal  liberty  may  have  been  pre- 
served by  means  of  the  local  assemblies 
« the  Franks ;  but  we  find  in  the  general 


government  only  the  preponderance  of 
the  kings  during  one  period,  and  that  of 
the  aristocracy  during  another. 

2  The  first  of  these  Austra.^ian  dukes, 
say  the  Annals  of  Metz,  "  Singulis  annis 
in  Kalendis  Murtii  gencrale  cum  omnibui 
Francis,  secundum  priscorum  consuetu- 
dinem,  concilium  agebat."  The  Recond, 
according  to  the  biographer  of  St.  Sjilviau 
—  "  juspit  campum  magnum  prirari,  sicut 
mos  erat  Francorum.  Venerunt  autem 
optimates  et  magistratus,  omnisque  pop. 
ulus."  Se<>  the  quotations  iu  Ouizot 
(Essais  sur  I'Hist.  de  Fniuce,  p.  321.) 

»  EssaLs  sur  I'llist.  de  France,  p.  324. 

<  Rec.  dcs  Hist.  v.  687. 


4 


public  weal  for  the  ensuing  year  were  enacttd ;  and  to 
this,  he  says,  the  whole  body  of  clergy  and  laity  repaired; 
the  greater,  to  deliberate  upon  what  was  fitting  to  be  done; 
and  the  less,  to  confirm  by  their  voluntary  assent,  not  through 
deference  to  power,  or  sometimes  even  to  discuss,  the  resolu- 
tions of  their  superiors.^  In  the  second  annual  assembly  the 
chief  men  and  officers  of  state  were  alone  admitted,  to  consult 
upon  the  most  urgent  affiiirs  of  government.  They  debated, 
in  each  of  these,  upon  certain  capitularies,  or  short  proposals, 
laid  before  them  by  the  king.  The  clergy  and  nobles  met  in 
separate  chambers,  though  sometimes  united  for  the  purposes 
of  deliberation.  In  these  assemblies,  principally,  I  presume, 
in  the  more  numerous  of  the  two  annually  summoned,  that 
extensive  body  of  laws,  the  capitularies  of  Charlemagne, 
were  enacted.  And  though  it  would  contradict  the  testimony 
just  adduced  from  Hincmar,  to  suppose  that  the  lesser  free- 
holdei-s  took  a  very  effective  share  in  public  counsels,  yet 
their  presence,  and  the  usage  of  requiring  their  assent, 
indicate  the  liberal  principles  upon  which  the  system  of 
Charlemagne  was  founded.  It  is  continually  expressed  in  his 
capitularies  and  those  of  his  family  that  they  were  enacted  by 
general  consent.*  In  one  of  Louis  the  Debonair,  we  even 
trace  the  first  germ  of  representative  legislation.  Every 
count  is  directed  to  bring  with  him  to  the  general  assembly 
twelve  Scabini,  if  there  should  be  so  many  in  his  county ;  or, 
if  not,  should  fill  up  the  number  out  of  the  most  respectable 
persons  resident.'  These  Scabini  were  judicial  assessors  of 
the  count,  chosen  by  the  alodial  proprietors,  in  the  county 
co'irt,  or  mallus,  though  generally  on  his  nomination.* 


1  Consuetudo  tunc  temporis  talis  erat, 
ut  non  Fsepius,  sed  bis  iu  anno  placita 
duo  tenenmtur.  Unum,  quando  ordina- 
batur  status  totius  rcgni  ad  anni  ver- 
tentis  spatium  ;  quod  ordinatum  nuUus 
eventus  reram,  nisi  summa  nece.-^sitas, 
quae  similiter  toti  regno  incumbebat, 
mutabat.  In  quo  placito  gcneralitas 
universorum  majorum,  tam  clericorum 
quam  laicorum,  conveniebat;  peniores 
propter  consilium  ordinandum ;  miuores, 
propter  idem  consilium  suscipiendum, 
et  interdum  paritcr  tractandum,  et  non 
ex  potestate,  sed  ex  proprio  mentis  in- 
tellcctu  vel  sentential,  confirmandum. 
Uincmar,  Epist.  5.  de  ordinc  palatii.  I 
have  not  translated  the  word  majorum 
in  the  above  quottition.  not  apprehend- 
ing its  sense.    [Note  XVI.] 

» Capitula  qua;  praeterito  anno  leg* 
Salicae  cuiu  omnium  consen£u  addenda 


esse  censuimus.  (a.d.  801.)  Ut  popuIuB 
interrogetur  de  capitulis  quae  in  lege 
no\iter  addita  sunt,  et  postquam  omnes 
conscnserint,  subscriptiones  et  mann 
firmationes  suas  in  ipsis  capitulis  faciant 
(a.d.  813.)  Capitularia  patris  nostri  qusc 
Franci  pro  lege  tcnenda  judicaverunt 
(a.d.  837.)  I  have  borrowed  these  quo- 
tations from  Mably,  who  remarks  that 
the  word  populus  is  never  used  in  the 
earlier  laws.  See,  to-i,  Du  Cange,  vv.  Lex, 
Mallum,  Pactum. 

*  Vult  dominus  fmperator  ut  in  tale 
placitum  quale  ille  nunc  jusserit,  veniat 
unusquisque  comes,  et  adducat  secum 
duodecim  scabinos  si  tanti  fuerint;  sin 
autem,  de  nielioribus  hominibus  illioa 
comitatus  suppleat  numerum  duodena 
num.    Mably,  1.  ii.  c.  ii. 

<  This  seems  to  be  sufficiently  proved 
by  Savigny  (vol.  i.  p.  192,  217,  et  post). 


i 

( 


2U 


LEGISLATIVE  ASSEMBLIES.     Chap.  n.  Paict  U. 


Feudal  System.     LEGISLATIVE  ASSEMBLIES. 


215 


The  ciicumstances,  however,  of  the  French  empire  for  scv- 
era!  subsequent  ages  were  exceedingly  adverse  to  such  en- 
larged  schemes  of  polity.     The  nobles  contemned  the  imbecile 
descendants  of  Charlemagne ;  and  the  people,  or  lesser  free- 
holders,  if  they  escaped  absolute  villenage,  lost  their  immedi- 
ate  relation  to  the  supreme  government  in  the  subordination 
to  their  lord  established  by  the  feudal  law.     Yet  we   may 
trace  the  shadow  of  ancient  popular  rights  in  one  constitution- 
al tunction   of  high  importance,  the  choice  of  a  soverei^ni. 
Historians  who  relate  the  election  of  an  emperor  or  kin-°of 
I?  ranee  seldom  omit  to  specify  the  consent  of  the  multitude,  as 
well  as  of  the  temporal  and  spiritual  aristocracy ;  and  even  in 
solemn  instruments  that  record  such  transactions  we  find  a  sort 
ot  importance  attached  to  the  popular  suffrage.^    It  is  surely 


Hw  opinion  is  adopted  by  Meyer,  Guizot, 
Onmm,  and  Troja.  The  last  of  these  has 
found  Scabini  mentioned  in  Lombardy  as 
early  as  724;  though  Savigny  had  re- 
jected  all  documents  in  which  they  are 
named  anterior  to  Charlemagne. 

The  Scabini  are  not  to  be  confounded, 
as  sometimes  has  been  the  case,  with  the 
Rachimburgii,  who  were  not  chosen  by 
the  alodial  proprietors,  but  were  them- 
selves such,  or  sometimes,  perhaps,  bene- 
ficiaries, summoned  by  the  court  as 
jurors  were  in  England.  They  answered 
to  the  priid^  hommes,  boni  homines,  of 
later  times;  they  formed  the  county  or 
toe  hundred  court,  for  the  determina- 
ttMi  of  civil  and  criminal  causes.    [Note 

1  It    has  been  intimated    in  another 
place,  p.  156,  that  the  French  monarchy 
seems  not  to  have  been  strictly  hereditary 
under  the  later  kings  of  the  Merovingian 
race:   at  least  expressions  indicating  a 
formal  election  are  frequently  employed 
by  historians.     Pepin  of  course  came  in 
by  the  choice  of  the  nation.  At  his  death 
he  requested  the  consent  of  the  counts 
and  prelates  to  the  succession  of  his  sons 
(Baluzii  Capitularia,  p.  187);  though  they 
had  bound   themselves  by  oath  at  his 
consecration  never  to  elect  a  king  out  of 
another  family.     Ut  nunquam  de  alteri- 
vs    lumbis  regem   eligere    praesumant. 
(Formula  Consecrationis  Pippini  in  Re- 
cueil  des  Historiens,  t.  v.)  In  the  instru- 
ment of  partition  by  Charlemagne  among 
his  descendants  he  provides  for  their  im- 
mediate succession    in  absolute  terms, 
without  any  mention  of  consent.     But 
vx  the  event  of  the  decease  of  one  of  his 
sons  leaving  a  child,  tvhom  the  people 
snail  choose,  the  other  princes  were  to 
permit  him   to  reign.    Baluze,   p.   440. 
This  is  repeated  more  perspicuously  in 


the  partition  made  by  Louis  I.  In  817. 
Si  quis   eorum  decedens  legitimos  Alios 
reliquerit,   non  inter  eos   potostas  ipsa 
dividatur,  sed  potius    populus    paritcr 
conveniens,  unum  ex  iis,  quern  dominus 
voluerit,  eligat,  et  huiic  senior  frater  in 
loco  fratris  ct  filii  recipiat.    Baluze,  p. 
677.    Proofs  of  popular  consent  given  to 
the  succession  of  liings  during  the  two 
nest  centuries  are  frequent,  but  of  less 
importance  on  accout  of  the  irregular 
condition  of  government.      Even  after 
Hugh  Capet's  accession,  hereditary  right 
was  far  from  being  established.    The  first 
six  kings  of  this  dynasty  procured  the 
coaptation  of  their  sons  by  having  them 
crowned  during  their  own  lives.     And 
this  was  not  done  without  the  consent 
of  the  chief  vassals.    (Recucil  dos  Uist. 
t.  xi.  p.  133.)    In  the  reign  of  Robert  it 
Mfos  a  great  question  whether  the  elder 
son  should  be  thus  designated  as  heir  in 
preference  to  his  younger  brother,  whom 
the   queen,  Constance,   was  anxious  to 
place  upon  the  throne.    Odolric,  bishop 
of  Orleans,  writes  to  Fulbert,  bishop  of 
thartres,  in  terms  which  lead  one  to  think 
that  neither  hereditary  succession  nor 
primogeniture  was  settled  on  any  fixed 
principle.     (Id.   t.  x.  p.  504.)     And  a 
writer  in  the  same  collection,  about  the 
year  1000,  expresses  himself  in  the  fol- 
lowing   manner  :    Melius    est    electionl 
pnncipis    non  subscribers,   quim    post 
subscnptionem  electum  contcninere;  in 
altero  enim  libertatLj  amor  laudatur,  in 
altero  servilis  contumacia  probro  dutur. 
Tres  namque  generates  clectiones  nori- 
mus;  quarum  una  est  regis  vel  ioipera. 
tons,  altera  pontificis,  altera  abbatis.   Et 
primam  quidem    facit  concordia   totius 
regni;  secundam  vero  ununiniitjiscivium 
et  cleri;  tertiam  sanius  consilium  coeno- 
biticae  congregationis.    (Id.  p.  626.)    At 


k] 


less  probable  that  a  recognition  of  this  elective  right  should 
have  been  introduced  as  a  mere  ceremony,  than  that  the  torm 
should  have  survived  after  length  of  time  and  revolutions  of  gov- 
ernment had  almost  obliterated  the  recollection  ot  its  meaning. 
It  must,  however,  be  impossible  to  ascertain  even  the  theo- 
retical privileges  of  the  subjects  of  Charlemagne,  mu^more 
to  decide  how  far  they  were  substantial  or  illusory.     We  can 
only  assert  in  general  that  there  continued  to  be  some  mix- 
ture of  democracy  in  the  French  constitution   during  the 
reigns  of  Charicmagne  and  his  first  successors.     The  prime- 
val German  institutions  were  not  eradicated.     In  the  capitu- 
laries the  consent  of  the  people  is  frequently  expressed.    Fit- 
ty  years  after  Chariemagne,  his  grandson  Charles  the  ^ald 
succinctly  expresses  the  theory  of  legislative  power.  ^  A  law, 
he  says,  is  made  by  the  people's  consent  and  the  king  s  enact- 
ment.1     It  would  hardly  be  warranted  by  analogy  or  prece- 
dent to  interpret  the  word    people  so  very  narrowly  as  to 
exclude  any  alodial  proprietors,  among  whom,  however  une- 
qual in  opulence,  no  legal  inequality  of  rank  is  supposed  to 

have  yet  arisen. 

But  by  whatever  authority  laws  were  enacted,  whoever  were 
the  constituent  members  of  national  assemblies,  they  ceased 
to  be  held  in  about  seventy  years  from  the  death  ot  Charle- 
ma^rne.  The  latest  capitularies  are  of  Carloman  m  «»^. 
From  this  time  there  ensues  a  long  blank  in  the  history  ot 
French  legislation.  The  kingdom  was  as  a  great  fiet,  or 
rather  as  a  bundle  of  fiefs,  and  the  king  little  more  than  one 
of  a  number  of  feudal  nobles,  differing  rather  m  dignity  than 
in  power  from  some  of  the  rest.     The  royal  council  was  com- 


the  coronation  of  Philip  I.,  in  10o9,  the 
nobility  and  people  (milites  et  popuh  tarn 
majores  quim  minores)  testified  their 
consent  by  crying,  Laudamus,  volumus, 
fiat.  T.  xi.  p.' 33.  I  suppose,  if  search 
were  made,  that  similar  testimonies  might 
be  found  still  later;  and  perhaps  heredi- 
tary succession  cannot  be  considered  as 
a  fundamental  law  till  the  reign  of  Phil- 
ip Augustus,  the  era  of  many  changes 
In  the  French  constitution. 

Sismondi  has  gone  a  great  deal  farther 
-Jown,  and  observes  that,  though  John 
assumed  the  royal  power  immediately  on 
the  death  of  his  father,  in  1350,  he  did 
not  take  the  name  of  king,  nor  any  seal 
but  that  of  duke  of  Normandy,  till 
his  coronation.  He  says,  however,  "  no- 
tn  royaume"   in  his  instruments  (x. 


375).  Even  Charles  V.  called  himself,  or 
was  called  by  some,  duke  of  Normandy 
until  his  coronation  ;  but  all  the  lawyers 
called  him  king  (xi.  6).  The  la>v7ers  had 
established  their  maxim  that  the  king 
never  dies;  which,  however,  was  un- 
known while  any  traces  of  elective  mon- 
archy remained. 

1  Lex  consensu  populi  fit,  constitutione 
regis.    Recueil  des  Hist.  t.  vii.  p.  656. 

a  It  is  generally  said  that  the  capitula- 
ries cease  with  Charles  the  Simple,  who 
died  in  921.  But  Balure  has  published 
only  two  under  the  name  of  that  prince; 
the  first,  a  declaration  of  his  queen's 
jointure  ;  the  second,  an  arbitration  of 
disputes  in  the  church  of  Tongres;  nei- 
ther, surely,  deserving  the  appellaUon  of 
a  law. 


11 


216  ASSEMBLIES  OF  BARONS.     Chap.  II.  Pabt  XL 

posed  only  of  barons,  or  tenants  in  chief,  prelates,  and  house- 
hold officers.  These  now  probably  delibemted  in  private 
as  we  hear  no  more  of  the  consenting  multitude.  pS 
functions  were  not  in  that  age  so  clearly  separated  as  w  a^ 
STciiof  ^-J^Sht  to  fancy  they  should  be;  this  council  ad! 
^third  vised  the  kmg  in  matters  of  government,  confinned 
and  or\mln^    <^onsented  to  his  grants,  and  judged  in  all  civil 

splTpVin  J^    ^""^^  ^^'''^'  ^^  '^^  ^^^^^  acted  for  them. 

sSr  to  tl^^^^  oH  'r  ^'"'^c  "l^'^  '^'  ^^'^^^^^  «^  <^-ncils 
similar  to  that  of  the  king.     Such,  indeed,  was  the  symmetry 

of  feudal  customs,  that  the  manorial  court  of  every  vT^sS 
represented  in  miniature  that  of  his  soverei^.'     ^ 

But,  notwithstanding  the  want  of  any  permanent  legislation 

France  appear  to  Iiave  acted  with  the  concurrence  of  an  as- 
sembly  more  numerous  and  more  particularly  surmol?  than 

of  barons.  J."®,  crusadc  of  Louis  VII.  was  undertiiken."  We 
Und  also  an  ordinance  of  the  same  prince  in  som« 
collections,  reciting  that  he  had  convoked  a  geS  a  semb™y 
at  Soissons,  where  many  prelates  and  barons  Then  present  Ind 
consented  and  requested  that  private  wars  might  cLTfor  the 
term  of  ten  years.*    The  famous  Saladine  tifhe  wa.  imnosed 

vention  in  1188.*    And  when  Innocent  IV.,  during  his  con- 

nostrorum  dispooimus.  Recueil  des  Hi.?    l  irT'      '^^'"Pes^'endiim  violentaa  prado- 

al  councillors  were  necessary  for  the  con-    tu?n!t,«    ^-  « '     «*  '*»"°  P''**=«"»  ^^onstl- 
flrmation,  or,  at  least,  the  aJthen«cat?on    1?^    iv    UusT^'^^r  ^"^^^'■'^''^"  ^'^''■^^ 
of  charters,  as  was  also  the  case  iu  Enjr-    ciliCm  cclih^  «  i         ?"«'■* "^'onense  con- 
^nd,  Spain,  and  Italy.    This  practice  coS-    archiTnisooDi    Rp^r''?'""«' "*  effuerunt 
tinued  Ji  England  till  the  reign  of  John.    eorun?3  Jit^T'''   ^enonensis   et 
The  Curia  regis  seems  to  have  differed    FKn^Lt  •     .?^°®' '    **-''"  ^^arones,  comes 
only  in  name  frSm  the  Concilium  reiium     aiamZri','  ^."^T}'^  ^^  Ni vernensis  et 
It  is  also  called  Curia  parium,  from  the    auoSui   k   ''^'V  "^  ^"'^  ""rgimdi.-e.    Ex 
equality  of  the  barons  ^ho  cSin^Sd  ft"    Siente  Jasc'hi  Sr.''"  ^''^'^''vimus  a  ^ 
standing  in  the  same  feudal  degi^ee  of  re     eccIeSrP  ^!ni     .'**'*'^™  '*°"°''  "'  o«M« 
lation  to  the  sovereign.    But  we  are  not    mopm  hJ^°^®*. -°'^"*^^  agricolte,  etc 
yet  a^ved  at  the  su^ect  of  jurisSktiJn     ?em  ?stan?Tu.^vl'^."1'"'^'"-  "  ^^  ^ 
which  It  is  very  difficult  to  keep  distinct    coSes  Flai.W-  ^'^"'''  **"^  Burgundiaj, 

from  what  is  immediately  befor? us.  SuTaderant       ' «' reUqui  baronet 

^Recueil  des  Hist.  t.  xi.  p.  300,  and    ^ThisTrd  nance 


prefece,  p.  179.  Vaissette,  Hfst.'de'lln. 
guedoc,  t.  ii.  p.  508. 

!a  f  J^i'^1  *•  "*•  P-  ^^9-  This,  he  observes, 
J8  the  first  instance  in  which  the  word  par- 
Oament  is  used  for  a  deliberative  a^semblj. 


oh^^  ---"-"vo  is  published  in  Du 
Chesne,  Script.  Rerum  Oallicarum,  t.  iv" 
and  m  Recueil  des  Ui.stor.  t.  xiv.  p  887- 
but  not  in  tlie  general  collection.  ' 

'  Velly,  t.  ui.  p.  315. 


Feudal  Ststeh. 


PLENARY  COURTS. 


217 


test  with  the  emperor  Frederic,  requested  an  asylum  in  France, 
St.  Louis,  though  much  inclined  to  favor  him,  ventured  only 
to  give  a  conditional  permission,  provided  it  were  agreeable 
to  his  barons,  whom,  he  said,  a  king  of  France  was  bound  to 
consult  iu  such  circumstances.  Accordingly  he  assembled 
the  French  barons,  who  unanimously  refused  their  consent.^ 

It  was  the  ancient  custom  of  the  kings  of  France  as  well  as 
of  England,  and  indeed  of  all  those  vassals  who  cours 
affected  a  kind  of  sovereignty,  to  hold  general  meet-  Pieniires. 
ings  of  their  barons,  called  Cours  Plenieres,  or  Parliaments, 
at  the  great  festivals  of  the  year.  These  assemblies  were 
principally  intended  to  make  a  display  of  magnificence,  and  to 
keep  the  feudal  tenants  in  good  humor  ;  nor  is  it  easy  to  dis- 
cover that  they  passed  in  anything  but  pageantry.^  Some 
respectable  antiquaries  have  however  been  of  opinion  that 
affairs  of  state  were  occasionally  discussed  in  them ;  and  this 
is  certainly  by  no  means  inconsistent  with  probability,  though 
not  sufficiently  established  by  evidence.^ 

Excepting  a  few  instances,  most  of  which  have  been  men- 
tioned, it  does  not  appear  that  the  kings  of  the  house  of  Capet 
acted  according  to  the  advice  and  deliberation  of  any  national 
assembly,  such  as  assisted  the  Norman  sovereigns  of  England : 
nor  was  any  consent  required  for  the  validity  of  their  edicts, 
except  that  of  the  ordinary  council,  chiefly  formed  of  their 
household  officers  and  less  powerful  vassals.  This  is  at  first 
sight  very  remarkable.  For  there  can  be  no  doubt  that  the 
government  of  Henry  I.  or  Henry  II.  was  incomparably 
stronger  than  that  of  Louis  VI.  or  Louis  VII.  But  this 
apparent  absoluteness  of  the  latter  was  the  result  of  their  real 
weakness  and  the  disorganization  of  the  monarchy.  The  peers 
of  France  were  infrequent  in  their  attendance  upon  the  king's 
council,  because  they  denied  its  coercive  authority.  LimitationB 
It  was  a  fundamental  principle  that  every  feudal  po^Mn 
tenant  was  so  far  sovereign  within  the  limits  of  his  legislation. 
fief,  that  he  could  not  be  bound  by  any  law  without  his  con- 
sent. The  king,  says  St.  Louis  in  his  Establishments,  cannot 
make  proclamation,  that  is,  declare  any  new  law,  in  the  terri- 
tory of  a  baron,  without  his  consent,  nor  can  the  baron  do  so 
in  that  of  a  vavassor.*    Thus,  if  legislative  power  be  essential 

1  Velly,  t.  iv.  p.  306.  terre  au  baron  sans  son  assentment,  ne  U 

a  Du  Cangc,  Dissert.  5,  sur  Joinville.  bers  [baron]  ne  puet  mettre  ban  en  la 

3  Mem.  de  I'Acad.  des  Inscript.  t.  xli.  terre  au  vavasor.   Ordonnances  desEois, 
RecueU  des  Uist.  t.  xi.  preface,  p.  156.  t.  i.  p.  126. 

4  Ne  li  rois  ne  puet  mettre  ban  en  la 


2i3  LEGISLATIVE  SUBSTITUTES.     Chap.  n.  P^x  tt 

to  sovereignty,  we  cannot  in  strictness  o^t^rf  *t,  i  • 
France  to  have  been  sovpr^;™^.  j  f  *®  ^'"S  of 
domanial  territory  NoZ'S^  '^°"*'  "?.'  *'^'«'"  »*"  h« 
the  dissimilitude  o^f  thffc  an/r  ,?'f'''"S'^  '""^'■'"te 
government  than  the  senten.P  ,K  ^'!S'"'' 'onstitutions  of 
St.  Louis.  ^°'^  "'^^^  «"ed  from  the  code  of 

Su.SC°TSvtrtot  °'""'-*^  °'<=°'"""'"  "'^"''^-"on, 

Sfiir-       than  tieS oH Efief  ""^ ^"'?^!^'' -"J- 
aathoritj.      ovAvi^^i    V  o*^  "^^'  ^^as  too  g  ar  nrr  to  be 

order  to  ag^  lts7uir:^°?"°"!'^""°^^^^^^^ 

to  execute^ithThis^^t  iTa^'^rV "^ ""^'"  "'"^'''"^^ 
a  contracting  partv  but  with™  ^  ''.'"°  '"'''  ^'ometiraes 

the  rest,     fhtfs  wl'have  wW  ;   ''"i^  T''''"  """""-''^  "^er 

reality,  an  agi-eement?!  itV^b:' kL"rPn"T'''  ''"'' "" 
the  countess  of  Troves  or  Chnmni!  °  f^l"^'?  A"Su*t«s), 
Pierre,'  relating  to  the  Jew  T^""''',""'^  •"'''  '*"■''  °'"  D'-"^' 
ment  or  ordinance  it  t  .Ji    ?     ,^,"" ''°,'°'""" '  which  agree- 

andthecounSTrrray'^^^^^^ 

Ais  contract,  shall  dissive^SiU.The  co^s^nrof'^b  "  r"^* 

ba^ns  as  we  shall  summon  for  that  pur~      '"*=''  "^  ""^ 

iicclesiastical  councils  were  anntlipr  c„k-«-.  .   /• 
legislature ;  and  this  defect  tn^hl      substitute  for  a  regular 

Should  administer  justice  ffrSi^        ordained  that  judges 
of  the  council  four'times  if  re  yeat^'  '"^  ^"^^^^^  '^'  ^'^^'^^ 

Sures  ^^''^  ^^^^  unequivocal  attempt,  for  it  was  nothm. 

of  general      morc,  at  general  legislation  was  imln  T      •   -ktj?? 

legisiatioa.      in  122^    jn  o«      ol^'**"""?  was  under  Louis  VIII. 

in  U23,  m  an  ordmance  ivhich,  like  several  of 


lord  of  n^r  •^'*'°°'  ^  ^^^«  ^^'^"ed  the 
Zt  it  h^^  h'"''"^  ^'^^^^  °f  Flanders, 
the  lord  S  nf "  ?"^Se8ted  to  me  that 
of  FKnl^.  k'^P'^"^  ^^«  °e^er  count 
thp  vno^"  '  .^'^  ^'^*^°"^  brother  married 
fie?  Thn^y^'l'.^^  the  heiress  of  that 
nef,  who,  after  his  death,  inherited  it 
from    he  elder     The  ordinance  r^E  to 

ioL^  S'^fn  ^^™P'«"«'  in  the  myeS 
nois.     Klua,  however,  makes  the  instanc« 

S&/  '""'"'^1*  ''^^  legislative  ai^homy 
Of  the  crown  than  as  I  had  stated  it.    ^ 


D  ^    S^  Ordonnances  des  Ro  .<?,  t.  I. 

it* was  nmh.hi'^'K^r*^^  ^''"^  "od*te  but 
It  was  prohibly  between  1218  and  122SL 
the  year  of  PhiUp's  death.  ^^ 

^  3jaissette,  Hist,  de  J^uedoc,  t.  U. 

*  Vellj,  t.  iT.  p.  132. 


Feudai.  Sysiem.  increase  OF  POWER  OF  THE  CROWN.  219 


that  age,  relates  to  the  condition  and  usurious  dealings  of  the 
Jews.  It  is  declared  in  the  preamble  to  have  been  enacted 
per  assensum  archiepiscoporum,  episcoporum,  comitum,  ba- 
ronum,  et  militum  regni  Franciae,  qui  Judaeos  habent,  et  qui 
Judaeos  non  habent.  This  recital  is  probablj  untrue,  and  in- 
tended to  cloak  the  bold  innovation  contained  in  the  last  clause 
of  the  following  provision :  Sciendum,  quod  nos  et  barones 
nostri  statuimus  et  ordinavimus  de  statu  Judagorum  quod  nul- 
lus  nostrum  alterius  Judaeos  recipere  potest  vel  retinere ;  et 
hoc  intelligendum  est  tarn  de  his  qui  stabilimentum  juravennt, 
quam  de  illis  qui  non  juraverint}  This  was  renewed  with 
some  alteration  in  1230,  de  communi  consilio  baronum  nos- 
trorum.^ 

But  whatever  obedience  the  vassals  of  the  crown  might  pay 
to  this  ordinance,  their  original  exemption  from  legislative 
control  remained,  as  we  have  seen,  unimpaired  at  the  date  of 
the  Establishments  of  St.  Louis,  about  1269  ;  and  their  ill- 
judged  confidence  in  this  feudal  privilege  still  led  them  to 
absent  themselves  from  the  royal  council.  It  seems  impossible 
to  doubt  that  the  barons  of  France  might  have  asserted  the 
same  right  which  those  of  England  had  obtained,  that  of  being 
duly  summoned  by  special  writ,  and  thus  have  rendered  their 
consent  necessary  to  every  measure  of  legislation.  But  the 
fortunes  of  France  were  different.  The  Establishments  of 
St.  Louis  are  declared  to  be  made  "par  grand  conseil  de 
sages  hommes  et  de  bons  clers,"  but  no  mention  is  made  of 
any  consent  given  by  the  barons ;  nor  does  it  often,  if  ever, 
occur  in  subsequent  ordinances  of  the  French  kings. 

The  nobility  did  not  long  continue  safe  in  their  immunity 
from  the  king's  legislative  power.     In  the  ensuing 
reign  of  Philip  the  Bold,  Beaumanoir  lays  it  down,  ^^^^T 
though  in  very  moderate  and  doubtful  terms,  that  *be  crown 
"  when  the  king  makes  any  ordinance  specially  for     ^ 
his  own  domains,  the  barons  do  not  cease  to  act  in  their 
territories  according  to  the  ancient  usage ;  but  when  the  ordi- 
nance is  general,  it  ought  to  run  through  the  whole  kingdom, 
and  we  ought  to  beheve  that  it  is  made  with  good  advice, 
and  for  the  common  benefit."'     In  another  place  he  says, 
with  more  positiveness,  that  "  the  king  is  sovereign  above  all, 
and  has  of  right  the  general  custody  of  the  realm,  for  which 


1  Ordonnances  des  Rois,  t.  i.  p.  47. 
« Id.  p.  63. 


s  Coutumcs  de  Beauvoisis,  c.  48. 


2i8  LEGISLATIVE  SUBSTITUTES.     Cn^.  jj,  p^,  ^ 

to  sovereignty,  we  cannot  in  strictness  assert  ih.  t- 
France  to  havp  h^my    «..,.«    ^^^^^gss  assert  the  kin  or  of 

domanial  teSrvVr"^  '''^'""'  ">«  ''^'ent  of  hi, 
|jv«.  than  .e  senS^i^fflZTel^S:  ^f 

order  to  a.    e  itsEn'?',"'^'":''^"""^^^^^^^ 

a  contracting  party  but  wi.hT  ^  K'""  '''^^  sometimes 

the  rest.    Thu^^^'have  wharit  '"">{  T""''" ^'^"'''"y  "^^r 

mlity,  an  ag,-eere„T  beSn'thf  kL"V°M^^  *""'  ^ 

the  countess  of  Troves  or  ChZ,!.  °  i.P  Augustus), 

Pierre,'  relating  loZl  Jews  in  S'',''"''  •"'"  '"l'?  "''  ^'"»- 
ment  or  ordinance  !.;,  cJ?   ?  ""C'r  domains ;  which  agree- 

and  thec^unSTrLfiS"^?^""  """'"  ""''^'^^^ 
«>is  contract,  shall  disso^^e^^liSThfeo^^^nrorsu^i^'^"^^ 
barons  as  we  shall  summon  for  that  purpose"  =       "'^  °^  ""^ 

Ecclesiastical  councils  were  another  suh^tlmt^  f 
legislature  ;  and  this  defect  in  .hi       ?"?»*""'«  for  a  reguhir 
de°ed  their  encroachmenLt      .       ?°'""^'  constitution  ren- 
able.    Thit  "^Troves  t  ^lfJ'^'"'^''>"%^^^  almost  unavoid- 
laymen,  imposed  a  fine  «nn„!f'  •"'"P?''^*'  P'=^''"P«  i".  part  of 

of  any  now  fortresses,  or  treelrfnfin^nl?''  "'"  "™"=''«'> 
against  the  enemies  of  reli '"on  and  "  T^  f"."'''  '^'^"P' 
should  administer  just°cecVaCn;,r  "f"?!;!  '''«'  J"dges 
of  the  council  four''tTmes  in  the^"^;]!^' ""''  P"^'^^'"  ">«  decrees 

mSs'ure,       „7'"=  f '^'  Unequivocal  attempt,  for  it  was  nothin,. 

Of  general      more,  at  genera  legislation  wa<i  i,n,l<>t  t      °^VlV  P 

lugiaiaUoD.      in  10OQ    j„  „„      5;''"'""n»  was  under  Louis  VIII. 

m  I2J3,  in  an  ordinance  which,  like  several  of 


tte  iL^  ^'°  ?ui!se8ted  to  me  that 
S  1.-1  J  '  Dampierre  was  nerer  count 
of  Handera;  htawcond  brother  married 

£?  ^2hP'»""»''  of  'O"  heiress  of  thaj 
Jm;  who,  alter  his  death,  inherited  it 

^e""do*'„W  n""'  ?^<«"»«  rIStod  to 
n*Ti,hL  "'""'"?• '"  '"«  Nirer- 
«ta,,,~,  .  '  *"'"""<  makes  the  instance 
SftK^f"  f^'  ""^  l<'Si5l'>«''e  authority 
or  th.  crown  than  as  I  had  stated  it.     ' 


D  ^     tm;«  ^r^o^n'-infes  lies  Roi's,  t.  I. 

ic  was  probably  between  ]218  and  19M 
the  year  of  Philips  death  ^^» 

p  ^Jaissette,  Hist,  de  I^an^edoc,  t.  U. 

*  VeUy,  t.  Ir.  p.  132. 


Feudai,  Stsikm.  INCREASE  OF  POWER  OF  THE  CROWN.  219 


that  age,  relates  to  the  condition  and  usurious  dealings  of  the 
Jews.  It  is  declared  in  the  preamble  to  have  been  enacted 
per  assensum  ai'chiepiscoporum,  episcoporum,  comitum,  ba- 
ronum,  et  militum  regni  Franciaj,  qui  Judseos  habent,  et  qui 
Judajos  non  habent.  This  recital  is  probably  untrue,  and  in- 
tended to  cloak  the  bold  innovation  contained  in  the  last  clause 
of  the  following  provision :  Sciendum,  quod  nos  et  barones 
nostri  statuimus  et  ordinavimus  de  statu  Judaeorum  quod  nul- 
lus  nostrum  alterius  Judaeos  recipere  potest  vel  retinerc ;  et 
hoc  inteUigendum  est  tarn  de  his  qui  stahilimentum  juraverint, 
quam  de  illis  qui  non  juraverint}  This  was  renewed  with 
some  alteration  in  1230,  de  communi  consilio  bai'onum  nos- 
trorum.* 

But  whatever  obedience  the  vassals  of  the  crown  might  pay 
to  this  ordinance,  their  original  exemption  from  legislative 
control  remained,  as  we  have  seen,  unimpaired  at  the  date  of 
the  Establishments  of  St.  Louis,  about  1269  ;  and  their  ill- 
judged  confidence  in  this  feudal  privilege  still  led  them  to 
absent  themselves  from  the  royal  council.  It  seems  impossible 
to  doubt  that  the  barons  of  France  might  have  asserted  the 
same  right  which  those  of  England  had  obtained,  that  of  being 
duly  summoned  by  special  writ,  and  thus  have  rendered  their 
consent  necessary  to  every  measure  of  legislation.  But  the 
fortunes  of  France  were  different.  The  Establishments  of 
St.  Louis  are  declared  to  be  made  "par  grand  conseil  de 
sages  hommes  et  de  bons  clers,"  but  no  mention  is  made  of 
any  consent  given  by  the  barons ;  nor  does  it  often,  if  ever, 
occur  in  subsequent  ordinances  of  the  French  kings. 

The  nobility  did  not  long  continue  safe  in  their  immunity 
from  the  king's  legislative  power.     In  the  ensuing 
reign  of  Philip  the  Bold,  Beaumanoir  lays  it  down,  ^^oP 
though  in  very  moderate  and  doubtful  terms,  that  *be  crown 
"  when  the  king  makes  any  ordinance  specially  for 
his  own  domains,  the  barons  do  not  cease  to  act  in  their 
territories  according  to  the  ancient  usage ;  but  when  the  ordi- 
nance is  general,  it  ought  to  run  through  the  whole  kingdom, 
and  we  ought  to  believe  that  it  is  made  with  good  advice, 
and  for  the  common  benefit."*     In  another  place  he  says, 
with  more  positiveness,  that  "  the  king  is  sovereign  above  all, 
and  has  of  right  the  general  custody  of  the  realm,  for  which 


1  Ordonnances  des  Rois,  t.  i.  p.  47. 
tld.p.63. 


*  Costumes  de  BeauTOisis,  c.  48. 


220  INCREASE  OF  POWER  OF  THE  CROTTO.    Ciup.n.PAran 

cause  he  may  make  what  ordinances  he  pleases  for  the  com. 
mon  good,  and  what  he  ordains  ought  to  be  ob^rved  n^s 
there  any  one  so  great  but  may  be  drawn  into  the  kin^^s  court 

Secttf  /  "?'"  .?!:  ^°^/'*'^^  J<"°'«°''  -  ■"  mattersC 
affect   he    overe.gn." »    These  latter  words  give  us  a  clue  to 

SSf"  °'      Ik    w"''°"  °*   f"^^  P^'Wcra  by  what  means  an 
absolute  monarchy  was    estabhshed    in   France 
For  though  the  barons  would  have  been  little  infiTuencTd  bv 
the  authoruy  of  a  lawyer  like  Bcaumanoir,  they  were  much 
iZ  t  Url^^  "TT  ^°=''=  "f  a  Judicial'lriZal     It 

^ces   I^  hin  th?""  '"  "^T^  '.'"^  °"'S'-*''°"  °f  '°y«'  ordi- 
nances  within  their  own   domains,  when    they  were  com- 

i;ar  s,  which  took  a  very  diflFerent  view  of  their  privileges 
This  progress  of  the  royal  jurisdiction  will  fldl  under  tKx^ 
topic  of  inquiry,  and  is  only  now  hinted  at,  as  the  probaUe 

wilT t  foiinf  •  'T'^'  ''"'"'^f  •  °^  '^'"  '""^'^^'^  authority 

Jcular?v  fn  T   ''""'  """  """'S"  "*■  ^'"''P  ^"S«^'"-S  anJ  par- 
ticularly in  the  annexation  of  the  two  great  fiefs  of  Nor 

mandy  and  Toulouse.     Though  the  cha.efains  and  vavasso« 

who  had  depended  upon  those  fiefs  before  their  reunion  wer" 

agreeably  to  the  text  of  St.  Louis's  ordinance,  fully  sTerlf^ 

m  respect  of  legisktion,  within  their  territories,  ye^t  U^I™' 

httle  competent,  and  perhaps  little  disposed,  ti  offer  an>  on! 

posit^n  to  the  royal  edicts ;  and  the  same  relati™rionty 

f  toWaWv'X",^  ^"""/''^  ^'''  kings  of  the  house  of  Cap^ 
a  tolerably  effective  control  over  the  vassals  dependent  on 

nlr»  fT  T-  F''"'''"^^'  '"'-'"^  "°"^  extended  to  the  -reater 
part  of  the  kingdom.  St.  Louis,  in  his  scrupulous  mX- 
ation,  forbore  to  avail  himself  of  all  the  advantages  prelS 
by  the  cu-cumstances  of  his  reign ;  and  his  E^tabSeS 
bear  testimony  to  a  state  of  political  society  which  evTn  a? 
the  moment  of  their  promulgation,  was  passin-  away  The 
next  thirty  years  after  his  death,  with  „'o  m^ked  c^^i  JJd 

nul  th.  «1«^  of"^^^  '^3,7/  "-    ""S"'  .0  be  hcM  «,  la,  ..  ,„.  35).    ihi,  I 


Feudal  System. 


STATES-GENERAL. 


221 


with  little  disturbance,  silently  demolished  the  feudal  system, 
such  as  had  been  established  in  France  during  the  dark  con- 
fusion of  the  tenth  century.  Philip  the  Fair,  by  help  of  his 
lawyers  and  his  financiers,  found  himself,  at  the  beginning  of 
the  fourteenth  century,  the  real  master  of  his  subjects.^ 

There  was,  however,  one  essential  privilege  which  he 
could  not  hope  to  overturn  by  force,  the  immunity  convocation 
from  taxation  enjoyed  by  his  barons.  This,  it  will  0^0^^®!^^^ 
be  remembered,  embraced  the  whole  extent  of  Phiiip  the 
their  fiefs,  and  their  tenantry  of  every  description ;  ^' 
the  king  having  no  more  right  to  impose  a  tallage  upon  the 
demesne  towns  of  his  vassals  than  upon  themselves.  Thus 
his  resources,  in  point  of  taxation,  were  limited  to  his  own 
domains  ;  including  certainly,  under  Philip  the  Fair,  many  of 
the  noblest  cities  in  France,  but  by  no  means  sufficient 
to  meet  his  increasing  necessities.  We  have  seen  already 
the  expedients  employed  by  this  rapacious  monarch — a 
shameless  depreciation  of  the  coin,  and,  what  was  much  more 
justifiable,  the  levying  taxes  within  the  territories  of  his  vas- 
sals by  their  consent.  Of  these  measures,  the  first  was  odious, 
the  second  slow  and  imperfect.  Confiding  in  his  sovereign 
authority  —  though  recently,  yet  almost  completely,  estab- 
lished —  and  little  apprehensive  of  the  feudal  principles,  al- 
ready grown  obsolete  and  discountenanced,  he  was  bold  enough 
to  make  an  extraordinary  innovation  in  the  French  constitution. 
This  was  the  convocation  of  the  States-General,  a  representa- 
tive body,  composed  of  the  three  orders  of  the  nation.**     They 


1  The  reign  of  Philip  the  Fair  has  been 
rery  well  discu.ssed  by  Mably,  SL-^mondi, 
and  Guizot.  ••  He  changed,"  says  the 
lajBt,  "  monarchy  into  despotism ;  but  he 
was  not  one  of  those  despots  who  employ 
their  absolute  power  for  the  public  good." 
"On  ne  rencontre  dans  tout  le  cours  de 
son  regno  nucune  idee  genenilc,  et  qui 
g'y  rapporte  au  bien  de  ses  sujcts ;  c'est 
an  despote  4go>.«»te,  dcvoue  k  lui-meme 
qui  regne  pour  lui  soul."  (Leroa  45.) 
The  royal  authority  gained  so  much 
ascendency  in  his  reign,  that,  while  we 
hare  only  50  ordonnances  of  St.  Louis  in 
forty-two  years,  we  have  334  of  Philip 
IV.  in  about  thirty. 

2  It  is  almost  unanimously  agreed 
among  French  writers  that  Philip  the 
Fair  first  introduced  a  representation  of 
the  towns  into  his  national  assembly  of 
States-General.  Nevertheless,  the  Chron- 
icles of  St.  Denis,  and  other  hi.storians 
•f  xather  a  late  date,  assert  that  the  dep- 


uties of  towns  were  present  at  a  parlia- 
ment in  1241,  to  advise  the  king  what 
should  be  done  in  consequence  of  the 
count  of  Angoulfeme's  refusal  of  homage. 
Boulainvilliers,  Hist,  de  I'Ancien  Gou 
vernement  do  France,  t.  ii.  p.  20 ;  Vil 
laret,  t.  ix.  p.  125.  The  latter  pretend? 
even  that  they  may  be  traced  a  century 
farther  back;  on  voit  deji  les  gens  de 
bonnes  villes  assister  aux  etats  de  1145. 
Ibid.  But  he  quotes  no  authority  for 
this ;  and  his  vague  language  does  not 
justify  us  in  supposing  that  any  repre- 
sentation of  the  three  estates,  properly 
so  understood,  did,  or  indeed  could,  take 
place  in  1145,  while  the  power  of  the 
aristocracy  was  unbroken,  and  very  few 
towns  had  been  incorporated.  If  it  be 
true  that  the  deputies  of  some  royal 
towns  were  summoned  to  the  parliament 
of  1241,  the  conclusion  must  not  be  in- 
ferred that  they  possessed  any  consent- 
ing voice,  nor  perhaps  that  they  formedi 


222 


STATES-GENERAL.        Chap.  H.  Pabt  II. 


were  first  convened  in  1302,  in  order  to  give  more  weight  to 
t^e  king  s  cause  in  his  great  quarrel  with  Boniface  VIII. ;  but 
their  earhest  grant  of  a  subsidy  is  in  1314.  Thus  the  nobility 
surrendered  to  the  crown  their  last  privilege  of  territorial  in- 
dependence; and,  having  first  submitted  to  its  appellant  juris- 
diction over  their  tribunals,  next  to  its  legislative  supremacy, 
now  suffered  their  own  dependents  to  become,  as  it  were 
immediate,  and  a  third  estate  to  rise  up  almost  coordinate' 
with  themselves,  endowed  with  new  franchises,  and  bearincr  a 
new  relation  to  the  monarchy.  ° 

It  is  impossible  not  to  perceive  the  motives  of  Philip  in 
embodying  the  deputies  of  towns  as  a  separate  estate  in  the 
national  representation.  He  might,  no  question,  have  con- 
voked a  parliament  of  his  barons,  and  obtained  a  pecuniary 
contribution,  which  they  would  have  levied  upon  their  bu/- 
gesses  and  other  tenants.  But,  besides  the  ulterior  pohcy  of 
diminishing  the  control  of  the  barons  over  their  dependents 


Btnctly  speaking,  an  integrant  portion  of 
the  assembly.  There  is  reason  to  believe 
that  deputies  from  the  royal  burghs  of 
Scotland  occasionally  appeared  at  the  bar 
of  parliament  long  before  tiiey  had  any 
dehberative  voice.—  Pinkerton's  Hist,  of 
Scotland,  vol.  i.  p.  371. 

An  ordinance  of  St.  Louis,  quoted  in 
a  very  respectable  book,  Vaissette's  His- 
tory of  Languedoc,   t.  ui.    p.  480,   but 
not  published  in  the  Recueil  des  Ordon- 
nances,  not  only  shows  the  existence,  in 
one  instance,  of  a  provincial  legislative 
assembly,  but  is  the  earliest  proof  per- 
haps of  the  tiers  etat  appearing  as  a  con- 
stituent part  of  it.     This  relates  to  the 
Beneschaussee,  or  county,  of  Beaucaire  in 
Languedoc,  and  bears  date  in  1254.     It 
provides  that,  if  the  seneschal  shall  think 
fit  to  prohibit  the  export  of  merchandise, 
he  shall  summon  some  of  the  prelates 
barons,  knights,  and  inhabitants  of  the 
chief  towns,  by  whose  advice  he  shaU 
issue  such  prohibition,  and  not  recall  it 
when  made,  without  Uke  advice.    But 
though  it  is  interesting  to  see  the  pro- 
gressive importance  of  the  citizens  of 
towns,  yet  this  temporary  and  insulated 
ordinance  is  not  of  itself  sufficient  to 
establish  a  constitutional  right.    Neither 
do  we  find  therein  any  evidence  of  rep- 
resentation ;  it  rather  appears  that  the 
persons  assisting  in  this  assembly  were 
notables,  selected  by  the  seneschal. 

I  am  not  aware  of  any  instance  of 
regular  provincial  c^ttates  being  sum- 
inoned  with  such  full  powers,  althou-h 
It  was  very  common  in  the  fourteenth 
•entury  to  ask  their  coaBent  to  grants  of 


money,  when  the  court  was  unwilling  to 
convoke  the  States-General.    Yet  there 
is  a  passage  in  a  book  of  considerable 
credit,  the  Grand  Customary,  or  Somme 
Rurale  of  Bouteillcr,   which   seems    to 
render  general  the  particular  case  of  the 
seneschaussie  of  Beaucaire.    Bouteillcr 
wrote  about  the  end  of  the  fourteenth 
century.     The  great  courts  summoned 
from   timo  to  tune  by  the   baillLs  and 
seneschals  were  called    assises.      Their 
usual  function  was  to  administer  justice, 
especiaUy  by  way  of  appeal,  and  perhaps 
to  redress  abuses  of  inferior  officers.  But 
he  seems  to  give  them  a  more  extended 
authority.    En  assise,  he  says,  appelles, 
lee  sages  et  seigneurs  du  pais,  peuvent 
estre  mises  sus  nouvelles  constitutions 
et  ordonnances  sur  le  pais  et  destruites 
autre  que  seront  grevables,  et  en  autre 
temps  Mon,  et  doivent  etre  publices  safin 
que  nul  ne  les  pueust  ignorer,  et  lors  ne 
les  peut  ne  doit  jamais  nul  redargues— 

i!!!^*^®^''^^*'^-  ties  Inscriptions,  t.  xxx. 
p.  606. 

Tlie  taille  was  assessed  by  respectable 
persons  chosen  by  the  advice  of  the  parish 
pnests  and  others,  which  gave  tLe  people 
a  sort  of  share  in  the  repartition,  to  uu 
a  French  term,  of  public  burdens;  a 
matter  of  no  .small  importance  where  a 
tax  13  levied  on  visible  property.    Ordon- 

^^Q^  'teu.^'J'^'  P-  291;  Beaumanoir, 
p.  Oiif.  This,  however,  continued,  I  be- 
lieve, to  be  the  practice  in  later  times; 
1  know  it  is  so  in  the  present  system  of 
France,  and  is  perfectly  distinguishable 
from  a  popular  consent  to  tajtatiou. 


Feudal  System. 


STATES-GENERAL. 


223 


he  had  good  reason  to  expect  more  liberal  aid  from  the  im- 
mediate representatives  of  the  people  than  through  the  con- 
cession of  a  dissatisfied  aristocracy.  "He  must  be  blind, 
indeed,"  says  Pasquier,  "  who  does  not  see  that  the  roturier 
was  expressly  summoned  to  this  assembly,  contrary  to  the 
ancient  institutions  of  France,  for  no  other  reason  than  that, 
inasmuch  as  the  burden  was  intended  to  fall  principally  upon 
him,  he  might  engage  himself  so  far  by  promise,  that  he  could 
not  afterwards  murmur  or  become  refractory."  ^  Nor  would 
I  deny  the  influence  of  more  generous  principles ;  the  ex- 
ample of  neighboring  countries,  the  respect  due  to  the  pro- 
gressive civilization  and  opulence  of  the  towns,  and  the  appli- 
cation of  that  ancient  maxim  of  the  northern  monarchies,  that 
whoever  was  elevated  to  the  perfect  dignity  of  a  freeman  ac- 
quired a  claim  to  participate  in  the  imposition  of  public 
tributes. 

It  is  very  diflicult  to  ascertain  the  constitutional  rights  of  the 
States-General,  claimed  or  admitted,  during  forty  Rights  of 
years  after  their  first  convocation.  If,  indeed,  we  clfnerai^M 
could  implicitly  confide  in  an  historian  of  the  six-  to  taxation, 
teenth  century,  who  asserts  that  Louis  Hutin  bound  himself 
and  his  successors  not  to  levy  any  tax  without  the  consent  of 
the  three  estates,  the  problem  would  find  its  solution.'^  This 
ample  charter  does  not  appear  in  the  French  archives ;  and, 
though  by  no  means  to  be  rejected  on  that  account,  when  we 
consider  the  strong  motives  for  its  destruction,  cannot  fairly 
be  adduced  as  an  authentic  fact.  Nor  can  we  altogether  infer, 
perhaps,  from  the  collection  of  ordinances,  that  the  crown  had 
ever  intentionally  divested  itself  of  the  right  to  impose  tallages 
on  its  domanial  tenants.  All  others,  however,  were  certainly 
exempted  from  that  prerogative;  and  there  seems  to  have 
been  a  general  sentiment  that  no  tax  whatever  could  be  levied 
without  free  consent  of  the  estates.*  Louis  Hutin,  in  a  char- 
ter granted  to  the  nobles  and  burgesses  of  Picardy,  promises 
to  abolish  the  unjust  taxes  (maltotes)  imposed  by  his  father ;  * 
and  in  another  instrument,  called  the  charter  of  Normandy, 


1  Recherches  de  la  France,  1.  ii.  c.  7. 

2  Boulainvilliers  (Hist,  dc  I'Anc.  Gou- 
temement,  t.  ii.  p.  128)  refers  for  this  to 
Nicholas  Gilles,  a  chronicler  of  no  great 
repute. 

»  Mably,  Ob.servat.  sur  I'nist.  de 
France,  1.  v,  c.  1.  is  positive  against  the 
v^l^t  of  Philip  the  I'air  and  Ills  successors 


to  impose  taxes.  Montlosier  (Monarchie 
Francaise,  t.  i.  p.  202)  is  of  the  same 
opinion.  In  fact,  there  is  reason  to  be- 
lieve that  the  kings  in  general  did  not 
claim  that  prerogative  absolutely,  what- 
ever pretexts  they  might  set  up  for  occa- 
sional stretches  of  power. 
4  Ordonnances  dca  Bois,  t.  i.  p.  666. 


i   < 


224 


STATES-GENERAL. 


Chat.  II.  Part  n. 


declares  that  lie  renounces  for  himself  and  his  successors  al] 
undue  tallages  and  exactions,  except  in  case  of  evident  utility.^ 
This  exception  is  doubtless  of  perilous  ambiguity ;  yet,  as  the 
charter  was  literally  wrested  from  the  king  by  an  insurrec- 
tionary league,  it  might  be  expected  that  the  same  spirit  would 
rebel  against  his  royal  interpretation  of  state-necessity.  His 
successor,  Philip  the  Long,  tried  the  experiment  of  a  gabelle, 
or  excise  upon  salt.  But  it  produced  so  much  discontent  that 
he  was  compelled  to  assemble  the  States-General,  and  to  pub- 
lish an  ordinance,  declaring  that  the  impost  was  not  designed 
to  be  perpetual,  and  that,  if  a  sufficient  supply  for  the  existing 
war  could  be  found  elsewhere,  it  should  instantly  determine.* 
Whether  this  was  done  I  do  not  discover  ;  nor  do  I  conceive 
that  any  of  the  sons  of  Philip  the  Fair,  inheriting  much  of  his 
rapacity  and  ambition,  abstained  from  extorting  money  with- 
out consent.  Philip  of  Valois  renewed  and  augmented  the 
duties  on  salt  by  his  own  prerogative,  nor  had  the  abuse  of 
debasing  the  current  coin  been  ever  carried  to  such  a  height 
as  during  his  reign  and  the  first  years  of  his  successor.  These 
exactions,  aggravated  by  the  smart  of  a  hostile  invasion,  pro- 
duced a  very  remarkable  concussion  in  the  government  of 
France. 

I  have  been  obliged  to  advert,  in  another  place,  to  the 
States-  memorable  resistance  made  by  the  States- General 
of  1355  of  1355  and  1356  to  the  royal  authority,  on  account 
and  1356.  of  its  inseparable  connection  with  the  civil  history 
of  France.'  In  the  present  chapter  the  assumption  of  politi- 
cal influence  by  those  assemblies  deserves  particular  notice. 
Not  that  they  pretended  to  restore  the  ancient  constitution  of 
the  northern  nations,  still  flourishing  in  Spain  and  England, 
the  participation  of  legislative  power  with  the  crown.  Five 
hundred  years  of  anarchy  and  ignorance  had  swept  away  all 
remembrance  of  those  general  diets  in  which  the  capitularies 
of  the  Carlovingian  dynasty  had  been  established  by  common 
consent.  Charlemagne  himself  was  hardly  known  to  the 
French  of  the  fourteenth  century,  except  as  the  hero  of  some 
silly  romance  or  ballad.  The  States-General  remonstrated, 
indeed,  against  abuses,  and  especially  the  most  flagrant  of  all, 
the  adulteration  of  money  ;  but  the  ordinance  granting  redress 
emanated  altogether  from  the  kin":,  and  without  the  least 


•o> 


1  OrdoDBances  des  Rois,  t.  i.  p.  679. 
siduD,  t.i.  p.  589. 


•  Chap.  i.  p.  66. 


Feudal  System. 


STATES-GENERAL. 


225 


reference  to  their  consent,  which  sometimes  appears  to  be 
studiously  omitted.^  But  the  privilege  upon  which  the  States 
under  John  solely  relied  for  securing  the  redress  of  grievances 
was  that  of  granting  money,  and  of  regulating  its  collection. 
The  latter,  indeed,  though  for  convenience  it  may  be  devolved 
upon  the  executive  government,  appears  to  be  incident  to 
every  assembly  in  which  the  right  of  taxation  resides.  That, 
accordingly,  which  met  in  1355  nominated  a  committee  chosen 
out  of  the  three  orders,  which  was  to  sit  after  their  separation, 
and  which  the  king  bound  himself  to  consult,  not  only  as  to 
the  internal  arrangements  of  his  administration,  but  upon 
every  proposition  of  peace  or  armistice  with  England.  Dep- 
uties were  despatched  into  each  district  to  superintend  the 
collection  and  receive  the  produce  of  the  subsidy  granted  by 
the  States.'*^  These  assumptions  of  power  would  not  long, 
we  may  be  certain,  have  left  the  sole  authority  of  legislation 
in  the  king,  and  might,  perhaps,  be  censured  as  usurpation,  if 
the  peculiar  emergency  in  which  France  was  then  placed  did 
not  furnish  their  defence.  But,  if  it  be  true  that  the  kingdom 
was  reduced  to  the  utmost  danger  and  exhaustion,  as  much 
by  malversation  of  its  government  as  by  the  armies  of  Edward 
III.,  who  shall  deny  to  its  representatives  the  right  of  ultimate 
sovereignty,  and  of  suspending  at  least  the  royal  prerogatives, 
by  the  abuse  of  which  they  were  falling  into  destruction?" 
I  confess  that  it  is  exceedingly  difficult,  or  perhaps  imprac- 
ticable, with  such  information  as  we  possess,  to  decide  upon 
the  motives  and  conduct  of  the  States-General  in  their  several 
meetings  before  and  after  the  battle  of  Poitiers.  Arbitrary 
power  prevailed;  and  its  opponents  became,  of  course,  the 
theme  of  obloquy  with  modern  historians.  Froissart,  however, 
does  not  seem  to  impute  any  fault  to  these  famous  assemblies 


iThe  proceedings  of  States-General 
held  under  Philip  IV.  and  his  sons  have 
left  no  trace  in  the  French  statute-book. 
Two  ordonnances  alone,  out  of  some 
hundred  enacted  by  Philip  of  Valois, 
appear  to  have  been  founded  upon  their 
suggestious. 

It  is  absolutely  certain  that  the  States- 
General  of  France  had  at  no  period,  and 
in  no  instance,  a  coordinate  legislative 
authority  with  the  crown,  or  even  a  con- 
senting voice.  Mably,  Boulainvilliers, 
and  Mootlosier,  are  as  decisive  on  this 
subject  as  the  most  courtly  writers  of 
that  country.  It  follows  as  a  just  con- 
sequence that  France  never  possessed  a 
free  constitution ;  nor  had  the  monarchy 
VOL.  I.  15 


any  limitations  in  respect  of  enacting 
laws,  save  those  which,  until  the  reign 
of  Philip  the  Fair,  the  feudal  principles 
had  imposed. 

-  Ordonnances  dea  Rois,  t.  iii.  p.  21 
and  preface,  p.  42.  This  preface  by  M. 
Secouse,  the  editor,  gives  a  very  clear 
view  of  the  general  and  provincial  assem- 
blies held  in  the  reign  of  John.  Bou- 
lainvilliers. Ilist.  de  I'Ancien  Gouveme- 
ment  de  France,  t.  ii.,  or  Villaret,  t.  ix., 
may  be  perused  with  advantage. 

^  The  second  continuator  of  Nangis  in 
the  Splcilegium  dwells  on  the  heavy  taxes, 
diminution  of  money,  and  general  oppres- 
siveness of  government  in  this  age :  t.  iii 
p.  108. 


1 


226 


STATES-GENERAL. 


Chap.  II.  Part  II. 


Feudal  System. 


TROUBLES  AT  PARIS. 


of  the  States-General ;  and  still  less  a  more  contemporary 
historian,  the  anonymous  continuator  of  Nangis.  Their 
notices,  however,  are  very  slight ;  and  our  chief  knowledge 
of  the  parliamentary  history  of  France,  if  I  may  employ  the 
expression,  must  be  collected  from  the  royal  ordinances  made 
upon  these  occasions,  or  from  unpubhshed  accounts  of  their 
transactions.  Some  of  these,  which  are  quoted  by  the  later 
historians,  are,  of  course,  inaccessible  to  a  writer  in  tliis 
country.  But  a  manuscript  in  the  British  Museum,  contain- 
ing the  early  proceedings  of  that  assembly  which  met  in 
October,  1356,  immediately  after  the  battle  of  Poitiers,  by  no 
means  leads  to  an  unfavorable  estimate  of  its  intentions.^  The 
tone  of  their  representations  to  the  duke  of  Normandy  (Charles 
v.,  not  then  called  Dauphin)  is  full  of  loyal  respect ;  their 
complaints  of  bad  administration,  though  bold  and  pointed,  not 
outrageous  ;  their  offers  of  subsidy  liberal.  The  necessity  of 
restoring  the  coin  is  strongly  represented  as  the  grand  con- 
dition upon  which  they  consented  to  tax  the  people,  who  had 
been  long  defrauded  by  the  base  money  of  Philip  the  Fair 
•and  his  successors.^ 


1  Cotton  MS3.  Titiis,  t.  xii.  fol.  5&-74. 
This  manuscript  is  noticed,  as  an  im- 
portant document,  in  the  preface  to  the 
third  volume  of  Ordonnauces,  p.  48.  b}- 
M.  Secousse,  who  had  found  it  mentioned 
in  the  Biblioth^que  llistorique  of  Le 
Long,  No.  11.242.  No  French  antiquary 
appears,  at  least  before  that  time,  to  have 
seen  it;  but  Boulaiuvilliers  conjectured 
that  it  related  to  the  assembly  of  States 
In  February,  1356  (1357),  and  M.  S6cous?e 
supposed  it  rather  to  be  the  ori{;inal 
journal  of  the  preceding  meeting  in  Oc- 
tober, 1356,  from  which  a  copy,  found 
among  the  manuscripts  of  Dupuy,  and 
frequently  referred  to  by  Secousse  him- 
self in  his  preface,  had  been  taken.  SI. 
Secousse  was  perfectly  right  in  supposing 
the  manuscript  in  question  to  relate  to 
the  proceedings  of  October,  and  not  of 
February ;  but  it  is  not  an  original  instru- 
ment. It  forms  part  of  a  small  volume 
written  on  vellum,  and  containing  several 
other  treatises.  It  seems,  however,  as 
far  as  I  can  judge,  to  be  another  copy  of 
the  account  which  Dupuy  possessed,  and 
which  Secousse  so  often  quotes,  under 
the  name  of  Proces-verbal. 

It  is  singular  that  Sismondi  says  (x. 
479),  with  Secousse  before  his  eyes,  that 
the  procis-verbaux  of  the  States-General, 
in  1356,  are  not  extant. 

"  Et  estoit  et  est  Tentente  de  ceulx  qui 
*  la  ditte  convocation  estoieut,  que  quel- 


conqae  ottroy  ou  ayde  qu'ils  feisscnt,  ils 
cussent  bonne  monnoye  et  estable  scion 
I'advis  des  trois  estats ;  et  que  Ics  chartres 
et  lettres  faites  pour  les  reformations  du 
royaume  par  le  roy  Philippe  le  Bel,  et 
toutes  celles  qui  furent  faites  par  le  roy 
notre  seigneur  qui  est  a  present,  fussent 
confirmees,  enterinees,  tenucs,  et  gard^es 
de   point  en  point;  et  toutes   Ics  aides 
quelconques  qui  faites  soient  fussent  re- 
cues  et  distributes  par  ceulx  qui  soient  n 
ce  commis  par  les  trois  estats,  et  autori- 
sccs  par  M.  le  Due,  et  sur  certaincs  au- 
tres  conditions  et  modifications  justcs  et 
raissonables  prouffltables,  et  semble  que 
ceste  aide  eust  ete  moult  grant  et  moult 
proufliU'ible,  et  trop  plus  que  aides  de 
fait  de  monnoye.     Car  elle  se  feroit  do 
volonte  du  peuple  et  consentemcnt  com- 
mun  selon  Dicu  et  selon  conscience :  £t 
le  prouflUt  que  on  prent  et  veult  on  pien- 
dre  sur  le  fait  de  la  monnoye  duquel  on 
veult  faire  !e  fait  de  la  guerre,  et  ce  soit 
a  la  destruction,  et    a  esti  au  temps 
passi,  du  roy  et  du  royaume  et  des  sub- 
jets  ;  £t  si  se  destruit  le  billon  tant  par 
fontures  et  blanchls  comme  autrement, 
ne  le  fait  ne  peust  durer  longucmcnt 
qu'il  ne  vienne  a  destruction  si  on  con- 
tinue longuement;  £t  si  est  tout  certain 
que    les    gens  d'armes    ne  vouldroient 
c-itre  contens  de  leurs  gaiges  par  foiblo 
monnoye,  &e. 


227 


But  whatever  opportunity  might  now  be  afforded  for  estab- 
lishing a  just  and  free  constitution  in  France  was  Troubles  at 
entirely  lost.  Charles,  inexperienced  and  sur-  Paris, 
rounded  by  evil  counsellors,  thought  the  States-  ^'^'  ^^^' 
General  inclined  to  encroach  upon  his  rights,  of  which,  in  the 
best  part  of  his  life,  he  was  always  abundantly  careful.  He 
dismissed,  therefore,  the  assembly,  and  had  recourse  to  the 
easy  but  ruinous  expedient  of  debasing  the  coin.  This  led  to 
seditions  at  Paris,  by  which  his  authority,  and  even  his  life, 
were  endjingered.  In  February,  1357,  three  months  after 
the  last  meeting  had  been  dissolved,  he  was  obliged  to  con- 
voke the  States  again,  and  to  enact  an  ordinance  conformable 
to  the  petitions  tendered  by  the  former  assembly.^  This  con- 
tained many  excellent  provisions,  both  for  the  redress  of  abuses 
and  the  vigorous  prosecution  of  the  war  against  Edward ; 
and  it  is  dilficult  to  conceive  that  men  who  advised  measures 
so  conducive  to  the  public  weal  could  have  been  the  blind  in- 
struments of  the  king  of  Navarre.  But  this,  as  I  have 
already  observed,  is  a  problem  in  history  that  we  cannot  hope 
to  resolve.  It  appears,  however,  that,  in  a  few  weeks  after 
the  promulgation  of  this  ordinance,  the  proceedings  of  the  re- 
formers fell  into  discredit,  and  their  commission  of  thirty-six, 
to  whom  the  collection  of  the  new  subsidy,  the  redress  of 
grievances,  and,  in  fact,  the  whole  administration  of  govern- 
ment had  been  intrusted,  became  unpopular.  The  subsidy 
produced  much  less  than  they  had  led  the  people  to  expect : 
briefly,  the  usual  consequence  of  democratical  emotions  in  a 
monarchy  took  place.  Disappointed  by  the  failure  of  hopes 
unreasonably  entertained  and  improvidently  encouraged,  and 
disgusted  by  the  excesses  of  the  violent  demagogues,  the  na- 
tion, especially  its  privileged  classes,  who  seem  to  have  con- 
curred in  the  original  proceedings  of  the  States-General, 
attached  themselves  to  the  party  of  Charles,  and  enabled  him 
to  quell  opposition  by  force.*  Marcel,  provost  of  the  traders, 
a  municipal  magistrate  of  Paris,  detected  in  the  overt  execu- 
tion of  a  traitorous  conspiracy  with  the  king  of  Navarre,  was 
put  to  death  by  a  private  hand.  Whatever  there  had  been 
of  real  patriotism  in  the  States-General,  artfully  confounded, 
according  to  the  practice  of  courts,  with  these  schemes  of 

I  Ordonnances  des  Rois,  t.  iii.  p.  121.      enim  regnl  negotia  male  ire,  &c.    Cod- 
«  Di.scordil  mota,  ilU  tres  status  ab    tinuator  Qui.  de  Nangis  In  Spicilegip,  t 
incepto  proposito  cesaaveruat     Ex  tunc    iii.  p.  115. 


228 


ARBITRARY  TAXATION,      Chap.  n.  Part  XL 


disaffected  men,  shared  in  the  common  obloquy;   whatever 
substantial  reforms  had  been  projected  the  government  threw 
aside  as  seditious  innovations.     Charles,  who  had  assumed 
the  title  of  regent,  found  in  the  States- General  assembled   at 
Paris,  in  1359,  a  very  different  disposition  from  that  which 
their  predecessors  had  displayed,  and   publicly  restored  aU 
counsellors  whom  in  the  former  troubles  he  had  been  com- 
pelled  to  discard.     Thus  the  monarchy  resettled  itself  on  its 
ancient  basis,  or,  more  properly,  acquired  additional  stability. 
Both  John,  after    the   peace   of    Bretigni,    and    Charles 
V.  imposed  taxes  without  consent  of  the  SUites- 
to^sedby     General.^    The  latter,  indeed,   hardly  ever  con- 
john  and       yoked  that  assembly.     Upon  his  death  the  conten- 
Chariesv.      ^.^^  between  the  crown  and  representative  body 
SSfnanfe  of  was  renewed ;  and,  in  the  first  meeting  held  after 
Charles  VI.     the  acccssion  of  Charles  VI.,  the  government  was 
A.D.1380.       ^.ompeiied  to  revoke   all  taxes  illegally   imposed 
since  the  reign  of  Philip  IV.     This  is  the  most  remedial  or- 
dmance,  perhaps,  in  the  history  of  French  legislation.     "  We 
will,  ordain  and  grant,"  says  the  king,  « that  the  aids,  subsi- 
dies, and  impositions,  of  whatever  kind,  and  however  imposed, 
that  have  had  course  in  the  realm  since  the  reign  of  our 
predecessor,  Philip  the  Fair,  shall  be  repealed  and  abolished ; 
and  we  will  and  decree  that,  by  the  course  which  the  said  im- 
positions have  had,  we  or  our  successors  shall  not  have  ac- 
quired  any  right,  nor  shall    any  prejudice  be  wrought  to 
our  people,  nor  to  their  privileges  and  liberties,  which  shaU 
be  reestablished  in  as  full  a  manner  as  they  enjoyed  them  m 
the  reign  of  Philip  the  Fair,  or  at  any  time  since ;  and  we 
will  and  decree  that,  if  anything  has  been  done  contrary  to 
them  since  that  time  to  the  present  hour,  neither  we  nor  our 
successors  shall  take  any  advantage  therefrom."'     If  circum- 
stances had  turned  out  favorably  for  the  cause  of  liberty,  this 
ordinance  might  have  been  the  basis  of  a  free  constitution, 
in  respect,  at  least,  of  immunity  from  arbitrary  taxation.     But 
the  coercive  measures  of  the  court  and  tumultuous  spirit  of 


I  A  very  full  account  of  these  trans- 
Mtions  is  Riven  by  S^cousse,  in  his  His- 
tory of  Charles  the  Bad,  p.  107,  and  in 
his  preface  to  the  third  volume  of  the 
Ordonnances  des  Kois.  The  reader  must 
make  allowance  for  the  usual  partialities 
of  a  French  historian,  where  an  opposi- 
tion to  the  reigning  prince  is  his  subject. 
A  contrary  bias  is  manifested  by  Boa* 


lainvilliers  and  Mably,  whom,  however, 
it  is  well  worth  while  to  hear. 

a  Mably,  1.  v.  c.  5,  note  6. 

»  Ordonnances  des  Rois,  t.  vi.  p.  564. 
The  ordinance  is  long,  containing  fre- 
quent repetitions,  and  a  groat  redun- 
dance of  words,  intended  to  give  more 
force,  or  at  least  solemnity. 


Feudal  System.    AND  REMEDIAL  ORDINANCK 


229 


the  Parisians  produced  an  open  quarrel,  in  which  the  pop- 
ular party  met  with  a  decisive  failure. 

It  seems,  indeed,  impossible  that  a  number  of  deputies, 
elected  merely  for  the  purpose  of  granting  money,  can  pos- 
sess that  weight,  or  be  invested  in  the  eyes  of  their  constitu- 
ents with  that  awfulness  of  station,  which  is  required  to 
withstand  the  royal  authority.  The  States- General  had  no 
right  of  redressing  abuses,  except  by  petition ;  no  share  in 
the  exercise  of  sovereignty,  which  is  inseparable  from  the 
legislative  power.  Hence,  even  in  their  proper  department 
of  imposing  taxes,  they  were  supposed  incapable  of  binding 
their  constituents  without  their  special  assent.  Whether  it 
were  the  timidity  of  the  deputies,  or  false  notions  of  freedom, 
which  produced  this  doctrine,  it  was  evidently  repugnant  to 
the  stability  and  dignity  of  a  representative  assembly.  Nor 
was  it  less  ruinous  in  practice  than  mistaken  in  theory.  For 
as  the  necessary  subsidies,  after  being  provisionally  granted 
by  the  States,  were  often  rejected  by  their  electors,  the  king 
found  a  reasonable  pretence  for  dispensing  with  the  concur- 
rence of  his  subjects  when  he  levied  contributions  upon 
them. 

The   States-General    were   convoked    but    rarely  under 
Charles  VI.  and  VII.,  both  of  whom  levied  money  ^^^^^ 
without  their  concurrence.     Yet  there  are  remark-  General 
able  testimonies  under  the  latter  of  these  princes  SS^fegvn. 
that  the  sanction  of  national  representatives  was 
still  esteemed  strictly  requisite  to  any  ordinance  imposing  a 
general  tax,  however  the  emergency  of  circumstances  might 
excuse  a  more  arbitrary  procedure.     Thus  Charles  VII.,  in 
1436,  declares  that  he  has  set  up  again  the  aids  which  had 
been  previously  abolished  bi/  the  consent  of  the  three  estates.^ 
And  in  the  important  edict  establishing  the  companies  of  or- 
donnance,  which  is  recited  to  be  done  by  the  advice  and 
counsel  of  the  States-General  assembled  at  Orleans,  the  for- 
ty-first section  appears  to  bear  a  necessary  construction  that 
no  tiiUage  could  lawfully  be  imposed  without  such  consent.' 
It  is  maintained,  indeed,  by  some  writers,  that  the  perpetual 
taille  established  about  the  same  time  was  actually  granted  by 
these  States  of  1439,  though  it  does  not  so  appear  upon  the 

1  Ordonnances  des  RolSj  t.  xiii.  p.  211.    granted  money  during  this  reign :  t.  iii 
*  Ibid  ,  p.  312.    Bou lainvilliers  men-    p.  70 
tions  other  instances   where  the  States 


230 


PROVINCIAL  ESTATES.      Chap.  II.  Part  li. 


fece  of  any  ordinance.*  And  certainly  this  is  consonant  to  the 
real  and  recognized  constitution  of  that  age. 

But  the  crafty  advisers  of  courts  in  the  fifteenth  century, 
ProTinciai  enlightened  by  experience  of  past  dangers,  were 
•states.  averse  to  encountering  these  great  political  masses, 

from  which  there  were,  even  in  peaceful  times,  some  disquiet- 
ing interferences,  some  testimonies  of  public  spirit,  and  rec- 
ollections of  liberty  to  apprehend.  The  kings  of  France, 
indeed,  had  a  resource,  which  generally  enabled  them  to  avoid 
a  convocation  of  the  States-General,  without  violating  the 
national  franchises.  From  provincial  assemblies,  composed 
of  the  three  orders,  they  usually  obtained  more  money  than 
they  could  have  extracted  from  the  common  representatives 
of  the  nation,  and  heard  less  of  remonstrance  and  demand.' 
Languedoc  in  particular  had  her  own  assembly  of  states,  and 
was  rarely  called  upon  to  send  deputies  to  the  general  body, 
or  representatives  of  what  was  called  the  Languedoil.  But 
Auvergne,  Normandy,  and  other  provinces  belonging  to  the 
latter  division,  had  frequent  convoctitions  of  their  respective 
estates  during  the  intervals  of  the  States-General  —  intervals 
which  by  this  means  were  protracted  far  beyond  that  dura- 
tion to  which  the  exigencies  of  the  crown  would  otherwise 
liave  confined  them.*  This  was  one  of  the  essential  differ- 
ences between  the  constitutions  of  France  and  England,  and 
arose  out  of  the  original  disease  of  the  former  monarchy  — 
the  distraction  and  want  of  unity  consequent  upon  the  de- 
cline of  Charlemagne's  fiimily,  which  separated  the  different 
provinces,  in  respect  of  their  interests  and  domestic  govern- 
ment, from  each  other. 

But  the  formality  of  consent,  whether  by  general  or  pro- 
vincial states,  now  ceased  to  be  reckoned  indispensable.  The 
lawyers  had  rarely  seconded  any  efforts  to  restrain  arbitrary 
power :  in  their  hatred  of  feudal  principles,  especially  those 
of  territorial  jurisdiction,  every  generous  sentiment  of  free- 
dom was  proscribed ;  or,  if  they  admitted  that  absolute  pre- 
rogative might  require  some  checks,  it  was  such  only  as 
themselves,  not  the  national  representatives,  should  impose. 
Charles  VII.  levied  money  by  his  own  authority. 
LouSxi.       Louis  XI.  carried  this  encroachment  to  the  highest 


1  Br^quigny,  preface  au  treizi^me 
tome  dea  Ordoanances.  Bouloiayilllers, 
t  iii.  p.  108. 


«  Villaret,  t.  xl.  p.  270. 

*  Ordoanances  des  Kois,  t.  Ui.  preface 


Feudal  System.    STATES-GENERAL  OF  TOURS. 


231 


pitch  of  exaction.  It  was  the  boast  of  courtiers  that  he  first 
released  the  kings  of  France  from  dependence  {hors  de  page)  ; 
or,  in  other  words,  that  he  effectually  demolished  those  bar- 
riers which,  however  imperfect  and  ill-placed,  had  imposed 
some  impediment  to  the  establishment  of  despotism.^ 

The  exactions  of  Louis,  however,  though  borne  with 
patience,  did  not  pass  for  legal  with  those  upon  whom  they 
pressed.  Men  still  remembered  their  ancient  privileges, 
which  they  might  see  with  mortification  well  preserved  in 
England.  "  There  is  no  monarch  or  lord  upon  earth  (says 
Philip  de  Comines,  himself  bred  in  courts)  who  can  raise  a 
ferthing  upon  his  subjects,  beyond  his  own  domains,  without 
their  free  concession,  except  through  tyranny  and  violence. 
It  may  be  objected  that  in  some  cases  there  may  not  be  tune 
to  assemble  them,  and  that  war  will  bear  no  delay ;  but  I  re- 
ply (he  proceeds)  that  such  haste  ought  not  to  be  made,  and 
there  will  be  time  enough ;  and  I  tell  you  that  princes  are 
more  powerful,  and  more  dreaded  by  theu*  enemies,  when 
they  undertake  anything  with  the  consent  of  their  subjects."  ' 
The  States-General  met  but  twice  during  the  reign  of 
Louis  XL,  and  on  neither  occasion  for  the  purpose  g^^^^^ 
of  granting  money.  But  an  assembly  in  the  first  General  of 
year  of  Charles  VIII.,  the  States  of  Tours  inj^"'^ 
1484,  is  too  important  to  be  overlooked,  as  it  marks 
the  last  struggle  of  the  French  nation  by  its  legal  representa- 
tives for  immunity  from  arbitrary  taxation. 

A  warm  contention  arose  for  the  regency  upon  the  acces- 
sion of  Cliarles  VIII.,  between  his  aunt,  Anne  de  Beaujeu, 
whom  the  late  king  had  appointed  by  testament,  and  the 
princes  of  the  blood,  at  the  head  of  whom  stood  the  duke  of 
Orleans,  afterwards  Louis  XII.  The  latter  combined  to  de- 
mand a  convocation  of  the  States-General,  which  accordingly 
took  place.  The  king's  minority  and  the  factions  at  court 
seemed  no  unfavorable  omens  for  hberty.  But  a  scheme  was 
artfully  contrived  which  had  the  most  direct  tendency  to 


»  The  preface  to  the  sixteenth  volume 
of  Ordonnances,  before  quoted,  displays 
a  lamentable  picture  of  the  internal  sit- 
uation of  France  in  consequence  of  ex- 
cessive taxation  and  other  abuses.  These 
evils,  in  a  less  aggravated  degree,  con- 
tinued ever  since  to  retard  the  improve- 
ment and  diminish  the  intrinsic  pros- 
perity of  a  country  so  extraordinarily 
•ndowcd  with  natural  advantages.  Philip 


do  Comines  was  forcibly  struck  with  the 
different  situation  of  England  and  tho 
Netherlands.  And  Sir  John  Fortescue 
has  a  remarkable  passage  on  the  poverty 
and  servitude  of  the  French  commons, 
contrasted  with  English  freemen.— Dif- 
ference of  Limited  and  Absolute  Mon- 
archy, P-  17.  . 
s  Mem  de  Comines,  1.  iv.  c.  18. 


r 


232 


STATES-GENERAL  OF  TOURS.   Chap.  H.  Part  II 


break  the  force  of  a  popular  assembly.     The  deputies  were 
classed  in  six  nations,  who  debated  in  separate  chambers,  and 
consulted  each  other  only  upon  the  result  of  their  respective 
deliberations.     It  was  easy  for  the  court  to  foment  the  jeal- 
ousies natural  to  such  a  partition.     Two  nations,  the  Norman 
and  Burgundian,  asserted  that  the  right  of  providing  for  the 
regency  devolved,  in  the  king's  minority,  upon  the  States- 
General  ;  a  claim  of  great  boldness,  and  certainly  not  much 
founded  upon  precedents.     In  virtue  of  this,  they  proposed  to 
form  a  council,  not  only  of  the  princes,  but  of  certain  depu- 
ties to  be  elected  by  the  six  nations  who  composed  the  States. 
But  the  other  four,  those  of  Paris,  Aquitaine,  Languedoc,  and 
Languedoil  (which  last  comprised  the  central  provinces),  re- 
jected this  plan,  from  which  the  two  former  ultimately  de- 
sisted, and  the  choice  of  councillors  was  left  to  the  princes. 
A  firmer  and  more  unanimous  spirit  was  displayed  upon 
the  subject  of  pubhc  reformation.     The  tyranny  of  Louis 
XI.  had  been  so  unbounded,  that  all  ranks  agreed  in  calling 
for  redress,  and  the  new  governors  were  desirous,  at  least  by 
punishing  his  favorites,  to  show  their  inclination  towards  a 
change  of  system.     They  were  very  far,  however,  from  ap- 
proving the  propositions  of  the  States-General.     These  went 
to  points  which  no  court  can  bear  to  feel  touched,  though 
there  is  seldom  any  other  mode  of  redressing  public  abuses : 
the  profuse  expense  of  the  royal  household,  the  number  of 
pensions  and  improvident  grants,  the  excessive  establishment 
of  troops.     The  States  explicitly  demanded  that  the  taille  and 
all  other  arbitrary  imposts  should  be  abolished;  and  that 
from  thenceforward,   "according  to  the  natural  liberty  of 
France,"  no  tax  should  be  levied  in  the  kingdom  without  the 
consent  of  the   States.     It  was  with   great  difficuUy,  and 
through  the  skilful  management  of  the  court,  that  they  con- 
sented to  the  collection  of  the  taxes  payable  in  the  time  of 
Charles  VII.,  with  the  addition  of  one  fourth  as  a  gift  to  the 
king  upon  his  accession.     This  subsidy  they  declare  to  be 
granted  "  by  way  of  gift  and  concession,  and  not  otherwise, 
and  so  as  no  one  should  from  thenceforward  call  it  a  tax,  but 
a  gift  and  concession."     And  this  was  only  to  be  in  force  for 
two  years,  after  which  they  stipulated  that  another  meeting 
should  be  convoked.     But  it  was  little  likely  that  the  govern- 
ment would  encounter  such  a  risk ;  and  the  princes,  whose 
factious  views  the  States  had  by  no  means  seconded,  felt  no 


Feudal  System.      SCHEME  OF  JURISDICTION. 


233 


temptation  to  urge  again  their  convocation.  No  assembly  in 
the  annals  of  France  seems,  notwithstanding  some  party 
selfishness  arising  out  of  the  division  into  nations,  to  have 
conducted  itself  with  so  much  public  spirit  and  moderation ; 
nor  had  tliat  country  perhaps  ever  so  fair  a  prospect  of  estab- 
lishing a  legitimate  constitution.^ 

5.  The  right  of  jurisdiction  has  undergone   changes  in 
France  and  in  the  adjacent  countries  still  more 
remarkable  than  those  of  the  legislative  power ;  changesln 
and  passed  throudi  three  very  distinct  stages,  as  the  judicial 

.1  1  .'-'  .  t    •    ^  0     7  polity  of 

tne   popular,  aristocratic,  or  regal  mflueuce  pre-  France, 
dominated  in  the  political  system.     The  Franks,  original 
Lombards,  and  Saxons  seem  alike  to  have  been  fcheme  of 
jealous  of  judicial  authority,  and  averse  to  surren-  ^^^^ 
dering  what  concerned  every  man's  private  right  out  of  the 
hands  of  his  neighbors  and  his  equals.     Every  ten  families 
are  supposed  to  have  had  a  magistrate  of  their  own  election : 
the  tithingman  of  England,  the  decanus  of  France  and  Lom- 
bai-dy.^    Next  in  order  was  the  Centenarius  or  Hundredary, 
whose  name  expresses  the  extent  of  his  jurisdiction,  and  who, 
like  the  Decanus,  was  chosen  by  those  subject  to  it.*     But  the 
authority  of  these  petty  magistrates  was  gradually  confined 
to  the  less  important  subjects  of  legal  inquiry.     No  man,  by 
a  capitulary  of  Charlemagne,  could  be  impleaded  for  his  life, 
or  liberty,  or  lands,  or  servants,  in  the  hundred  court.*    In 
Buch  weighty  matters,  or  by  way  of  appeal  from  the  lower 
jurisdictions,  the  count  of  the  district  was  judge.     He  indeed 
was  appointed  by  the  sovereign ;  but  his  power  was  checked 
by  assessors,  called   Scabini,  who  held  their  office  by  the 
election,  or  at  least  the  concurrence,  of  the  people.^    An  ulti- 


1 1  am  altogether  indebted  to  Oarnier 
for  the  proceedings  of  the  States  of  Tours. 
llis  Jiccount  (Hist,  de  France,  t.  xviii.  p. 
154-34S)  is  extremely  copious,  and  de- 
rived from  a  manuscript  journal.  Co- 
minea  alludes  to  them  sometimes,  but 
with  little  particularity.  The  above- 
mentioned  manuscript  was  published  iu 
1835,  among  the  Documens  In^dits  sur 
I'Histoire  de  Franco. 

«  The  Decanus  is  mentioned  by  a 
writer  of  the  ninth  ago  as  the  lowest 
Bpecie?  of  judge,  immediately  under  the 
Centeuariua.  The  latter  is  compared  to 
the  IMebanus,  or  priest,  of  a  church  where 
baptism  was  performed,  and  the  former 
to  an  in&trior  presbyter     Du  Cange,  t. 


Decanus;  and  Muratori,  Antiq.  ItaL 
Dissert.  10. 

3  It  is  evident  from  the  Capitularies  of 
Charlemagne  (Baluze,  t.  i.  p.  426,  466) 
that  the  Centenarii  were  elected  by  the 
people  ;  that  is,  I  suppose,  the  free- 
holders. 

^  Ut  nullus  homo  in  placito  centenarii 
neque  ad  mortem,  ne  jue  ad  libertatem 
suam  amittendam,  aut  ad  res  reddendas 
vel  mancipia  judicetur.  Sed  ista  aut  in 
presentia  comitis  vel  missorum  nostro- 
rum  judiceutur.  Capit.  a.d.  812:  Baluz. 
p.  497. 

<>Baluzii  Capitularia,  p.  466;  Mura- 
tori, Dissert.  10;  Du  Can:;e,  v.  Scabini. 
These  Scabini  may  be  traced  by  the  ligbl 


234 


TERRITORIAL  JURISDICTION.    Chap.  U.  Part  IL 


Feudal  System.     TERRITORIAL  JURISDICTION. 


235 


mate  appeal  seems  to  have  lain  to  the  Count  Palatine,  an 
officer  of  the  royal  houseliold ;  and  sometimes  causes  were 
decided  by  the  sovereign  himself.^  Such  was  the  original 
model  of  judicature  ;  but  as  complaints  of  injustice  and  neg- 
lect were  frequently  made  against  the  counts,  Charlemagne, 
desirous  on  every  account  to  control  them,  appointed  special 
judges,  called  Missi  Regii,  who  held  assises  from  place  to 
place,  inquired  into  abuses  and  maladministration  of  justice, 
enforced  its  execution,  and  expelled  inferior  judges  from  their 
offices  for  misconduct.^ 

This  judicial  system  was  gradually  superseded  by  one 
Territorial  fouudcd  upon  totally  opposite  principles,  tliose  of 
jurisdiction,  feudal  privilege.  It  is  difficult  to  ascertain  the 
progress  of  territorial  jurisdiction.  In  many  early  charters 
of  the  French  kings,  beginning  with  one  of  Dagobert  I.  in 
630,  we  find  inserted  in  their  grants  of  land  an  immunity 
from  the  entrance  of  the  ordinary  judges,  either  to  hear 
causes,  or  to  exact  certain  dues  accruing  to  the  king  and  to 
themselves.'  These  charters  indeed  relate  to  church  lands, 
which,  as  it  seems  implied  by  a  law  of  Charlemagne,  univer- 


of  charters  down  to  the  eleventh  century. 
Recueil  des  Historiens,  t.  vi.  preface,  p. 
186.  There  is,  in  particular,  a  decisive 
proof  of  their  existence  in  918,  in  a  record 
which  I  have  alre.idy  had  occasion  to 
quote.  Vaissette,  Ilist.  de  Lauguedoc,  t. 
ii.  Appendix,  p.  56.  Du  Cange,  Baluze, 
and  other  antiquaries  have  confounded 
the  Scabini  with  the  Rachimburgii,  of 
whom  we  read  in  the  oldest  laws.  Rut 
Savigny  and  Ouizot  have  proved  the  lat- 
ter were  landowners,  acting  in  the  coun- 
ty courts  as  judges  under  the  presidency 
of  the  count,  but  wholly  independent  of 
him.  The  Scabini  in  Charlemagne's  age 
superseded  them.  —  Essais  sur  I'llistoire 
de  France,  p.  2.59,  272. 

1  Du  Cange,  Dissertation  14.  sur  Join- 
ville ;  and  Glossary,  v.  Comitcs  Palatini ; 
Mem.  de  I'Acad.  des  Inscript.  t.  xxx.  p. 
590.  Louis  the  Debonair  gave  one  day 
in  every  week  for  hearing  causes ;  but 
his  subjects  were  required  not  to  have 
recourse  to  him,  unless  where  the  Missi 
or  the  counts  had  not  done  justice.  Ba- 
luze, t.  i.  p.  668.  Charles  the  Bald  ex- 
pressly reserves  an  appeal  to  himself 
from  the  inferior  tribunals.  Capit.  869, 
t.  ii.  p.  215.  In  his  reign  there  was  at 
least  a  claim  to  sovereignty  preserved. 

2  For  the  jurisdiction  of  the  Missi 
Regii,besides  the  Capitularies  themselves, 
see  Muratori-s  eighth  Dissertation.    They 


went  their  circuits  four  times  a-year. 
Capitul.  A.T).  812 ;  a.d.  823.  A  vestige 
of  this  institution  long  continued  in  the 
province  of  .Auvergne,  under  the  name 
of  Grands  Jours  d'Auvergne ;  which 
Louis  XI.  revived  in  1479.  Garnier, 
Hist,  de  France,  t.  xviii.  p.  468. 

^  If  a  charter  of  Clovis  to  a  monastery 
called  lleomaense,  dated  496,  is  genuine, 
the  same  words  of  exemption  occurring 
in  it,  we  must  refer  territorial  jurisdic* 
tion  to  the  very  infancy  of  the  French 
monarchy.  And  M.  Lehuerou  (Inst. 
Caroling,  p.  225  et  post)  has  strongly 
contended  for  the  right  of  lords  to  exer- 
cise jurisdiction  in  virtue  of  their  owner- 
ship of  the  soil,  and  without  regard  to 
the  personal  law  of  those  coming  within 
its  scope  by  residence.  This  territorial 
right  he  deduces  from  the  earliest  times; 
it  was  an  enlargement  of  the  ancient 
miindiiim,  or  protection,  among  the  Ger- 
mans  ;  which  must  have  been  solely  per- 
sonal before  the  establishment  of  sepa- 
rate property  in  land,  but  became  local 
after  the  settlement  in  Gaul,  to  which 
that  great  civil  revolution  was  due.  The 
authority  of  M.  Lehuerou  is  entitled  to 
much  respect ;  yet  his  theory  ."seoms  to 
involve  a  more  extensive  development  of 
the  feudal  system  in  the  Merovingian 
period  than  we  generally  admit. 


?i 


sally  possessed  an  exemption  from  ordinary  jurisdiction.  A 
precedent,  however,  in  Marculfus  leads  us  to  infer  a  similar 
immunity  to  have  been  usual  in  gifts  to  private  persons.* 
These  rights  of  justice  in  the  beneficiary  tenants  of  the  crown 
are  attested  in  several  passages  of  the  capitularies.  And  a 
charter  of  Louis  1.  to  a  private  individual  contains  a  full  and 
exclusive  concession  of  jurisdiction  over  all  persons  resident 
within  the  territory,  though  subject  to  the  appellant  control 
of  the  royal  tribunals.^  It  is  obvious,  indeed,  that  an  ex- 
emption from  the  regular  judicial  authorities  implied  or  natu- 
rally led  to  a  right  of  administering  justice  in  their  place. 
But  this  could  at  first  hardly  extend  beyond  the  tributaries  or 
villeins  who  cultivated  their  master's  soil,  or,  at  most,  to  free 
persons  without  property,  resident  in  the  territory.  To  de- 
termine their  quarrels,  or  chastise  their  offisnces,  was  no  very 
illustrious  privilege.  An  alodial  freeholder  could  own  no 
jurisdiction  but  that  of  the  king.  It  was  the  general  preva- 
lence of  subinfeudation  which  gave  importance  to  the  terri- 
torial jurisdictions  of  the  nobility.  For  now  the  military 
tenants,  instead  of  repairing  to  the  county-court,  sought  jus- 
tice in  that  of  their  immediate  lord ;  or  rather  the  count  him- 
self, become  the  suzerain  instead  of  the  governor  of  his  dis- 
trict, altered  the  form  of  his  tribunal  upon  the  feudal  model.* 
A  system  of  procedure  so  congenial  to  the  spirit  of  the  age 
spread  universally  over  France  and  Germany.  The  tri- 
bunals of  the  king  were  forgotten  like  his  laws ;  the  one 
retaining  as  little  authority  to  correct,  as  the  other  to  regu- 
late, the  decisions  of  a  territorial  judge.  The  rules  of  evi- 
dence were  superseded  by  that  monstrous  birth  of  ferocity 
and  superstition,  the  judicial  combat,  and  the  maxims  of  law 
reduced  to  a  few  capricious  customs,  which  varied  in  almost 
every  barony. 


1  Marculfl  Formulae,  1.  i.  c.  17. 

'  Et  null  us  comes,  nee  vicarius,  nee 
juniores  eorum,  nee  illus  judex  publi- 
cus  illorum.  homines  qui  super  illorum 
aprisione  habitant,  aut  in  illorum  pro- 
prio.  distringere  nee  judicare  prsesumant ; 
Red  Johannes  et  filii  sui,  et  posteritas  il- 
lorum, illi  eos  judicent  et  distringant. 
Et  quicquid  per  legem  judicaverint,  sta- 
bilis  perniaiieat.  Et  si  extra  legem  fece- 
rint,  per  legem  emendent.  Baluzii  Ca- 
pitularia,  t.  ii.  p.  1405. 

This  appellant  control  was  preserved 
by  the  capitulary  of  Charles  the  Bald, 
quoted  already,  over  the  territorial  cOs 


well  as  royal  tribunals.  Si  aliquis  epis- 
copus,  vel  comes  ac  vassus  noster  suo 
homini  contra  rectum  et  justitiam  fece- 
rit,  et  si  inde  ad  nos  reclamaverit,  sciat 
quia,  sicut  ratio  et  lex  est,  hoc  emendare 
fSiCictiius 

3  We  may  perhaps  infer,  from  a  capitu- 
lary of  Charlemagne  in  809,  that  the 
feudal  tenants  were  already  employed  as 
assessors  in  the  administration  of  justice, 
concurrently  with  the  Scabini  mentioned 
above.  Ut  nuUus  ad  placitum  venire 
cogatur,  nisi  qui  causam  habet  ad  qusB- 
rendum,  ercteptis  scabinis  et  vassallia 
comitum.  Baluzii  Capitularia,  t.  i.  p.46& 


236 


TERRITORIAL  ADMINISTRATION.     Chat.  H.  Part.  II. 


Feudal  System. 


TRIAL  BY  COMBAT. 


237 


These  rights  of  administering  justice  were  possessed  by  the 

owners  of  fiefs  in  very  different  degrees ;  and,  in 

Its  diTiflions.  pj.j^jjgg^  ^ygj.g  divided  into  the  high,  the   middle, 

and  the  low  jurisdiction.*  The  first  species  alone  (la  haute 
justice)  conveyed  the  power  of  life  and  death  ;  it  was  inherent 
in  the  baron  and  the  chatelain,  and  sometimes  enjoyed  by  the 
simple  vavassor.  The  lower  jurisdictions  were  not  competent 
to  judge  in  capital  cases,  and  consequently  forced  to  send  such 
criminals  to  the  court  of  the  superior.  But  in  some  places,  a 
thief  taken  in  the  fact  might  be  punished  with  death  by  a 
lord  who  had  only  the  low  jurisdiction.  In  England  this  priv- 
ilege was  known  by  the  uncouth  terms  of  Infangthef  and 
Outfangthef.  The  high  jurisdiction,  however,  was  not  very 
common  in  this  country,  except  in  the  chartered  towns.* 

Several  customs  rendered  these  rights  of  jurisdiction  far 
Its  admin-  Icss  instrumental  to  tyranny  than  we  might  infer 
istration.       fj-^j^  jj^^jj.  extent.      While  the  counts  were  yet 

officers  of  the  crown,  they  frequently  appointed  a  deputy,  or 
viscount,  to  administer  justice.  Ecclesiastical  lords,  who  were 
prohibited  by  the  canons  from  inflicting  capital  punishment, 
and  supposed  to  be  unacquainted  with  the  law  followed  in 
civil  courts,  or  unable  to  enforce  it,  had  an  officer  by  name 
of  advocate,  or  vidame,  whose  tenure  was  often  feudal  and 
hereditary.  The  viguiers  (vicarii),  bailiffs,  provosts,  and 
seneschals  of  lay  loi-ds  were  similar  ministers,  though  not  in 
general  of  so  permanent  a  right  in  their  offices,  or  of  such 
eminent  station,  as  the  advocates  of  monasteries.  It  seems 
to  have  been  an  established  maxim,  at  least  in  later  times, 
that  the  lord  could  not  sit  personally  in  judgment,  but  must 
intrust  that  function  to  his  bailiff  and  vassals.*     According  to 


1  Velly,  t.  Ti.  p.  131 ;  Denisart,  Hou- 
ard,  and  other  law-books. 

2  A  strangely  cruel  privilege  was  pos- 
sessed in  Aragon  by  the  lords  who  had 
not  the  higher  jurisdiction,  and  conse- 
quently could  not  publicly  execute  a 
criminal :  that  of  starving  him  to  death 
in  prison.  This  was  established  by  law 
in  1247.  Si  vassallus  domini  non  ha- 
bentis  merum  nee  mixtum  imperium,  in 
loco  occideret  vassallum,  dominus  loci 
potest  eum  occidere  fame,  frigore  et  siti. 
Et  quiUbet  dominus  loci  habet  banc  ju- 
risdictionum  necandi  fame,  frigore  et  siti 
in  Buo  loco,  licet  nullam  aliam  jurisdic- 
tionem  criminalem  habeat.  Du  Cange, 
voc.  Faue  necare. 


It  is  remarkable  that  the  Neapolitan 
barons  had  no  criminal  jurisdiction,  at 
least  of  the  higher  kind,  till  the  reign 
of  Alfonso,  in  1443,  who  sold  this  de- 
structive privilege,  at  a  time  when  it 
was  almost  abolished  in  other  king- 
doms. Giannone,  1.  xxii.  c.  6,  and  1. 
xxvi.  c.  6. 

3  Boutillier,  in  his  Somme  Rurale, 
written  near  the  end  of  the  fourteenth 
century,  asserts  this  positively.  II  con- 
vient  quilz  facent  jugier  par  aultre  que 
par  eulx,  cest  a  savoir  par  leurs  hommes 
feudaulx  a  leur  seraonce  et  conjure  [  ?J  on 
do  leur  bailiff  ou  lieutenant,  et  out 
sort  a  leur  souverain.    Fol.  8 


the  feudal  rules,  the  lord's  vassals  or  peers  of  his  court  were 
to  assist  at  all  its  proceedings.  "  There  are  some  places,*' 
says  Beaumanoir,  "  where  the  bailiff  decides  in  judgment, 
and  others  where  the  vassals  of  the  lord  decide.  But  even 
where  the  bailiff  is  the  judge,  he  ought  to  advise  with  the 
most  prudent,  and  determine  by  their  advice ;  since  thus 
he  shall  be  most  secure  if  an  appeal  is  made  from  his  judg- 
ment." ^  And  indeed  the  presence  of  these  assessors  was 
so  essential  to  all  territorial  jurisdiction,  that  no  lord,  to  what- 
ever rights  of  justice  his  fief  might  entitle  him,  was  qualified 
to  exercise  them,  unless  he  had  at  least  two  vassals  to  sit  as 
peers  in  his  court.* 

These  courts  of  a  feudal  barony  or  manor  required  neither 
the  knowledge  of  positive  law  nor  the  dictates  of  Trial  by 
natural  sagacity.  In  all  doubtful  cases,  and  espe-  combat, 
cially  where  a  crime  not  capable  of  notorious  proof  was 
charged,  the  combat  was  awarded ;  and  God,  as  they  deemed, 
was  the  judge.*  The  nobleman  fought  on  horseback,  with  all 
his  arms  of  attack  and  defence  ;  the  plebeian  on  foot,  with  his 
club  and  target.  The  same  were  the  weapons  of  the  cham- 
pions to  whom  women  and  ecclesiastics  were  permitted  to 
intrust  their  rights.*  If  the  combat  was  intended  to  ascer- 
tain a  civil  right,  the  vanquished  party  of  course  forfeited  his 
claim  and  paid  a  fine.  If  he  fought  by  proxy,  the  champion 
was  liable  to  have  his  hand  struck  off;  a  regulation  necessary, 


1  Coiltumes  dc  Beauvoisis,  p.  11. 

'  It  was  lawful,  in  such  case,  to  bor- 
row the  vassals  of  the  superior  lord. 
Thaumassiere  sur  Beaumanoir,  p.  875. 
See  Du  Cange,  v.  Pares,  an  excellent  ar- 
ticle ;  and  Placitum. 

In  England  a  manor  is  extinguished, 
at  least  as  to  jurisdiction,  when  there  are 
not  two  freeholders  subject  to  escheat 
left  as  suitors  to  the  court-baron.  Their 
tenancy  must  therefore  have  been  creat- 
ed before  the  statute  of  Quia  Emptores, 
18  Edw.  I.  (1290),  since  which  no  new 
estate  in  fee-simple  can  be  held  of  the 
lord,  nor  consequently,  be  liable  to  es- 
cheat to  him. 

5  Trial  by  combat  does  not  seem  to 
have  established  itself  completely  in 
France  till  ordeals  went  into  disuse, 
which  Charlemagne  ratlier  encouraged, 
and  which,  in  his  age,  the  clergy  for  the 
most  part  approved.  The  former  species 
of  decision,  may.  however,  bo  met  with 
under  the  first  Merovingian  kings  (Greg. 
Turon.l.  vii.  c,  19, 1.  x.  c.  10),  and  seems 
to  have  prevailed  in  Burgundy.    It  is 


established  by  the  laws  of  the  Alemanni 
or  Suabians.  Baluz.  t.  i.  p.  80.  It  was 
always  popular  in  Lombardy.  Liutpraud, 
king  of  the  Lombards,  says  in  one  of  his 
laws,  Incerti  sumus  de  judicio  Dei,  et 
quosdam  audivimus  per  pugnam  sine 
justl  causSl  suam  causam  perdere.  Sed 
propter  consuetudinem  gentis  nostras 
Langobardorum  legem  impiam  vetare 
non  possumus.  Muratori,  Script.  Rerum 
Tt-ilicarum,  t.  ii.  p.  65.  Otho  II.  estab- 
lished it  in  all  disputes  concerning  real 
property  ;  and  there  is  a  famous  case 
where  the  right  of  representation,  or 
preference  of  the  son  of  a  deceased  elder 
child  to  his  uncle  in  succession  to  his 
grandfather's  estate,  was  settled  by  this 
test. 

*  For  the  ceremonies  of  trial  by  com- 
bat, see  Ilouard,  Anciennes  Loix  Fran- 
coises, t.  i.  p.  264;  Velly,  t.  vi.  p.  106; 
Recueil  des  Historiens,  t.  xi  preface,  p. 
189 ;  Du  Cange,  v.  Duellum.  The  great 
original  authorities  are  the  Assises  de 
Jerusalem,  c.  104,  and  Beaxunanoir,  c 
3L 


238 


TRIAL  BY  COMBAT. 


Chap.  II.  Pakt  IL 


perhaps,  to  obviate  the  corruption  of  these  hired  defenders. 
In  criminal  cases  the  appellant  suffered,  in  the  event  of  defeat, 
the  same  punishment  which  the  law  awarded  to  the  offence  of 
which  he  accused  his  adversary.*  Even  where  the  cause  was 
more  peaceably  tried,  and  brought  to  a  regular  adjudication 
by  the  court,  an  appeal  for  false  judgment  might  indeed  be 
xnade  to  the  suzerain,  but  it  could  only  be  tried  by  battle.' 
And  in  this,  the  appellant,  if  he  would  impeach  the  concur- 
rent judgment  of  the  court  below,  was  compelled  to  meet  suc- 
cessively in  combat  every  one  of  its  members ;  unless  he 
should  vanquish  them  all  within  the  day,  his  life,  if  he  escaped 
from  so  many  hazards,  was  forfeited  to  the  law.  If  fortune 
or  miracle  should  make  him  conqueror  in  every  contest,  the 
judges  were  equally  subject  to  death,  and  their  court  forfeited 
their  jurisdiction  forever.  A  less  perilous  mode  of  appeal 
was  to  call  the  first  judge  who  pronounced  a  hostile  sentence 
into  the  field.  If  the  appellant  came  off  victorious  in  this 
challenge,  the  decision  was  reversed,  but  the  court  was  not 
impeached.*  But  for  denial  of  justice,  that  is,  for  a  refusal 
to  try  his  suit,  the  plaintiff  repaired  to  the  court  of  the  next 
superior  lord,  and  supported  his  appeal  by  testimony.*  Yet, 
even  here  the  witnesses  might  be  defied,  and  the  pure  stream 
of  justice  turned  at  once  into  the  torrent  of  barbarous  con- 
test.^ 


1  Beaumanoir,  p.  315. 

2  Id.  c.  61.  In  England  the  appeal  for 
fiJse  judgment  to  the  king's  court  was 
not  tried  by  battle.    Glanvil,  1.  xii.  c.  7. 

3  Id.  c.  61. 

*  Id.  p.  315.  The  practice  was  to  chal- 
lenge the  second  witness,  since  the  testi- 
mony of  one  was  insufficient.  But  this 
must  be  done  before  he  completes  his 
oath,  says  Beaumanoir,  for  after  he  has 
been  sworn  he  must  be  heard  and  be- 
lieved: p.  316.  No  one  was  bound,  as 
we  may  well  believe,  to  be  a  witness  for 
another,  in  cases  where  such  an  appeal 
might  be  made  from  his  testimony. 

•>  Mably  is  certainly  mistaken  in  his 
opinion  that  appeals  for  denial  of  justice 
were  not  older  than  the  reign  of  Philip 
Augustus.  (Observations  sur  I'llist.  do 
F.  1.  iii.  c.  3.)  Before  this  time  the  vas- 
sal's remedy,  he  thinks,  was  to  make  war 
upon  his  lord.  And  this  may  probably 
have  been  frequently  practised.  Indeed 
it  is  permitted,  as  we  have  seen  by  the 
code  of  St.  Louis.  But  those  who  were 
not  strong  enough  to  adopt  this  danger- 
ous means  of  redress  would  surely  avail 
themselves  of  the  assistance  of  the  suze- 


rain, which  in  general  would  be  readily 
afforded.  Wo  find  several  instances  of 
the  king's  interference  for  the  redress  of 
injuries  in  Suger's  Life  of  Louis  VI. 
That  active  and  spirited  prince,  with  the 
assistance  of  his  enlightened  biographer, 
recovered  a  great  part  of  the  royal  au 
thority,  which  had  been  reduced  to  the 
lowest  ebb  in  the  long  and  slothful  reign 
of  his  father,  Philip  I.  One  passage 
especially  contains  a  clear  evidence  of 
the  appeal  for  denial  of  justice,  and  con- 
sequently refutes  Mably's  opinion.  In 
1105  the  inhabitants  of  St.  Severe,  in 
Bern,  complain  of  their  lord  Ilumbald, 
and  request  the  king  aut  ad  exequendiim 
justitiam  cogere,  aut  jure  pro  injuria 
castrum  lege  Salici  amittere.  I  quote 
from  the  preface  to  the  fourteenth  volume 
of  the  llecueil  des  Ilistoriens,  p.  44.  It 
may  be  noticed,  by  the  way,  that  lex 
Salica  is  here  used  for  the  feudal  cub- 
toms ;  in  which  sense  I  believe  it  not 
unfrequently  occurs.  Many  proofs  might 
be  brought  of  the  interposition  of  both 
Louis  VI.  and  VII.  in  the  disputes  be- 
tween their  barons  and  arriire  vassals. 
Thus  the  war  between  the  latter  and 


Feudal  System.    ESTABLISHMENTS  OF  ST.  LOUIS 


239 


Such  was  the  judicial  system  of  France  when  St.  Louis 
enacted  that  great  code    which   bears  the  name   Estabiish- 
of  his   Establishments.     The  rules  of  civil  and  ™^"j^^/ 
criminal  procedure,  as  well  as  the  principles  of 
legal  decisions,  are  there  laid  down  with  much  detail.     But 
that  incomparable  prince,  unable  to  overthrow  the  judicial 
combat,  confined  himself  to  discourage  it  by  the  example  of 
a  wiser   jurisprudence.     It  was  abolished    throughout  the 
royal  donaains.      The  bailiffs  and  seneschals  who  rendered 
justice  to  the  king's  immediate  subjects  were  bound  to  follow 
his  own  laws.     He  not  only  received  appeals  from  their  sen- 
tences in  his  own  court  of  peers,  but  listened  to  all  complaints 
with  a  kind  of  patriarchal  simplicity.     "  Many  times,"  says 
Joinville,  "  I  have  seen  the  good  saint,  after  hearing  mass,  in 
the  summer  season,  lay  himself  at  the  foot  of  an  oak  in  the 
wood  of  Vincennes,  and  make  us  all  sit  round  him ;   when 
those  who  would,  came  and  spake  to  him  without  let  of  any 
ofiicer,  and  he  would  ask  aloud  if  there  were  any  present 
who  had  suits ;  and  when  they  appeared,  would  bid  two  of 
his  bailiffs  determine  their  cause  upon  the  spot."  ^ 

The  influence  of  this  new  jurisprudence  established  by  St. 
Louis,  combined  with  the  great  enhancements  of  the  royal 
prerogatives  in  every  other  respect,  produced  a  rapid  change 
in  the  legal  adniinisti-ation  of  France.  Though  trial  by  com- 
bat occupies  a  considerable  space  in  the  work  of  Beaumanoir, 
written  under  Philip  the  Bold,  it  was  already  much  limited. 
Appeals  for  false  judgment  might  sometimes  be  tried,  as  he 
expresses  it,  par  erremens  de  plait ;  that  is,  I  presume,  where 
the  alleged  error  of  the  court  below  was  in  matter  of  law. 
For  wager  of  battle  was  chiefly  intended  to  ascertain  contro- 
verted facts.^  So  where  the  suzerain  saw  clearly  that  the 
judgment  of  the  inferior  court  was  right,  he  ought  not  to  per- 
mit the  combat.  Or  if  the  plaintiff,  even  in  the  first  instance, 
could  produce  a  record  or  a  ^vritten  obligation,  or  if  the  fact 
before  the  court  was  notorious,  there  was  no  room  for  battle.' 


<1. 


Uenry  IT.  of  England  in  1166  was  occa-  lishments  of  St.  Louis  are  not  the  ong- 
sioned  by  his  entertaining  a  complaint  inal  constitutions  of  that  prince,  but  a 
from   the  count  of  Auvergne,   without    work  founded  on  them  — a  compilation 


waiting  for  the  decision  of  Ilenry,  as 
duke  of  Quienne.— Velly,  t.  ii.  p.  190 ; 
Lyttelton's  Henry  II.  vol.  ii.  p.  448; 
Recueil  des  Ilistoriens,  ubi  supra,  p.  49. 

1  Collection  des  Memoires,  t.  i.  p.  25. 
Montesquieu  supposes  that  the  Estab- 


of  the  old  customs  blended  with  his  new 
provisions.  Esprit  des  Loix,  xxviii.  37, 
33.  I  do  not  know  that  any  later  in- 
quirers have  adopted  this  hypothesis. 

2  Beaumanoir,  p.  22. 

8  Id.  p.  314. 


240 


ESTABLISHMENTS  OF  ST.  LOUIS.    Chap.  U.  Part  H. 


It  would  be  a  hard  thing,  says  Beaumanoir,  that  if  one  had 
killed  my  near  relation  in  open  day  before  many  credible 
persons,  I  should  be  compelled  to  fight  in  order  to  prove  his 
death.  This  reflection  is  the  dictate  of  common  sense,  and 
shows  that  the  prejudice  in  favor  of  judicial  combat  was 
dying  away.  In  the  Assises  de  Jerusalem,  a  monument  of 
customs  two  hundred  years  earlier  than  the  age  of  Beau- 
manoir, we  find  little  mention  of  any  other  mode  of  decision. 
The  compiler  of  that  book  thinks  it  would  be  very  injurious 
if  no  wager  of  battle  were  to  be  allowed  against  witnesses  in 
causes  affecting  succession ;  since  otherwise  every  right  heir 
might  be  disinherited,  as  it  would  be  easy  to  find  two  persons 
who  would  perjure  themselves  for  money,  if  they  had  no  fear 
of  being  challenged  for  their  testimony.^  This  passage  indi- 
cates the  real  cause  of  preserving  the  judicial  combat,  sys- 
tematic perjury  in  witnesses,  and  want  of  legal  discrimination 
in  judges. 

It  was,  in  all  civil  suits,  at  the  discretion  of  the  litigant 
parties  to  adopt  the  law  of  the  Establishments,  instead  of 
resorting  to  combat.^  As  gentler  manners  prevailed,  espe- 
cially among  those  who  did  not  make  arms  their  profession, 
the  wisdom  and  equity  of  the  new  code  was  naturally  pre- 
ferred. The  superstition  which  had  originally  led  to  tho 
latter  lost  its  weight  through  experience  and  the  uniform 
opposition  of  the  clergy.  The  same  superiority  of  just  and 
settled  rules  over  fortune  and  violence,  which  had  forwarded 
the  encroachments  of  the  ecclesiastical  courts,  was  now  mani- 
fested in  those  of  the  king.  Philip  Augustus,  by  a  famous 
ordinance  in  1190,  first  established  royal  courts  of  justice, 
held  by  the  officers  called  bailiffs  or  seneschals,  who  acted  as 
the  king's  lieutenants  in  his  domains.*  Every  barony,  as  it 
became  reunited  to  the  crown,  was  subjected  to  the  jurisdic- 
tion of  one  of  these  officers,  and  took  the  name  of  a  bailliage  or 
seneschaussee ;  the  former  name  prevailing  most  in  the  north- 
ern, the  latter  in  the  southern,  provinces.  The  vassals  whose 
lands  depended  upon,  or,  in  feudal  language,  moved,  from  tho 
superiority  of  this  fief,  were  obliged  to  submit  to  the  ressort 
or  supreme  appellant  jurisdiction  of  the  royal  court  estab- 
lished in  it.*     This  began  rapidly  to  encroach  upon  the  feudal 

I  «•  ^^'       ,        -»-.  I'Acad.  des  Inscriptiona,  t.  xxx.  p.  603 

J  Beaumanoir,  p.  809.  Mably,  1.  if.  c   4.   Boulainyilliers,    t.  il 

•  Ordonnances  des  Rois,  t.  i.  p.  18.  p.  22. 

Du    Cangc,    y.    Balivi.      M6m.  de 


Feudal  System.  KOYAL  TRIBUNALS.  241 

rights  of  justice.     In  a  variety  of  cases,  termed  royal,  the 
territorial  court  was  pronounced  incompetent ;  they  rovI, 
were  reserved  for  the  judges  of  the  crown ;  and,  ^"bunais, 
in  every  case  unless  the  defendant  excepted  to  the  0?^^' 
jurisdiction,  the  royal  court  might  take  co^rnizance  J'»"«dic«on. 
of  a  suit,  and  decide  it  in  exclusion  of  theleudal  judicature.^ 
Ihe  nature  of  cases  reserved  under  the  name  of  royal  was 
kept  in  studied  ambiguity,  under  cover  of  which  the  iud-es 
of  the  crown  perpetually  strove  to  multiply  them.     Louis  X 
when  requested  by  the  barons  of   Champagne  to  expla^u 

ttf  fZTw  ^^  'Tl  ?"''^  ^^'^  this  mysterious  defini 
tion  Everything  which  by  right  or  custom  ought  exclu- 
sively to  come  under  the  cognizance  of  a  sovereign  prince.^ 
tlr^Lr'"  fTl".^d  ^  complain  in  the  first  fnstance  to 
^2^  A  ^T  ""^  '"J""^'  committed  by  their  lords.  These 
Zlr    '"   f "'  encroachments  left  the  nobility  no  alterna- 

PWlio  thTF^-'^'^^'^'T^'"  ^"PP°^^  '^'^  remonstrances, 
fnnii^-  .1  ^  bequeathed  to  his  successor  the  task  of 
appeasing  the  storm  which  his  own  administration  had  ex- 
o^f  .^"""^"f  were  formed  in  most  of  the  northern  proviu- 
onnl^'  thyedress  of  grievances,  in  which  the  third^estate, 
oppressed  by  taxation,  united  with  the  vassals,  whose  feu- 
dd  privileges  had  been  infringed.  Separate  charters  were 
gmnted  to  each  of  these  confederacies  by  Louis  HutTn! 
which  contain  many  remedial  provisions  against  the  grossed 
^olations  of  ancient  rights,  though  the  c^own  persisted  in 

^IZT?  'f^''^'•^\  jurisdiction.^  Appeals  became  mor^ 
common  for  false  judgment,  as  well  as  denial  of  right;   and 

ZT  A  ^^'  ^^^  "^^^^^  permitted.  It  was  still,  however, 
preserved  m  accusations  of  heinous  crimes,  unsupported  b; 

0^1-^  ^iT"^  ^"*  ^^^*  ^^  *^^  prosecutor  and  was  never 
abohshed  by  any  positive  law,  either  in  France  or  England' 
Ween^^^^^^^^       '''  occurrence  are  not  frequent  even  in  the 

iSlr  ^^'  ^"l^'^"  ^^  '^^'^^  '^'^^'  remarkable  in 
Its  circumstances,  must  have  had  a  tendency  to  explode  the 


I.  !>.*1m!^'  ®°^°^^er8,  Montlosier,  t. 
J  Ordonnances  des  Roig,  p.  606 
»  Uoc  perpetuo  prohibemus  edicto  n« 

baronuin  nostrorum,  aut  aliorum  subS- 
torumnostrorum  trahantur  in  cauim 
coram  nostris  ofeciaUbus,  nee  eorum 
cause,  nisi  in  casu  ressok,  in  ncStSi 


curiis  audiantur,  rel  in  alio  casu  ad  nos 
pertinenti.  Ordonnances  des  Rois,  t.  i 
p.  362.  This  ordinance  is  of  Philip  the 
Fair,  in  1302;  but  those  passed  under 
Louis  Hutinaro  to  the  same  eCfect.  Thej 
may  be  read  at  length  in  the  Ordonnances 
des  Rois  ;  or  abridged  by  Boulainyilliers. 
t.  ii.  p.  94.  ' 


242  ROYAL  COUNCIL.         Chap.  n.  Part  II 

remaining  superstition  which  had  preserved  this  mode  of 

^Thrsupreme  council,  or  court  of  peers,  to  whose  deliberate 
functions  I  have  already  adverted,  was  also  the 
^rlii,         great  judicial  tribunal  of  the  French  crown  from 
or  court        ^hg  acccssion  of  Hugh  Capet.2     By  this  alone  the 
°^  ^"'        barons  of  France,  or  tenants  in  chief  of  the  king, 
could  be  judged.     To  this  court  appeals  for  denials  of  justice 
were  referred.     It  was  originally  composed,  as  has  been  ob- 
served,  of  the  feudal  vassals,  coequals  of  those  who  were  to 
be  tried  by  it ;  and  also  of  the  household  officers,  whose  right 
of  concurrence,  however  anomalous,  was  extremely  ancient. 
But  after  the  business  of  the  court  came  to  increase  through 
the  multiplicity  of  appeals,  especially  from  the  bailiffs  estab- 
lished  by  Philip  Augustus  in  the  royal  domains,  the  barons 
found  neither  leisure  nor  capacity  for  the  ordinary  administra- 
tion  of  justice,  and  reserved  their  attendance  for  occasions 
where  some  of  their  own  orders  were  implicated  in  a  criminal 
process.     St.  Louis,  anxious  for  regularity  and  enlightened 
decisions,  made  a  considerable  alteration  by  introducing  some 
cours  councillors  of  inferior  rank,  chiefly  ecclesiastics, 

Pi6ni6res.  j^g  adviscrs  of  the  court,  though,  as  is  supposed, 
without  any  decisive  suffrage.  The  court  now  became  known 
by  the  name  of  parliament.  Registers  of  its  proceedings 
were  kept,  of  which  the  earliest  extant  are  of  the  year  12o4. 
It  was  still  perhaps,  in  some  degree  ambulatory ;  but  by  tar 
the  greater  part  of  its  sessions  in  the  thirteenth  century  were 
at  Paris.  The  councillors  nominated  by  the  king,  some  ot 
them  clerks,  others  of  noble  rank,  but  not  peers  of^the  ancient 
baronage,  acquired  insensibly  a  right  of  suffrage. 

An  ordinance  of  Philip  the  Fair,  in  1302,  is  generally 
Parliament  supposcd  to  have  fixcd  the  scat  of  parliament  at 
of  Paris.        Piu-is,  as  wcU  as  altered  its  constituent  parts. 


Feudal  System. 


PEERS  OF  FRANCE. 


243 


1  Philip  IV.  restricted  trial  by  combat 
to  cases  where  four  conditions  were  unit- 
ed. The  crime  must  be  capital ;  its  com- 
mission certain ;  The  accused  greatly  sus- 
pected ;  And  no  proof  to  be  obtJilncd  by 
witnesses.  Under  these  limitations,  or 
at  least  some  of  them,  for  it  appears  that 
they  were  not  all  regarded,  instances  oc- 
cur for  some  centuries. 

See  the  singular  story  of  Carouges  and 
T*  Oris,  to  which  I  allude  in  the  text. 
Villaret,  t.  xi.  p.  412.  Trial  by  combat 
was  allowed  in  Scotkind  exactly  under 


the  same  conditions  as  in  France.  Pink- 
erton'a  Illst.  of  Scotl.  vol.  i.  p.  66. 

2  r^OTE  XVII.] 

8  Boulainvilliers,  t.  il.  p.  29, 44  ;  Mably, 
1  Iv.c.2;  Encyclopedic,  art.  Parlement  j 
Mem.  de  I'Acad.  des  Inscript.  t.  xxx.  p. 
603  The  great  difficulty  1  have  founa 
ia  this  investigation  will  plead  my  ex- 
cuse if  errors  are  detected. 

4  Pa«quicr  (Rocherohes  de  la  trance, 
1  ii.  c.  3)  published  this  ordinance,  which, 
indeed,  as  the  editor  of  Ordonnances  dea 
Rois,  t.  i.  p.  647,  observes,  b  no  ordinance, 


t 


Perhaps  a  series  of  progressive  changes  has  been  referred  to 
a  single  epoch.  But  whether  by  virtue  of  this  ordinance,  or 
of  more  gradual  events,  the  character  of  the  whole  feudal 
court  was  nearly  obliterated  in  that  of  the  parliament  of 
Paris.  A  systematic  tribunal  took  the  place  of  a  loose 
aristocratic  assembly.  It  was  to  hold  two  sittings  in  the 
year,  each  of  two  months*  duration ;  it  was  composed  of  two 
prelates,  two  counts,  thirteen  clerks,  and  as  many  laymen. 
Great  changes  were  made  afterwards  in  this  constitution. 
The  nobility,  who  originally  sat  there,  grew  weary  of  an 
attendance  which  detained  them  from  wai',  and  from  their 
favorite  pursuits  at  home.  The  bishops  were  dismissed  to 
their  necessary  residence  upon  their  sees.^  As  obUgations 
they  withdrew,  a  class  of  regular  lawyers,  origi-  °^  ^  ^^^ 
nally  employed,  as  it  appears,  in  the  prepiiratory  business, 
without  any  decisive  voice,  came  forward  to  the  higher  places, 
and  established  a  complicated  and  tedious  system  of  proce- 
dure, which  was  always  characteristic  of  French  jurisprudence. 

They  introduced  at  the  same  time  a  new  theory  of  abso- 
lute power,  and  unlimited  obedience.     All  feudal  DgcUne  of 
privileges  were  treated  as  encroachments  on  the  the  feudal 
imprescriptible   rights   of  monarchy.     With   the  ^^^'^™* 
natural  bias  of  lawyers  in  favor  of  prerogative  conspired 
that  of  the  clergy,  who  fled  to  the  king  for  refuge  against  the 
tyranny  of  the  barons.     In  the  civil  and  canon  laws  a  system 
of  political  maxims  was  found  very  uncongenial  to  the  feudal 
customs.    The  French  lawyers  of  the  fourteenth  and  fifteenth 
centuries  frequently  give  their  king  the  title  of  emperor, 
and  treat  disobedience  to  him  as  sacrilege.^ 

But  among  these  lawyers,  although  the  general  tenants  of 
the  crown  by  barony  ceased  to  appeal',  there  still  Peers  of 
continued  to  sit  a  more  eminent  body,  the  lay  and  ^^°^^' 
spu'itual  peers  of  France,  representatives,  as  it  were,  of  that 
ancient  baronial  aristocracy.  It  is  a  very  controverted 
question  at  what  time  this  exclusive  dignity  of  peerage,  a 
woi*d  obviously  applicable  by  the  feudal  law  to  all  persons 
coequal  in  degree  of  tenure,  was  reserved  to  twelve  vassals. 
At  the  coronation  of  Philip  Augustus,  in  1179,  we  first  per- 


bnt  a  reprulation  for  the  execution  of  one 
previously  made ;  nor  does  it  establish 
the  residence  of  the  parliament  in  Paris. 
I  Velly,  Hist  de  France,  t.  vh.  p.  303, 
■nd  Kncyclopedie,  art.  Parlement,  are 


the  best  authorities  I  have  found.  There 
may  very  possibly  be  superior  works  on 
this  branch  of  the  French  constitutioQ 
which  have  not  fallen  into  my  hands. 
2  Mably,  1.  iv.  c.  2,  note  10. 


242  ROYAL  COUNCIL.         Chap.  II.  Part  II 

remaining  superstition  which  had  preserved  this  mode  of 

'^'The"upreme  council,  or  court  of  peers,  to  whose  deUbemte 
functions  I  have  akeady  adverted,  was  also  the 
'^^'^         (rre-it  iudicial  tribunal  of  the  French  crown  from 
m        L  acccS-L  of  Hugh  Capet.'    By  this  a  one  the 
"'  ■**"■        barons  of  France,  or  tenants  in  chief  of  the  king, 
could  be  judged.    To  this  court  appeals  for  denials  of  justice 
were  referred.     It  was  originally  composed,  as  has  been  ob- 
rervedrof  the  feudal  vassals,  coequals  of  those  who  were  to 
l^ Tied  by  it;  and  also  of  the  household  officers,  whose  right 
Tf  concurrence,  however  anomalous,  was  extremely  ancient 
But  after  the  business  of  tlie  court  came  to  increase  through 
L  multiplicity  of  appeals,  especially  fron.  the  baU.ffs  estab- 
lished by  Philip  Augustus  in  the  royal  domains,  the  batons 
found  neither  leisure^nor  capacity  for  the  ordmary  administra- 
Zn  of  justice,  and  reserved  their  attendance  for  occasions 
where  some  of  theirown  orders  were  implicated  in  a  cnmmal 
process.     St!  Louis,  anxious  for  i-egiilarity  and  enlightened 
Ens,  made  a  considerable  alteration  by  introducing  some 
;T         councillors  of  inferior  rank,  chiefly  ecclesiastics, 
Sres.      as  advisers  of  the  court,  though,  as  is  supposed, 
without  any  decisive  suffrage.    The  court  now  became  knoNvii 
by  the  nle  of  pariiament.     Registers  of  -^  proceedmg' 
were  kept,  of  which  the  earliest  extant  are  of  he  yea-  12o4 
Tt.  WIS  still  nerhaps,  in  some  degree  ambulatory ;  but  by  tar 
LeTater  part  d^  its  sessions  in  the  thirteenth  century  were 
S  S    The  councillors  nominated  by  the  king  some  of 
ImXks,  others  of  noble  rank,  but  not  peers  of  the  ancient 
baronage,  acquired  insensibly  a  right  of  suffrage. 

An  Srdmance  of  Philip  the  Fair,  in  1302,  is  generally 
Pa«     supposed  to  have  fixed  the  seat  of  pariiament  a 
— -        pli^s,  as  weU  as  altered  its  constituent  parts.' 

the  Bame  conditloM  as  In  France.  Hnk- 
erton'a  Uist.  of  Scotl.  vol.  1.  p.  m. 

!  [Note  XVII.]  .,  VI. 

«  BoulainvUllers,  t.  tl.  p.  29, 44  ;  Mably, 
1  It  c.2;Enc)clopcaic,  art.  Parlcment, 
Mem.  de  I'Acail.  ili-s  Inscript.  t.  Iix.  p. 
603  The  great  difflcuUy  1  haTO  founa 
S^ihiJ  inrostigation  will  plead  my  ex- 
cuse  if  errors  arc  detected.  _„„„ 

«  Pasnui.r  (lU-chcrchcs  de  la  France, 
1  ii.  C.3)  published  thiaordin.-inoe,  which, 

ndced,  as  the  editor  of  Ordonnanccs  dM 
Itois,  1. 1.  p.  647,  obaerres,  isno  ordlnanc 


Feudal  Ststku. 


PEERS  OF  FRANCE. 


243 


of  Paris. 


1  Philip  IV.  restricted  trial  by  combat 
to  cases  where  four  conditions  were  unit- 
ed. The  crime  must  bo  capital ;  its  com- 
mission certain ;  The  accused  greatly  sus- 
pected ;  And  no  proof  to  be  obtained  Dy 
witnesses.  Under  these  limitations,  or 
at  least  some  of  them,  for  it  appears  that 
they  were  not  all  regarded,  instances  oc- 
cur for  some  centuries. 

See  the  singular  story  of  Carouges  and 
T^  Oris,  to  which  I  allude  in  the  text. 
Villaret,  t.  xi.  p.  412.  Trial  by  combat 
vas  allowed  in  Scotland  exactly  under 


Perliaps  a  series  of  progressive  changes  has  heen  referred  to 
a  single  epoch.  But  whether  by  virtue  of  this  ordinance,  or 
of  more  gradual  events,  the  character  of  the  whole  feudal 
court  was  nearly  obliterated  in  that  of  the  parliament  of 
Paris.  A  systematic  tribunal  took  the  place  of  a  loose 
aristocratic  assembly.  It  was  to  hold  two  sittings  in  the 
year,  each  of  two  months*  duration ;  it  was  composed  of  two 
prelates,  two  counts,  thirteen  clerks,  and  as  many  laymen. 
Great  changes  were  made  afterwards  in  tliis  constitution. 
The  nobility,  who  originally  sat  there,  grew  weary  of  an 
attendance  which  detained  them  from  war,  and  from  their 
favorite  pursuits  at  home.  The  bishops  were  dismissed  to 
their  necessary  residence  upon  their  sees.^  As  obUgation* 
they  withdrew,  a  class  of  regular  lawyers,  origi-  °^  ^  ^^^^^ 
nally  employed,  as  it  appears,  in  the  preparatory  business, 
without  any  decisive  voice,  came  forward  to  the  higher  places, 
and  established  a  complicated  and  tedious  system  of  proce- 
dure, which  was  always  characteristic  of  French  jurisprudence. 
They  introduced  at  the  same  time  a  new  theory  of  abso- 
lute power,  and  unlimited  obedience.     All  feudal  tv^,.    ., 

.    ,\  ,  Decline  or 

privileges  were  treated  as  encroachments  on  the  the  feudal 
imprescriptible  rights  of  monarchy.  With  the  ^^^^°^' 
natural  bias  of  lawyers  in  favor  of  prerogative  conspired 
that  of  the  clergy,  who  fled  to  the  king  for  refuge  against  the 
tyranny  of  the  barons.  In  the  civil  and  canon  laws  a  system 
of  political  maxims  was  found  very  uncongenial  to  the  feudal 
customs.  The  French  lawyers  of  the  fourteenth  and  fifteenth 
centuries  frequently  give  their  king  the  title  of  emperor, 
and  treat  disobedience  to  him  as  sacrilege.^ 

But  among  these  lawyers,  although  the  general  tenants  of 
the  crown  by  barony  ceased  to  appear,  there  still  Peers  of 
continued  to  sit  a  more  eminent  body,  the  lay  and  ^^^^nce. 
spiritual  peers  of  France,  representatives,  as  it  were,  of  that 
ancient  baronial  aristocracy.  It  is  a  very  controverted 
question  at  what  time  this  exclusive  dignity  of  peerage,  a 
word  obviously  applicable  by  the  feudal  law  to  all  persons 
coequal  in  degree  of  tenure,  was  reserved  to  twelve  vassals. 
At  the  coronation  of  Philip  Augustus,  in  1179,  we  first  per- 


i 


but  a  regulation  for  the  execution  of  one 
previously  made ;  nor  does  It  establish 
the  residence  of  the  parliament  in  Paris. 
1  Velly,  Hist  de  France,  t.  vU.  p.  303, 
and  Encyclopedic,  art.  Parlement,  are 


the  best  authorities  I  have  found.  There 
may  very  possibly  be  superior  works  on 
this  branch  of  the  French  constitutioQ 
which  have  not  fallen  into  my  hands. 
3  Mably,  1.  ir.  c.  2,  note  10. 


s& 


■TJ  -  11  111". 


844 


JURISDICTION  OF  PARLIAMENT.    Chap.  H.  Part  H. 


ceive  the  six  great  feudataries,  dukes  of  Burgundy,  Noiv 
mandy,  Guienne,  counts  of  Toulouse,  Flanders,  Champagne, 
distmguished  by  the  offices  they  performed  in  that  ceremony. 
It  was  natural,  indeed,  that,  by  their  princely  splendor  and 
importance,  they  should  eclipse  such  petty  lords  as  Bourbon 
and  Coucy,  however  equal  in  quality  of  tenure.  During  the 
reign  of  Philip  Augustus,  six  ecclesiastical  peers,  the  duke- 
bishops  of  Rheims,  Laon,  and  Langres,  the  count-bishops  of 
Beauvais,  Chalons,  and  Noyon,  were  added  as  a  sort  of 
parallel  or  counterpoise.^  Their  precedence  does  not,  how- 
ever, appear  to  have  carried  with  it  any  other  privilege,  at 
least  in  judicature,  than  other  barons  enjoyed.  But  their 
preeminence  being  fully  confirmed,  Philip  the  Fair  set  the 
precedent  of  augmenting  their  original  number,  by  conferring 
the  dignity  of  peerage  on  the  duke  of  Britany  and  the  count 
of  Artois.^  Other  creations  took  place  subsequently ;  but 
these  were  confined,  during  the  period  comprised  in  this 
work,  to  princes  of  the  royal  blood.  The  peers  were  con- 
stant members  of  the  parliament,  from  which  other  vassals 
holding  in  chief,  were  never,  perhaps,  excluded  by  law,  but 
their  attendance  was  rare  in  the  fourteenth  century,  and  soon 
afterwards  ceased  altogether.* 

A  judicial  body,  composed  of  the  greatest  nobles  in  France, 

as  well  as  of  learned  and  eminent  lawyers,  must 
the  jurisdic-  naturally  have  soon  become  politically  important. 
Sriiament     N^otwithstanding  their  disposition  to  enhance  every 

royal  prerogative,  as  opposed  to  feudal  privileges, 
the  parliament  was  not  disinclined  to  see  its  own  protection 
invoked  by  the  subject.  It  appears  by  an  ordinance  of 
Charles  V.,  in  1371,  that  the  nobility  of  Languedoc  had 
appealed  to  the  parliament  of  Paris  against  a  tax  imposed 
by  the  king's  authority ;  and  this,  at  a  time  when  the  French 
constitution  did  not  recognize  the  levying  of  money  without 
consent  of  the  States- General,  must  have  been  a  just  ground 
of  appeal,  though  the  present  ordinance  annuls  and  cvertums 
it*  During  the  tempests  of  Charles  VI.'s  unhappy  reign 
the  parliament  acquired  a  more  decided  authority,  and  held, 
in  some  degree,  the  balance  between  the  contending  factions 
of  Orleans  and  Burgundy.     This  influence  was  partly  owing 

1  VeUy,  t.  U.  p.  287 ;  t  ili.  p.  221 ;  t.  It.       »  EncyclopMie,  art.  Parlement,  p.  6. 
^a.t.Ta.p.OT.  *Mab.y.l...c.6,oote6. 


Feudal  System.     REGISTRATION  OF  ROYAL  EDICTS.         245 

to  one  remarkable  function  attributed  to  the  parliament 
which  raised  it  much  above  the  level  of  a  merely  poUtical 
tribunal,  and  has  at  various  times  wrought  striking  effects 
in  the  French  monarchy. 

The  few  ordinances  enaeted  by  kings  of  France  in  the 
twelfth  and  thirteenth  centuries  were  generally  by  the  advice 
of  their  royal  council,  in  which  probably  they  were  solemnly 
declared  as  well  as  agreed  upon.     But  after  the 
gradual  revolution  of  government,  which  took  away  ^Jegisfered 
from  the  feudal  aristocracy  all  control  over  the  ^°  parta- 
king's edicts,  and  substituted  a  new  magistracy  for  "'^'''' 
the  ancient  baronial  court,  these  legislative  ordinances  were 
commonly  drawn  up  by  the  interior  council,  or  what  we  may 
call  the  mmistry.    They  were  in  some  instances  promulgated 
by  the  kmg  m  parliament.     Others  were  sent  thither  for 
registration  or  entry  upon  their  records.     This  formality  was 
by  degrees,  if  not  from  the  beginning,  deemed  essential  to 
render  them  authentic  and  notorious,  and  therefore  indirectly 
pve  them  the  sanction  and  validity  of  a  law.^     Such,  at 
least,  appears  to  have  been  the  received  doctrme  before  the 
end  of  the  fourteenth  century.     It  has  been  contended  by 
JVIably,  among  other  writers,  that  at  so  early  an  epoch  the 
parliament  of  Paris  did  not  enjoy,  nor  even  claim  to  itself, 
that  anomalous  right  of  judging  the  expediency  of  edicts 
proceedmg  from  the  king,  which  afterwards  so  remarkably 
modified  the  absoluteness  of  his  power.     In  the  fifteenth 
century,  however,  it  certainly  manifested  pretensions  of  this 
nature :  first,  by  registering  ordinances  in  such  a  manner  as 
to  testify  Its  own  unwillingness  and  disapprobation,  of  which 
one  instance  occurs  as  early  as  1418,  and  another  in  1443; 
and,  afterwards,  by  remonstrating  against  and  delaymg  the 
registration  of  laws  which  it  deemed  inimical  to  the  pubKc 
interest.     A  conspicuous  proof  of  this  spirit  was  given  in 
their  opposition  to  Louis  XI.  when  repealmg  the  Pragmatic 
banction  of  his   father  — an   ordinance   essential,  in   their 
opinion,  to  the  liberties  of  the   Gallican  church.     In  this 
instance  they  ultimately  yielded ;  but  at  another  time  they 
persisted  in  a  refusal  to   enregister  letters   containing  an 
abenation  of  the  royal  domain.^ 

The  counsellors  of  parUament  were  originaUy  appointed 

1 5"';jj'of  die  art  Parlement.  Gamier,  Hist,  de  France,  t.  xvil.  p.  219- 

»Mal>ly,  1.  vi.  c.  5,  notes  19  and  21,    380.  »".*'•'*«»" 


246 


COUNSELLORS  OF  PARLLAlMENT.    Chap.  II.  Part  II 


. 


by  the  king ;  and  they  were  even  changed  according  to  cir- 
cumstances.    Ctiarles  V.  made  the  first  alteration,  by  per- 
mitting them  to  fill  up  vacancies  by  election,  which  usage 
continued  during  the  next  reign.     Charles  VII.  resumed  the 
Counsellors     nomination   of    fresh   members    upon   vacancies, 
of  parliament  Louis  XI.  cvcu  displaced  actual  counsellors.     But 
ufeand^by^^  in  1468,  from  whatever  motive,  he  published  a 
election.         most  important  ordinance,  declaring  the  presidents 
and  counsellors  of  parliament  immovable,  except  in  case  of 
legal  forfeiture.^     This  extraordinary  measure  of  conferring 
independence  on  a  body  which  had  already  displayed  a  con- 
sciousness of  its  eminent  privilege  by   opposing   the  regis- 
tration of  his  edicts,  is  perhaps  to  be  deemed  a  proof  of  that 
shortsightedness  as  to  points  of  substantial  interest  so  usually 
found  in  crafty  men.     But,  be  this  as  it  may,  there  was 
formed  in  the  parliament  of  Paris  an  independent  power  not 
emanating  from  the  royal  will,  nor  liable,  except  through 
force,  to  be  destroyed  by  it ;  which,  in  later  times,  became 
almost  the  sole  depositary,  if  not  of  what  we  should  call  the 
love  of  freedom,  yet  of  public  spirit  and  attachment  to  justice. 
France,  so  fertile  of  great  men  in  the  sixteenth  and  seven- 
teenth centuries,  might  better  spare,  perhaps,  from  her  annals 
any  class  and  description  of  them  than  her  lawyers.     Doubt- 
less the  parliament  of  Paris,  with  its  prejudices  and  narrow 
views,  its  high  notions  of  loyal  obedience  so  strangely  mixed 
up  with  remonstrances  and  resistance,  its  anomalous  privi- 
lege of   objecting  to  edicts,  hardly  approved  by  the  nation 
who  did  not  participate  in  it,  and  overturned  with  facility  by 
the  king  whenever  he  thought  fit  to  exert  the  sinews  of  liis 
prerogative,  was  but  an  inadequate  substitute  for  that  co- 
ordinate   sovereignty,  that   equal  concurrence  of   national 
representatives  in  legislation,  which  has  long  been  the  ex- 
clusive pride  of  our  government,  and  to  which  the  States- 
Gkneral  of  France,  in  their  best  days,  had  never  aspired. 
No  man  of  sane  understanding  would  desire  to  revive  insti- 
tutions both   uncongenial  to  modern  opinions    and  to   the 
natural  order  of  society.     Yet  the  name  of  the  parliament 
of  Paris  must  ever  be  respectable.     It  exhibited  upon  vari- 
ous occasions  virtues  from  which  human  esteem  is  as  insepa- 
rable as  the  shadow  from  the  substance  —  a  severe  adherence 
to  principles,  an  unaccommodating  sincerity,  individual  disin- 

1  Villaret,  t.  xir.  p.  231 ;  Encyclop^die,  art.  Parlement. 


Feudal  System.    DECLINE  OF  FEUDAL  SYSTEM. 


247 


terestedness  and  consistency.     Wliether  indeed  these  quali 
ties  have  been   so  generally  characteristic   of  the  French 
people  as  to  afford  no  peculiar  commendation  to  the  parlia- 
ment of  Paris,  it  is  rather  for  the  observer  of  the  present  day 
than  the  historian  of  past  times  to  decide.^ 

The  principal  causes  that  operated  in  subverting  the  feudal 
system  may  be  comprehended  under  three  distinct  causes  of 
heads  —  the  increasing  power  of  the  crown,  the  the  decline 
elevation  of  the  lower  ranks,  and  the  decay  of  the  system.^ 
feudal  principle. 

It  has  been  my  object  in  the  last  pages  to  point  out  the 
acquisitions  of  power  by  the  crown  of  France  in 
respect  of  legislative  and  judicial  authority.    The  of  power  by 
principal  augmentations  of  its  domain  have  been  ^^^  cro^^- 
historically  mentioned  in  the  last  chapter,  but  the  Augmenta- 
subject  may  here   require   further   notice.     The  tion  of  the 
French  kings  naturally  acted  upon  a  system,  in  °^^^' 
order  to  recover  those  possessions  which  the  improvidence 
or  necessities  of  the  Carlovingian  race  had  suffered  almost 
to  fall  away  from  the  monarchy.     This  course,  pursued  with 
tolerable  steadiness  for  two  or  three  centuries,  restored  their 
effective  power.     By  escheat  or  forfeiture,  by  bequest  or 
purchase,  by  marriage  or  succession,  a  number  of  fiefs  were 
merged  in  their  increasing  domain.^     It  was  part  of  their 


1  The  province  of  Languedoc,  with  its 
dependencies  of  Quercy  and  Ilouergue, 
having  belonged  almost  in  full  sover- 
eignty to  the  counts  of  Toulouse,  was  not 
perhaps  subject  to  the  feudal  resort  or 
appellant  jurisdiction  of  any  tribunal  at 
Paris.  Philip  the  Bold,  after  its  reunion 
to  the  crown,  established  the  parliament 
of  Toulouse,  a  tribunal  without  appeal, 
in  1280.  This  was,  however,  suspended 
from  1291  to  1443,  during  which  interval 
tho  parliament  of  Paris  exercised  an 
appellant  jurisdiction  over  Languedoc. 
Vaissette,  Hist,  de  Lang.  t.  iv.  p.  60,  71, 
524.  Sovereign  courts  or  parliaments 
were  established  by  Charles  VII.  at  Gre- 
noble for  Dauphine,  and  by  Louis  XI.  at 
Bordeaux  and  Dijon  for  Guicnne  and 
Burgundy.  The  parliament  of  Rouen  is 
not  so  ancient.  These  institutions  rather 
diminished  the  resort  of  the  parliament 
of  Paris,  which  had  extended  over  Bur- 
gundy, and,  in  time  of  peace,  over  Gui- 
enne. 

A  work  has  appeared  within  a  few 
years  wliich  throws  an  abundant  light  on 
the  judicial  syHtem,  and  indeed  on  the 
Wliole  civil  polity  of  France,  as  well  as 


other  countries,  during  the  middle  ages. 
I  allude  to  L'Esprit,  Origine,  et  Progrfes 
des  Institutions  judiciaires  des  princi- 
paux  Pays  de  I'Europe,  by  M.  Meyer,  of 
Amsterdam ;  especially  the  first  and  third 
volumes.  It  would  have  been  fortunate 
had  its  publication  preceded  that  of  the 
first  edition  of  the  present  work ;  as  I 
might  have  rendered  this  chapter  on  the 
feudal  system  in  many  respects  more 
perspicuous  and  correct.  As  it  is,  with- 
out availing  myself  of  M.  Meyer's  learn- 
ing and  acuteness  to  illustrate  the  ob- 
scurity of  these  researches,  or  discussing 
the  few  questions  upon  which  I  might 
venture,  with  deference,  to  adhere  to 
another  opinion,  neither  of  which  could 
conveniently  be  done  on  the  present 
occasion,  I  shall  content  myself  >vith  this 
general  reference  to  a  performance  of 
singular  diligence  and  ability,  which  no 
student  of  these  antiquities  should  neg- 
lect. In  all  essential  points  I  am  happy 
to  perceive  that  M.  Meyer's  views  of  the 
middle  ages  are  not  far  different  from  mj 
own.  —  Note  to  the  fourth  edit. 

2  The  word  domain  is  calculated,  by  a 
seeming  ambiguity,  to  perplex  the  roadet 


248 


CAUSES  OF  DECLINE       Chap.  H.  Part  U 


policy  to  obtain  possession  of  amerc-fiefs,  and  thus  to  bo 
come  tenants  of  their  own  barons.  In  such  cases  the  king 
was  obliged  by  the  feudal  duties  to  perform  homage,  by 
proxy,  to  his  subjects,  and  engage  himself  to  the  service  of 
his  fief.  But,  for  every  political  purpose,  it  is  evident  that 
the  lord  could  have  no  conmiand  over  so  formidable  a 
vassal.^ 

The  reunion  of  so  many  fiefs  was  attempted  to  be  secured 
by  a  legal  principle,  that  the  domain  was  inalienable  and 
imprescriptible.  This  became  at  length  a  fundamental 
maxim  in  the  law  of  France.  But  it  does  not  seem  to  be 
much  older  than  the  reign  of  Philip  V.,  who,  in  1318, 
revoked  the  alienations  of  his  predecessors,  nor  was  it 
thoroughly  established,  even  in  theory,  till  the  fifteenth  cen- 
tury.^ Alienations,  however,  were  certainly  very  repugnant 
to  the  policy  of  Philip  Augustus  and  St.  Louis.  But  there 
was  one  species  of  infeudation  so  consonant  to  ancient  usage 
and  prejudice  that  it  could  not  be  avoided  upon  any  sugges- 
tions of  policy ;  this  was  the  investiture  of  younger  princes 
of  the  blood  with  considerable  territorial  appanages.    It  is 


of  French  history.   In  its  primary  sense, 
the  domain  or  desmesne  (dominicnm)  or 
any  proprietor  was  confined  to  the  lands 
in  his  immediate  occupation  ;  excluding 
those  of  which  his  tenants,  whether  in 
fief  or  Tillenage,  whether  for  a  certain 
estate  or  at  will,  had  an  actual  posses> 
Bion.  or,  in  our  law-language,  pernancy 
of  the  profits.     Thus  the  compilers  of 
Domesday -Book    distinguish,    in    every 
manor,  the  lands  held  by  the  lord  in 
demesne   from    those   occupied   by  his 
Tilleins  or  others  tenants.    And  in  Eng- 
land the  word,  if  not  technically,  yet  in 
use,  is  still  confined  to  this  sense.    But 
in  a  secondary  acceptation,  more  usual 
in  France,  the  domain  comprehended  all 
lands  for  which  rent  was  paid  (ccnsives), 
and  which  contributed  to  the  regular 
annual  revenue  of  the  proprietor.    The 
great  distinction  was  bet^feen  lands  in 
demesne  and  those  in  fief.    A  grant  of 
territory,  whether  by  the  king  or  another 
lord,  comprising  as  well  domanial  estates 
and  tributary  town^  as  feudal  superiori- 
ties, was  expressed  to  convey  "in  domi- 
nico  quod  est  in  dominico,  et  in  feodo 
quod  est  in  feodo."  Since,  therefore,  fiefs, 
even  those  of  the  vavassors  or  inferior 
tenantry,  were  not  part  of  the  lord's 
domain,  there  is,  as  I  said,  an  apparent 
ambiguity  in  the  language  of  historians 
Who  speak  of  the  reunion  of  provinces  to 


the  royal  domain.  This  ambiguity,  how- 
ever, is  rather  apparent  than  real.  When 
the  duchy  of  Normandy,  for  example,  ia 
said  to  have  been  united  by  Philip  Au- 
gustus to  his  domain,  we  are  not,  of 
course,  to  suppose  that  the  soil  of  that 
province  became  the  private  estate  of 
the  crown.  It  continued,  as  before,  in 
the  possession  of  the  Norman  barons  and 
their  sub-vassals,  who  had  held  their  es- 
tates of  the  dukes.  But  it  is  meant  on- 
ly that  the  king  of  France  stood  exactly 
in  the  place  of  the  duke  of  Normandy, 
with  the  same  rights  of  possession  over 
lands  absolutely  in  demesne,  of  rents  and 
customary  payments  from  the  burgesses 
of  towns  and  tenants  in  roture  or  villen- 
age,  and  of  feudal  services  from  the  mil- 
itary vassals.  The  immediate  superiori- 
ty, and  the  immediate  resort,  or  juris- 
diction, over  these  devolved  to  the  crown; 
and  thus  the  duchy  of  Normandy,  con- 
sidered as  a  fief,  was  reunited,  or,  more 
properly,  merged  in  tbe  royal  domain, 
though  a  very  small  part  of  the  territory 
might  become  truly  domanial. 

1  See  a  memorial  on  the  acquisition  of 
arriere-flefs  by  the  kings  of  France,  in 
M6m.  de  I'Acad.  des  Inscript.  t.  i.  by  M. 
Dacier. 

2  Preface  au  15me  tome  dea  Ordon* 
nances,  par  M.  Pastoret. 


FBODiL  System.     OF  THE  FEUDAL  SYSTEM. 


249 


remarkable  that  the  epoch  of  appanages  on  so  great  a  scale 
was  the  reign  of  St.  Louis,  whose  efforts  were  constantly 
directed  against  feudal  independence.  Yet  he  invested  his 
brothers  with  the  counties  of  Poitou,  Anjou,  and  Artois, 
and  his  sons  with  those  of  Clermont  and  Alen9on.  This 
practice,  in  later  times,  produced  very  mischievous  conse- 
quences. 

Under  a  second  class  of  events  that  contributed  to  destroy 
the  spirit  of  the  feudal  system  we  may  reckon  the  abolition 
of  villenage,  the  increase  of  commerce  and  consequent  opu- 
lence of  merchants  and  artisans,  and  especially  the  institu- 
tions of  free  cities  and  boroughs.  This  is  one  of  the  most 
important  and  interesting  steps  in  the  progress  of  society 
during  the  middle  ages,  and  deserves  particular  consider- 
ation. 

The  provincial  cities  under  the  Roman  empire  enjoyed,  as 
is  well  known,  a  municipal  magistracy  and  the  ^^^^  and 
right  of  internal  regulation.     Nor  was  it  repug-  Jj*^^'*'*'^ 
nant  to  the  spirit  of  the  Frank  or  Gothic  con- 
querors to  leave  them  in  possession  of  these  privileges.     It 
was  long  believed,  however,  that  little,  if  any,  satisfactory 
proof  of  their  preservation,  either  in  France  or  Italy,  could 
be  found ;  or,  at  least,  if  they  had  ever  existed,  that  they 
were  wholly  swept  away  in  the  former  country  during  the 
confusion  of  the  ninth  century,  which  ended  in  the  establish- 
ment of  the  feudal  system. 

Every  town,  except  within  the  royal  domains,  was  subject 
to  some  lord.  In  episcopal  cities  the  bishop  possessed  a 
considerable  authority ;  and  in  many  there  was  a  class  of 
resident  nobility.  But  this  subject  has  been  better  eluci- 
dated of  late  years ;  and  it  has  been  made  to  appear  that 
instances  of  municipal  government  were  at  least  not  rare, 
especially  in  the  south  of  France,  throughout  the  long 
period  between  the  fall  of  the  western  empire  and  the  be- 
ginning of  the  twelfth  century,^  though  becoming  far  more 
common  in  its  latter  part 

The  earliest  charters  of  community  granted  to  towns  in 
France  have  been  commonly  referred  to  the  time  Earliest 
of  Louis  VL     Noyon,  St.  Quentin,   Laon,   and  ^^^"• 
Amiens  appear  to  have  been  the  first  that  received  emanci* 


1  [Note  XVin.] 


250 


CAUSES  OF  DECLINE       Chap.  II.  Part  IL 


Feudal  St  stem.     OF  THE  FEUDAL  SYSTEM. 


251 


I 


pation  at  the  hands  of  this  prince.^  The  chief  towns  in  the 
royal  domains  were  successively  admitted  to  the  same  privi- 
leges during  the  reigns  of  Louis  VI.,  Louis  VII.,  and  Philip 
Augustus.  This  example  was  gradually  followed  by  the 
peers  and  other  barons ;  so  that  by  the  end  of  the  thirteenth 
century  the  custom  had  prevailed  over  all  France.  It  has 
Causes  of  been  sometimes  imagined  that  the  crusades  had 
granting        ^  material  influence  in  promoting?  the  erection  of 

them  not  to  .  .  rjM  t.«  ii    i 

be  found  in  communities.  1  hose  expeditions  would  have  re- 
the  crusades,  ^^^^  Europc  for  the  prodigality  of  crimes  and 
miseries  which  attended  them  if  this  notion  were  founded 
in  reality.  But  I  confess  that  in  this,  as  in  most  other 
respects,  their  beneficial  consequences  appear  to  me  very 
much  exaggerated.  The  cities  of  Italy  obtained  their 
internal  liberties  by  gradual  encroachments,  and  by  the  con- 
cessions of  the  Franconian  emperors.  Those  upon  the 
Rhine  owed  many  of  their  privileges  to  the  same  monarchs, 
whose  cause  they  had  espoused  in  the  rebellions  of  Germany. 
In  France  the  charters  granted  by  Louis  the  Fat  could  hard- 
ly be  connected  w^ith  the  first  crusade,  in  which  the  cro^vn 
had  taken  no  part,  and  ivere  long  prior  to  the  second.  It 
was  not  till  fifty  years  afterwards  that  the  barons  seem  to 
have  trod  in  his  steps  by  granting  charters  to  their  vassals, 
and  these  do  not  appear  to  have  been  particularly  related  in 
time  to  any  of  the  crusades.  Still  less  can  the  corporations 
erected  by  Henry  II.  in  England  be  ascribed  to  these  holy 
wars,  in  which  our  country  had  hitherto  taken  no  consider- 
able share. 

The  establishment  of  chartered  towns  in  France  has  also 
been  ascribed  to  deliberate  policy.     "  Louis  the 

nor  in  _^  x         ./ 

deliberate  Gross,"  says  Robertson,  "  in  order  to  create  some 
^^^^y-  power  that  might    counterbalance   those   potent 

vassals  who  controlled  or  gave  law  to  the  crown,  first 
adopted  the  plan  of  conferring  new  privileges  on  the  towns 
situated  within  his  own  domain."  Yet  one  does  not  im- 
mediately perceive  what  strength  the  king  could  acquire  by 
granting  these  extensive  privileges  within  his  own  domains, 
S*  the  great  vassals  were  only  weakened,  as  he  asserts  after- 
wards, by  following  his  example.  In  what  sense,  besides, 
can  it  be  meant  that  Noyon  or  Amiens,  by  obtaining  certain 

1  Ordonnances  des  Kois,  ubi  supra,  p.  7.    These  charters  are  as  old  as  1110,  bnt 
the  precise  date  is  unknown. 


fi^nchises,  became  a  power  that  could  counterbalance  the 
duke  of  Normandy  or  count  of  Champagne?  It  is  more 
natural  to  impute  this  measure,  both  in  the  king  and  his 
barons,  to  their  pecuniary  exigencies ;  for  we  could  hardly 
doubt  that  their  concessions  were  sold  at  the  highest  price, 
even  if  the  existing  charters  did  not  exhibit  the  fullest  proof 
of  it.^  It  is  obvious,  however,  that  the  coarser  methods  of 
rapine  must  have  grow^n  obsolete,  and  the  rights  of  the  in- 
habitants of  towns  to  property  established,  before  they  could 
enter  into  any  compact  with  their  lord  for  the  circum- 
purchase  of  liberty.  Guibert,  abbot  of  St.  No-  If^^^^^ 
gent,  near  Laon,  relates  the  establishment  of  a  the  treaty 
community  in  that  city  with  circumstances,  that,  in  °^  ^°^* 
the  main,  might  probably  occur  in  any  other  place.  Con- 
tinual acts  of  violence  and  robbery  having  been  committed, 
which  there  was  no  police  adequate  to  prevent,  the  clergy 
and  principal  inhabitants  agreed  to  enfranchise  the  populace 
for  a  sum  of  money,  and  to  bind  the  whole  society  by  regula- 
tions for  general  security.  These  conditions  were  gladly  ac- 
cepted ;  the  money  was  paid,  and  the  leading  men  swore  to 
maintain  the  privileges  of  the  inferior  freemen.  The  bishop 
of  Laon,  who  happened  to  be  absent,  at  first  opposed  this 
new  institution,  but  was  ultimately  induced,  by  money,  to  take 
a  similar  oath ;  and  the  community  was  confirmed  by  the 
king.  Unluckily  for  himself,  the  bishop  afterwards  annulled 
the  charter ;  when  the  inhabitants,  in  despair  at  seeing  them-' 
selves  reduced  to  servitude,  rose  and  murdered  him.  This 
was  in  1112 ;  and  Guibert's  narrative  certainly  does  not  sup- 
port the  opinion  that  charters  of  community  proceeded  from 
the  policy  of  government.  He  seems  to  have  looked  upon 
them  with  the  jealousy  of  a  feudal  abbot,  and  blames  the 
bishop  of  Amiens  for  consenting  to  such  an  establishment  in 
his  city,  from  which,  according  to  Guibert,  many  evils  re- 
sulted. In  his  sermons,  Ave  are  told,  this  abbot  used  to 
descant  on  "  those  execrable  communities,  where  serfs, 
against  law  and  justice,  withdraw  themselves  from  the  power 
of  their  lords."  ^ 

In  some  cases  they  were  indebted  for  success  to  their  own 
courage  and  love  of  liberty.  Oppressed  by  the  exactions  of 
their  superiors,  they  had  recourse  to  arms,  and  united  them- 

1  Ordonnances  des  Rois,  t.  xi.  pr61kce,        2  Hist.  Littdraire  de  la  France,  t.  x.  4^ : 
p.  18  et  50  Du  Cange,  too.  Communia. 


f 


252 


CAUSES  OF  DECLINE        Chap.  H.  Part  IL 


Feudal  System.    OF  THE  FEUDAL  SYSTEM. 


253 


i\ 


■■\ 


selves  in  a  common  league,  confirmed  by  oath,  for  the  sake 
of  redress.  One  of  these  associations  took  place  at  Mans  as 
early  as  1067,  and,  though  it  did  not  produce  any  charter  of 
privileges,  is  a  proof  of  the  spirit  to  which  ultimately  the 
superior  classes  were  obliged  to  submit.*  Several  charters 
bear  witness  that  this  spirit  of  resistance  was  justified  by  op- 
pression. Louis  VII.  frequently  declares  the  tyranny  exer- 
cised over  the  towns  to  be  his  motive  for  enfranchising  them. 
Thus  the  charter  of  Mantes,  in  1150,  is  said  to  be  given 
"  pro  nimia  oppressione  pauperum  : "  that  of  Compiegne,  in 
1153,  "propter  enormitates  clericorum:"  that  of  Dourlens, 
granted  by  the  count  of  Ponthieu  in  1202,  *' propter  injurias 
et  molestias  a  potentibus  terrae  burgensibus  frequenter  il- 

latas."  * 

The  privileges  which  these  towns  of  France  derived  from 
The  extent  ^^^^^  charters  were  surprisingly  extensive  ;  espe- 
of  their  cially  if  we  do  not  suspect  some  of  them  to  be  mere- 
priTiiegca.  j^  j^^  confirmation  of  previous  usages.  They  >yere 
made  capable  of  possessing  common  property,  and  authorized 
to  use  a  common  seal  as  the  symbol  of  their  incorporation. 
The  more  oppressive  and  ignominious  tokens  of  subjection, 
such  as  the  fine  paid  to  the  lord  for  permission  to  marry  their 
children,  were  abolished.  Their  payments  of  rent  or  tribute 
were  limited  both  in  amount  and  as  to  the  occasions  when 
they  might  be  demanded :  and  these  were  levied  by  assessors 
of  their  own  electing.  Some  obtained  an  exemption  from 
assisting  their  lord  in  war ;  others  were  only  bound  to  follow 
him  when  he  personally  commanded ;  and  almost  all  limited 
their  service  to  one,  or,  at  the  utmost,  very  few  days.  If 
they  were  persuaded  to  extend  its  duration,  it  was,  like  that 
of  feudal  tenants,  at  the  cost  of  their  superior.  Their  cus- 
toms, as  to  succession  and  other  matters  of  private  right, 
were  reduced  to  certainty,  and,  for  the  most  part,  laid  down 
in  the  charter  of  incorporation.  And  the  observation  of 
tliese  was  secured  by  the  most  valuable  privilege  which  the 
chartered  towns  obtained  —  that  of  exemption  from  the  juris- 
diction, as  well  of  the  royal  as  the  territorial  judges.  They 
were  subject  only  to  that  of  magistrates,  either  wholly  elected 
by  themselves,  or,  in  some  places,  with  a  greater  or  less  par- 
ticipation of  choice  in  the  lord.    They  were  empowered  to 


make  special  rules,  or,  as  we  call  them,  by-laws,  so  as  not  to 
contravene  the  provisions  of  their  charter,  or  the  ordinances 
of  the  king.* 

It  was  undoubtedly  far  from  the  intention  of  those  barons 
who  conferred  such  immunities  upon  their  subjects 
to  relinquish  their  own  superiority  and  rights  not  of°fre?*^**^ 
expressly  conceded.  But  a  remarkable  change  to^s  with 
took  place  in  the  beginning  of  the  thirteenth  cen-  *  °^' 
tury,  which  affected,  in  a  high  degree,  the  feudal  constitu 
tion  of  France.  Towns,  distrustful  of  their  lord's  fidelity, 
sometimes  called  in  the  king  as  guarantee  of  his  engage- 
ments. The  first  stage  of  royal  interference  led  to  a  more 
extensive  measure.  Philip  Augustus  granted  letters  of  safe- 
guard to  communities  dependent  upon  the  barons,  assuring 
to  them  his  own  protection  and  patronage.^  And  this  was 
followed  up  so  quickly  by  the  court,  if  we  believe  some  wri- 
ters, that  in  the  next  reign  Louis  VlU.  pretended  to  the  im- 
mediate sovereignty  over  all  chartered  towns,  in  exclusion 
of  their  original  lords.*  Nothing,  perhaps,  had  so  decisive 
an  effect  in  subverting  the  feudal  aristocracy.  The  barons 
perceived,  too  late,  that,  for  a  price  long  since  lavished  in 
prodigal  magnificence  or  useless  warfare,  they  had  suffered 
the  source  of  their  wealth  to  be  diverted,  and  the  nerves  of 
their  strength  to  be  severed.  The  government  prudently 
respected  the  privileges  secured  by  charter.  Philip  the 
Long  established  an  officer  in  all  large  towns  to  preserve 
peace  by  an  armed  police  ;  but  though  subject  to  the  orders 
of  the  crown,  he  was  elected  by  the  burgesses,  and  they  took 
a  mutual  oath  of  fidelity  to  each  other.  Thus  shielded  under 
the  king's  mantle,  they  ventured  to  encroach  upon  the  neigh- 
boring lords,  and  to  retaliate  for  the  long  oppression  of  the 
commonalty.*    Every  citizen  was  bound  by  oath  to  stand  by 


1  Hecueil  des  HLstoriens,  t.  xir.  pr^fitce 
p  66. 


>  Ordonnances  des  Rois,  t.  xi.  priftflr* 
p.  17. 


1  Ordonnances  des  Rois,  prefaces  aux 
tomes  xi.  et  xii  ;  Du  Cange,  roc.  Com- 
munia,  Hostis ;  Carpentier,  Suppl.  ad  Du 
Canfice,  v.  Hostis;  Mably,  Observations 
Bur  rilist.  de  France,  I.  iii.  c.  7. 

2  Mably,  Observations  sur  I'Hist.  de 
France,  1.  iii.  c.  7. 

'  Reputabat  civitates  omnes  suas  esse, 
in  quibus  communiai  essent.  I  mention 
this  in  deference  to  Du  Cange,  Blably, 
and  others,  who  assume  the  feet  as  in- 
contrnvertible ;  but  the  passage  is  only 
in  a  monkish  chronicler,  whose  authority, 
trer©  it  even  more  explicit,  would  not 
weigh  much  in  a  matter  of  law.    Beau- 


manoir,  however,  sixty  years  afterwards, 
lays  it  down  that  no  one  can  erect  % 
commune  without  the  king's  consent, 
c.  60,  p.  268.  And  this  was  an  unques- 
tionable maxim  in  the  fourteenth  cen- 
tury.— Ordonnances,  t.  xi.  p.  29. 

<  In  the  charter  of  Philip  Augustus  to 
the  town  of  Roye  in  Picardy,  we  read, 
If  any  stranger,  whether  noble  or  villein, 
commits  a  wrong  against  the  town,  the 
mayor  shall  summon  him  to  answer  for 
it,  and  if  he  does  not  obey  the  summons 
the  mayor  and  inhabitants  may  go  and 
destroy  his  house,  in  which  we  (the  king) 
will  lend  them  our  assistance,  if  the  house 


254 


CAUSES  OF  DECLINE       Chap.  II.  Pabt  II. 


'II 


tlie  common  cause  against  all  aggressors,  and  this  obligation 
was  abundantly  fulfilled.     In  order  to  swell  their  numbers, 
it  became  the  practice  to  admit  all  who  came  to  reside  with- 
in their  walls  to  the  rights  of  burghership,  even  though  they 
were  villeins  appurtenant  to  the  soil  of  a  master  from  whom 
they  had  escaped.^     Others,  having  obtained  the  same  privi- 
leges, continued  to  dwell  in  the  country  ;  but,  upon  any  dis- 
pute  with   their   lords,   called   in    the   assistance    of  their 
community.     PhiHp  the  Fair,  erecting  certain  communes  in 
Languedoc,  gave  to  any  who  would  declare  on  oath  that  he 
was  aggrieved  by  the  lord  or  his  officers  the  right  of  being 
admitted  a  burgess  of  the  next  town,  upon  paying  one  mark 
of  sUver  to  the  king,  and  purchasing  a  tenement  of  a  defi- 
nite value.     But  the  neglect  of  this  condition  and  several 
other  abuses  arc  enumerated  in  an  instrument  of  Charles 
v.,  containmg  the  complaints  made  by  the  nobility  and  rich 
ecclesiastics  of  the  neighborhood.^     In  his  reign  the  feudal 
independence  had  so  completely  yielded,  that  the  court  be- 
gan to  give  in  to  a  new  policy,  which  was  ever  after  pur- 
sued ;  that  of  maintaining  the  dignity  and  privileges  of  the 
noble  class  against  those  attacks  which  wealth  and  liberty 
encouraged  the  plebeians  to  make  upon  them. 

The  maritime  towns  of  the  south  of  France 
tow'is"'^  entered  into  separate  alliances  with  foreign  states  ; 
peculiarly  ^s  Narbouuc  with  Genoa  in  1166,  and  Montpel- 
Independent.  ^^^  .^  ^^^  ^^^^  ccutury.     At  the  death  of  Ray. 


be  too  stronfc  for  the  burgesses  to  pull 
down:  except  the  case  of  one  of  our 
vassals,  whose  house  shall  not  be  de- 
stroyed ;  but  he  shall  not  be  allowed  to 
enter  the  town  till  he  has  made  amends 
at  the  discretion  of  the  mayor  and  jurats. 
Ordonnances  des  Rois,  t.  xi.  p.  228.    This 
summary  process  could  only,  as  I  con- 
ceive, be  emoloyed  if  the  house  was  situ- 
ated within  the  jurisdiction  of  the  com- 
mune.    See  Charter  of  Crespy,  id.  p.  253. 
In  other  cases  the  application  for  redress 
was  to  be  made  in  the  first  instance  to 
the  lord  of  the  territory  wherein  the  de- 
linquent resided.     But  upon  his  failing 
to  enforce  satisfaction,  the  mayor  and 
jurats  might  satisfy  themselves;  liceat 
justitiam  quserere,  prout  poterunt ;  that 
is,  might  pull  down  his  house  provided 
they  could.    Mably  positively  maintiins 
the  communes  to  have  had  the  right  of 
levying  war,  1.  iii.  c.  7.    And  Brequigny 
seems  to  coincide  with  him.    Ordonnan- 
■)  pr^ce,  p.  46 ;  see  also  Hist,  de  Lan- 


guedoc, t.  Iii.  p.  115.  The  territory  of  a 
commune  was  called  Pax  (p.  186);  an 
expressive  word. 

1  One  of  the  most  remarkable  privi- 
leges of  chartered  towns  was  that  of  con- 
ferring freedom  on  runaway  serfs,  if  they 
were  not  reclaimed  by  their  masters  with- 
in a  certain  time.  This  was  a  pretty 
general  law.  Si  quis  nativus  quiets  per 
unum  annum  et  unum  diem  in  aliqul 
villa  privilegiata  manserit.  ita  quod  in 
eorum  conununem  gyldam  tanquam  civis 
rcceptus  fuerit,  eo  ipso  i  villenagio  Hbe- 
rabitur.  Glanvil,  1.  v.  c.  6.  The  cities 
of  Languedoc  had  the  same  privilege. 
Vaissette,  t.  iii.  p.  528.  530.  And  the 
editor  of  the  Ordonnances  speaks  of  it  as 
general,  p.  44.  A  similar  custom  was 
established  in  Germany ;  but  the  term 
of  prescription  was,  in  some  places  at 
least,  muf'h  longer  than  a  year  and  a 
dav.  Pfeffcl,  t.  i.  p.  294. 

2  Martenne,  Thesaur.    Anecd.  t.  I.  p. 

1515. 


M 


Feudal  System.     OF  THE  FEUDAL  SYSTEM. 


255 


mond  VII.,  Avignon,  Aries,  and  Marseilles  affected  to  set  up 
republican  governments;  but  they  were  soon  brought  into 
subjection.*  The  independent  character  of  maritime  towns 
was  not  peculiar  to  those  of  the  southern  provinces.  Ed- 
ward II.  and  Edward  III.  negotiated  and  entered  into  alli- 
ances with  the  towns  of  Flanders,  to  which  neither  their  count 
nor  the  king  of  France  were  parties.^  Even  so  late  as  the 
reign  of  Louis  XI.  the  duke  of  Burgundy  did  not  hesitate  to 
address  the  citizens  of  Rouen,  in  consequence  of  the  capture 
of  some  ships,  as  if  they  had  formed  an  independent  state.* 
This  evidently  arose  out  of  the  ancient  customs  of  private 
warfare,  wliich,  long  after  they  were  repressed  by  a  stricter 
police  at  home,  continued  with  lawless  violence  on  the  ocean, 
and  gave  a  character  of  piracy  to  the  commercial  enterprise 
of  the  middle  ages. 

Notwithstanding  the  forces  which  in  opposite  directions 
assailed  the  feudal  system  from  the  enhancement  Mjutary 
of  royal  prerogative,  and  the  elevation  of  the  service  of 
chartered  towns,  its  resistance  would  have  been  tenants 
much  longer,  but  for  an  intrinsic  decay.     No  po-  ^^^^Jj^y. 
litical  institution  can  endure  which  does  not  rivet 
itself  to  the  heai'ts  of  men  by  ancient  prejudice  or  acknowl- 
edged interest.     The  feudal  compact  had  originally  much  of 
this  character.     Its  principle  of  vitality  was  warm  and  ac- 
tive.    In  fulfilling  the  obUgations  of  mutual  assistance  and 
fidelity  by  military  service,  the  energies  of  friendship  were 
awakened,    and  the    ties  of  moral   sympathy   superadded 
to  those  of  positive  compact.     While  private  wars  Avere  at 
their  height,  the  connection  of  lord  and  vassal  grew  close  and 
cordial,  in  proportion  to  the  keenness  of  their  enmity  towards 
others.     It  was  not  the  object  of  a  baron  to  disgust  and  im- 
poverish his  vavassors  by  enhancing  the  profits  of  seigniory ; 
for  there  was  no  rent  of  such  price  as  blood,  nor  any  labor 
so  serviceable  as  that  of  the  sword. 

But  the  nature  of  feudal  obligation  was  far  better  adapted 
to  the  partial  quarrels  of  neighboring  lords  than  to  the  wars 
of  kingdoms.  Customs,  founded  upon  the  poverty  of  the 
smaller  gentry,  had  limited  their  martial  duties  to  a  period 
never  exceeding  forty  days,  and  diminished  according  to  the 
subdivisions  of  the  fief.     They  could  undertake  an  expedi- 


1  Velly,  t.  iv.  p.  446,  t.  v.  p.  97 
>  Bymer>  t.  ir.  pasaim 


3  Oarnier,  t.  xvii.  p.  896. 


256 


CAUSES  OF  DECLINE       Chap.  n.  Pakt  U 


N 


tion,  but  not  a  campaign ;  they  could  bum  an  open  town,  but 
had  seldom  leisure  to  besiege  a  fortress.  Hence,  when  the 
kings  of  France  and  England  were  engaged  in  wars  which, 
on  our  side  at  least,  might  be  termed  national,  the  inefficiency 
of  the  feudal  militia  became  evident.  It  was  not  easy  to 
employ  the  military  tenants  of  England  upon  the  frontiers 
of  Normandy  and  the  Isle  of  France,  within  the  limits  of 
their  term  of  service.  When,  under  Henry  II.  and  Ricliard 
I.,  the  scene  of  war  was  frequently  transferred  to  the  Ga- 
ronne or  the  Charente,  this  was  still  more  impracticable. 
The  first  remedy  to  which  sovereigns  had  recourse  was  to 
keep  their  vassals  in  service  after  the  expiration  of  their 
forty  days,  at  a  stipulated  rate  of  pay.^  But  this  was 
frequently  neither  convenient  to  the  tenant,  anxious  to 
return  back  to  his  household,  nor  to  the  king,  who  could  not 
readily  defray  the  charges  of  an  army.^  Something  was  to 
be  devised  more  adequate  to  the  exigency,  though  less  suita- 
ble to  the  feudal  spirit.  By  the  feudal  law  tlie  fief  was,  in 
strictness,  forfeited  by  neglect  of  attendance  upon  the  lord's 
expedition.  A  milder  usage  introduced  a  fine,  which,  how- 
ever, was  generally  rather  heavy,  and  assessed  at  discretion. 
An  instance  of  this  kind  has  been  noticed  in  an  earlier  part 
of  the  present  chapter,  from  the  muster-roll  of  Philip  the 
Bold's  expedition  against  the  count  de  Foix.  The  first  Nor- 
man kings  of  England  made  these  amercements  very  oppres- 
sive. But  when  a  pecuniary  payment  became  the  regular 
course  of  redeeming  personal  service,  which,  under  the  name 
of  escuage,  may  be  referred  to  the  reign  of  Henry  II.,  it 
was  essential  to  liberty  that  the  military  tenant  should  not 
lie  at  the  mercy  of  the  crown.*  Accordingly,  one  of  the 
most  important  provisions  contained  in  the  Magna  Chai'ta  of 
John  secures  the  assessment  of  escuage  in  parliament.  This 
is  not  renewed  in  the  charter  of  Henry  III.,  but  the  practice 
during  his  reign  was  conformable  to  its  spirit. 

The  feudal  military  tenures  had  superseded  that  earlier 


1  Du  Cange,  et  Carpentier,  roc.  Hostis. 

*  There  are  several  instances  where 
armies  broke  up,  at  the  expiration  of 
their  limited  term  of  service,  in  conse- 
quence  of  disagreement  with  the  sover- 
eign.  Thus,  at  the  siege  of  Avignon  in 
1226,  Theobald  count  of  Champagne  re- 
tired with  his  troops,  that  he  might  not 
promote  the  king's  designs  upon  Lan- 


guedoc.  At  that  of  Angers,  in  1230, 
nearly  the  same  thing  occurred.  —  M. 
Paris,  p.  308. 

'  Madox,  Hist,  cf  Exchequer,  c.  16, 
conceives  that  escuage  may  have  been 
levied  by  Her  ry  I.;  the  earliest  mention 
of  it,  however,  in  a  record,  is  under 
Henr>'  II.  in  1159.— Lyttelton's  Hist,  of 
Henry  II.  vol.  ir.  p.  18 


FSUDAL  SrvrsM.      OF  THE  FEUDAL  SYSTEM. 


257 


system  of  public  defence  which  called  upon  every  man,  and 
especially  every  landholder,  to  protect  his  country.*  The 
relations  of  a  vassal  came  in  place  of  those  of  a  subject  and 
a  citizen.  This  was  the  revolution  of  the  ninth  century.  In 
the  twelfth  and  thirteenth  another  innovation  rather  mor^? 
gradually  prevailed,  and  marks  the  third  period  in  j,^  j^  ^^^^ 
the  military  history  of  Europe.  Mercenary  troops  of  mercenary 
were  substituted  for  the  feudal  militia.  Undoubt-  ^'^p'* 
edly  there  could  never  have  been  a  time  when  valor  was  no' 
to  be  purchased  with  money  ;  nor  could  any  employment  of 
surplus  wealth  be  more  natural  either  to  the  ambitious  or  the 
weak.  But  we  cannot  expect  to  find  numerous  testimonies 
of  facts  of  this  description.'^  In  public  national  history  I  am 
aware  of  no  instances  of  what  may  be  called  a  regular  army 
more  ancient  than  the  body-guards,  or  huscarles,  of  Canute 
the  Great.  These  select  troops  amounted  to  six  thousand  men, 
on  whom  he  probably  relied  to  ensure  the  subjection  of  Eng- 


1  Every  citizen,  however  extensive 
may  be  his  privileges,  is  naturally  bound 
to  repel  invasion.  A  common  rising  of 
the  people  in  arms,  though  not  always 
the  most  convenient  mode  of  resistance, 
is  one  to  which  all  governments  have  a 
right  to  resort.  Volumus,  says  Charles 
the  Bald,  utcujuscunque  nostrum  homo, 
in  cujuscunque  regno  sit,  cum  seniore 
Buo  in  hostcm,  vel  aliis  suis  utilitatibus 
pergat ;  nisi  talis  regni  invasio,  quam 
Lanttoeri  dicunt  (quod  absit),  acciderit 
nt  omnis  populus  illius  regni  ad  earn  re- 
pellondam  communiter  pergat.  Baluzii 
Capitularia,  t.  ii.  p.  44.  This  very  ancient 
mention  of  the  Landwehr^  or  insurrec- 
tional militia,  so  signally  called  forth  in 
the  present  age,  will  strike  the  reader. 

The  obligation  of  bearing  arms  in  de- 
fensive warfare  was  peculiarly  incumbent 
on  the  freeholder  or  alodialist.  It  made 
part  of  the  trinoda  necessitas,  in  Eng- 
land, erroneously  confounded  by  some 
writers  with  a  feudal  military  tenure. 
But  when  these  latter  tenures  became 
nearly  universal,  the  original  principles 
of  public  defence  were  almost  obliterated, 
and  I  know  not  how  far  alodial  proprie- 
tors, where  they  existed,  were  called  upon 
for  service.  Kings  did  not.  however,  al- 
ways dispense  with  such  aid  as  the  lower 
people  could  supply.  Ix>uis  the  Fat  call- 
ed out  the  militia  of  towns  and  parishes 
under  their  priests,  who  marched  at  their 
head,  though  they  did  not  actually  com- 
mand them  in  battle.  In  the  charters  of 
Incorporation  which  towns  received  the 
number  of  troops  required  wa£  usually 

VOL.  I.  17 


expressed.  These  formed  the  infantry  of 
the  French  armies,  perhaps  more  numer- 
ous than  formidable  to  an  enemy.  In 
the  war  of  the  same  prince  with  the  em- 
peror Henry  V.  all  the  population  of  the 
frontier  provinces  wa.s  called  out ;  for  the 
militia  of  the  counties  of  Rhcims  and 
Ch&lons  is  said  to  have  amounted  to 
sixty  thousand  men.  Philip  IV.  sum- 
moned one  foot-soldier  for  every  twenty 
hearths  to  take  the  field  after  the  battle 
of  Courtrai.  (Daniel,  Hist,  de  la  Milice 
Fran<jaise  ;  Velly,  t.  iii.  p.  62,  t.  vii.  p. 
287.)  Commissions  of  array,  either  to 
call  out  the  whole  population,  or,  as  was 
more  common,  to  select  the  most  service- 
able by  forced  impressment,  occur  in 
English  records  from  the  reign  of  Edward 
I.  (Stuart's  View  of  Society,  p.  400) ;  and 
there  are  even  several  writs  directed  to 
the  bishops,  enjoining  them  to  cause  all 
ecclesiastical  persons  to  be  arrayed  and 
armed  on  account  of  an  expected  in- 
vasion.—Rymer,  t.  vi.  p.  726  (46  E.  III.), 
t.  vii.  p.  162  (1  R.  II.),  and  t.  vui.  p.  270 
(3H.  IV.) 

2  The  preface  to  the  eleventh  volume 
of  Recueil  des  Historiens,  p.  232,  notices 
the  word  solidarii,  fcr  hired  soldiers,  as 
early  as  1030.  It  ^vas  pwbably  unusual 
at  that  time ;  though  in  Roger  Iloveden, 
Ordericus  Vitalis,  and  other  wi-iters  of 
the  twelfth  century,  it  occurs  not  very 
unfrcquently.  We  may  perhaps  conjec- 
ture the  abbots,  as  both  the  richest  and 
the  most  defenceless,  to  have  been  the 
first  who  availed  themselves  of  merce- 
nary valor. 


258 


CAUSES  OF  DECLINE      Chap.  U.  Pabt  IL 


land.  A  code  of  martial  law  compiled  for  their  regulation  is 
extant  in  substance  ;  and  they  are  reported  to  have  displayed 
a  military  spirit  of  mutual  union,  of  which  their  master  stood 
in  awe.^  Harold  II.  is  also  said  to  have  had  Danish  soldiers 
in  pay.  But  the  most  eminent  example  of  a  mercenary  army 
is  that  by  whose  assistance  William  achieved  the  conquest 
of  England.  Historians  concur  in  representing  this  force  to 
have  consisted  of  sixty  thousand  men.  He  afterwards  hired 
soldiers  from  various  regions  to  resist  an  invasion  from 
Norway.  "William  Rufus  pursued  the  same  course.  Hired 
troops  did  not,  however,  in  general  form  a  considerable 
portion  of  armies  till  the  wars  of  Henry  II.  and  Philip 
Augustus.  Each  of  these  monarchs  took  into  pay  large 
bodies  of  mercenaries,  chiefly,  as  we  may  infer  from  their 
appellation  of  Braban9ons,  enlisted  from  the  Netherlands. 
These  were  always  disbanded  on  cessation  of  hostilities ;  and, 
unfit  for  any  habits  but  of  idleness  and  license,  oppressed 
the  peasantry  and  ravaged  the  country  without  control.  But 
their  soldier-like  principles  of  indiscriminate  obedience,  still 
more  than  their  courage  and  field-discipline,  rendered  them 
dear  to  kings,  who  dreaded  the  free  spirit  of  a  feudal  army. 
It  was  by  such  a  foreign  force  that  John  saw  himself  on  the 
point  of  abrogating  the  Great  Charter,  and  reduced  his 
barons  to  the  necessity  of  tendering  his  kingdom  to  a  prince 
of  France.^ 

It  now  became  manifest  that  the  probabilities  of  war 
inclined  to  the  party  who  could  take  the  field  with  selected 
and  experienced  soldiers.  The  command  of  money  was  the 
command  of  armed  hirelings,  more  sure  and  steady  in  battle,  as 


1  For  these  facts,  of  which  I  remember 
no  mention  in  English  history,  I  am  in- 
debted to  the  Danish  collection  of  Lan- 
gebek,  Scriptores  Rerum  Danicarum 
Medii  ^vi.  Though  the  Leges  Castrensis 
Canuti  Magni,  published  by  him,  t.  iii. 
p.  141,  are  not  in  their  original  statutory 
form,  they  proceed  from  the  pen  of 
Sweno,  the  earliest  Danish  historian,  who 
lived  under  WaKIcmar  I.,  less  than  a 
century  and  a  half  after  Cannte.  I  ap- 
ply the  word  huscarle,  familiar  in  Anglo- 
Baxon  documents,  to  these  military  re- 
tainers, on  the  authority  of  Langebek,  in 
another  place,  t.  ii.  p.  454.  The  object  of 
Canute's  institutions  was  to  produce  an 
uniformity  of  discipline  and  conduct 
among  his  soldiers,  and  thus  to  separate 
them  more  decidedly  from  the  people. 


They  were  distinguished  by  their  drtsf 
and  golden  ornaments.  Their  manners 
towards  each  other  were  regulated ;  quar* 
rels  and  abusive  words  subjected  to  a 
penalty.  All  disputes,  even  respecting 
lands,  were  settled  among  themselves  at 
their  general  parliament.  A  singular 
story  is  told,  which,  if  false,  may  still 
illustrate  the  traditionary  character  of 
these  guards :  that,  Canute  having  killed 
one  of  their  body  in  a  fit  of  anger,  it 
was  debated  whether  the  king  should  in- 
cur the  legal  penalty  of  death  ;  and  this 
was  only  compromised  by  his  kneelinir 
on  a  cushion  before  the  assembly,  and 
awaiting  their  permission  to  rise.  T.  iil. 
p.  150. 
3  Matt.  Paris. 


Fbudal  System.      OF  THE  FEUDAL  SYSTEM. 


259 


we  must  confess  with  sliame,  than  the  patriot  citizen.  Though 
the  nobility  still  composed  in  a  great  degree  the  strength  of  an 
army,  yet  they  served  in  a  new  character ;  their  animating 
spirit  was  that  of  chivalry  rather  than  of  feudal  tenure  ;  their 
connection  with  a  superior  was  personal  rather  than  territorial 
The  crusades  had  probably  a  material  tendency  to  effectuate 
this  revolution  by  substituting,  what  was  inevitable  in  those 
expeditions,  a  voluntary  stipendiary  service  for  one  of  abso 
lute  obligation.^  It  is  the  opinion  of  Daniel  that  in  the  thir- 
teenth century  all  feudal  tenants  received  pay,  even  during 
their  prescribed  term  of  service.^  This  does  not  appear  con- 
sonant to  the  law  of  fiefs  ;  yet  their  poverty  may  often  have 
rendered  it  impossible  to  defray  the  cost  of  equipment  on 
distant  expeditions.  A  large  proportion  of  the  expense  must 
in  all  cases  have  fallen  upon  the  lord ;  and  hence  that  per- 
petually increasing  taxation,  the  effects  whereof  we  have 
lately  been  investigating. 

A  feudal  army,  however,  composed  of  all  tenants  in  chief 
and  their  vassals,  still  presented  a  formidable  array.  It  is 
very  long  before  the  paradox  is  generally  admitted  that 
numbers  do  not  necessarily  contribute  to  the  intrinsic  effi- 
ciency of  armies.  Philip  IV.  assembled  a  great  force  by 
publishing  the  arriere-ban,  or  feudal  summons,  for  his  un- 
happy expedition  against  the  Flemings.  A  small  and  more 
disciplined  body  of  troops  would  not,  probably,  have  met 
with  the  discomfiture  of  Courtray.  Edward  I.  and  Edward 
II.  frequently  called  upon  those  who  owed  mihtary  service, 
in  their  invasions  of  Scotland.'  But  in  the  French  wars  of 
Edward  III.  the  whole,  I  think,  of  his  army  served  for  pay, 
and  was  raised  by  contract  with  men  of  rank  and  influence, 
who  received  wages  for  every  soldier  according  to  his  station 
and  the  arms  he  bore.  The  rate  of  pay  was  so  remarkably 
high,  that,  unless  we  imagine  a  vast  profit  to  have  been 
intended  for  the  contractors,  the  private  lancers  and  even 
archers  must  have  been  chiefly  taken  from  the  middling 


1  Joinville,  in  several  passages,  inti- 
mates that  most  of  the  knights  serving  in 
St.  Louis's  crusade  received  pay,  either 
from  their  superior  lord,  if  he  were  on 
the  expedition,  or  from  some  other,  into 
whose  service  they  entered  for  the  time. 
He  set  out  himself  with  ten  knights, 
whom  he  afterwards  found  it  difficult 
enough  to  maintain.  — (Collection  des 
M^oires,  t.  L  p.  49,  and  t.  ii.  p.  53. 


8  Hist,  de  la  Milice  Fran^aise,  p.  84. 
The  use  of  mercenary  troops  prevailed 
much  in  Germany  during  the  thirteenth 
century.  Schmidt,  t.  iv.  p.  89.  In  Italy 
it  was  also  very  common ;  though  its 
general  adoption  Is  to  be  referred  to  the 
commencement  of  the  succeeding  age. 

3  Rymer,  t.  in.  p.  173, 189, 199,  et  alibi 
ssepius. 


260 


CAUSES  OF  DECLINE      Chap.  U.  Part  II. 


dasses,  the  smaller  gentry,  or  rich  yeomanry  of  England. 
This  part  of  Edward's  military  system  was  probably  a  lead- 
ing cause  of  his  superiority  over  the  French,  among  whom 
the  feudal  tenantry  were  called  into  the  field,  and  swelled  their 
unwieldy  armies  at  Crecy  and  Poitiers.     Both  parties,  how- 
ever, in  this  war  employed  mercenary  troops.     Philip  had 
15,000  Italian  crossbow-men  at  Crecy.    It  had  for  some  time 
before  become  the  trade  of  soldiers  of  fortune  to  enlist  under 
leaders  of  the  same  description  as  themselves  in  companies 
of  adventure,  passing  from  one  service  to  another,  uncon- 
cerned as  to  the  cause  in  which  they  were  retained.     These 
military  adventurers  played  a  more  remarkable  part  in  Italy 
than  in  France,  though  not  a  little  troublesome  to  the  latter 
country.     The  feudal  tenures  had  at  least  furnished  a  loyal 
native  militia,  whose  duties,  though  much  limited  in  the  ex- 
tent, were  defined  by  usage  and  enforced  by  principle.    They 
gave  place,  in  an  evil  hour  for  the  people  and  eventually  for 
sovereigns,  to  contracts  with  mutinous  hirelings,  genei*ally 
strangers,  whose  valor  in  the  day  of  battle  inadequately  re- 
deemed their  bad  faith  and  vexatious  rapacity.     France,  in 
her  calamitous  period  under  Charles  VI.  and  Charles  VII., 
experienced  the  full  effects  of  military  licentiousness.    At  the 
expulsion  of  the  English,  robbery  and  disorder  were  substi- 
tuted for  the  more  specious  plundering  of  war.     Perhaps  few 
Establish-      measures  have  ever  been  more  popular,  as  few 
ment  of  a      certainly  have  been  more  politic,  than  the  estab- 
foSiX         lishment  of  regular  companies  of  troops  by  an  ordi- 
Charies  vn.    jjance  of  Charies  VII.  in  1444.*    These  may  justly 
pass  for  the  earliest  institution  of  a  standing  army  in  Europe, 
though  some  Italian  princes  had  retained  troops  constantly  in 
their  pay,  but  prospectively  to  hostilities,  which  were  seldom 


I  Many  proofs  of  this  may  be  adduced 
from  Rymer's  Collection.    The  following 
is  from  Brady's  IDstory  of  England,  vol. 
ii.  Appendix,  p.  86.    tho  wages  allowed 
by  contract  in  1346,  were  for  an  earl,  Qs. 
8rf.  per  day  ;  for  barons  and  bannerets, 
4s. ;  for  knights,  25. ;  for  squires,  l5. ;  for 
archers  and  hobelers  (light  cavalry),  6d.; 
for  archers  on  foot,  3d ;  for  Welshmen, 
2d.    These  sums  multiplied  by  about  24, 
to  bring  them  on  a  level  with  the  present 
▼alue  of  money  [1818],  will  show  the  pay 
to  have  been  extremely  high.    The  cav- 
alry   of  course,    furnished    themselves 
with  horses  and  equipments,  as  well  as 
arms,  which  were  very  expensive.     See 
too  Chap.  I.  p.  77,  of  this  volume. 


8  The  estates  at  Orleans  in  1439  had 
advised  this  measure,  aa  is  recited  in  the 
preamble  of  the  ordinance.  Ordonnan- 
ces  des  Rois,  t.  xii.  p.  312.  Sismondi  ob- 
serves (vol.  xiii.  p.  352)  that  very  little  is 
to  be  found  in  historians  about  the  es- 
tablishment of  these  compagnies  d'or- 
donnance,  though  the  most  important 
event  in  the  reign  of  Charles  VII.  The 
old  soldiers  of  fortune  who  pillaged  the 
country  either  entered  into  the.<e  com- 
panies or  were  disbanded,  and  after  their 
dispersion  were  readily  made  amenable 
to  the  law.  This  writer  Is  exceedingly 
full  on  the  subject. 


; 


Feudal  System.    OF  THE  FEUDAL  SYSTEM. 


261 


long  intermitted.  Fifteen  companies  were  composed  each  of 
a  hundred  men  at  arms,  or  lancers  ;  and,  in  the  language  of 
that  age,  the  whole  body  was  one  thousand  five  hundred 
lances.  But  each  lancer  had  three  archers,  a  coutiller,  or 
soldier  armed  with  a  knife,  and  a  page  or  valet  attached  to 
him,  all  serving  on  horseback  —  so  that  the  fifteen  companies 
amounted  to  nine  thousand  cavahy.^  From  these  small  be- 
ginnings, as  they  must  appear  in  modern  times,  arose  the 
regular  ai-my  of  France,  which  every  succeeding  king  was 
solicitous  to  augment.  The  ban  was  sometimes  convoked, 
that  is,  the  possessors  of  fiefs  were  called  upon  for  military 
service  in  subsequent  ages ;  but  with  more  of  ostentation  than 
real  efficiency. 

The  feudal  compact,  thus  deprived  of  its  original  efficacy 
soon  lost  the  respect  and  attachment  which  had  ^^ 
attended  it.     Homage  and  investiture  became  un-  fS  °' 
meaning  ceremonies ;  the  incidents  of  rehef  and  P"""?!®"- 
aid  were  felt  as   burdensome  exactions.     And   indeed   the 
rapacity  with  which   these  were  levied,  especially  by  our 
Norman  sovereigns  and  their  barons,  was  of  itself  sufficient  to 
extinguish  all   the  generous  feelings   of  vassalage.     Thus 
galled,  as  it  were,  by  the  armor  which  he  was  compelled  to 
wear,  but  not  to  use,  the  mihtary  tenant  of  England  looked 
no  longer  with  contempt  upon  the  owner  of  lands  in  socage, 
who  held  liis  estate  with  almost  the  immunities  of  an  alodial 
proprietor.     But  the  profits  which  the  crown  reaped  from 
wardships,  and  perhaps  the  prejudices  of  lawyers,  prevented 
the  abolition  of  military  tenures  till  the  restoration  of  Charles 
n.     In   France  the  fiefs  of  noblemen  were  very  unjustly 
exempted  from  all  territorial  taxation,  though  the  tallies  of 
later  times  had,  strictly  speaking,  only  superseded  the  aids  to 
which  they  had  been  always  hable.    The  distinction,  it  is  weU 
kno\yn,  was  not  annihilated  till  that  event  wliich  annihilated 
all  distinctions,  the  French  revolution. 

^  It  is  remarkable  that,  although  the  feudal  system  established 
in  England  upon  the  Conquest  broke  in  very  much  upon  our 
ancient  Saxon  liberties  —  though  it  was  attended  with  harsher 
servitudes  than  in  any  other  country,  particularly  those  two 
mtolerable  burdens,  wardship  and  marriage  — yet  it  has  in 
general  been  treated  with  more  favor  by  English  than  French 

^  i^nieljllist.  dela  Milice  Fran^alse.  p.  266;  ViUaret,  Hist,  de  France,  t.  xr 


262 


ADVANTAGES  AND  EVILS      Chap.  H.  Part  IL 


writers.     The  hardiness  with  which  the  ancient  barons  re- 
sisted their  sovereign,  and  the  noble  struggles  which  they 
made  for  civil  liberty,  especially  in  that  Great  Charter,  the 
basement  at  least,  if  not  the  foundation,  of  our  free  constitu- 
tion, have  met  with  a  kindred  sympathy  in  the  bosoms  of 
Encrlishmen;  while,  from  an  opposite  feeling,  the  French 
have  been  shocked  at  that  aristocratic  independence  which 
cramped  the  prerogatives  and  obscured  the  lustre  of  their 
crown.     Yet  it  is  precisely  to  this  feudal  policy  that  France 
is  indebted  for  that  which  is  ever  dearest  to  her  children, 
their  national  splendor  and  power.     That  kingdom  would 
have  been  irretrievably  dismembered  in  the  tenth  century,  if 
the  laws  of  feudal  dependence  had  not  preserved  its  integrity. 
Empires  of  unwieldy  bulk,  like  that  of  Charlemagne,  have 
several  times  been  dissolved  by  the  usurpation  of  provincial 
governors,  as  is  recorded  both  in  ancient  history  and  in  that 
of  the  Mahometan  dynasties  in  the  East.    What  question  can 
there  be  that  the  powerful  dukes  of  Guienne  or  counts  of 
Toulouse  would  have  thrown  off  all  connection  with  the 
crown  of  France,  when  usurped  by  one  of  their  equals,  if  the 
slight  dependence  of  vassalage  had  not  been  substituted  for 
legitimate  subjection  to  a  sovereign  ?  ,  , ., , 

It  is  the  previous  state  of  society,  under  the  grandchildren 
of  Charlemagne,  which  we  must  always  keep  in  mind,  if  we 
would  appreciate  the  effects  of  the  feudal  system  upon  the 
welfare  of  mankind.  The  institutions  of  the  eleventh  century 
must  be  compared  with  those  of  the  ninth,  not  with  the  ad- 
vanced civilization  of  modem  times.  If  the  view  that  I  have 
taken  of  those  dark  ages  is  correct,  the  state  of  anarchy 
which  we  usually  term  feudal  was  the  natural  result  of  a  vast 
and  barbarous  empire  feebly  administered,  and  the  cause 
rather  than  effect  of  the  general  establishment  of  feudal  ten- 
ures. These,  by  preserving  the  mutual  relations  of  the  whole, 
kept  alive  the  feeling  of  a  common  countiy  and  common 
duties,  and  settled,  after  the  lapse  of  ages,  mto  the  free  con- 
stitution of  England,  the  firm  monarchy  of  France,  and  the 
federal  union  of  Germany. 

The  utility  of  any  fonn  of  polity  may  be  estimated  by  its 
effect  upon  national  greatness  and  security,  upon  civil  liberty 
and  private  rights,  upon  the  tranquillity  and  order  of  society, 
upon  the  increase  and  diffusion  of  wealth,  or  upon  the 
general  tone  of  moral  sentiment  and  energy.     The  feudal 


Feudal  System.      OF  THE  FEUDAL  SYSTEM. 


263 


constitution  was  certainly,  as  has  been  observed  General 
already,  little  adapted  for  the  defence  of  a  mighty  Tt'Z^ 
kingdom,  far  less  for  schemes  of  conquest.     But  as  a<ivantageg 
it  prevailed  alike  in  several  adjacent  countries,  none  resuftlng 
had  anything  to  fear  from  the  military  superiority  fgu^'J*^® 
of  its  neighbors.     It  was  this  inefficiency  of  the  system. 
feudal  militia,  perhaps,  that  saved  Europe  during  the  middle 
ages  from  the  danger  of  universal  monarchy.    In  times  when 
princes  had  little  notion  of  confederacies  for  mutual  protec- 
tion, it  is  hard  to  say  what  might  not  have  been  the  successes 
of  an  Otho  the  Great,  a  Frederic  Barbarossa,  or  a  Philip 
Augustus,  if  they  could  have  wielded  the  whole  force  of  their 
subjects  whenever  their  ambition  required.     If  an  empire 
equally  extensive  with  that  of  Charlemagne,  and  supported  by 
military  despotism,  had  been  formed  about  the  twelfth  or 
thirteenth  centuries,  the  seeds  of  commerce  and  liberty,  just 
then  beginning  to  shoot,  would  have  perished,  and  Europe, 
reduced  to  a  barbarous  servitude,  might  have  fallen  before 
the  free  barbarians  of  Tartary. 

If  we  look  at  the  feudal  polity  as  a  scheme  of  civil  free- 
dom, it  bears  a  noble  countenance.  To  the  feudal  law  it  is 
owing  that  the  very  names  of  right  and  privilege  were  not 
swept  away,  as  in  Asia,  by  the  desolating  hand  of  power. 
The  tyranny  which,  on  every  favorable  moment,  was  break 
ing  through  all  barriers,  would  have  rioted  without  control, 
if,  when  the  people  were  poor  and  disunited,  the  nobility  had 
not  been  brave  and  free.  So  far  as  the  sphere  of  feudality 
extended,  it  diffused  the  spirit  of  liberty  and  the  notions  of 
private  right.  Every  one  I  think  will  acknowledge  this  who 
considers  the  limitations  of  the  services  of  vassalage,  so  cau- 
tiously marked  in  those  law-books  which  are  the  records  of 
customs,  the  reciprocity  of  obligation  between  the  lord  and 
his  tenant,  the  consent  required  in  every  measure  of  a  legis- 
lative or  a  general  nature,  the  security,  above  all,  which  every 
vassal  found  in  the  administration  of  justice  by  his  peers,  and 
even  (we  may  in  this  sense  say)  in  the  trial  by  combat.  The 
bulk  of  the  people,  it  is  true,  were  degraded  by  servitude ; 
but  this  had  no  connection  with  the  feudal  tenures. 

The  peace  and  good  order  of  society  were  not  promoted 
by  this  system.  Though  private  wars  did  not  originate  in 
the  feudal  customs,  it  is  impossible  to  doubt  that  they  were 
perpetuated  by  so  convenient  an  institution,  which  indeed 


264 


ADVANTAGES  AND  EVILS        Chap.  II.  Part  U. 


I 


owed  its  universal  establishment  to  no  other  cause.  And  as 
predominant  habits  of  warfare  are  totally  irreconcilable  with 
those  of  industry,  not  merely  by  the  immediate  works  of 
destruction  which  render  its  efforts  unavailing,  but  through 
that  contempt  of  peaceful  occupations  which  they  produce, 
the  feudal  system  must  have  been  intrinsically  adverse  to  the 
accumulation  of  wealth  and  the  improvement  of  those  arts 
which  mitigate  the  evils  or  abridge  the  labors  of  mankind. 

But  as  a  school  of  moral  discipline  the  feudal  institutions 
were  perhaps  most  to  be  valued.  Society  had  sunk,  for  sev- 
eral centuries  after  the  dissolution  of  the  Roman  empu*e, 
into  a  condition  of  utter  depravity,  where,  if  any  vices  could 
be  selected  as  more  eminently  characteristic  than  others, 
they  were  falsehood,  treachery,  and  ingratitude.  In  slowly 
purging  off  the  lees  of  this  extreme  corruption,  the  feudal 
spirit  exerted  its  ameliorating  influence.  Violation  of  faith 
stood  first  in  the  catalogue  of  crimes,  most  repugnant  to  the 
very  essence  of  a  feudal  tenure,  most  severely  and  promptly 
avenged,  most  branded  by  general  infamy.  The  feudal 
law-books  breathe  throughout  a  spirit  of  honorable  obliga- 
tion. The  feudal  course  of  jurisdiction  promoted,  what  trial 
by  peers  is  peculiarly  calculated  to  promote,  a  keener  feeling 
and  readier  perception  of  moral  as  well  as  of  legal  distinc- 
tions. And  as  the  judgment  and  sympathy  of  mankind  are 
seldom  mistaken,  in  these  great  points  of  veracity  and  justice, 
except  through  the  temporary  success  of  crimes,  or  the  want 
of  a  definite  standard  of  right,  they  gradually  recovered 
themselves  when  law  precluded  the  one  and  supplied  the 
other.  In  the  reciprocal  services  of  lord  and  vassal  there 
was  ample  scope  for  every  magnanimous  and  disinterested 
energy.  The  heart  of  man,  when  placed  in  circumstances 
which  have  a  tendency  to  excite  them,  will  seldom  be  defi- 
cient in  such  sentiments.  No  occasions  could  be  more  favora- 
ble than  the  protection  of  a  faithful  supporter,  or  the  defence 
of  a  beneficent  suzerain,  against  such  powerful  aggression  as 
left  little  prospect  except  of  sharing  in  his  ruin. 

From  these  feelings  engendered  by  the  feudal  relation  has 
sprung  up  the  peculiar  sentiment  of  personal  reverence 
and  attachment  towards  a  sovereign  which  we  denominate 
loyalty;  alike  distinguishable  from  the  stupid  devotion  of 
Eastern  slaves,  and  from  the  abstract  respect  with  which  free 
citizens  regard  their  chief  magistrate.     Men  who  had  been 


Feudal  System.     OF  THE  FEUDAL  SYSTEM. 


26(i 


used  to  swear  fealty,  to  profess  subjection,  to  follow,  at  home 
and  in  the  field,  a  feudal  superior  and  his  family,  easily 
transferred  the  same  allegiance  to  the  monarch.  It  was  a 
very  powerful  feeling  which  could  make  the  bravest  men 
put  up  with  slights  and  ill-treatment  at  the  hands  of  their 
sovereign ;  or  call  forth  all  the  energies  of  disinterested 
exertion  for  one  whom  they  never  saw,  and  in  whose  char- 
acter there  was  nothing  to  esteem.  In  ages  when  the  rights 
of  the  community  were  unfelt  this  sentiment  was  one  great 
preservative  of  society ;  and,  though  collateral  or  even  sub- 
servient to  more  enlarged  principles,  it  is  still  indispensable 
to  the  tranquillity  and  permanence  of  every  monarchy.  In  a 
moral  view  loyalty  has  scarcely  perhaps  less  tendency  to 
refine  and  elevate  the  heart  than  patriotism  itself;  and  holds 
a  middle  place  in  the  scale  of  human  motives,  as  they  ascend 
from  the  grosser  inducements  of  self-interest  to  the  further- 
ance of  general  happmess  and  conformity  to  the  purposes  of 
Infinite  Wisdom. 


2G6 


STATE  OF  ANCIENT  GERMANY. 


Notes  to 


NOTES  TO  CHAPTER  n. 


Note  I.    Page  149. 

Tt  is  almost  of  course  with  the  investigators  of  Teutonic 
antiquities  to  rely  with  absolute  confidence  on  the  authority 
of  Tacitus,  in  his  treatise  <  De  Moribus  Germanorum.'  And 
it  is  indeed  a  noble  piece  of  eloquence  —  a  picture  of  man- 
ners so  boldly  drawn,  and,  what  is  more  to  the  purpose,  so 
probable  in  all  its  leading  characteristics,  that  we  never  hesi- 
tate, in  reading,  to  beUeve.  It  is  only  when  we  have  closed 
the  book  that  a  question  may  occur  to  our  minds,  whether 
the  Roman  writer,  who  had  never  crossed  the  Rhine,  was 
altogether  a  sufficient  witness  for  the  internal  history,  the 
social  institutions,  of  a  people  so  remote  and  so  dissimilar. 
But  though  the  sources  of  his  information  do  not  appear,  it 
is  manifest  that  they  were  copious.  His  geographical  details 
are  minute,  distinct,  and  generally  accurate.  Perhaps  in  no 
instance  have  his  representations  of  ancient  Germany  been 
falsified  by  direct  testimony,  if  in  a  few  circumstances  there 
may  be  reason  to  suspect  their  exact  faithfuhiess. 

In  the  very  slight  mention  of  German  institutions  which 
I  have  made  in  the  text  there  can  be  nothing  to  excite  doubt. 
They  are  what  Tacitus  might  easily  learn,  and  what,  in  fact, 
we  find  confirmed  by  other  writers.  But  when  he  comes  to 
a  more  exact  description  of  the  social  constitution,  and  of 
the  different  orders  of  men,  it  may  not  be  unreasonable  to 
receive  his  testimony  with  a  less  unhesitating  assent  than  has 
commonly  been  accorded  to  it.  A  sentence,  a  word  of 
Tacitus  has  passed  for  conclusive ;  and  no  theory  which  they 
contradict  would  be  admitted.  A  modem  writer,  however, 
has  justly  pointed  out  that  his  informers  might  easily  be 
deceived  about  the  social  institutions  of  the  tribes  beyond 
the  Rhine ;  and,  in  fact,  it  is  not  on  Tacitus  himself,  but  on 
these  unknown  authorities,  that  we  rely  for  the  fidelity  of 
his  representations.     We  may  readily  conceive,  by  our  own 


Chap.  n. 


STATE  OF  ANCIENT  GERMANY. 


267 


experience,  the  difficulty  of  obtaining  a  clear  and  exact 
knowledge  of  laws,  customs,  and  manners  for  which  we  have 
no  corresponding  analogies.  «  Let  us,"  says  Luden  to  his 
countrymen,  "ask  an  enlightened  Englishman  who  speaks 
German  concerning  the  political  institutions  of  his  country, 
and  it  will  be  surprising  how  little  we  shall  understand  from 
him.  Ask  him  to  explain  what  is  a  freeman,  a  freeholder,  a 
copyholder,  or  a  yeoman,  and  we  shall  find  how  hard  it  is  to 
make  national  institutions  and  relations  intelligible  to  a  for- 
eigner." (Luden,  Geschichte  des  Deutschen  Volkes,  vol.  i. 
p.  702.) 

This  is  of  course  not  designed  to  undervalue  the  excellent 
work  of  Tacitus,  to  which  almost  exclusively  we  are  indebted 
for  any  acquaintance  with  the   progenitors  of  the  Anglo- 
Saxons  and  the  Franks,  but  to  point  out  a  general  principle, 
which  may  be  far  better  applied  to  inferior  writers,  that  they 
give  a  color  of  their  own  country  to  their  descriptions  of 
foreign  manners,  and  especially  by  the  adoption  of  names  only 
analogically  appropriate.     Thus  the  words  servus,  libertmus, 
ingenuus,  nohilis,  are  not  necessarily  to  be  understood  in  a 
Roman  sense  when  Tacitus  employs  them  in  his  treatise  on 
Germany.     Servus  is  in  Latin  a  slave ;    but  the  German 
described  by  him  under  that  name  is  the  lidus,  subject  to  a 
lord,  and  liable  to  payments,  but  not  without  limit,  as  he 
himself  explains.     "  Frumenti  modum  dominus,  aut  pecoris, 
aut  vestis,  ut  colono,  imperat ;   et  servus  hactenus  paret." 
Here  colonus,  in  the  age  of  Tacitus,  was  as  much  a  wrong 
word  in  one  direction  as  servus  was  in  another.     For  we 
believe  that  the  colonus  of  early  Rome  was  a  tenant,  or 
fai-mer,  yielding  rent,  but  absolutely  a  free  man  ;i  though  in 
the  third  century,  after  barbarians  had  been  settled  on  Fands 
in  the  empire,  we  find  it  applied  to  a  semi-servile  condition. 
It  is  more  worthy  to  be  observed  that  his  account  of  the 
kmgly  ofiice  among   the  Germans  is  not  quite  consistent. 
Sometimes  it  appears  as  if  peculiar  to  certain  tribes,  "  iis 
gentibus  quae  regnantur  "  (c.  25)  ;  and  here  he  seems  to  speak 
of  the  power  as  very  great,  opposing  it  to  liberty ;  while  at 
other  times  we  are  led  to  suppose  an  aristocratic  senate  and 
an  ultimate  right  of  decision  in  the  people  at  large,  with  a 
very  limited  sovereign  at  the  head   (c.  7,  11,  &c.).     This 
triple  constitution  has  been  taken  by  Montesquieu  for  the 

1  Vide  Facciolati  Lexicon. 


268 


PARTITION  OF  CONQUERED  LANDS.       Notes  to 


Chap.  H.        PARTITION  OF  CONQUERED  LANDS. 


269 


ii 


foundation  of  our  own  in  the  well-known  words  —  "  Ce  beau 
systeme  a  M  trouve  dans  les  bois." 

Note  II.    Page  150. 

It  is  not  easy  to  explain  these  partitions  made  by  the  bar- 
barous nations  on  their  settlement  in  the  empire ;  and,  what 
would  be  still  more  remarkable  if  historians  were  not  so 
defective  in  that  age,  we  find  no  mention  of  such  partitions 
in  any  records,  excepting  their  own  laws  and  a  few  docu- 
ments of  the  same  class.     Montesquieu  says, "  Ces  deux  tiers 
n'etaient  pas  que  dans  certains  quartiers  qu'on  leur  assigna." 
(1.  30,  c.  8).     Troja  seems  to  hold  the  same  opinion  as  to 
the  first  settlement  of  the  Burgundians  in  Gaul,  but  admits  a 
general  division  in  471 :  Storia  d'ltalia  nel  medio  evo  (iii. 
1293).     It  is  indeed  impossible  to  get  over  the  proof  of  such 
a  partition,  or  at  least  one  founded  on  a  general  law,  arising 
from  the  fifty-fourth  section  of  the  Burgundian  code :  "  Eodem 
tempore  quo  populus  noster  mancipiorum  tertiam,  et  duas 
terrarum  partes  accepit."     This  code  was  promulgated  by 
Gundobald  early  in  the  sixth  century.     It  contains  several 
provisions  protecting  the  Roman  in  the  possessioh  of  his 
third  against  any  encroachment  of  the  hospes,  a  word  applied 
indifferently  to  both  parties,  as  in  common  Latin,  to  host  and 

auesL 

The  word  sortes,  which  occurs  both  with  the  Burgundians 
and  Visigoths,  has  often  been  referred  to  the  general  parti- 
tion, on  the  hypothesis  that  the  lands  had  been  distributed  by 
lot.  This  perhaps  has  no  evidence  except  the  erroneous 
inference  from  the  word  sors,  but  it  is  not  wholly  improbable. 
Savigny,  indeed,  observes  that  both  the  barbarian  and  the 
Roman  estates  were  called  sortes,  referring  to  Leges  Visi- 
gothorum,  lib.  x.  tit.  2, 1.  1,  where  we  find,  in  some  editions, 
"sortes  GothicJB  vel  Romance;"  but  all  the  manuscripts, 
according-  to  Bouquet,  read  "  sortes  Gothicaj  et  tertia  Roman- 
orum,"  which,  of  course,  gives  a  contrary  sense.  (Rec.  des 
Hist.  iv.  430).^     It  seems,  from  some  texts  of  the  Burgun- 

1  Procopins  ?ays,  of  the  division  taade  utt*  avTOV  K^poi  BavdiTiUV  ol  aypci 

by  Genseric  in  Italy,  Ai[3vag  Tovg  uX-  qvtol  Ig  Tode  KaTiOvvrai  tov  xRovov. 

Tijovg  d^etXrro  fiiv  Tovg  uyfjovc,  ol  ....  Kai  rd  (ihv  ;t"pta  ^vfinavTa  baa 

tOilaroL  re  ijaav  koI  apLoroi,  tg  6e  rdg  re  Traiat  koI  rolg  dXXoff  Bavdi- 

rJi  Tuiv  BavdiTujv  dUveiiiev  e^vog  •  koI  Xotc  Ti^piX^i  napadedux^h  ovdefiias 


dian  law,  that  the  whole  territory  was  not  partitioned  at  once ; 
because,  in  a  supplement  to  the  code  not  much  before  520, 
provision  is  made  for  new  settlers,  who  were  to  receive  only 
a  moiety.     "  De  Romanis  hoc  ordinavimus,  ut  non  amplius  a 
Burgundionibus   qui   infra   venerunt,   requiratur,   quam,  ut 
praesens  necessitas  fuerit,  medietas  terrae.     Aha  vero  medie- 
tas cum  integritate  mancipiorum  a  Romanis  teneatur;  nee 
exinde  ullam  violentiam  patiantur."     (Leges  Burgundionum, 
Additamentum  Secundum,  c.  11.)     In  this,  as  in  the  whole 
Burgundian  law,  we  perceive  a  tenderness  for  the  Roman 
inhabitant,  and  a  continual  desire  to  place  him,  as  far  as 
possible,  on  an  equal  footing  with  his  new  neighbor.     The 
reason  assigned  for  the  partition  is  necessity ;  the  Burgundian 
must  live.     It  is  true  that  to  assign  him  two  thirds  of  the  land 
strikes  us  as  an  enormous  spoliation.     Montesquieu  supposes 
that  the  barbarian  took  open  and  pasture  lands,  leaving  the 
tilth  to  the  ancient  possessor,  and  that  this  accounts  for  the 
smaller  proportion  of  slaves  which  he  required  (1.  30,  c.  9). 
Sismondi  has  made  a  similar  suggestion.     It  is  dwelt  upon  by 
Troja,  that  the  Lombards,  taking  a  third  of  the  produce  in- 
stead of  a  portion  of  the  lands  themselves,  reduced  all  the 
original  possessors  to  the  rank  of  tributaries.     In  none  of 
the  barbarous  kingdoms  was  the  Roman  of  so  low  a  status  as 
in  theirs.     But  it  maybe  said  that  the  ancient  law  of  nations, 
exercised  by  none  more  unsparingly  than  by  the  Romans 
themselves  in  Italy,  confiscated  the  whple  soil ;    that,  if  the 
Visigoths  and  Burgundians  spared  one  third,  if  the  Franks 
left  some  Roman  possessors,  this  was  an  indulgent  relaxation 
of  their  right.     And  this  would  be  an  excuse  if  we  could  for 
a  moment  look  upon  the  barbarians  as  having  a  just  cause 
of  war.     The  contrary,  however,  is  manifest  in  almost  every 
case. 

M.  Fauriel  thinks  it  probable  that  the  Franks  made,  like 
the  other  barbarians,  a  partition,  more  or  less  regular,  of  the 
Roman  lands  in  northern  France.  (Hist,  de  la  Gaule 
Meridionale,  ii.  34.)  Guizot  takes  a  somewhat  different 
view,  and  conceives  that  each  chief  took  what  best  suited 
him,  and  lived  there  with  his  followers  about  him.     (Civilis 

6opov  uzayuy^c  i}noTE2,rj  tKsXevaev  absolutely  from  the  analogy  of  Africa  to 

ClV(U.-Dc  Belle  Vandal.  1.  i.  c.  8.    This  Gaul    it  is  natural  to  interpret  KAjjpot 

passage  gives  no  confirmation  to  the  hy-  Bavdih^v  and  sortes  SaUcae  in  the  samfe 

pothesi*!  of  a  partition  by  lot,  but  the  manner, 
contrary  ;  and  though  we  cannot  reason 


270 


PARTITION  OF  CONQUERED  LANDS.       Notes  to 


II 


en  France,  Le5on  32.)  But  if  the  Franks  adopted  so  aris- 
tocratic a  division  as  to  throw  the  lands  which  they  occupied 
into  the  hands  of  a  few  proprietors,  they  must  have  gone  on 
very  different  principles  from  the  other  nations,  among  whom 
we  should  infer,  from  their  laws,  a  much  greater  equality  to 
have  been  preserved.  It  seems,  however,  most  probable  on 
the  whole,  considering  the  silence  of  historians  and  laws,  that 
the  Franks  made  no  such  systematic  distribution  of  lands  as 
the  earlier  barbarians.  They  were,  perhaps,  less  numerous, 
and,  being  at  first  less  civilized,  would  feel  more  reluctance 
at  submitting  to  any  fixed  principle  of  appropriation.  That 
they  dispossessed  many  of  the  Roman  owners  on  the  right 
bank  of  the  Loire  cannot  well  be  doubted.  For,  though 
Raynouard,  who  treads  in  the  steps  of  Dubos,  denies  that 
they  took  any  but  fiscal  lands,  which  had  belonged  to  the 
imperial  domains  (Hist,  du  Droit  Municipal,  i.  256),  Franks 
were  surely  as  little  disposed,  and  as  httle  able,  to  live  with- 
out lands  as  Burgundians,  and  they  were  a  rougher  people.* 
Yet  both  with  respect  to  them  and  the  other  barbarians  we  may 
observe  that  the  spoliation  was  not  altogether  so  ruinous  as 
would  naturally  be  presumed.  In  consequence  of  the  long 
decline  and  depopulation  of  the  empire,  the  fruit  of  fiscid 
oppression,  of  frequent  invasion,  and  civil  wars,  we  may  add 
also  of  pestilences  and  unfavorable  seasons,  much  land  had 
gone  out  of  cultivation  in  Gaul ;  and  though  the  proportion 
taken  by  the  Goths  and  Burgundians  was  enormous,  they 
probably  occupied,  in  great  measure,  what  the  Roman  pro- 
prietor had  not  the  means  of  tilling. 

This  subject,  after  all,  is  by  no  means  clear  of  embarrass- 
ment, especially  as  regards  the  Visigothic  and  Burgundian 
partitions.  We  are  driven  to  suppose  a  dispersion  of  these 
conquering  nations  among  their  subjects,  each  man  living 
separately  on  his  sors,  contrary  to  the  policy  of  all  invaders ; 
we  arc,  apparently,  to  presume  an  equality  of  numbers  be- 
tween the  Roman  possessors  and  the  barbarians,  so  that  each 
should  have  his  own  hospes.  The  latter  hypothesis,  may, 
perhaps,  be  dispensed  with,  or  considerably  modified ;  but  I 
do  not  see  how  to  get  rid  of  the  former. 


^  M.  Lehuerou  supposes  that  the 
Franks,  who  served  the  empire  in  Gaul 
under  the  predecessors  of  Clovis,  had  re- 
ceived lands  like  the  Burgundians  and 
Visigoths :  so  that  they  were  already  in 
%  great  measure  provided  for,  and  that 


their  subsequent  acquisitions  would  be 
at  the  expense  of  the  nations  which  thej 
conquered.  (Instit.  Merov.  i.  237,  268.) 
But  the  private  estates  of  the  Franks 
seem  to  have  been  principally  in  th* 
north  of  France. 


'^ 


Chap  H.  THE  SALIC  LAW.  271 


Note  III.     Page  152. 

The  Salic  law  exists  in  two  texts ;  one  purely  Latin,  of 
which  there  are  fifteen  manuscripts ;  the  other  mingled  with 
German  words,  of  which  there  are  three.  Most  have  con- 
sidered the  latter  to  be  the  original;  the  manuscripts  con- 
taining it  are  entitled  Lex  Salica  antiquissima,  or  vetustior  ; 
the  others  generally  run.  Lex  Salica  recentior,  or  emendata. 
This  seems  to  create  a  presumption.  But  M.  Wraida,  who 
published  a  history  of  the  Salic  law  in  1808,  inclines  to 
think  the  pure  Latin  older  than  the  other.  M.  Guizot  adopts 
the  same  opinion  (Civilisation  en  France,  Le9on  9).  M. 
Wraida  refers  its  original  enactment  to  the  period  when  the 
Franks  were  still  on  the  left  bank  of  the  Rhine ;  that  is,  long 
before  the  reign  of  Clovis.  And  this  seems  an  evident  in- 
ference from  what  is  said  in  the  prologue  to  the  law,  written 
long  afterwards.  But  of  course  it  cannot  apply  to  those 
passages  which  allude  to  the  Romans  as  subjects,  or  to  Chris- 
tianity. M.  Guizot  is  of  opinion  that  it  bears  marks  of  an 
age  when  the  Franks  had  long  been  mingled  with  the  Roman 
population.  This  is  consistent  with  its  having  been  revised 
by  the  sons  of  Clovis,  Childebert,  and  Clotaire,  as  is  asserted 
in  the  prologue.  One  manuscript  has  the  words  —  "Hoc 
decretum  est  apud  regem  et  principes  ejus,  et  apud  cunctum 
populum  Christianum  qui  infra  regnum  Merwingorum  con- 
sistunt."  Neither  Wraida  nor  Guizot  think  it  older  in  its 
present  text  than  the  seventh  century ;  and  as  Dagobert  L 
appears  in  the  prologue  as  one  reviser,  we  may  suppose  him 
to  be  the  king  mentioned  in  the  words  just  quoted.  It  is 
to  be  observed,  however,  that  two  later  writers,  M.  Pertz,  in 
"Monumenta  Germanic  Historica,"  and  M.  Pardessus,  in 
"  Mem.  de  TAcad.  des  Inscriptions,"  vol.  xv.  (Nouvelle  Serie), 
have  entered  anew  on  this  discussion,  and  do  not  agree  with 
M.  Wraida,  nor  wholly  with  each  other.  M.  Lehuerou  is 
clearly  of  opinion  that,  in  all  its  substance,  the  Salic  code  is 
to  be  referred  to  Gei-many  for  its  birthplace,  and  to  the 
period  of  heathenism  for  its  date.  (Institutions  M^rovin- 
giennes,  p.  83.) 

The  Ripuarian  Franks  Guizot,  with  some  apparent  rea- 
son, takes  for  the  progenitors  of  the  Australians ;  the  Salian, 
of  the  Neustrians.     The  former  were  settled  on  the  left 


%7% 


THE  SALIC  LAW. 


Notes  to 


Chap.  II. 


ROMAN  NATIVES  OF  GAUL. 


273 


bank  of  the  Rhine,  as  Lcetij  or  defenders  of  the  frontier, 
under  the  empire.  These  tribes  were  united  under  one  gov- 
ernment through  the  assassination  of  Sigebert  at  Cologne,  in 
the  last  years  of  Clovis,  who  assumed  his  cro\vn.  Such  a 
theory  might  tend  to  explain  the  subsequent  rivalry  of  these 
great  portions  of  the  Frank  monarchy,  though  it  is  hardly 
required  for  that  purpose.  The  Ripuarian  code  of  law  is  re- 
ferred by  Guizot  to  the  reign  of  Dagobert ;  Eccard,  however, 
had  conceived  it  to  have  been  compiled  under  Thierry,  the 
eldest  son  of  Clovis.  (Rec.  des.  Hist.  vol.  iv.)  It  may 
still  have  been  revised  by  Dagobert.  "  We  find  in  this,** 
says  M.  Guizot,  "  more  of  the  Roman  law,  more  of  the  royal 
and  ecclesiastical  power;  its  provisions  are  morjS  precise, 
more  extensive,  less  barbarous  ;  it  indicates  a  further  step  in 
■  the  transition  from  the  German  to  the  Roman  form  of  social 
life."     (Civil,  en  France,  Le9on  10.) 

The  Burgundian  law,  though  earlier  than  either  of  these 
in  their  recensions,  displays  a  far  more  advanced  state  of 
manners.  The  Burgundian  and  Roman  are  placed  on  the 
same  footing ;  more  is  borrowed  from  the  civil  law ;  the 
royal  power  is  more  developed.  This  code  remained  in 
force  after  Charlemagne ;  but  Hincmar  says  that  few  contin- 
ued to  live  by  it.  In  the  Visigothic  laws  enacted  in  Spain, 
to  the  exclusion  of  the  Roman,  in  642,  all  the  barbarous  ele- 
ments have  disappeared ;  it  is  the  work  of  the  clergy,  half 
ecclesiastical,  half  imperial. 

It  has  been  remarked  by  acute  writers,  Guizot  and  Troja, 
that  the  Salic  law  does  not  answer  the  purpose  of  a  code, 
being  silent  on  some  of  the  most  important  regulations  of 
civil  society.  The  former  adds  that  we  often  read  of  mat- 
ters decided  "  secundum  legem  Salicam,"  concerning  which 
we  can  find  nothing  in  that  law.  He  presumes,  therefore, 
that  it  is  only  a  part  of  their  jurisprudence.  Troja  (Storia 
dTtalia  nel  medio  evo,  v.  8),  quoting  Buat  for  the  same  opin- 
ion, thinks  it  probable  that  the  Franks  made  use  of  the  Ro- 
man law  where  their  own  was  defective.  It  may  perhaps  be 
not  less  probable  than  either  hypothesis  that  the  judges  grad- 
ually introduced  principles  of  decision  which,  as  in  our  com- 
mon law,  acquired  the  force  of  legislative  enactment.  The 
rules  of  the  Salic  code  principally  relate  to  the  punishment 
or  compensation  of  crimes ;  and  the  same  will  be  found  in 
our  earliest  Anglo-Saxon  laws.    The  object  of  such  written 


laws,  with  a  free  and  barbarous  people,  was  not  to  record 
their  usages,  or  to  lay  down  rules  which  natural  equity  would 
suggest  as  the  occasion  might  arise,  but  to  prevent  the  arbi- 
trary infliction  of  penalties.  Chapter  Ixii.,  '  On  Successions,* 
may  have  been  inserted  for  the  sake  of  the  novel  provision 
about  Salic  lands,  which  could  not  have  formed  a  part  of  old 
Teutonic  customs. 

Note  IV.    Pages  152,  153. 

The  position  of  the  former  inhabitants,  after  the  conquest 
of  Gaul  by  the  Burgundians,  the  Visigoths  and  the  Franks, 
both  relatively  to  the  new  monarchies  and  to  the  barbarian 
settlers  themselves,  is  a  question  of  high  importance.  It  has, 
of  course,  engaged  the  philosophical  school  of  the  present 
day,  and  has  led  to  much  diversity  of  hypotheses.  The 
extreme  poles  are  occupied,  one  by  M.  Raynouard  in  his 
<Hist.  du  Droit  Municipal,*  and  by  a  somewhat  earlier 
writer.  Sir  Francis  Palgrave,  who,  following  the  steps  of 
Dubos,  bring  the  two  nations,  conquerors  and  conquered, 
almost  to  an  equality,  as  the  common  subjects  of  a  sovereign 
who  had  assumed  the  prerogatives  of  a  Roman  emperor ; 
and,  on  the  opposite  side,  by  Signer  Troja,^  and  by  M. 
Thierry,  who  finds  no  closer  analogy  for  their  relative  condi- 
tions than  that  of  the  Greeks  and  Turks  in  the  days  that 
have  lately  gone  by.  "  It  is  no  more  a  proof,'*  he  contends, 
"  that  the  Roman  natives  were  treated  as  free,  because  a  few 
might  gain  the  favor  of  a  despotic  court,  than  that  the  Chris- 
tian and  Jew  stand  on  an  even  footing  with  the  Mussulman, 
because  an  Eastern  Sultan  may  find  his  advantage  in  em 
ploying  some  of  either  religion.**  (Lettres  sur  I'Hist  de 
France,  Lett,  vii.)  This  is  not  quite  consistent  with  his  lan- 
guage in  a  later  work  :  «  Sous  le  regne  de  la  premiere  race 
se  montrent  deux  conditions  de  liberte  :  la  liberie  par  excel- 
X  lence,  qui  est  la  condition  du  Franc ;  et  la  liberte  du  second 
ordre,  le  droit  de  cite  romaine.**  (Recits  des  Temps  Mero- 
vingiens,  i.  242.— Bruxelles,  1840.) 

« Jif  ^*°"*  ^\  Francia  sotto  i  r6  della  This  is  not  borne  out  by  history.    We 

pnma  razza  pud  dirsi  non  consistere  che  find  no  oppression  of  Romans  by  Franks, 

n^hesempjdeneoppress.oniae'Franchi  though    much    by  Frank    kings.      The 

^^I!,L"  H   '"'  ^^""?'^"!' «  ^«»a  generosa  conquerors  may  have  been  nationaUy  In- 

r«i7n^rHTT*7*''*'''''5*'/^**°^?'°*''*°<'hi-    solent;  but  thia  Lj  not  recorded. 
(Storia  d'  Itaha,  toI.  i.  part  ▼.  p.  421  ) 

VOL.  L  18 


274 


ROMAN  NATIVES  OF  GAUL. 


Notes  to 


It  is,  however,  as  it  seems  to  me,  and  as  the  French  writ- 
ers have  generally  held,  impossible  to  maintain  either  of 
these  theories.  The  Roman  **  conviva  regis  "  (by  which  we 
may  perhaps  better  understand  one  who  had  been  actually 
admitted  to  the  royal  table,  thus  bearing  an  analogy  to  the 
Frank  Antrustion,  than  what  I  have  said  in  the  text,  one  of 
a  rank  not  unworthy  of  such  an  honor) ^  was  estimated  in  his 
weregild  at  half  the  price  of  the  Barbarian  Antrustion,  the 
highest  known  class  at  the  Merovingian  court,  and  above  the 
common  alodial  proprietor.  But  between  two  such  land- 
holders the  same  proportion  subsisted ;  the  Frank  was  val- 
ued twice  as  high  as  the  Roman ;  but  the  Roman  proprietor 
was  set  more  than  as  much  above  the  tributary,  or  semi- 
servile  husbandman,  whose  nation  is  not  distinguished  by  the 
letter  of  the  Salic  code.  We  have,  therefore,  in  this  no- 
torious distinction,  subordination  without  servitude ;  exactly 
what  the  circumstances  of  the  conquest,  and  the  general  rela- 
tion of  the  barbarians  to  the  empire,  would  lead  us  to  antici- 
pate, and  what  our  historical  records  unequivocally  confirm. 
The  oppression  of  the  people,  which  Thierry  infers  from  the 
history  of  Gregory  of  Tours,  under  Gontran  and  Chilperic, 
was  on  the  part  of  violent  and  arbitrary  princes,  not  of  the 
Frank  nation  ;  nor  did  the  latter  by  any  means  escape  it.  It 
is  true  that  the  civil  wars  of  the  early  Merovingian  kings 
were  most  disastrous,  especially  in  Aquitaine,  and  of  coui*se 
the  native  inhabitants  suffered  most ;  yet  this  is  very  distin- 
guishable from  a  permanent  condition  of  servitude. 

"  The  Romans,"  Sir  F.  Palgrave  has  said,  "  retained  their 
own  laws.  Their  municipal  administration  was  not  abrogated 
or  subverted ;  and  wherever  a  Roman  population  subsisted, 
the  barbarian  king  was  entitled  to  command  them  with  the 
prerogatives  that  had  belonged  to  the  Roman  emperors." 
(Rise  and  Progress  of  the  English  Commonwealth,  vol.  i.  p. 
362.)  In  this  I  demur  only  to  the  word  entitled,  which  seems 
designed  to  imply  something  more  than  the  right  of  the  sword. 
But  this  is  the  right,  and  I  can  discern  no  real  evidence  of 
any  other,  which  Clovis,  and  Clotaire,  and  Chilperic  exer- 
cised ;  very  like,  of  course,  to  the  prerogatives  of  the  Roman 
emperors,  since  one  despotism  must  be  akin  to  another ;  and 


-1 1  do  not  giye  this  as  very  highly    senatorial  families,  who  evidently  made  • 
probable :  conviva  regis  seems  an  odd    noble  class  among  the  Romans, 
phrase ;  but  it  may  have  included  all  the 


Chap.  n. 


ROMAN  NATIVES  OF  GAUL. 


275 


a  provincial  of  Gaul,  whose  ancestors  had  for  centuries 
obeyed  an  unlimited  monarch,  could  not  claim  any  better 
privileges  by  becoming  the  subject  of  a  conqueror.  It  is 
universally  agreed,  at  least  I  apprehend  so,  that  the  Roman, 
as  a  mere  possessor,  and  independently  of  any  personal  dig- 
nity with  which  he  might  have  been  honored,  did  not  attend 
the  national  assemblies  in  the  Field  of  March ;  nor  had  he 
any  business  at  the  placitum  or  tnallus  of  the  count  among 
the  Rachimburgii,  or  freeholders,  who  there  determined 
causes  according  to  their  own  jurisprudence,  and  transacted 
other  business  relating  to  their  own  nation.  The  kings  were 
always  styled  merely  «  Reges  Francorum  : "  ^  whenever,  in 
Gregory  of  Tours'  history,  the  popular  will  is  expressed,  it 
is  by  the  Franks ;  no  other  nation  separately,  nor  the  Franks 
as  blended  with  any  other  nation,  appear  in  his  pages  to  have 
acted  for  themselves. 

It  must  be  almost  unnecessary  to  remind  the  reader  that 
the  word  Roman  is  uniformly  applied,  especially  in  the  bar- 
barian laws,  to  the  Gaulish  subjects  of  the  empire,  whose 
allegiance  had  been  transferred,  more  or  less  reluctantly,  but 
always  through  conquest,  to  the  three  barbarian  monarchies, 
two  of  which  were  ultimately  subverted  by  the  Franks.  But 
it  is  only  in  two  senses  that  this  can  be  reckoned  a  proper 
appellation ;  one,  inasmuch  as  privileges  of  Roman  citizen- 
ship had  been  extended  to  the  whole  of  Gaul  by  the  emper- 
ors; and  another,  as  applicable,  with  more  correctness,  to 
that  population  of  Roman  or  Italian  descent  which  had 
gradually  settled  in  the  cities.  This,  during  so  many  ages, 
must  have  become  not  inconsiderable ;  the  long  continu^ce 
of  the  same  legions  in  the  province,  the  wealth  and  luxury 
of  many  cities,  the  comparative  security,  up  to  the  close  of 
the  fourth  century,  from  military  revolution  and  civil  war. 
the  facility,  perhaps,  of  purchasing  lands,  would  naturally 
create  a  respectable  class,  to  whose  highly  civilized  manners 
the  records  of  the  fourth  and  fifth  centuries  especially  bear 
witness.      The  Latin  language  became  universal  in  cities; 


»  One  instance  of  an  apparent  excep- 
tion, for  leading  me  to  which  I  am  in- 
debted to  Mr.  Spence  (Laws  of  Europe, 
p.  240).  has  met  my  eyes.  Dagobert  I. 
calls  himself,  in  an  instrument  found  in 
Vita  Beati  Martini,  apud  Duchesne  i. 
655,  "  Ilex  Fnticorum  ct  populi  Romani 
pnncfps "     The    authenticity    of   this 


charter  deserves  to  be  considered.  But, 
supposing  it  to  be  genuine,  it  does  not  go 
s  great  way  towards  the  imperial  style. 

2  Salvian,  in  the  middle  of  the  fifth 
century,  descants  on  the  beauties  of 
Aquitaine;  "  Adeo  illic  omnis  admodum 
regio  aut  intertexta  vineis,  aut  florulent» 
pratis,  aut  distincta  culturis,  aut  con^ite 


276 


ROMAN  NATIVES  OF  GAUL. 


Notes  to 


and  if  in  country  villages  some  remains  of  the  Celtic  might 
linger,  they  have  left  very  few  traces  behind. 

Sismondi  has  indeed  gone  much  too  far  when  he  infers,  es- 
pecially from  this  disuse  of  the  old  language,  an  almost  com- 
plete extinction  of  the  GauUsh  population.  And  for  this  he 
accounts  by  their  reduction  to  servitude,  by  the  exactions  of 
their  new  lords,  and  the  facility  of  purchasing  slaves  in  the 
markets  of  the  empire  (vol.  i.  p.  84).  But  such  a  train 
of  events  is  wholly  without  evidence ;  without  at  least  any 
evidence  that  has  been  alleged.  We  do  not  know  that  the 
peasantry  were  ever  proprietors  of  the  soil  which  they  culti- 
vated before  the  Roman  invasion,  but  may  much  rather  be- 
lieve the  contrary  from  the  language  of  Caesar  — "  Plebs 
psene  servorum  habetur  loco."  We  do  not  know  that  they 
fell  into  a  worse  condition  afterwards.  We  do  not  know  that 
they  were  oppressed  in  a  greater  degree  than  other  subjects 
of  Rome,  not  surely  so  as  to  extinguish  the  population.  We 
may  believe  that  slaves  were  occasionally  purchased,  accord- 
ing to  the  usage  of  the  empire,  without  denying  the  existence 
of  coloni,  indigenous  and  personally  free,  of  whom  the  Theo- 
dosian  code  is  so  full.  Nor  is  it  evident  why  even  serfs  may 
not  have  been  of  native  as  easily  as  of  foreign  origin.  All 
this  is  presumed  by  Sismondi,  because  the  Latin  language, 
and  not  the  Celtic,  is  the  basis  of  French.  And  a  similar 
hypothesis  must,  by  parity  of  reasoning,  be  applied  to  tlie 
condition  of  Spain  during  the  centuries  of  Roman  dominion. 
But  it  is  assumed  the  more  readily,  through  the  tendency  of 
this  eminent  writer  to  place  in  the  worst  light,  wliat  seldom  can 
be  placed  in  a  very  favorable  one,  the  social  institutions  and 
usages  of  mankind.  The  change  of  language  is  no  doubt 
remarkable.  But  we  may  be  deceived  by  laying  too  much 
stress  on  this  single  circumstance  in  tracing  the  history  of 
nations.  It  is  very  difficult  to  lay  down  a  rule  as  to  the  ten- 
dency of  one  language  to  gain  ground  upon  another.  Some 
appear  in  their  nature  to  be  aggressive ;  such  is  the  Latin, 
and  probably  the  Arabic.  But  why  is  it  that  so  much  of  the 
Walachian  language,  and  even  its  S3nitax,*  comes  from  Latin, 
in  consequence  of  a  merely  military  occupation,  while  a  more 

Domis,  aut  amcenata  lucis,  aut  irrigata  ginem  possedisse  Tideantar."    (De  Ou 

fontibus,  aut  interfusa  fluminibus,  aut  beroat.  Dei.  lib.  vii.  p.  299,  cJit.  1611.) 

circumdati  messibus  erat,  ut  vere  pos-  i  Vid.   Lauriani    Teutamen   Criticum 

scssores  et  domini  terrac  illius  non  tain  in  lioguam  Walachicam.    Vienn.  1840. 
ioli  Ulius  portionem  quam  paradisi  ima- 


Chap.  II. 


ROMAN  NATIVES  OF  GAUL. 


277 


lasting  possession  of  Britain  (where  flourishing  colonies  were 
filled  with  Roman  inhabitants,  and  the  natives  boriowed  in 
some  degree  the  arts  and  manners  of  their  conquerors,  con- 
nected with  them  also  by  religion  in  the  latter  part  of  their 
dominion)  did  not  hinder  the  preservation  of  the  original 
Cekic  idiom  in  Wales,  with  very  slight  infusion  of  Latin  ? 
Why  is  it  that  innumerable  Arabic  words,  and  even  some 
Arabic  sounds  of  letters,  are  found  in  the  Castilian  language, 
the  language  of  a  people  foreign  and  hostile,  while  scarcely 
a  trace  is  left  of  the  Visigothic  tongue,  that  of  their  fathers ; 
so  that  for  one  word,  it  is  said,  of  Teutonic  origin  remaining 
in  Spain,  there  are  ten  in  Italy,  and  a  hundred  in  France  ?  * 
If  we  were  to  take  Sismondi  literally,  the  barbarians  must 
have  found  nothing  in  Gaul  but  a  Roman  or  Romanized 
aristocracy,  surrounded  by  slaves  ;  and  these  as  much  import- 
ed, or  the  offspring  of  importation,  as  the  Negroes  in  Ameri- 
ca. This  is  rather  a  humiliating  origin,  an  iUud  quod  dicere 
nolo,  for  the  French  nation.  For  it  is  the  French  nation 
that  is  descended  from  the  inhabitants  of  Gaul  at  the  epoch 
of  the  barbarian  conquest. 

^y"e  have,  however,  a  strong  ethnographical  argument 
against  this  imaginary  depopulation,  in  the  national  charac- 
teristics of  the  French.  A  brilliant  and  ingenious  writer 
has  well  Ciilled  our  attention  to  the  Celtic  element,  that  under 
all  the  modifications  which  difference  of  race,  political  con- 
stitutions, and  the  stealthy  progress  of  commerce  and  learn- 
ing have  brought  in,  still  distinguishes  the  Frenchman :  «  La 
base  originaire,  celle  qui  a  tout  re9u,  tout  accepte,  c'est  cette 
jeune  molle  et  mobile  race  de  Gaels,  brillante,  sensuelle,  et 
legere,  prompte  a  apprendre,  prompte  a  dedaigner,  avide  des 
choses  nouvelles.  Voila  I'element  primitif,  I'element  perfecti- 
ble." (Miclielet,  Hist,  de  France,  i.  156.)  This  is  very  good, 
and  we  cannot  but  see  tlie  resemblance  to  the  Celtic  character. 
Miclielet  goes  afterwards  too  far,  and  endeavors  to  show  that  a 
great  part  of  the  French  language  is  Celtic ;  failing  wholly  in  his 
quotations  from  early  writers,  which  either  relate  to  the  peri- 
od immediately  subsequent  to  the  Roman  conquest,  or  to  the 
lingua  Romana  rustica  which  ultimately  became  French.  It 
is  nevertheless  true  that  a  certam  number  of  Celtic  words 
have  been  retained  in  French,  as  has  been  shown  even  of 
Visigothic  by  M.  Fauriel.      He  has  found  3,000  words  in 

»  Edinb.  Review,  vol.  xxxi.  p.  109. 


278 


ROMAN  NATIVES  OF  GAUL. 


Notes  to 


Provencal,  which  are  not  Latin.  All  of  these  which  are  not 
Gothic,  Iberian,  Greek,  or  Arabic,  may  be  reckoned  Celtic ; 
and  though  the  former  languages  can  have  left  few  traces  in 
northern  French,  we  may  presume  the  last  to  have  been  re 
tained  in  a  scarcely  less  degree  thaa  in  the  Provenjal  dia- 
lect. (Ampere,  Hist.  Litt.  de  la  France,  vol.  i.  p.  34.) 
Many  French  monosyllables  are  Celtic.  But  if  we  try  to 
read  any  French  of  the  twelfth  century,  we  shall  feel  no 
doubt  that  a  vast  majority  of  words  are  derived  from  the 
Latin  ;  and  it  may  be  added  that  the  terms  of  rural  occupa- 
tion, and  generally  of  animals,  are  full  as  much  Latin  as 
those  more  familiar  in  towns. 

The  cities  of  Gaul  were  occupied  probably  by  a  more 
mingled  population  than  the  villages.  In  the  cities  dwelt  the 
more  ancient  and  wealthy  families,  called  senators,  and  dis- 
tinct, as  far  as  we  can  see  our  way  in  a  very  perplexed  in- 
quiry, from  the  ordinary  curiales,  or  decurions.  It  is  true 
that  these  also  are  sometimes  called  senators ;  but  the  word 
has  not,  as  Guizot  observes  (Collect,  des  Memoires,  i.  247), 
in  Gregory  and  other  writers,  a  precise  sense.  Families 
were  often  elevated  to  the  senatorial  rank  by  the  emperors, 
which  gave  their  members  the  title  of  clarissimi  ;  and  these 
were  probably  meant  by  Gregory,  in  the  expression  e  primis 
Galliarum  senatorihus,  which  naturally  must  be  rendered  — 
"  of  the  first  Gaulish  nobility."  The  word  is  several  times 
employed  by  him  in  what  seems  the  same  sense.  It  is,  how- 
ever, also  used,  as  Guizot  and  Raynouard  think,  for  the  high- 
est class  of  curiales  who  had  served  municipal  oflfices.  But 
more  will  be  said  of  this  in  another  note. 

Sismondi  has  remarked  (i.  198)  that  in  the  lives  of  the 
saints,  during  the  Merovingian  period,  most  part  of  whom 
were  of  Roman  descent,  it  is  generally  mentioned  that  they 
were  of  good  flimily.  The  Church  afforded  the  means  of 
preserving  their  respectability;  and  thus  (without  much 
weight  in  the  monarchy,  and  often  with  diminished  patrimo- 
ny, but  in  return  less  oppressed  by  taxation  than  under  the 
imperial  fisc,  deriving  also  a  reflected  importance  from  the 
bishop  when  he  was  a  Roman,  and  sheltered  by  his  protec- 
tion) this  class  of  the  native  inhabitants  held  not  only  a  free 
but  an  honorable  position.  Yet  this  was  still  secondary.  In 
a  free  commonwealth  the  exclusion  from  political  rights,  by  a 
broad  line  of  legal  separation,  brings  with  it  an  indelible 


Chap.  II. 


ROMAN  NATIVES  OF  GAUL. 


279 


sense  of  inferiority.  But  this  inferiority  is  not  allowed  by 
all  our  inquirers. 

"  The  nations  who  were  unequal  before  the  law  soon  be- 
came equal  before  the  sovereign,  if  not  in  theory  yet  in 
practice ;  and  the  children  of  the  companions  of  Clovis  were 
subjected,  with  few  and  not  very  material  exceptions,  to  the 
same  positive  dominion  as  the  descendants  of  the  proconsul 
or  the  senator.  It  is  not  difficult  to  form  plausible  conjec- 
tures concerning  the  causes  of  this  equalization ;  nor  are  the 
means  by  which  it  was  effected  entirely  concealed.  Consid- 
ered in  relation  to  the  Romans,  the  Franks,  for  we  will  con- 
tinue to  instance  them,  constituted  a  distinct  state,  but, 
compared  to  the  Romans,  a  very  small  one ;  and  the  indi- 
viduals composing  it,  dispersed  over  Gaul,  were  almost  lost 
among  the  triljutaries.  Experience  has  shown  that  whenever 
a  lesser  or  jmorer  dominion  is  conjoined,  in  the  person  of  the 
same  sovereign,  to  a  greater  or  more  opulent  one,  the  minuter 
mass  is  always  in  the  end  subjugated  by  the  larger."  (Rise 
and  Progress  of  the  English  Commonwealth,  vol.  i.  p.  363.) 

Such  is,  in  a  few  words,  the  view  taken  of  the  Merovingian 
history  by  a  very  learned  writer.  Sir  F.  Palgrave.  And, 
doubtless,  the  concluding  observation  is  just,  in  the  terms 
wherein  he  expresses  it.  But  there  seems  a  fallacy  in  apply- 
ing the  word  "  poorer  "  to  the  Franks,  or  any  barbarian  con- 
querors of  Gaul.  They  were  poorer  before  their  conquest ; 
they  were  richer  afterwards.  At  the  battle  of  Hastings  the 
balance  of  wealth  was,  I  doubt  not,  on  the  side  of  Harold  more 
than  of  William ;  but  twenty  years  afterwards  Domesday 
Book  tells  us  a  very  different  story.  If  an  allotment  was 
made  among  the  Franks,  or  if  they  served  themselves  to  land 
without  any  allotment,  on  either  hypothesis  they  became  the 
great  proprietors  of  northern  France  ;  and  on  whom  else  did 
the  beneficiary  donations,  the  rewards  of  faithful  Antrustions, 
generally  devolve  ?  It  is  perfectly  consistent  with  the  national 
superiority  of  the  Franks  in  the  sixth  and  seventh  centuries 
that  in  the  last  age  of  the  Carlovingian  line,  when  the  dis- 
tinction of  laws  had  been  abolished  or  disused,  the  more 
numerous  people  should  in  many  provinces  have  (not,  as  Sir 
Francis  Palgrave  calls  it,  subjugated  but)  absorbed  the  other. 
We  find  this  to  have  been  the  case  at  the  close  of  the  Anglo 
Norman  period  at  home. 

One  essential  difference  is  generally  supposed  to  have  sep- 


280 


ROMAN  NATIVES  OF  GAUL. 


Notes  to 


arated  the  Frank  from  the  Roman.     The  latter  was  subject 
to  personal  and  territorial  taxation.     Such  had  been  his  con- 
dition under  the  empire ;  and  whether  the  burden  might  or 
not  be  equal  in  degree  (probably  it  was  not  such),  itls  not 
at  all  reasonable  to  believe  without  proof  that  he  was  ever 
exempted  from  it.     It  is,  however,  true  that  some  French 
writers  have  assumed  all  territorial  impositions  on  free  land- 
holders to  have  ceased  after  the  conquest.    (Recits  des  Temps 
Meroving.  i.  268).^     This  controversy  I  do  not  absolutely 
undertake  to  determine ;  but  the  proof  evidently  lies  on  those 
who  assert  the  Roman  to  have  been  more  favored  than  he 
was  under  the  empu-e ;  when  all  were  liable  to  the  land-tax, 
though  only  those  destitute  of  freehold  possessions  paid  the 
capitation  or  census.     We  cannot  mfer  such  a  distinction  on 
the  ground  of  tenure  from  a  passage  of  Gregory  (lib.  ix.  c. 
30):  —  Childebertus  vero  rex  descriptores  in  Pictavos,  in- 
vitante  Marovio  episcopo,  jussit,  abire  ;  id  est,  Florentianum 
majorem  domus  regiae,  et  Romulfum  palatii  sui  comitem,  ut 
scilicet  populus  censum  quem  tempore  patris  functi  fuerant, 
fecta  ratione  innovaturaj,  reddere  deberet.     Multi  enim  ex 
his  defuncti  fuerant,  et  ob  hoc  viduis  orphanisque  ac  debilibus 
tributi  pondus  inciderat.     Quod  hi  discutientes  per  ordinem, 
relaxantes  pauperes  ac  infirmos,  illos  quos  justitioe  conditio 
tributarios  dabat,  censu  publico  subsiderunt."     These  collec- 
tors were  repelled  by  the  citizens  of  Tours,  who  proved  that 
Clotaire  I.  had  released  their  city  from  any  public  tribute, 
out  of  respect  for  St.  Martin.     And  the  reigning  king  ac- 
quiesced in  this  immunity.     It  may  also  be  inferred  from 
another  passage  (Lib.  x.  c.  7)  that  even  ecclesiastical  property 
was  not  exempt  from  taxation,  unless  by  special  privilege, 
which  indeed  seems  to  be  implied  in  the  many  charters  con- 
ceding this  immunity,  and  in  the  forms  of  Marculfus.^ 


1  M.  Lehuerou  imputes  the  same  theory 
to  Montesquieu.  But  his  words  (Espr. 
des  Loix,  xxx.  13)  do  not  assert  that  the 
Romans  might  not  be  subject  to  taxation 
in  the  earlier  Merovingian  period ;  though 
afterwards,  as  he  supposes,  this  obliga- 
tion was  replaced  by  that  of  military  ser- 
vice. 

2  This  note  was  written  before  I  had 
looked  at  a  work  published  in  1843,  by 
M.  Lehuerou,  '  Histoire  des  Institutions 
M^rovingiennes,'  in  which,  with  much 
Impartiality  and  erudition,  he  draws  a 
line  between  the  theories  of  Dubos  and 
Montesquieu ;  and,  upon  this  particular 


subject  of  taxation,  clearly  proves,  in  my 
opinion,  that  the  land-tax  imposed  under 
the  empire  continued  to  be  levied  on  the 
Roman  subjects  of  Clovis  and  the  next 
two  generations.  (Vol.  i.  p.  271,  et  post.) 
The  Franks,  such  ai  were  ingenui,  were 
originally  exempt  from  this  and  all  other 
tribute.  Of  this  M.  Lehuerou  makes  no 
doubt ;  nor,  perhaps,  has  any  one  doubt- 
ed  it,  except  Dubos.  But,  under  the  sons 
and  grandsons  of  Clovis,  endeavors  were 
made,  to  which  I  have  drawn  attention 
in  a  suDsequent  note,  by  those  despotic 
princes,  eager  to  assume  the  imperial 
prerogatives  oyer  all  their  subjects,  to 


CnAP.  n. 


KOMAN  NATIVES  OF  GAUL. 


281 


It  seems,  however,  clear  that  the  Frank  landholder,  the 
Fi-ancus  ingenuics^  born  to  his  share,  according  to  old  notions, 
of  national  sovereignty,  gave  indeed  his  voluntary  donation 
annually  to  the  king,  but  reckoned  himself  entirely  free  from 
compulsory  tribute.  We  read  of  no  tax  imposed  by  the  as- 
semblies of  the  Field  of  March ;  and  if  the  kings  had  pos- 
sessed the  prerogative  of  levying  money  at  will,  the  monarchy 
must  have  become  wholly  absolute  without  opposition.  The 
barbarian  was  distinguished  by  his  abhorrence  of  tribute. 
Tyranny  might  strip  one  man  of  his  possessions,  banish 
another  from  his  country,  destroy  the  life  of  a  third ;  the 
rest  would  at  the  utmost  murmur  in  silence  ;  but  a  general 
imposition  on  them  as  a  people  was  a  yoke  under  which  they 
would  not  pass  without  resistance.  I  shall  mention  a  few 
instances  in  a  future  note.  The  Roman,  on  the  other  hand, 
complained  doubtless  of  new  or  unreasonable  taxation ;  but 
he  could  not  avoid  acknowledging  a  principle  of  government 
to  which  his  forefiithers  had  for  so  many  ages  submitted. 
The  house  of  Clovis  stood  to  him  in  place  of  the  Cflesars  ;  this 
part  of  the  theory  of  Dubos  cannot  be  disputed.  But  when 
that  writer  extends  the  same  to  the  Frank,  as  a  constitutional 
position,  and  not  merely  referring  to  acts  protested  against  as 
illegal,  the  voice  of  history  refutes  him. 

Dubos  has  asserted,  and  is  followed  by  many,  that  the 
army  of  Clovis  was  composed  of  but  a  few  thousand  Salian 
Franks.  And  for  this  the  testimony  of  Gregory  has  been 
adduced,  who  informs  us  only  that  3,000  of  the  army  of  Clovis 
(a  later  writer  says  6,000)  were  baptized  with  him.  (Greg. 
Tur.  lib.  ii.  c.  33.)  But  Clovis  was  not  the  sole  chieftain  of 
his  tribe.  It  has  been  seen  that  he  enlarged  his  command 
towards  the  close  of  his  life,  by  violent  measures  with  respect 
to  other  kings  as  independent  apparently  as  himself,  and  some 
of  whom  belonged  to  his  family.  Thus  the  Ripuarian  Franks, 
who  occupied  the  left  bank  of  the  Rhine,  came  under  his 
sway.  And  besides  this,  the  argument  from  the  number  of 
soldiers  baptized  with  Clovis  assumes  that  the  whole  army 
embraced  Christianity  with  their  king.  It  is  true  that  Greg- 
ory seems  to  imply  this.  But,  even  in  the  seventh  century, 
the  Franks  on  the  Meuse  and  Scheldt  were  still  chiefly  pagan, 

rob  them  of  their  national  Immunity ;    sonal  authority  of  the  sovereign.    (Hist 
and  a  struggle  of  the  German  aristocra-    des  Inst.  Meroving.  i.  425,  et  post.) 
ey  ensued,  which  annihilated  the  per- 


282 


ROMAN  NATIVES  OF  GAUL. 


Notes  to 


Chap.  IL 


ROMAN  NATIVES  OF  GAUL. 


283 


as  the  Lives  of  the  Saints  are  said  by  Thierry  to  prove.  We 
have  only,  it  is  to  be  remembered,  a  declamatory  and  super- 
ficial history  for  this  period,  derived,  as  I  believe,  from  the 
panegyrical  life  of  St.  Remy,  and  bearing  traces  of  legendary 
incorrectness  and  exaggeration.  We  may,  however,  appeal 
to  other  criteria. 

It  cannot  be  too  frequently  inculcated  on  the  reader  who 
desires  to  form  a  general  but  tolerably  exact  notion  of  the 
state  of  France  under  the  first  line  of  kings,  that  he  is  not 
hastily  to  draw  inferences  from  one  of  the  three  divisions, 
Austrasia,  Neustria,  and  Aquitaine,  to  which,  for  a  part  of 
the  period,  we  must  add  Burgundy,  to  the  rest.  The  differ- 
ence of  language,  though  not  always  decisive,  furnishes  a  pre- 
sumption of  different  origin.  We  may  therefore  estimate, 
with  some  probability,  the  proportion  of  Franks  settled  in  the 
monarchy  on  the  left  bank  of  the  Rhine,  by  the  extent  of 
country  wherein  the  Teutonic  language  is  spoken,  unless  we 
have  reason  to  suspect  that  any  change  in  the  boundaries  of 
that  and  the  French  has  since  taken  place.  The  Latin  was 
certainly  an  encroaching  language,  and  its  daughter  has  in 
some  measure  partaken  of  the  same  character.  Many  causes 
are  easy  to  assign  why  either  might  have  gained  ground  on 
two  dialects,  the  German  and  Flemish,  contiguous  to  it  on 
the  eastern  frontier,  while  we  can  hardly  perceive  one  for  an 
opposite  result.  We  find,  nevertheless,  that  both  have  very 
nearly  kept  their  ancient  limits.  It  has  been  proved  by  M. 
Raoux,  in  the  Memoirs  of  the  Academy  of  Biiissels  (vol.  iv. 
p.  411),  that  few  towns  or  villages  have  changed  their  lan- 
guage since  the  ninth  century.  The  French  or  Walloon  fol- 
lowed in  that  early  age  the  irregular  line  which,  running  from 
Calais  and  St.  Omer  to  Lisle  and  Tournay,  stretches  north  of 
the  Meuse  as  far  as  Liege,  and,  bending  thence  to  the  south- 
westward,  passes  through  Longwy  to  Metz.  These  towns 
speak  French,  and  spoke  it  under  Charlemagne,  if  we  can  say 
that  under  Charlemagne  French  was  spoken  anywhere  ;•  at 
least  they  spoke  a  dialect  of  Latin  origin.  The  exceptions 
are  few ;  but  where  they  exist,  it  is  from  the  progress  of 
French  rather  than  the  contrary.  A  writer  of  the  sixteenth 
century  says  of  St.  Omer  that  it  was  "Olim  baud  dubie  mere 
Flandricum,  deinde  tamen  bilingue,  nunc  autem  in  totum  fere 
Gallicum."  There  has  also  been  a  shght  movement  towaixi 
French  in  the  last  fifty  years. 


^  The  most  remarkable  evidence  for  the  duration  of  the 
limit  is  the  act  of  partition  between  Lothaire  of  Lorraine  and 
Charles  the  Bald,  in  870,  whence  it  appears  that  the  names 
of  places  where  French  is  now  spoken  were  then  French. 
Yet  most  of  these  had  been  built,  especially  the  abbeys,  sub- 
sequently to  the  Frank  conquest :  "  d'ou  on  pent  conclure 
que  meme  dans  le  periode  franque,  le  langage  vulgaire  du 
grand  nombre  des  habitans  du  pays,  qui  sont  presentement 
Wallons,  n'etait  pas  teutonique ;  car  on  en  verrait  des  traces 
dans  les  actes  historiques  et  geographiques  de  ce  temps-la." 
(P.  434.)  Nothing,  says  M.  Michelet,  can  be  more  French 
than  the  Walloon  country.  (Hist,  de  France,  viii.  287.)  He 
expatiates  almost  with  enthusiasm  on  the  praise  of  this  people, 
who  seem  to  have  retained  a  large  share  of  his  favorite 
Celtic  element.  It  appears  that  the  result  of  an  investiga- 
tion into  the  languages  on  the  Alsatian  frontier  would  be 
much  the  same.  Here,  therefore,  we  have  a  very  reasonable 
presumption  that  the  forefothers  of  the  Flemish  Belgians, 
as  well  as  of  the  people  of  Alsace,  were  barbai-ians  :  °some 
of  the  former  may  be  sprung  from  Saxon  colonies  planted  in 
Brabant  by  Charlemagne ;  but  ^ye  may  derive  the  majority 
from  Salian  and  Ripuarian  Franks.  These  were  the 
strength  of  Austrasia,  and  among  these  the  great  restorer, 
or  ratlier  founder,  of  the  empire  fixed  his  capital  at  Aix-la- 
Chapelle. 

In  Aquitaine,  on  the  other  hand,  everything  appears 
Roman,  in  contradistinction  to  Frank,  except  the  reigning 
family.  The  chief  difficulty,  therefore,  concerns  Neustria 
that  is,  from  the  Scheldt,  or,  perhaps,  the  Somme,  to  the 
Loire ;  and  to  this  important  kingdom  the  advocates  of  the 
two  nations,  Roman  and  Frank,  lay  claim.  M.  Thierry  has 
paid  much  attention  to  the  subject,  and  come  to  the  conclu- 
sion that,  in  the  seventh  century,  the  number  of  Frank  land- 
holders, from  the  Rhine  to  the  Loire,  much  exceeded  that 
of  the  Roman.  And  this  excess  he  takes  to  have  been  in- 
creased through  the  seizure  of  Church  lands  in  the  next  age 
by  Charles  Martel,  who  bestowed  them  on  his  German  troops 
enlisted  beyond  the  Rhine.  The  method  which  Thierry  has 
pursued,  in  order  to  ascertain  this,  is  ingenious  and  presump- 
tively right.  He  remarked  that  the  names  of  places  will 
oflen  indicate  whether  the  inhabitants,  or  more  often  the 
chief  proprietor,  were  of  Roman  or  Teutonic  origin.     Thus 


284 


ROMAN  NATIVES  OF  GAUL. 


Notes  to 


Franconville  and  Romainville,  near  Paris,  are  distinguished, 
in  charters  of  the  ninth  century,  as  Francorum  villa  and 
Romanorum  villa.  This  is  an  instance  where  the  population 
seems  to  have  been  of  different  race.  But  commonly  the 
owner's  Christian  name  is  followed  by  a  familiar  termination. 
In  that  same  neighborhood  proper  names  of  German  origin, 
with  the  terminations  ville,  court,  mont,  vat,  and  the  like,  are 
very  frequent.  And  this  he  finds  to  be  generally  the  case 
north  of  the  Loire,  compared  with  the  left  bank  of  that  river. 
It  is,  of  course,  to  be  understood  that  this  proportion  of 
superior  landholders  did  not  extend  to  the  general  population. 
For  that,  in  all  Neustrian  Fmnce,  was  evidently  composed 
of  those  who  spoke  the  rustic  Roman  tongue  —  the  corrupt 
language  which,  in  the  tenth  or  eleventh  century,  became 
worthy  of  the  name  of  French ;  and  this  was  the  cose,  as 
we  have  just  seen,  in  part  of  Austrasia,  as  Champagne  and 
Lorraine. 

We  may,  therefore,  conclude  that  the  Franks,  even  in  the 
reign  of  Clovis,  were  rather  a  numerous  people — including, 
of  course,  the  Ripuarian  as  well  as  the  Salian  tribe.  They 
certainly  appear  in  great  strength  soon  afterwards.  If  we 
believe  Procopius,  the  army  which  Theodebert,  king  only  of 
Austrasia,  led  into  Italy  in  539,  amounted  to  100,000.  And, 
admitting  the  probability  of  great  exaggeration,  we  could 
not  easily  reconcile  this  with  a  very  low  estimate  of  Frank 
numbers.  But,  to  say  the  truth,  I  do  not  rely  much  on  this 
statement.  It  is,  at  all  events,  to  be  remembered  that  the 
dominions  of  Theodebert,  on  each  side  of  the  Rhine,  would 
furnish  barbarian  soldiers  more  easily  than  those  of  the 
western  kingdoms.  Some  may  conjecture  that  the  army 
was  partly  composed  of  Romans ;  yet  it  is  doubtful  whether 
they  served  among  the  Franks  at  so  early  a  period,  though 
we  find  them  some  years  afterwards  under  Chilperic,  a 
Neustrian  sovereign.  The  armies  of  Aquitaine,  it  is  said, 
were  almost  wholly  composed  of  Romans  or  Goths ;  it  could 
not  hare  been  otherwise. 

The  history  of  Gregory,  which  terminates  in  598,  affords 
numerous  instances  of  Romans  in  the  highest  offices,  not 
merely  of  trust,  but  of  power.  Such  were  Celsus,  Amatus, 
Mummolus,  and  afterwards  Protadius  in  Burgundy,  and  De- 
siderius  in  Aquitaine.  But  in  these  two  parts  of  the  mon- 
archy we  might  anticipate  a  greater  influence  of  the  native 


Chat.  n. 


ROMAN  NATIVES  OF  GAUL. 


285 


population.  In  Neustria  and  Austrasia,  a  Roman  count,  or 
mayor  of  the  palace,  might  have  been  unfavorably  beheld. 
Yet  in  the  latter  kingdom,  all  Frank  as  it  was  in  its  general 
character,  we  find,  even  before  the  middle  of  the  sixth  cen- 
tury. Lupus,  duke  of  Champagne,  a  man  of  considerable 
weight,  and  a  Roman  by  birth ;  and,  it  was  the  policy  after- 
wards of  Brunehaut  to  employ  Romans.  But  this  not  only 
excited  the  hostility  of  the  Austrasian  Franks,  but  of  the 
Burgundians  themselves ;  nor  did  anything  more  tend  to  the 
ruin  of  that  ambitious  woman.  Despotism,  through  its  most 
ready  instruments,  was  her  aim ;  and,  when  she  signally 
failed  in  the  attempt,  the  star  of  Germany  prevailed.  From 
that  time,  Austrasia  at  least,  if  not  Neustria,  became  a  Frank 
aristocracy.  We  hear  little  more  of  Romans,  ecclesiastics 
excepted,  in  considerable  power. 

If,  indeed,  we  could  agree  with  Montesquieu  and  Mably, 
that  a  Roman  subject  might  change  his  law  and  live  by  the 
Salic  code  at  his  discretion,  his  equality  with  the  Franks 
would  have  been  virtually  recognized;  since  every  one 
might  place  himself  in  the  condition  of  the  more  favored 
nation.  And  hence  Mably  accounts  for  the  prevalence  of 
the  Frank  jurisprudence  in  the  north  of  France,  since  it 
was  more  advantageous  to  adopt  it  as  a  personal  law.  The 
Roman  might  become  an  alodial  landholder,  a  member  of  the 
sovereign  legislature  in  the  Field  of  March.  His  weregild 
would  be  raised,  and  with  that  his  relative  situation  in  the 
commonwealth ;  his  lands  would  be  exempt  from  taxation. 
But  this  theory  has  been  latterly  rejected.  We  cannot, 
mdeed,  conceive  one  less  consonant  to  the  principles  of  the 
barbarian  kingdoms,  or  the  general  language  of  the  laws. 
Montesquieu  was  deceived  by  a  passage  in  an  early  capitu- 
lary, of  which  the  best  manuscripts  furnish  a  different  read- 
ing. Mably  was  pleased  with  an  hypothesis  which  rendered 
the  basi^  of  the  state  more  democratical.  But  the  first  who 
propagated  this  error,  and  on  more  plausible  grounds  than 
Montesquieu,  though  he  (Esprit  des  Loix,  liv.  xxviii.  c.  4) 
seems  to  claim  it  as  a  discovery  of  his  own,  were  Du  Cange 
and  Muratori.  They  were  misled  by  an  edict  of  the  em- 
peror Lothaire  Lin  824:  —  "Volumus  ut  cunctus  populus 
Romanus  interrogetur  quah  lege  vult  vivere,  ut  tali,  quali  pro- 
fessi  fuerint  vivere  velle,  vivant."  But  Savigny  has  proved 
that  tliis  was  a  peculiar  exception  of  favor  granted  at  that  time 


286 


DISTINCTION  OF  LAWS. 


Notes  to 


to  the  Romans,  or  rather  separately  to  each  person ;  and  that 
not  as  a  privilege  of  the  ancient  population,  but  for  the  sake 
of  the  barbarians  who  had  settled  at  Rome.  Raynouard  is 
one  of  those  who  have  been  deceived  by  the  more  obvious 
meaning  of  this  law,  and  adopts  the  notion  of  Mably  on  its 
authority.  Were  it  even  to  bear  such  an  interpretation,  we 
could  not  draw  a  general  inference  from  it.  In  the  case  of 
married  women,  or  of  the  clergy,  the  liberty  of  changing  the 
law  of  birth  was  really  permitted.  (See  Savigny,  i.  134,  ei 
post,  Engl,  transl.) 

It  should,  however,  be  mentioned,  that  a  late  very  learned 
writer,  Troja,  admits  the  hypothesis  of  a  change  of  law  in 
France,  not  as  a  right  in  every  Roman's  power,  but  as  a 
special  privilege  sometimes  conceded  by  the  king.  And  we 
may  think  this  conjecture  not  unworthy  of  regard,  since  it 
serves  to  account  for  what  is  rather  anomalous  —  the  admis- 
sion of  mere  Romans,  at  an  early  period,  to  the  great  offices 
of  the  monarchy,  and  especially  to  that  of  count,  which  in- 
volved the  rank  of  presiding  in  the  Fi*ank  mallus.  It  is  said 
that  Romans  sometimes  assumed  German  names,  though 
the  contrary  never  happened ;  and  this  of  itself  seems  to  in- 
dicate a  change,  as  far  as  was  possible,  of  national  connection. 
But  it  is  of  little  service  to  the  hypothesis  of  Montesquieu 
and  IVIably.  Of  the  edict  of  Lothaire  Troja  thinks  liki 
Savigny ;  but  he  adopts  the  reading  of  the  capitulary,  as 
quoted  by  Montesquieu,  "  Francum,  aut  barbarum,  aut 
hominem  qui  lege  Salica  vivit ; "  where  the  best  manuscripts 
omit  the  second  aut. 


Note  V.    Page  155. 

This  subject  has  been  fully  treated  in  the  celebrated  work 
by  Savigny,  *  History  of  Roman  Law  in  the  Middle  Ages. 
The  diligence  and  fidelity  of  this  eminent  writer  have  been 
acknowledged  on  all  sides  ;  nor  has  any  one  been  so  copious 
in  collecting  materials  for  the  history  of  mediaeval  jurispru- 
dence, or  so  perspicuous  in  arranging  them.  In  a  few  points 
later  inquirers  have  not  always  concurred  with  him.  But, 
with  the  highest  respect  for  Savigny,  we  may  say,  that  of  the 
two  leading  propositions  —  namely,  first,  the  continuance  of 
the  Theodosian  code,  copied  into  the  Breviarium  Aniani,  as 
the  personal  law  of  the  Roman  inhabitants,  both  of  France 


Chap.  II. 


DISTINCTION  OF  LAWS. 


287 


and  Italy,  for  several  centuries  after  the  subjugation  of  those 
countries  by  the  barbarians ;  and,  secondly,  the  quotation  of 
the  Pandects  and  other  parts  of  the  law  of  Justinian  by 
some  few  writers,  before  the  pretended  discovery  of  a  manu- 
script at  Amalfi  —  the  former  has  been  perfectly  well  known, 
as  least  ever  since  the  publication  of  the  glossary  of  Ducange 
in  tlie  seventeenth  century,  and  that  of  Muratori's  Disserta- 
tions on  Italian  Antiquities  in  the  next ;  nor,  indeed,  could  it 
possibly  liave  been  overlooked  by  any  one  who  had  read  the 
barbarian  codes,  full  as  they  are  of  reference  to  those  who 
followed  the  laws  of  Rome ;  while  the  second  is  also  proved, 
though  not  so  abundantly,  by  several  writers  of  the  last  age. 
Guizot,  praising  Savigny  for  his  truthfulness,  and  for  having 
shown  the  permanence  of  Roman  jurisprudence  in  Europe, 
well  asks  how  it  could  ever  have  been  doubted.  (Civil,  en 
France,  Lecon  11.) 

A  late  writer,  indeed,  has  maintained  that  the  Romans  did 
not  preserve  their  law  under  the  Lombards ;  elaborately  re- 
pelling the  proofs  to  the  contrary,  alleged  by  Muratori  and 
Savigny.  (See  Troja,  Discorso  della  Condizione  dei  Romani 
vinti  dai  Longobardi,  subjoined  to  the  fourth  volume  of  his 
Storia  d'  Italia.)  He  does  not  admit  that  the  inhabitants 
were  treated  by  the  Lombard  conquerors  as  anything  better 
than  tributaries  or  colom.  Even  the  bishops  and  clergy 
were  judged  according  to  the  Lombard  law  (vol.  v.  p.  86). 
The  personal  law  did  not  come  in  till  the  conquest  of  Charle- 
magne, who  established  it  in  Italy.  And  though  later,  ac- 
cording to  this  writer,  in  its  origin,  the  distinctions  introduced 
by  it  subsisted  much  longer  than  they  did  in  France.  In- 
stances of  persons  professing  to  live  by  the  Lombard  law  are 
found  very  late  in  the  middle  ages ;  the  last  is  at  Bergamo, 
in  1388.  But  Bergamo  was  a  city  in  which  the  Lombard 
population  had  predominated.     (Savigny,  vol.  i.  p.  378.) 

Whatever  may  have  been  the  case  in  Lombardy,  the  exis- 
tence of  personal  law  in  France  is  beyond  question.  It  is 
far  more  difficult  to  fix  a  date  for  its  termmation.  These 
national  distinctions  were  indelibly  preserved  in  the  south  of 
France  by  a  law  of  Valentinian  IIL,  copied  into  the  Bre- 
viarium Aniani,  which  prohibited  the  intermarriage  of  Ro- 
mans with  barbarians.  This  was  abolished  so  far  as  to 
legalize  such  unions,  witli  the  permission  of  the  count,  by  a 
law  of  the  Visigoths  in  Spain,  between  653  and  672.     But 


288 


DISTINCTION  OF  LAWS. 


Notes  to 


such  an  enactment  could  not  have  been  obligatory  in  France. 
Whether  the  Franks  ever  took  Roman  wives  I  cannot  .«ay ; 
we  have,  as  far  as  I  am  aware,  no  instance  of  it  in  their 
royal  family.  Proofs  might,  perhaps,  be  found,  with  respect 
to  private  families,  in  the  Lives  of  the  Saints ;  or,  if  none, 
presumptions  to  the  contrary.  Troja  (Storia  d'ltalia,  p. 
1204)  says  that  St.  Medard  was  the  oiFspring  of  a  marriage 
between  a  Frank  and  a  Roman  mother,  before  the  conquest 
by  Clovis,  and  that  the  father  lived  in  the  Vcrmandois. 
Savigny  observes  that  the  prohibition  could  only  have  ex- 
isted among  the  Visigoths;  else  a  woman  could  not  have 
changed  her  law  by  marriage.  This,  however,  seems  rather 
applicable  to  Italy  than  to  the  north  of  France,  where  we 
have  no  proof  of  such  a  regulation.  Raynouard,  whose  con- 
stant endeavor  is  to  elevate  the  Roman  population,  assumes 
that  they  would  have  disdained  intermarriage  with  barba- 
rians. (Hist,  du  Droit  Municipal,  i.  288.)  But  the  only 
instance  which  he  adduces,  strangely  enough,  is  that  of  a 
Goth  with  a  Frank ;  which,  we  are  informed,  was  reckoned 
to  disparage  the  former.  It  is  very  likely,  nevertheless,  that 
a  Frank  Antrustion  would  not  have  held  himself  highly 
honored  by  an  alliance  with  either  a  Goth  or  a  Roman. 
Each  nation  had  its  own  pride ;  the  conqueror  in  arms  and 
dominion,  the  conquered  in  polished  manners  and  ancient 
renown. 

"  At  the  beginning  of  the  ninth  century,**  says  M.  Guizot, 
"  the  essential  characteristic  is  that  laws  are  personal  and  not 
territorial.  At  the  beginning  of  the  eleventh  the  reverse 
prevails,  except  in  a  very  few  instances."  (Le9on  25.  But 
can  we  approximate  no  nearer  ?  The  territorial  element,  to 
use  that  favorite  word,  seems  to  show  itself  in  an  expression 
of  the  edict  of  Pistes,  8G4:  —  "In  iis  regionibus  quae  legem 
Romanam  sequuntur."  (Capit.  Car.  Calvi.)  This  must  be 
taken  to  mean  the  south  of  France,  where  the  number  of 
persons  who  followed  any  other  law  may  have  been  incon- 
siderable, relatively  to  the  rest,  so  that  the  name  of  the  dis- 
trict is  used  collectively  for  the  inhabitants.  (Savigny,  i. 
162.)  And  this  became  i\\Q  pays  du  droit  ecrit,  bounded,  at 
least  in  a  loose  sense,  by  the  Loire,  wherein  the  Roman  was 
the  common  law  down  to  the  French  revolution ;  the  laws 
of  Justinian,  in  the  progress  of  learning,  having  naturally 
taken  place  of  the  Theodosian.     But  in  the  same  capitulary 


Chap.  II. 


DISTINCTION  OF  LAWS. 


289 


we  read,  —  "  De  illis  qui  secundum  legem  Romanam  vivunt, 
nihil  aliud  nisi  quod  in  iisdem  continetur  legibus,  definimus. 
And  the  king  (Charles  the  Bald)  emphatically  declares  that 
neither  that  nor  any  other  capitulary  which  he  or  his  prede- 
cessors had  made  is  designed  for  those  who  obeyed  the  Roman 
law.  The  fact  may  be  open  to  some  limitation  ;  but  we  have 
here  an  express  recognition  of  the  continuance  of  the  separate 
races.  It  seems  highly  probable  that  the  interference  of  the 
bishops,  still  in  a  great  measure  of  Roman  birth,  and,  even 
where  otherwise,  disposed  to  favor  Roman  policy,  contributed 
to  protect  the  ancient  inhabitants  from  a  legislature  wherein 
they  were  not  represented.  And  this  strongly  corroborates 
the  probability  that  the  Romans  had  never  partaken  of  the 
legislative  power  in  the  national  assemblies. 

In  the  middle  of  the  tenth  century,  however,  according  to 
Sismondi,  the  distinction  of  races  was  lost;  none  were 
Goths,  or  Romans,  or  even  Franks,  but  Aquitanians,  Bur- 
gundians,  Flemings.  French  had  become  the  language  of 
the  nation  (iii.  400).  French  must  here  be  understood  to 
include  Provencal,  and  to  be  used  in  opposition  to  Ger- 
man. In  this  sense  the  assertion  seems  to  be  nearly  true ; 
and  it  may  naturally  have  been  the  consequence  that  all 
difference  of  personal  laws  had  come  to  an  end.  The  feudal 
customs,  the  local  usages  of  counties  and  fiefs,  took  as  much 
the  lead  in  northern  France  as  the  Roman  code  still  pre- 
served in  the  south.  The  pays  coutumiers  separated  them- 
selves by  territorial  distinctions  from  the  pays  du  droit} 
Still  the  instance  quoted  in  my  note,  p.  134,  from  Vaissette 
(where,  at  Carcassonne,  so  late  as  018,  we  find  Roman, 
Goth,  and  Frank  judges  enumerated),  is  a  striking  evidence 


J  A  work  which  I  had  not  seen  when 
this  note  was  written,  *'  Ilistoire  du  Droit 
Fran(;ais."  by  M.  Laferri6re(p.  85),  treats 
at  some  length  the  origin  of  the  custom- 
ary law  of  France.  It  was  not,  in  any 
considerable  degree,  borrowed  from  the 
barbaric  codes,  nor  greatly,  as  ho  thinks, 
from  the  Roman  law.  He  points  out  the 
manifold  discrepancies  from  the  former 
of  the.se.  But  these  codes  appear  to  have 
been  in  force  under  Charlemagne.  The 
feudal  customs,  which  became  the  sole 
law  on  the  right  bank  of  the  Loire,  he 
refers  to  the  ninth  and  two  following 
centuries.  And  I  suppose  there  can  be 
no  doubt  of  this.  The  spirit  of  the 
French  customs,  both  territorial  and 
personal,  was  wholly  feudal;  the  Salic 

VOL.  I.  19 


code  had  been  compiled  on  a  different 
motive  or  leading  principle.  This  is  very 
much  what  took  place  in  England,  and 
perhaps  more  rapidly,  in  the  twelfth  cen- 
tury; the  Norman  law,  with  its  feudal 
principle,  replaced  the  Anglo-Saxon. 

But  a  Belgian  writer,  M.  Raepsaet 
(Nouveaux  Memoires  de  I'Academie  de 
Bruxelles,  t.  iii,),  contends  that  the  Salic 
and  UipuarJan  laws  had  authority  in  the 
Netherlands,  down  to  the  thirteenth  cen- 
tury, for  towns  and  for  alodial  proprie- 
tors. We  find  lex  Salica  in  several 
instruments :  Otho  of  Frisingen  says, 
"  Lege  qua}  Salica  usque  ad  haec  tem 
pora  vocatur,  nobilissimos  Francorum 
adhuc  uti."  But  this  must  have  been 
chiefly  as  to  successions. 


290 


PROVINCIAL  GOVERNMENT. 


Notes  to 


that,  even  far  to  the  south,  the  territorial  principle  had  not 
yet  wholly  subverted  those  privileges  of  races,  to  which  the 
barbarians,  and  also  the  Romans,  clung  as  honorably  dis- 
tinctive. 

It  is  only  by  the  force  of  very  natural  prejudices,  acting 
on   both   the    polished    and   the   unciviUzed,  that    we   can 
account  for  the  long  continuance  of  this  inconvenient  sepa- 
ration.    If  the  Franks  scorned  the  complex  and  wordy  juris- 
prudence of  Rome,  it  was  just  as  intolerable  for  a  Roman  to 
endure  the  rude  usages  of  a  German  tribe.     The  traditional 
glory  of  Rome,  transferred  by  the  adoption  of  that  name  to 
the  provincials,  consoled  them  in  their  subjection ;  and  in  the 
continuance  of  their  law,  in  the  knowledge  that  it  was  the 
guarantee  of  their  civil  rights  against  a  litigious  barbarian, 
though  it  might  afford  them  but  imperfect  security  against 
his  violence,  in  the  connection  which  it  strengthened  with 
the    Church  (for    churchmen   of  all   nations  followed  it), 
they  found  no  trifling  recommendations  of  this  distinction 
from  the  conquerors.     It  seems  to  be  proved  that,  in  lapse 
of  ages,  each  had  gradually  borrowed  something  from  the 
other.     The  melting  down  of  personal  into  territorial,  that 
is,  uniform  law,  as  it  cannot  be  referred   to  any  positive 
enactment  or  to  any  distinct  period,  seems  to  have  been  the 
result  of  such  a  process.     The  same  judges,  the  counts  and 
missi,  ai>pear  to  have  decided  the  controversies  of  all  the 
subject  nations,   whether  among   themselves  or  one   with 
another.     Marculfus  tells  us  this  in  positive  terms:    "Eos 
recto  tramite    secundum    legem  et  consuetudinem   eorum 
regas."     (Marculf.  Formuloe,  lib.  i.  c.  8.)     Nor  do  we  find 
any  separate  judges,  except  the  defensores  of  cities,  who 
were  Romans,  but  had  only  a  limited  jurisdiction.     It  was 
only  as  to  civil  rights,  as  ought  to  be  remarked,  that  the  dis- 
tinction of  personal  law  was  maintained.    The  penalties  of 
crime  were  defined  by  a  law  of  the  state.    And  the  same 
must  of  course  be  understood  as  to  military  service. 


Note  VI.    Pages  156,  164. 

The  German  dukes  of  the  Alemanni  and  Bavarians  be- 
longed to  once  royal  families:  their  hereditary  rights  may 
be  considered  as  those  of  territorial  chiefs.  Again,  in  Aqui- 
taine  the  Merovingian  kings  had  so  little  authority  that  the 


Chap.  II. 


PROVINCIAL  GOVERNMENT. 


291 


counts  became  nearly  independent.  But  we  do  not  find 
reason,  as  far  as  I  am  aware,  to  believe  any  regular  succes- 
sion of  a  son  to  his  father,  in  Neustria  or  Austrasia,  under 
the  first  dynasty :  much  less  would  Charlemagne  have  per- 
mitted it  to  grow  up.  It  could  never  have  become  an  estab- 
lished usage,  except  in  a  monarchy  too  weak  to  maintain 
any  of  its  prerogatives.  Such  a  monarchy  was  that  of 
CJiarles  the  Bald.  I  have  said  that,  in  the  famous  capitulary 
of  Kiersi,  in  877,  the  succession  of  a  son  to  his  father  appears 
to  be  recognized  as  a  known  usage.  M.  Fauriel,  on  the 
other  hand,  denies  that  this  capitulary  even  confirms  it  at  alL 
(Hist,  de  la  Gaule  Meridionale,  iv.  383.)  We  both,  there- 
fore, agree  against  the  current  of  French  writers  who  take 
this  for  the  epoch  of  hereditary  succession.  It  seems  evident 
to  me  that  an  mage,  sufficient,  in  common  parlance,  to  entitle 
the  son  to  receive  the  honor  which  his  father  had  held,  is 
implied  in  this  capitulary.  But  the  object  of  the  enactment 
was  to  provide  for  the  contingency  of  a  territorial  govern- 
ment becoming  vacant  by  death  during  the  intended  absence 
of  the  emperor  Charles  in  Italy;  and  that  in  cases  only  where 
the  son  of  the  deceased  count  should  be  with  the  army,  or  in 
his  minority,  or  where  no  son  survived.  "  It  is  obvious," 
Palgrave  says,  "  that  the  law  relates  to  the  custody  of  the 
county  or  fief  during  the  interval  between  the  death  of  the 
father  and  the  investiture  of  the  hen-."  (English  Common- 
wealth, 392.)  But  the  case  of  an  heir,  that  is,  a  son  —  for 
collateral  inheritance  is  excluded  by  the  terms  of  the  capitu- 
lary -—  being  of  full  age  and  on  the  spot,  is  not  specially 
mentioned;  so  that  we  must  presume  that  he  would  have 
assumed  the  government  of  the  county,  awaiting  the  sover^ 
eign's  confirmation  on  his  return  from  the  Italian  expedition. 
The  capitulary  should  be  understood  as  applicable  to  tempo- 
rary circumstances,  rather  than  as  a  peimanent  law.  But  I 
must  think  that  the  lineal  succession  is  taken  for  granted 
in  it.* 


I  Si  comes  obierit,  cujus  Alius  nobls- 
cum  sit,  filius  noster  cum  caeteris  fide- 
libus  nostris  ordinet  de  his  qui  illi  plus 
familiares  et  propinquiores  fuerint,  qui 
cum  ministerialibus  ipsius  comitatus  et 
episcopo  ipsum  comitatum  prseyideat, 
usque  cum  nobis  renuntietur.  Si  autem 
fill  urn  pirvulum  habuerit,  iisdem  cum 
ministerialibus  ipsius  comitatus  et  epis- 
copo, in  cujus  parochiaconsistit,eundem 
comitatum  prseyideat.  douce  ad  nostram 


notitiam  penreniat.  Si  vero  filium  non 
habuerit,  filius  noster  cum  caeteris  fide- 
libus  nostris  ordinet,  qui  cum  minis- 
terialibus ipsius  comitatus  et  episcopo 
ipsum  comitatum  praevideat,  donee  ju»i 
sio  nostra  inde  fiat.  £t  pro  hoc  nullna 
irascatur,  si  eundem  comitatum  alter!, 
qui  nobis  placuerit,  dederimus,  quam 
illi  qui  earn  hactenus  praevidit.  Simili- 
ter  et  de  vassallis  nostris  faciendum  est 
(Script.  Ber.  GaU.  tU.  701.) 


292 


POWER  OF  THE  KINGS. 


Notes  t" 


Chap,  n 


POWER  OF  THE  KINGS. 


293 


I'll 


We  find  that  so  long  at  least  as  the  kings  retained  any 
power,  their  confirmation  or  consent  was  required  on  every 
succession  to  an  honor  —  that  is,  a  county  or  other  govern- 
ment —  though  it  was  very  rarely  refused.  Guadet  (Notices 
sur  Richer,  p.  62)  supposes  this  to  have  been  the  case  even 
in  the  last  reigns  of  the  Caroline  family ;  that  is,  in  the  tenth 
century;  but  this  is  doubtful,  at  least  as  to  the  southern 
dukes  and  counts.  These  honors  gradually,  after  the  acces- 
sion of  the  liouse  of  Capet,  assumed  a  new  character,  and 
were  confounded  together  with  benefices  under  the  general 
name  of  fiefs  of  the  crown.  The  counts,  indeed,  according 
to  Montesquieu  and  to  probability,  held  beneficiary  lands 
attached  to  their  office.     (Esprit  des  Loix,  xxvi.  27.) 

The  county,  it  may  here  be  mentioned,  was  a  territorial 
division,  generally  of  the  same  extent  as  the  pagus  of  the 
Boman  empire.  The  latter  appellation  is  used  in  the  Mero- 
vingian period,  and  long  afterwards.  The  word  county, 
comitatus,  is  said  to  be  rare  before  800 ;  but  the  royal  officer 
was  called  comes  from  the  beginning.  The  number  of  pagi, 
or  counties,  I  have  not  found.  The  episcopal  dioceses  were 
118  in  the  Caroline  period,  and  were  frequently,  but  not 
always,  coincident  in  extent  with  the  civil  divisions.  (See 
Guerard,  Cartulaire  de  Chartres,  Prolegomenes,  p.  6,  in 
Documens  Inedits,  1840.) 


Note  Vn.     Page  158. 

A  reconsideration  of  the  Merovingian  history  has  led  me 
to  doubt  whether  I  may  not,  in  my  earlier  editions,  like  sev- 
eral others,  have  rather  exaggerated  the  change  in  the  pre- 
rogative of  the  French  kings  from  Clovis  to  Clotaire  11. 
Though  the  famous  story  of  the  vase  of  Soissons  is  not 
insignificant,  it  now  seems  to  me  that  an  excessive  stress  has 
sometimes  been  laid  upon  it.  In  the  first  place,  there  is  a 
general  objection  to  founding  a  large  political  theory  on  any 
anecdote,  which  proving  false,  the  whole  would  crumble  for 
want  of  a  basis.  This,  however,  is  rather  a  general  remark 
than  intended  to  throw  doubt  upon  the  story  told  by  Gregory 
of  Tours,  who,  though  he  came  so  long  afterwards,  and 
though  there  is  every  appearance  of  rhetorical  exaggeration 
and  inexactness  in  the  detail,  is  likely  to  have  learned  the 


principal  fact  by  tradition  or  some  lost  authority.^     But  even 
taking  the  circumstances  exactly  according  to  his  relation  dc 
they  go  much  further  than  to  inform  us,  what  our  knowledge 
of  barbarian  manners  might  lead  any  one  to  presume,  that 
the  booty  obtained  by  a  victory  was  divided  among  the  army? 
Clovis  was  not  refused  the  vase  which  he  requested;  the 
army  gave  their  assent  in  terms  which  Gregory,  we  may 
well  believe,  has  made  too  submissive;  he  took  it  without 
regard  to  the  insolence  of  a  single  soldier,  and  reveuired 
himself  on  the  first  opportunity.     The  Salian  king  wal!  I 
believe  from  other  evidence,  a  limited  one ;  he  was  obliged 
to  consult  his  army  in  war,  his  chief  men  in  peace;  but  the 
vase  of  Soissons  does  not  seem  to  warrant  us  in  deeming 
him  to  have  been  more  limited  than  from  history  and  anal- 
ogy we  sliould  otherwise  infer.     If,  indeed,  the  language  of 
Orregory  were  to  be  trusted,  the  whole  result  would  teU  more 
in  favor  of  the  royal  authority  than  against  it.     And  thus 
Dubos,  who  has  written  on  the  principle  of  believing  all  that 
he  found  in  history  to  the  very  letter,  has  interpreted  the 
story.  -^ 

Two  French  writers,  the  latter  of  considerable  reputation, 
liouLainvilhers  and  Mably,  have  contributed  to  render  current 
a  notion  that  the  barbarian  kings,  before  the  conquest  of 
Uaul,  enjoyed  scarcely  any  authority  beyond  that  of  leaders 
ot  the  army.  And  this  theory  has  lately  been  maintained 
by  two  of  our  countrymen,  whose  researches  have  met  with 
great  approbation.  "  It  is  plain,"  says  Mr.  Allen,  « the  mon- 
archical theory  cannot  have  been  derived  from  the  ancient 
Germans.  In  the  most  considerable  of  the  German  tribes 
the  form  of  government  was  republican.  Some  of  them  had 
a  chief,  whom  the  Romans  designated  with  the  appellation 
ot  king ;  but  his  authority  was  limited,  and  in  the  most  dis- 
tinguished of  their  tribes  the  name  as  weU  as  the  office  of 
king  was  unknown.^    The  supreme  authority  of  the  nation 


»  Since  tliis  sentence  was  written  I 
have  found  the  story  of  the  vase  of  Sois- 
Bons  iu  llincmar'8  Life  of  St.  Remi, 
which,  as  I  have  observed  in  a  former 
note,  appears  to  be  taken  from  a  docu- 
ment nearly  fontcmporary  with  the  saint, 

i^?  'V=»*\^,  ^^V'^^'  ^"<*  this  original 
Life  of  St.  Kemi,  preserved  only  in  ex- 
tracts when  Ilincmar  compiled  his  own 
biography  of  that  famous  bishop,  is,  in 
aU   hiceUhood,    the   baais   of  whatever 


Gregory  of  Tours  has  recorded  concern- 
ing the  founder  of  the  monarchy;  very 
rhetorical,  and  probably  not  accurate, 
but  essentially  deserving  belief. 

2  This  is  by  no  means  an  unquestion* 
able  representation  oi  what  Tacitus  has 
said ;  but  the  language  of  that  historian, 
as  has  been  observed  in  a  former  note,  ii 
not  sufficiently  perspicuous  on  this  sub- 
ject of  German  royalty. 


if 


294 


POWER  OF  THE  KINGS. 


Notes  to 


Chap.  II. 


POWER  OF  THE  KINGS. 


295 


resided  in  the  freemen  of  whom  it  was  composed.  From 
them  every  determination  proceeded  which  affected  the  gen- 
eral interests  of  the  community,  or  decided  the  life  or  death 
of  any  member  of  the  commonwealth.  The  territory  of  the 
state  was  divided  into  districts,  and  in  every  district  there 
was  a  chief  who  presided  in  its  assemblies,  and,  with  the 
assistance  of  the  other  freemen,  regulated  its  internal  con- 
cerns, and  in  matters  of  inferior  importance  administered 
justice  to  the  inhabitants. 

This  form  of  government  subsisted  among  the  Saxons  of 
the  Continent  so  late  as  the  close  of  the  seventh  century,  and 
probably  continued  in  existence  till  their  final  conquest  by 
Chai'lemagne.  Long  before  that  period,  however,  the  tribes 
that  quitted  their  native  forests,  and  established  themselves 
in  the  empire,  had  converted  the  temporary  general  of  their 
army  into  a  permanent  magistrate,  with  the  title  of  king. 
But  that  the  person  decorated  with  this  appellation  was  in- 
vested with  the  attributes  essential  to  royalty  in  after-times  is 
utterly  incredible.  Freemen  with  arms  in  their  hands,  accus- 
tomed to  participate  in  the  exercise  of  the  sovereign  power, 
were  not  likely  without  cause  to  divest  themselves  of  that 
high  prerogative,  and  transfer  it  totally  and  inalienably  to 
their  general.  Chiefs  who  had  been  recently  his  equals 
might,  in  consideration  ot  his  military  talents,  and  from  re- 
gard to  their  common  interest,  acquiesce  in  his  permanent 
superiority  as  commander  of  their  united  forces  ;  but  it  can- 
not be  supposed  that  they  would  gratuitously  and  universally 
submit  to  him  as  their  master.  There  are  no  written  ac- 
counts, it  is  true,  of  the  conditions  stipulated  by  the  German 
warriors  when  they  converted  him  into  a  king.  But  there  is 
abundance  of  facts  recorded  by  historians,  which  show  be- 
yond a  doubt  that,  though  he  might  occasionally  abuse  his 
power  by  acts  of  violence  and  injustice,  the  authority  he  pos- 
sessed by  law  was  far  from  being  unlimited.  (Inquiry  into 
the  Rise  and  Growth  of  Royal  Prerogative,  p.  11.) 

It  may  be  observed,  in  the  first  place,  that  Mr.  Allen  ap- 
peared to  have  combated  a  shadow.  Few,  I  presume,  contend 
for  an  unlimited  authority  of  the  Germanic  kings,  either  be- 
fore or  after  their  conquests  of  France  and  England.  A 
despotic  monarchy  was  utterly  uncongenial  to  the  mediaeval 
polity.     Sir  F.  Palgrave  follows  in  the  same  direction  :  — 

"  When  the  *  three  tribes  of  Germany  *  first  invaded  Brit- 


ain, royalty,  in  our  sense  of  the  term,  was  unknown  to  them. 
Amongst  the  Teutons  in  general  the  word  *  king,'  probably 
borrowed  from  the  Celtic  tongue,  though  now  naturalized  in  all 
the  Teutonic  languages,  was  as  yet  not  introduced  or  invented. 
Their  patriarchal  rulers  were  their  *  aldermen,'  or  seniors. 
In  *  old  Saxony '  there  was  such  an  alderman  in  every  pagus. 
Predominant  or  preeminent  chieftains,  whom  the  Romans 
called  '  reges,'  and  who  were  often  confirmed  in  their  domin- 
ions by  the  Romans  themselves,  existed  at  an  earher  period 
amongst  several  of  the  German  tribes ;  but  it  must  not  be 
supposed  that  these  leaders  possessed  any  of  the  exalted 
functions  and  complex  attributes  which,  according  to  our 
ideas,  constitute  royal  dignity.  A  king  must  be  invested 
with  permanent  and  paramount  authority.  For  the  material 
points  at  issue  are  not  affected  by  showing  that  one  powerful 
chieftain  might  receive  the  complimentary  title  of  rex  from  a 
foreign  power,  or  that  another  chieftain,  with  powers  ap- 
proaching to  royalty,  may  not  have  been  created  occasionally, 
and  during  greater  emergencies.  The  real  question  is, 
whether  the  king  had  become  the  lord  of  the  soil,  or  at  least 
the  greatest  landed  proprietor,  and  the  first  '  estate  '  of  the 
commonwealth,  endued  with  prerogatives  which  no  other 
member  of  the  community  could  claim  or  exercise.  The  dis- 
posal of  the  military  force,  the  supreme  administration  of 
justice,  the  right  of  receiving  taxes  and  tributes,  and  the 
character  of  supreme  legislator  and  perpetual  president  of 
the  councils  of  the  realm,  must  all  belong  to  the  sovereign, 
if  he  is  to  be  king  in  deed  as  well  as  in  name."  (Rise  and 
Progress  of  the  English  Commonwealth,  vol.  i.  p.  553.) 

The  prerogatives  here  assigned  to  royalty  as  part  of  its 
definition  are  of  so  various  a  nature,  and  so  indefinitely  ex- 
pressed, that  it  is  difficult  to  argue  about  them.  Certainly  a 
"  king  in  deed  "  must  receive  taxes,  and  dispose,  though  not 
necessarily  without  consent,  of  the  military  force.  He  must 
preside  in  the  councils  of  the  realm ;  but  he  need  not  be  su- 
preme legislator,  if  that  is  meant  to  exclude  the  participation 
of  his  subjects ;  much  less  need  he  be  the  lord  of  the  soil  — 
a  very  modern  notion,  and  merely  technical,  if  indeed  it 
could  be  said  to  be  true  in  any  proper  sense  —  nor  even  the 
greatest  landed  proprietor.  "  A  king's  a  king  for  a'  that ; " 
and  we  have  never  in  England  known  any  other. 

But  why  do  these  eminent  writers  depreciate  so  confidently 


296 


POWER  OF  THE  KINGS. 


Notes  to 


the  powers  of  a  Frank  or  Saxon  king  ?    Even  if  Caesar  and 
Tacitus  are  to  be  implicitly  confided  in  for  their  own  times, 
are  we  to  infer  that  no  consolidation  of  the  German  clans,  if 
that  word  is  a  right  one,  had  been  effected  in  the  four  suc- 
ceeding centuries  ?    Are  we  even  to  reject  the  numerous  tes- 
timonies of  Latin  writers  during  those  ages,  who  speak  of 
kmgs,  hereditary  chieftains,  and  leaders  of  the   barbarian 
armies  ?    If  there  is  a  notorious  fact,  both  as  to  the  Salian 
Franks  and  the  Saxons  of  Germany,  it  is  that  each  had  an 
acknowledged  royal  family.     Even  if  they  sometimes  chose 
a  king  not  according  to  our  rules  of  descent,  it  was  invaria- 
bly from  one  ancestor.     The  house  of  Meroveus  was  proba- 
bly recognized  before  the  existence  of  that  obscure  prince ; 
and  in  England  Hengist  could  boast  the  blood  of  Woden,  the 
demigod  of  heroic  tradition.     A  government  by  grafs  or  eal- 
dormen  of  the  gau,  might  suit  a  people  whose  forests  pro- 
tected them  from  invasion,  but  was  utterly  incompatible  with 
the  aggressive  warfare  of  the  Franks,  or  of  the  first  conquer- 
ors of  Kent  and  Wessex.    Grimm,  in  his  excellent  antiquities 
of  German  Law,  has  fully  treated  of  the  old  Teutonic  monar- 
chies, not  always  hereditary,  and  never  absolute,  but  easily 
capable  of  receiving  an  enlargement  of  power  in  the  hands 
of  brave  and  ambitious  princes,  such  as  arose  in  the  great 
westward  movement  of  Germany. 

If,  however,  the  authority  of  Clovis  has  been  rated  too 
low,  it  may  also  be  questioned  whether  that  of  the  next  two 
generations,  his  sons  and  grandsons,  has  not  been  exaggerated 
in  contrast.  It  is  certainly  true  that  Gregory  of  Tours  ex- 
hibits a  picture  of  savage  tyranny  in  several  of  these  sover- 
eigns. But  we  are  to  remember  that  particular  acts  of  arbi- 
trary power,  and  especially  the  putting  obnoxious  persons  to 
death,  were  so  congenial  to  the  whole  manners  of  the  a^-e, 
that  they  do  not  prove  the  question  at  issue,  whether  the  gov- 
ernment may  be  called  virtually  an  absolute  monarchy.  Ev- 
ery Frank  of  wealth  and  courage  was  a  despot  within  his 
sphere ;  but  his  sphere  of  power  was  a  bounded  one ;  and  so, 
too,  might  be  that  of  the  king.  Probably  when  Gontran  or 
Fredegonde  ordered  a  turbulent  chief  to  be  assassinated,  no 
weregild  was  paid  to  his  kindred  ;  but  his  death  would  excite 
hardly  any  disapprobation,  except  among  those  who  thought 
it  undeserved. 

Gregory  of  Tours,  it  should  be  kept  in  mind,  was  a  Ro- 


Chap.  n. 


POWER  OF  THE  KINGS. 


297 


man  ;  he  does  not  always  distinguish  the  two  nations  ;  but  a. 
great  part  of  the  general  oppression  which  we  find  under  the 
grandchildren  of  Clovis  seems  to  have  fallen  on  the  subject 
people.  As  to  these,  few  are  inclined  to  doubt  that  the  king 
was  tmly  absolute.  The  most  remarkable  instances  of  arbi- 
trary power  exerted  upon  the  Franks  are  in  the  imposition  of 
taxes.  These,  as  has  been  said  in  another  note,  were  repug- 
nant to  the  whole  genius  of  barbarian  society.  We  find, 
however,  that  on  the  death  of  Theodebert,  king  of  Austrasia, 
in  547,  the  Franks  murdered  one  Parthenius,  evidently  a 
Roman,  and  a  minister  of  the  late  king  —  "  pro  eo  quod  iia 
tributa  antedicti  regis  tempore  inflixesset."  (Greg.  Tur.  lib. 
iii.  c.  3G.)  Whether  these  tributes  continued  afterwards  to 
be  paid  we  do  not  read.  Chilperic,  the  most  oppressive  of 
his  line,  at  a  later  period,  in  579,  laid  a  tax  on  freehold  lands 
—  "  ut  possessor  de  terra  propria  amphoram  vini  per  aripen- 
nem  redderet."  (Id.  lib.  v  c.  29.)  It  is,  indeed,  possible 
that  this  affected  only  the  Romans,  though  the  language  of 
the  historian  is  general  '• —  "  descriptiones  novas  et  graves  in 
omni  regno  suo  fieri  jussit."  A  revolt  broke  out  in  conse- 
quence at  Limoges ;  but  the  inhabitants  of  that  city  were 
Roman.  Chilperic  put  this  down  by  the  help  of  his  faithful 
Antrustions  —  "  unde  multum  molestus  rex,  dirigens  de  latere 
suo  personas,  immensis  damnis  populum  affiixit,  suppliciisque 
contcrruit."  Mr.  Spence  (Laws  of  Modem  Europe,  p.  269) 
is  clearly  of  opinion,  against  Montesquieu,  who  confines  this 
tax  to  the  Romans,  that  it  comprehended  the  Franks  also,  and 
was  in  the  nature  of  the  indiction,  or  land-tax,  imposed  on  the 
subjects  of  the  Roman  empire  by  an  assessment  renewed 
every  fifteen  years ;  and  this,  perhaps,  on  the  whole,  is  the 
more  probable  hypothesis  of  the  two.  Mr.  S.  says  (p.  267) 
that  lands  subject  to  tribute  still  continued  liable  when  in 
the  possession  of  a  Frank.  This  is  possible,  but  he  refers  to 
texts  which  do  not  prove  it. 

The  next  passage  which  I  shall  quote  is  more  unequivocal. 
The  death  of  Chilperic  exposed  his  instruments  of  tyranny, 
as  it  had  Parthenius  in  Austrasia,  to  the  vengeance  of  an  op- 
pressed people.  Fredegonde,  though  she  escaped  condign 
punishment  herself,  could  not  screen  these  vile  ministers :  — 
"Habebat  tanc  temporis  secum  Audonem  judicem,  qui  ei 
tempore  regis  in  multis  consenserat  malis.  Ipse  enim  cum 
Mummolo  praefecto  multos  de  Francis,  qui  tempore  Childe- 


298 


POWER  OF  THE  KINGS. 


Notes  to 


chaf.  n. 


POWER  OF  THE  KINGS. 


299 


berti  regis  senioris  ingenui  fuerant,  publico  tribute  subegit. 
Qui,  post  mortem  regis  Chilperici,  ab  ipsis  spoilatus  ac 
denudatus  est,  ut  nihil  ei,  prieter  quod  super  se  auferre  potuit, 
remaneret  Domos  enim  ejus  incendio  subdiderunt;  abstulis- 
sent  utique  et  ipsam  vitam,  ni  cum  regina  ecclesiam  expetis- 
set."  (Lib.  vii.  c.  15.)  The  word  ingenui^  in  the  above 
passage,  means  the  superior  class  —  alodial  landholders  or 
beneficiaries,  as  distinguished  from  the  class  named  lidi,  who 
are  also  perhaps  sometimes  called  trtbiitarii,  as  well  as  the 
Romans,  and  from  whom  a  public  census^  as  some  think,  was 
due.  We  may  remark  here,  that  the  removing  of  a  number 
of  Franks  from  their  own  place  as  ingenui,  to  that  of  tribu- 
taries, was  a  particular  act  of  oppression,  and  does  not  stand 
quite  on  the  footing  of  a  general  law.  The  passage  in  Greg- 
ory is  chiefly  important  as  it  shows  that  the  ingenui  were  not 
legally  subject  to  public  tribute. 

M.  Guizot  has  adduced  a  constitution  of  Clotaire  II.  in 
615,  as  a  proof  that  endeavors  had  been  made  by  the  kings 
to  impose  undue  taxes.  This  contains  the  following  article : 
"  Ut  ubicunque  census  novus  impie  additus  est,  et  a  populo 
reclamatur,  justa  inquisitione  misericorditer  emendetur."  (C. 
8.)  But  does  this  warrant  the  inference  that  any  tax  had 
been  imposed  on  the  free-born  Frank  ?  "  Census  "  is  gener- 
ally understood  to  be  the  capitation  paid  by  the  tribufariiy 
and  the  words  imply  a  local  exaction  rather  than  a  national 
imposition  by  the  royal  authority.  It  is  not  even  manifest  tliat 
this  provision  was  founded  exclusively  on  any  oppression  of 
the  crown ;  several  other  articles  in  this  celebrated  law  are 
extensively  remedial,  and  forbid  all  undue  spoliation  of  the 
weak.  But  if  we  should  incline  to  Guizot's  interpretation,  it 
will  not  prove,  of  course,  the  right  of  the  kings  to  impose 
taxes  on  the  Franks,  since  that  to  which  it  adverts  is  called 
census  novus  impie  additus. 

The  inference  which  I  formerly  drew  from  the  language 
of  the  laws  is  inconclusive.  Bouquet,  in  the  Recueil  des 
Historiens  (vol.  iv.),  admits  only  seven  laws  during  the  Mer- 
ovingian period,  differing  from  Baluze  as  to  the  particu- 
lar sovereigns  by  whom  several  of  them  were  enacted.  Of 
these  the  first  is  by  Childebert  I.,  king  of  Paris,  in  532,  ac- 
cording to  him;  by  Childebert  II.  of  Austrasia  according 
to  Baluze,  which,  as  the  date  is  Cologne,  and  several  Aus- 
trasian  cities  are  mentioned  in  it  which  never  belonged  to  the 


first  Childebert,  I  cannot  but  think  more  likely.  This  con- 
stitution has  una  cum  nostris  optimatihus,  and  convenit  una 
leudis  nostris.  And  the  expressions  lead  to  two  inferences ; 
first,  that  the  assembly  of  the  field  of  March  was,  in  that  age, 
annually  held ;  secondly,  that  it  was  customary  to  send  round 
to  the  people  the  determinations  of  the  optimates  in  this 
council :  —  "  Cum  nos  omnes  calendas  Martias  de  quascunque 
conditiones  una  cum  optimatibus  nostris  pertractavimus,  ad 
unumquemque  notitiam  volumus  pervenire."  The  grammar 
is  wretched,  but  such  is  the  evident  sense. 

The  second  law,  as  it  is  called,  is  an  agreement  between 
Childebert  and  Clotaire  ;  the  first  of  each  name  according  to 
Bouquet,  the  second  according  to  Baluze.  This  wants  aU 
enacting  words  except  "  Decretum  est."  The  third  is  an  or- 
dinance of  Childebert  for  abolishing  idolatrous  rites  and  keep- 
ing festivals.  It  is  an  enforcement  of  ecclesiastical  regula- 
tions, not  perhaps  reckoned  at  that  time  to  require  legislative 
sanction.  The  fourth,  of  Clotaire  I.  or  Clotaire  II.,  begins 
"  Decretum  est,"  and  has  no  other  word  of  enactment.  But 
this  does  not  exclude  the  probability  of  consent  by  the 
leudes.  Clotaire  I.,  in  another  constitution,  speaks  authori- 
tatively. But  it  will  be  found,  on  reading  it,  that  none  ex- 
cept his  Roman  subjects  are  concerned.  The  sixth  is  merely 
a  precept  of  Gontran,  directed  to  the  bishops  and  judges,  en- 
joining them  to  maintain  the  observance  of  the  Lord*s  day 
and  other  feasts.  The  last  is  the  edict  of  Clotaire  II.  m 
615,  already  quoted,  and  here  we  read, — "I lane  delibera- 
tionem  quam  cum  pontificibus  vel  tam  magnis  viris  optimati- 
bus, aut  fidelibus  nostris  in  synodali  concilio  instituimus." 

After  G15  no  law  is  extant  enacted  in  any  of  the  Frank 
kingdoms  before  the  reign  of  Pepin.  This,  however,  cannot 
of  itself  warrant  the  assertion  that  none  were  enacted  which 
do  not  remain.  It  is  more  surprising,  perhaps,  that  even  a 
few  have  been  preserved.  The  language  of  Childebert 
above  cited  leads  to  the  belief  that,  in  the  sixth  century, 
whatever  we  may  suppose  as  to  the  next,  an  assembly  with 
powers  of  legislation  was  regularly  held  by  the  Frank  sov- 
ereigns. Nothing,  on  the  whole,  warrants  the  supposition 
that  the  three  generations  after  Clovis  possessed  an  acknowl- 
edged right,  either  of  legislating  for  their  Frank  subjects,  or 
imposing  taxes  upon  them.  But  after  the  assassination  of 
Sigebert,  under  the  walls  of  Toumay,  in  575,  the  Austrasian 


300 


FRENCH  NOBILITY. 


Notes  to 


nobles  began  to  display  a  steady  resistance  to  the  authority 
which  his  widow  Brunehaut  endeavored  to  exercise  in  her 
son's  name.  This,  after  forty  years,  terminated  in  her  death, 
and  in  the  reunion  of  the  Frank  monarchy,  with  a  much 
more  aristocratic  character  than  before,  under  the  second 
Clotaire.  It  is  a  revolution  to  which  we  have  already  dra^vn 
attention  in  the  note  on  Brunehaut. 


Note  Vm.    Page  160. 

"  The  existence,"  says  Savigny,  "  of  an  original  nobility, 
as  a  particular  patrician  order,  and  not  as  a  class  indefinitely 
distinguished  by  their  wealth  and  nobility,  cannot  be  ques- 
tioned. It  is  difficult  to  say  from  what  origin  this  distinction 
may  have  proceeded;  whether  it  was  connected  with  the 
services  of  religion,  or  with  the  possession  of  the  heritable 
offices  of  counts.  We  may  affirm,  however,  with  certainty, 
that  the  honor  enjoyed  was  merely  personal,  and  conferred 
no  preponderance  in  the  political  or  judicial  systems."  (Ch. 
iv.  p.  172,  English  translation.)  This  admits  all  the  tlieoiy 
to  which  I  have  inclined  in  the  text,  namely,  the  non-exist- 
ence of  a  privileged  order,  though  antiquity  of  family  was 
in  high  respect.  The  eorl  of  Anglo-Saxon  law  was,  it  may 
be  said,  distinguished  by  certain  privileges  from  the  ceorL 
Why  could  not  the  same  have  been  the  case  with  the 
Franks  ?  We  may  answer  that  it  is  by  the  laws  and  records 
of  those  times  that  we  prove  the  former  distinction  in  Eng- 
land, and  it  is  by  the  absence  of  all  such  proof  that  the  non- 
existence of  such  a  distinction  in  France  has  been  presumed. 
But  if  the  lidi,  of  whom  we  so  often  read,  were  Franks  by 
origin,  and  moreover  personally  free,  which,  to  a  certain  ex- 
tent, we  need  not  deny,  they  will  be  the  corresponding  rank 
to  the  Anglo-Saxon  ceorl,  superior,  as,  from  whatever  cir- 
cumstances, the  latter  may  have  been  in  his  social  degree. 
All  the  Franci  ingenui  will  thus  have  constituted  a  class  of 
nobility ;  in  no  other  sense,  however,  than  all  men  of  white 
race  constitute  such  a  class  in  those  of  the  United  States 
where  slavery  is  abohshed,  which  is  not  what  we  usually  mean 
by  the  word.  In  some  German  nations  we  have,  indeed,  a 
distinct  nobility  of  blood.  The  Bavarians  had  five  families, 
for  the  death  of  a  member  of  whom  a  double  composition 


Chap.  n. 


FRENCH  NOBILITY. 


301 


was  paid.  They  had  one,  the  Agilolfungi,  whose  composition 
was  fourfold.  Troja  also  finds  proof  of  two  classes  among 
the  Alemanns  (v.  168).  But  we  are  speaking  only  of  the 
Franks,  a  cognate  people,  indeed,  to  the  Saxons  and  Ale- 
manns, but  not  the  same,  and  whose  origin  is  not  that  of  a 
pure  single  tribe.  The  Franks  were  collectively  like  a  new 
people  in  comparison  with  some  others  of  Teutonic  blood.  It 
does  not,  therefore,  appear  to  me  so  unquestionable  as  to  Sa- 
vigny that  a  considerable  number  of  families  formed  a  patri- 
cian order  in  the  French  monarchy,  without  reference  to  he- 
reditary possessions  or  hereditary  office. 

A  writer  of  considerable  learning  and  ingenuity,  but  not 
always  attentive  to  the  strict  meaning  of  what  he  quotes,  has 
found  a  proof  of  family  precedence  among  the  Franks  in  the 
words  crinosus  and  crinitus,  employed  in  the  Salic  law  and 
in  an  edict  of  Childebert.  (Meyer,  Institut.  Judiciaires,  vol. 
L  p.  104.)  This  privilege  of  wearing  lon^  hair  he  supposes 
peculiar  to  certain  families,  and  observes  that  crinosus  is  op- 
posed to  tonsoratus.  But  why  should  we  not  believe  that  all 
superior  freemen,  that  is,  all  Franks,  whose  composition  was 
of  two  hundred  solidi,  wore  this  long  hair,  though  it  might  be 
an  honor  denied  to  the  lidi  ?  Gibert,  in  a  memoir  on  the 
Merovingians  (Acad,  des  Inscript.  xxx.  583),  quotes  a  pas- 
sage of  Tacitus,  concerning  the  manner  in  which  the  nation 
of  the  Suevi  wore  their  hair,  from  whom  the  Franks  are  sup- 
posed by  him  to  be  descended.  And  there  is  at  least  some- 
thing remarkable  in  the  language  of  Tacitus,  which  indicates 
a  distinction  between  the  royal  family  and  other  freemen,  as 
well  as  between  these  and  the  servile  class.  The  words  have 
not  been,  I  think,  often  quoted  :  —  "  Nunc  de  Suevis  dicen- 
dum  est,  quorum  non  una  ut  Cattorum  Tencterorumque  gens ; 
majorem  enim  Germanise  partem  obtinent,  propriis  adhuc  na- 
tionibus  discreti,  quamquam  in  communi  Suevi  dicuntur. 
Insigne  gentis  obliquare  crinem,  nodoque  substringere.  Sic 
Suevi  a  caiteris  Germanis,  sic  Suevorum  ingenui  a  servis 
separantur.  In  aliis  gentibus,  sen  cognatione  aliqua  Suevo- 
rum, sen,  quod  accidit,  imitatione,  rarum  et  intra  juventae  spa- 
tmm,  apud  Suevos  usque  ad  canitiem,  horrentem  capillum 
retro  sequuntur,  ac  saepe  in  ipso  solo  vertice  religant ;  prin- 
cipes  et  ornatiorem  habent"  (De  Mor.  German,  c.  38.)  This 
last  expression  may  account  for  the  word  crinitus  being  some- 
times applied  to  the   royal  family,  as  it  were  exclusively, 


302 


FRENCH  NOBILITY. 


Notes  to 


Chap.  II. 


BENEFICES. 


303 


sometimes  to  the  Frank  nation  or  its  freemen.^  The  refer- 
ences of  M.  Meyer  are  so  far  from  sustaining  his  theory  that 
they  rather  lead  me  to  an  opposite  conclusion. 

M.  Naudet  (in  Memoires  de  TAcaderaie  des  Inscriptions, 
Nouvelle  Serie,  vol.  viii.  p.  502)  enters  upon  an  elaborate  dis- 
cussion of  the  state  of  persons  under  the  first  dynasty.  He 
distinguishes,  of  course,  the  ingenui  from  the  lidi.  But 
among  the  former  he  conceives  that  there  were  two  classes : 
the  former  absolutely  free  as  to  their  persons,  valued  in  their 
weregild  at  200  solidi,  meeting  in  the  county  mallus,  and 
sometimes  in  the  national  assembly,  —  in  a  word,  the  populus 
of  the  Frank  monarchy ;  the  latter  valued,  as  he  supposes,  at 
100  solidi,  living  under  the  protection  or  mundehurde  of  some 
rich  man,  and  though  still  free,  and  said  to  be  ingenuili 
ordine  servientes,  not  very  distinguishable  at  present  from  the 
lidu  I  do  not  know  that  this  theory  has  been  countenanced 
by  other  writers.  But  even  if  we  admit  it,  the  higher  class 
could  not  properly  be  denominated  an  hereditary  nobility; 
their  privileges  would  be  those  of  better  fortune,  which  had 
rescued  them  from  the  dependence  into  which,  from  one  cause 
or  another,  their  fellow-citizens  had  fallen.  The  Franks  in 
general  are  called  by  Guizot  une  noblesse  en  decadence  ;  the 
Uudes  one  en  progres.  But  he  maintains  that  from  the  fifth 
to  the  eleventh  age  there  existed  no  real  nobility  of  birth. 
In  this,  however,  he  goes  much  further  than  Mably,  who  does 
not  scruple  to  admit  an  hereditary  nobility  in  the  time  of 
Charlemagne,  and  probably  further  than  can  be  reasonably 
allowed,  especially  if  the  eleventh  century  is  to  be  understood 
inclusively.  In  that  century  we  shall  see  that  the  nobles 
formed  a  distinct  order ;  and  I  am  much  inclined  to  believe 
that  this  was  the  case  as  soon  as  feudal  tenure  became  gen- 
eral, which  was  at  least  as  early  as  the  tenth. 

M.  Lehuerou  denies  any  hereditary  nobility  during  the 
Merovingian  period,  at  least,  of  French  history :  "  II  n'exis- 
tait  done  point  de  noblesse  dans  le  sens  moderne  du  mot, 
puisqu'il  n*y  avait  point  d'heredite,  et  puisque  I'heredite,  si 
elle  se  produisait  quelquefois,  etait  purement  accidentelle ; 

1  The  royal  family  seem  also  to  have  de  his  fieri  debeat ;  et  utrum  Inclsa  c«- 

wom  longer  hair  than  the  others.    Chil-  Barie,  ut    reliqua  plebs  habeantur,  an 

debert  proposed  to  Clotaire,  as  we  read  certe  his  intcrfectis  regnum  gemianj  noi- 

in  Gregory  of  Tours  (iii.  18),  that  the  tri  inter  nosmetipsos  aequalitate  habiU 

children  of  their  brother  Clodiraer  should  diyidatur." 
be  either  cropped  or  put  to  death :  "  quid 


m 


mais  il  y  avait  une  aristocratic  mobile,  changeante,  variable 
au  gre  des  accidents  et  des  caprices  de  la  vie  barbare,  et 
neanmoins  en  possession  de  veri tables  privileges  qu'il  faut  se 
garder  de  meconnaitre.  Cette  aristocratic  etait  plutot  celle 
des  titres,  des  places,  et  des  honneurs,  que  celle  de  la  nais- 
sance,  quoique  celle-ci  n*y  fut  pas  etrangere.  Elle  etait  plus 
dans  le  present,  et  moins  dans  le  passe  ;  elle  empruntait  plus 
h  la  puissance  actuelle  qu'a  celle  des  souvenirs ;  mais  elle 
ne  s'en  detachait  pas  moins  nettement  des  couches  inferieures 
de  la  population,  et  notamment  de  la  foule  de  ceux  dont  la 
noblesse  ne  consistait  aue  dans  leur  ingenuite."  (Inst.  Caro- 
ling, p.  452.) 

Note  IX.    Page  162. 

The  nature  of  benefices  has  been  very  well  discussed, 
like  everything  else,  by  M.  Guizot,  in  his  Essai  sur  I'Hist. 
de  France,  p.  120.  He  agrees  with  me  in  the  two  main 
positions  —  that  benefices,  considered  generally,  never  passed 
through  the  supposed  stage  of  grants  revocable  at  pleasure, 
and  that  they  were  sometimes  granted  in  inheritance  from 
the  sixth  century  downwards.  This,  however,  was  rather  the 
exception,  he  supposes,  than  the  rule.  "  We  cannot  doubt 
that,  under  Charlemagne,  most  benefices  were  granted  only 
for  life  "  (p.  140).  Louis  the  Debonair  endeavored  to  act  on 
the  same  policy,  but  his  efforts  were  unsuccessful.  Heredi- 
tary grants  became  the  rule,  as  is  proved  by  many  charters 
of  his  own  and  Charles  the  Bald.  Finally  he  tells  us,  the 
latter  prince,  in  877,  empowered  hisjideles  to  dispose  of  their 
benefices  as  they  thought  fit,  provided  it  were  to  persons  capa- 
ble of  serving  the  estate.  But  this  is  too  largely  expressed ; 
the  power  given  is  to  those  vassals  who  might  desire  to  take 
up  their  abode  in  a  cloister ;  and  it  could  only  be  exercised 
in  favor  of  a  son  or  other  kinsman.*  But  the  right  of  in- 
heritance had  probably  been  established  before.  Still,  so 
deeply  was  the  notion  of  a  personal  relation  to  the  grantor 
implanted  in  the  minds  of  men,  that  it  was  common,  notwith- 
standing the  largest  terms  of  inheritance  in  a  grant,  for  the 
new  tenant  to  obtain  a  confirmation  from  the  crown.     This 

1  Si  aliquis  ex  fidelibus  noatris  post  qui  reipublic83  prodesse  valeat,  suos  ho- 

Obitum  nostrum,  Dei  et  nostro  amore  nores  prout  melius  voluerit  ei  valeat  pla 

eompunctus,  sasculo  renuntiarc  voluerit,  citare.  —  Script.  Rer.  Gall.  vii.  701. 
it  filiam  Tel  talem  propiuquum  habueiit 


304 


BENEFICES. 


Notes  to 


Crap.  II. 


SUBINFEUDATION. 


305 


might  also  be  for  the  sake  of  security.  And  this  is  precisely 
the  renewal  of  homage  and  fealty  on  a  change  of  tenancy, 
which  belonged  to  the  more  matured  stage  of  the  feudal 
polity. 

Mr.  Allen  observes,  with  respect  to  the  formula  of  Mar- 
culfus  quoted  in  my  note,  p.  161:  —  "Some  authors  have 
considered  this  as  a  precedent  for  the  grant  of  an  hereditary 
benefice.  But  it  is  only  necessary  to  read  with  attention  the 
act  itself  to  perceive  that  what  it  creates  is  not  an  hereditary 
benefice,  but  an  alodial  estate.  It  is  viewed  in  this  light  in 
his  (Bignon's)  notes  on  a  subsequent  formula  (sect.  17),  con- 
firmatory of  what  had  been  done  under  the  preceding  one. 
and  it  is  only  from  inadvertence  that  it  could  have  been  ( on- 
sidered  in  a  different  point  of  view.**  (Inquiry  into  Royal 
Prerogative,  Appendix,  p.  47.)  But  Bignon  took  for  gmnt- 
ed  that  benefices  were  only  for  term  of  life,  and  consequently 
that  words  of  inheritance,  in  the  age  of  Marculfus,  implied 
an  alodial  grant.  The  question  is,  \Vliat  constituted  a  bene- 
fice ?  Was  it  not  a  grant  by  favor  of  the  king  or  other 
lord  ?  If  the  words  used  in  the  formula  of  Marculfus  are 
inconsistent  with  a  beneficiary  property,  we  must  give  up 
the  inference  from  the  treaty  of  Andely,  and  from  all  other 
phrases  which  have  seemed  to  convey  hereditary  benefices. 
It  is  true  that  the  formula  in  Marculfus  gives  a  larger  power 
of  alienation  than  belonged  afterwards  to  fiefs ;  but  did  it  put 
an  end  to  the  peculiar  obligation  of  the  holder  of  the  bene- 
fice towards  the  crown  ?  It  does  not  appear  to  me  unreason- 
able to  suppose  an  estate  so  conferred  to  have  been  strictly 
a  benefice,  according  to  the  notions  of  the  seventh  century. 

Subinfeudation  could  hardly  exist  to  any  considerable  de- 
gree until  benefices  became  hereditary.  But  as  soon  as  that 
change  took  place,  the  principle  was  very  natural  and  sure 
to  suggest  itself.  It  prodigiously  strengthened  the  aristoc- 
racy, of  which  they  could  not  but  be  aware ;  and  they  had 
acquired  such  extensive  possessions  out  of  the  royal  domains, 
that  they  could  well  afford  to  take  a  rent  for  them  in  iron 
instead  of  silver.  Charlemagne,  as  Guizot  justly  conceives, 
strove  to  counteract  the  growing  feudal  spirit  by  drawing 
closer  the  bonds  between  the  sovereign  and  the  subject.  He 
demanded  an  oath  of  allegiance,  as  William  afterwards  did 
in  England,  from  the  vassals  of  mesne  lords.  But  aflcr  his 
death,  and  after  the  complete  establishment  of  an  hereditary 


right  in  the  grants  of  the  crown,  it  was  utterly  impossible  to 
prevent  the  general  usage  of  subinfeudation. 

Mably  distinguishes  the  lands  granted  by  Charles  Martel 
to  his  German  followers  from  the  benefices  of  the  early 
kings,  reserving  to  the  former  the  name  of  fiefs.  These  he 
conceives  to  have  been  granted  only  for  life,  and  to  have 
involved,  for  the  first  time,  the  obligation  of  military  service. 
(Observations  sur  l*Hist.  de  France,  vol.  i.  p.  32.)  But  as 
they  were  not  styled  fiefs  so  early,  but  only  benefices,  this 
distmction  seems  likely  to  deceive  the  reader ;  and  the  oath 
of  fidelity  taken  by  the  Antrustion,  which,  though  personal, 
could  not  be  a  weaker  obligation  afler  he  had  acquired  a 
benefice,  carries  a  very  strong  presumption  that  military  ser- 
vice, at  least  in  defensive  wars,  not  always  distinguishable 
from  wars  to  revenge  a  wrong,  as  most  are  presumed  to  be, 
was  demanded  by  the  usages  and  moral  sentiments  of  the 
society.  We  have  not  a  great  deal  of  testimony  as  to  the 
grants  of  Charles  Martel ;  but  in  the  capitularies  of  Charle- 
magne it  is  evident  that  all  holders  of  benefices  were  bound 
to  follow  the  sovereign  to  the  field. 

M.  Guerard  (Cartulaire  de  Chartres,  i.  23)  is  of  opinion 
that,  though  benefices  were  ultimately  fiefs,  in  the  first  stage 
of  the  monarchy  they  were  only  usufructs ;  and  the  word 
will  not  be  clearly  found  in  the  restrained  sense  during  that 
period.  "  Cette  difference  entre  deux  institutions  nees°  Tune 
de  l*autre,  quoique  assez  dehcate,  etait  essentielle.  Elle  ne 
pourrait  etre  meconnue  que  par  ceux  qui  consider^raient 
eeulement,  les  benefices  k  la  fin,  ct  Ics  fiefs  au  commencement 
de  leur  existence ;  alors  en  effet  les  uns  et  les  autres  se  con- 
fondaient.**  That  they  were  not  mere  usufructs,  even  at 
first,  appears  to  me  more  probable. 

Note  X.     Page  163. 

^  Somner  says  that  he  has  not  found  the  word  feudum  ante- 
nor  to  the  year  1000 ;  and  Muratori,  a  still  greater  authority 
doubts  whether  it  was  used  so  early.  I  have,  however 
observed  the  words  feum  and  fevum,  which  are  manifestly 
corruptions  of  feudum,  in  several  charters  about  960.  (Vais- 
sette,  Hist,  de  Languedoc,  t.  ii.  Appendix,  p.  107,  128,  et 
ahbi.)  Some  of  these  fiefs  appear  not  to  have  been  heredi- 
tary.    But,  independently  of  positive   instances,  can  it  be 


VOL.  I. 


20 


306 


SUBINFEUDATION. 


Notes  to 


doubted  that  some  word  of  barbarous  original  must  have  an- 
swered, in  the  vernacular  languages,  to  the  Latm  beneficiumr' 
See  Du  Cange,  v.  Feudum.     Sir  F.  Palgrave  answers  this 
by  producing  the  word  lehn.     (English  Commonwealth,  n. 
208  )     And  though  M.  Thierry  asserts  (Recits  des  Temps 
Merovincriens,  i.  245)  that  this  is  modem  German,  he  seems 
to  be  altogether   mistaken.     (Palgrave,  ibid.)     But   when 
Sir  F.  Palgrave  proceeds  to  say  —  "  The  essential  and  lun- 
damental  principle  of  a  territorial  fief  or  feud  is,  that  the 
land  is  held  by  a  limited  or  conditional  estate  —  the  property 
being  in  the  lord,  and  the  usufruct  in  the  tenant,"  we  must 
think  this  not  a  very  exact  definition  of  feuds  in  their  ma- 
ture state,  however  it  might  apply  to  the  early  benefices  for 
life.     The  property,  by  feudal  law,  was,  I  conceive,  strictly 
in  the  tenant ;  what  else  do  we  mean  by  fee-simple  ?     Mili- 
tary service  in  most  cases,  and  always  fealty,  were  due  to 
the  lord,  and  an  abandonment  of  the  latter  might  cause  for- 
feiture of  the  land ;  but  the  tenant  was  not  less  the  owner, 
and  might  destroy  it  or  render  it  unprofitable  if  he  pleased. 

Feudum  Sir  F.  Palgrave  boldly  derives  from  emphyteu- 
sis; and,  in  fiict,  by  processes  familiar  to  etymologists,  that 
is,  cutting  oflf  the  head  and  legs,  and  extracting  the  back- 
bone, it  may  thence  be  exhibited  in  the  old  form,  feum,  or 
fevum,    M.  Thierry,  however,  thinks  feh,  that  is,  fee  or  pay, 
and  odh,  property,  to  be  the  true  root.     (Lettres  sur  I'Hist. 
de  France,  Lettre  x.)     Guizot  inclines  to  the  same  deriva- 
tion ;  and  it  is,  in  fact,  given  by  Du  Cange  and  others.     The 
derivation  of  alod  from  all  and  odh  seems  to  be  analogous ; 
and  the  word  udaller,  for  the  freeholder  of  the  Shetland  and 
Orkney  Isles,  strongly  confirms  this  derivation,  being  only 
the  two  radical  elements  reversed,  as  I  remember  to  have 
seen  observed  in  Gilbert  Stuart's  View  of  Society.     A  char- 
ter of  Charies  the  Fat  is  suspected  on  account  of  the  word 
feudum,  which  is  at  least  of  very  rare  occurrence  till  late  in 
the  tenth  century.     The  great  objection  to  emphyteusis  is, 
that  a  fief  is  a  different  thing.     Sir   F.  Palgrave,  indeed, 
contends  that  an  «  emphyteusis  "  is  often  called  a  "  precaria, 
and  that  the  word  "  precaria  **  was  a  synonym  of  "  benefi- 
cium,"  as  beneficium  was  of  "  feudum."     But  does  it  appear 
from  the  ancient  use  of  the  words  "  precaria "  and  "  benefi- 
cium" that  they  were  convertible,  as  the  former  is  said,  by 
Muratori  and  Lehuerou,  to  have  been  with  emphyteusis? 


Chap.  II. 


CHANGE  OF  TENURES. 


307 


(Murat.  Antiq.  Ital.  Diss,  xxxvi.  Lehuerou,  Ir^t.  Caroling. 
p.  183.)  The  tenant  by  emphyteusis,  whom  we  find  in  the 
Codes  of  Theodosius  and  Justinian,  was  little  more  than  a 
colonus,  a  demi-serf  attached  to  the  soil,  though  incapable  of 
being  dispossessed.  Is  this  like  the  holder  of  a  benefice,  the 
progenitor  of  the  great  feudal  aristocracy  ?  How  can  we 
compare  emphyteusis  with  beneficium  without  remembering 
that  one  was  commonly  a  grant  for  a  fixed  return  in  value, 
answering  to  the  "  terne  censuales  "  of  later  times,  and  the 
latter,  as  the  word  implies,  a  free  donation  with  no  condition 
but  gratitude  and  fidelity?  The  word  precaria  is  for  the 
most  part  applied  to  ecclesiastical  property  which,  by  some 
usurpation,  had  fallen  into  the  hands  of  laymen.  These  af- 
terwards, by  way  of  compromise,  were  permitted  to  continue 
as  tenants  of  the  church  for  a  limited  term,  generally  of  life, 
on  payment  of  a  fixed  rate.  Marculfus,  however,  gives  a 
form  in  which  the  grantor  of  the  precaria  appears  to  be  a 
layman.  Military  service  was  not  contemplated  in  the  em- 
phyteusis or  the  precaria,  nor  were  either  of  them  perpetui- 
ties ;  at  least  this  was  not  their  common  condition.  Meyer 
derives  feudum  from  Jides,  quoting  Almoin :  "  Leudibussuis 
mjide  disposuit."     (Inst.  Judic.  i.  187.) 

Note  XI.    Pages  165,  167 

M.  Guizot,  with  the  highest  probability,  refers  the  conver-' 
sion  of  alodial  into  feudal  lands  to  the  principle  of  commenda- 
tion. (Essais  sur  THist.  de  France,  p.  166.)  Though  orig- 
inally this  had  no  relation  to  land,  but  created  a  merely  per- 
sonal tie —  fidelity  in  return  for  protection  —  it  is  easy  to 
conceive  that  the  alodialist  who  obtained  this  privilege,  as  it 
might  justly  appear  in  an  age  of  rapine,  must  often  do  so  by 
subjecting  himself  to  the  law  of  tenure  —  a  law  less  burden- 
some at  a  time  when  warfare,  if  not  always  defensive,  as  it 
was  against  the  Normans,  was  always  carried  on  in  the 
neighborhood,  at  little  expense  beyond  the  ravages  that 
might  attend  its  want  of  success.  Raynouard  has  published 
a  curious  passage  from  the  Life  of  St.  Gerald,  a  count  of  Au- 
rillac,  where  he  is  said  to  have  refused  to  subject  his  alodial 
lands  to  the  duke  of  Guienne,  with  the  exception  of  one 
ferm,  peculiarly  situated.  "  Erat  enim  semotim,  inter  pessi- 
mo3  vicinos,  longe  a  caeteris  disparatum."     His  other  lands 


PERSONAL  COMMENDATION. 


Notes  to 


308 

— » "i  r*S'  ;ztx  wM**S'i.rg« 

'  In  my  text,  though  M- Gmzot  has  "o  ^  .^.^ ,  ,^ 

say,  «M.  Montlos,er  et  M.  »  en  o  ^.^^^_ 

„aU  et  les  -uses^  ^^^  ^^.^^  commendation 

tangled,  and  <l>eJemtor.a  separated  from  the  pergonal, 
ultimately  assumed  is  too  "?"<="  °;^  f  q^uI,  both  among 
The  latter  Pr«<=«<l«^,fl^"  emsXrnld  A^  provineial  sub- 
the  barbarian  '"^^-^f  ^  *^S7^  but  the  former  deserves 
jects,'  and  was  a  sort  of  chenteta ,     du  ^^^^  ^ 

ilso  the  name  of  commendation,  th^ugh^^^e         ^^^^^^  ^^^ 
word  of  their  own  *«  express  it.    ^d^^lic^^       ,on,  with 

form  by  which  the  kmg  '°°^  «"  e^]««'^    mZdeburde,  or 
Us  property  and  followers   un^      hisj  ^^^.^^^^^^  to  com- 

gafeguard.     (Lib.  i.  c.  **;>/,   f     J.  except  as  one 

mendation,  or  rather  ^n<>'>»f5  J°;*„t  ,he  other  that  of  the 
rather  expresses  the  act  of  '^f  tenanM^e  ^^^^^^^ 

lord.    Letters  of  safeguard  wMe  not  oy  ay  ^^^^^^ 

to  the  church.    They  w^re  frequent  as^  on  ^^^^.^^  ^^ 

had  any  power  to  P^otec^  ^/j^^ "t^fed  to  the  crown ;  we 
the  feudal  system.  ,  ^°\y^!"^„„%i„ht  place  themselves  un- 
have  the  form  by  ^^>*  *'»\P°°''  1^,'J  tcin"  free,  «  ingenuiU 
der  the  mundeburde  o;^;';^^^^^^^  Biinonii,'  c.  44 ;  vide 
ordine  servientes.  F°~  Jj^^n  even  sometimes  called 
Naudet,  ubi  supra.    They  were  ^^^^^^^  ^^^„  „f 

as  the  latter  supposes,  hdi  or  liti,  so  i 

..       -*  Ai.«  rv^n^n  nf  feudal  polity, 


1  M.  Lebuerou  has  gone  W  deeply 
totoThe  mundium,  or  Perso^^^^f^^uard, 
Sv  which  the  inferior  class  among  the 
GTema^  were  commended  to  a  lord,  and 
n^ed  under  his  protection,  m  retuni 
FXir  own  fidelity  and  service      Insti- 

St":  STTh  'concept  Vthi 

lf^>&is^ar::yr^^ 

Si  ToU  y  aftS'wa?^  ->^n«tl"s 
Spe   though,  from  the  cireumstances 

of  ancient  Germany,  it  rj^^''^^^^ 
a  personal  and  not  a  temtpnal  vass^. 
It  fell  in  very  naturally  with  the  smnlar 
irincinle  of  commendation  existing  in 
£L  Roman  empire.    This  bold  and  ong- 
Inal  theory,  however,  has  not  been  a«i 
mitted  by  his  contemporary  antiquaries. 
M.  Giraid  and  M.  Mignet  (Seances  ct 
Travaux  de  1' Academie  des  Sciences  Mo- 
nies ct  Politiques,  pour  Novembre,  1»M), 
MpoclaUy  the  latter,  dissent  from  this  ex- 


pHcallon  «f  the  f  «in  of  f^^al  P°i«^ 

^hi^ur"  Th.°°utmS  the/o.a  allow 
?.    SfafterrUorial  jarisdlctlon  ^vas  ex- 

that  ,^5«  hid  exercised  over  those  who 
reco-nized  him  as  protector,  "  J«"  " 

'''^'^,Vn  the  whole  feudal  system. 
^%Prrrier  h^s  happily  adduced  a  very 
ancient  authority  for    this  use   of  U- 
word. 


Thais  patrl  se  commendavit;  In  cUenta- 

lam  et  fldem  » „*  r 

NobSdedit»c.-Ter.Eun.,Act6. 

Origine  du  QouTemement  Frangais  (In 
Leber  ii.  194)- 


\ 


Chap.  II. 


PERSONAL  COMMENDATION. 


309 


the  higher  class  might,  at  his  option,  fall,  for  the  sake  of 
protection,  into  an  inferior  position. 

I  have  no  hesitation  in  agreeing  with  Guizot  that  the 
conversion  of  alodial  into  feudal  property  was  nothing  more 
than  an  extension  of  the  old  commendation.  It  was  not 
necessary  that  there  should  be  an  express  surrender  and 
regrant  of  the  land;  the  acknowledgment  of  seigniory  by 
the  commejidatus  would  supply  the  place.  M.  Naudet 
(Nouv.  Mem.  de  TAcad.  des  Inscrip.  vol.  viii.)  accumulates 
proofs  of  commendation;  it  is  surprising  that  so  little  was 
said  of  it  by  the  earlier  antiquaries.  One  of  his  instances 
deserves  to  be  mentioned.  "  Isti  homines,"  says  a  writer  of 
Charlemagne's  age,  "fuerunt  liberi  et  ingenui;  sed  quod 
militiam  regis  non  valebant  exercere,  tradiderunt  alodos 
suos  sancto  Germano."*  (P.  567.)  We  may  perhaps  infer 
from  this  that  the  tenants  of  the  church  were  not  bound  to 
military  service.  "  No  general  law,"  says  M.  Guizot  (Col- 
lect, de  Mem.  i.  419),  "exempted  them  from  it;  but  the 
clergy  endeavored  constantly  to  secure  such  an  immunity, 
either  by  grant  or  by  custom,  which  was  one  cause  that  their 
tenants  were  better  off  than  those  of  laymen."  The  diffeiv 
ence  was  indeed  most  important,  and  must  have  prodigiously 
enhanced  the  wealth  of  the  church.  But  after  the  feudal 
polity  became  established  we  do  not  find  that  there  was  any 
dispensation  for  ecclesiastical  fiefs.  The  advantage  of  their 
tenants  lay  in  the  comparatively  pacific  character  of  their 
spiritual  lords.  It  may  be  added  that,  from  many  passages 
in  the  laws  of  the  Saxons,  Alemanns,  and  Bavarians,  all  the 
"commendati"  appear  to  have  been  denominated  vassals, 
whether  they  possessed  benefices  or  not.  That  word  after- 
wards implied  a  more  strictly  territorial  limitation. 

Thus  then  let  the  reader  keep  in  mind  that  the  feudal 
system,  as  it  is  commonly  called,  was  the  general  establish- 
ment of  a  peculiar  relation  between  the  sovereign  (not  as 
king,  but  as  lord)  and  his  immediate  vassals ;  between  these 
again  and  others  standing  to  them  in  the  same  relation  of 
vassalage,  and  thus  frequently  through  several  links  in  the 
chain  of  tenancy.  If  this  relation,  and  especially  if  the  lat>- 
ter  and  essential  element,  subinfeudation,  is  not  to  be  found, 
there  is  no  feudal  system,  though  there  may  be  analogies  to 

1  It  will  be  remarked  that  lAeri  and  it^enui  appear  here  to  be  distinguished ;  "  not 
only  free,  but  gentlemen  " 


il 


810 


PERSONAL  COMMENDATION. 


Notes  to 


it,  more  or  less  remarkable  or  strict.  But  if  he  asks  what 
were  the  immediate  causes  of  establishing  this  polity,  we 
must  refer  him  to  three  alone  —  to  the  grants  of  beneficiary 
lands  to  the  vassal  and  his  heirs,  without  which  there  could 
hardly  be  subinfeudation ;  to  the  analogous  grants  of  official 
honors,  particularly  that  of  count  or  governor  of  a  district; 
and,  lastly,  to  the  voluntary  conversion  of  alodial  into  feudal 
tenure,  through  free  landholders  submitting  their  persons  and 
estates,  by  way  of  commendation,  to  a  neighboring  lord  or 
to  the  count  of  a  district.  All  these,  though  several  instan- 
ces, especially  of  the  first,  occurred  much  earlier,  belong 
generally  to  the  ninth  century,  and  may  be  supposed  to  have 
been  fully  accomplished  about  the  beginning  of  the  tenth  — 
to  which  period,  therefore,  and  not  to  an  earlier  one,  we  refer 
the  feudal  system  m  France.  We  say  in  France,  because 
our  attention  has  been  chiefly  directed  to  that  kingdom  ;  in 
none  was  it  of  earlier  origin,  but  in  some  it  cannot  be  traced 

so  high. 

An  hereditary  benefice  was  strictly  a  fief,  at  least  if  we 
presume  it  to  have  implied  military  service ;  hereditary  gov- 
ernments were  not :  something  more,  therefore,  was  required 
to  assimilate  these,  which  were  far  larger  and  more  impor- 
tant than  donations  of  land.  And,  perhaps,  it  was  only  by 
degrees  that  the  great  chiefs,  especially  in  the  south,  who, 
in  the  decay  of  the  Caroline  race,  established  their  patri- 
monial rule  over  extensive  regions,  condescended  to  swear 
fealty,  and  put  on  the  condition  of  vassals  dependent  on  the 
crown.  Such,  at  least,  is  the  opinion  of  some  modem 
French  writers,  who  seem  to  deny  all  subjection  during  the 
evening  of  the  second  and  dawn  of  the  third  race.  But  if 
they  did  not  repair  to  Paris  or  Laon  in  order  to  swear  fealty, 
they  kept  the  name  of  the  reigning  king  in  their  charters. 

The  hereditary  benefices  of  the  ninth  century,  or,  in  other 
words,  fiefs,  preserved  the  nominal  tie,  and  kept  France 
from  utter  dissolution.  They  deserve  also  the  greater  praise 
of  having  been  the  means  of  regenerating  the  national  char- 
acter, and  giving  its  warlike  bearing  to  the  French  people ; 
not,  indeed,  as  yet  collectively,  but  in  its  separate  centres  of 
force,  after  the  pusillanimous  reign  of  Charles  the  Bald. 
They  produced  much  evil  and  misery ;  but  it  is  reasonable 
to  believe  that  they  prevented  more.  France  was  too  ex- 
tensive a  kingdom  to  be  governed  by  a  central  administra- 


chap.  n. 


FRENCH  NOBILITY. 


3U 


tion,  unleas  Charlemagne  had  possessed  the  gift  of  propagat- 
ing a  race  of  Alfreds  and  Edwards,  instead  of  Louis  the 
Stammerers  and  Charles  the  Balds.  Her  temporary  dis- 
integration by  the  feudal  system  was  a  necessary  conse- 
quence ;  without  that  system  there  would  have  been  a  final 
dissolution  of  the  monarchy,  and  perhaps  its  conquest  by 
barbarians. 

Note  XH.    Page  192. 

M.  Thierry,  whose  writings  display  so  much  antipathy  to 
the  old  nobility  of  his  country  that  they  ought  not  to  be 
fully  trusted  on  such  a  subject,  observes  that  the  Franks 
were  more  haughty  towards  their  subjects  than  any  other 
barbarians,  as  is  shown  in  the  difference  of  weregild.  From 
them  this  spirit  passed  to  the  French  nobles  of  the  middle 
ages,  though  they  were  not  all  of  Frank  descent.  "  Uexces 
d'orgueil  attach^  h.  longtemps  au  nom  de  gentilhomme  est  n^ 
en  France ;  son  foyer,  comme  celui  de  I'organization  feodale, 
fut  la  Gaule  du  Centre  et  du  Nord,  et  peut-etre  aussi  lltalie 
Lombarde.  C'est  de  la  qu'il  s*est  propage  dans  les  pays 
Germaniques,  oil  la  noblesse  anterieurement  se  distinguait 
peu  de  la  simple  condition  d'homme  libre.  Ce  mouvement 
crea,  par-tout  oil  il  s'etendit,  deux  populations,  et  comme 
deux  nations,  proprement  distinctes."  (Recits  des  Temps 
M(3rovingiens,  i.  250.) 

The  feudal  principle  was  essentially  aristocratic,  and  tend- 
ed to  enhance  every  unsocial  and  unchristian  sentiment 
involved  in  the  exclusive  respect  for  birth.  It  haxi,  of 
course,  its  countervailing  virtues,  which  writers  of  M.  Thier- 
ry's school  do  not  enough  remember.  But  a  rural  aris- 
tocracy in  the  meridian  of  feudal  usages  was  insulated  in 
the.  midst  of  the  other  classes  of  society  far  more  than  could 
ever  happen  in  cities,  or  in  any  period  of  an  advanced 
civilization.  «  Never,"  says  Guizot, "  had  the  primary  social 
molecule  been  so  separated  from  other  similar  molecules; 
never  had  the  distance  been  so  great  between  the  simple 
and  essential  elements  of  society."  The  chatelain,  amidst 
his  machicolated  battlements  and  massive  gates  with  their 
iron  portcullis,  received  the  vavassor,  though  as  an  inferior, 
at  his  board ;  but  to  the  roturier  no  feudal  board  was  open ; 
the  owner  of  a  "  terre  censive,"  the  opulent  burgess  of  a 


312 


FRENCH  NOBILITY. 


Notes  to 


Crap.  tL 


FREEMEN. 


313 


neighboring  town,  was  as  little  admitted  to  the  banquet  of 
the  lord  as  he  was  allowed  to  unite  himself  in  marriage  to 
his  family. 

*'  Nee  Deus  hunc  mensa,  Dea  nee  dignata  cubili  esl" 

Pilgrims,  indeed,  and  travelling  merchants,  may,  if  we 
trust  romance,  have  been  always  excepted.  Although, 
therefore,  some  of  Guizot's  phrases  seem  overcharged,  since 
there  was,  in  fact,  more  necessary  intercourse  between  the 
different  classes  than  they  intimate,  yet  that  of  a  voluntary 
nature,  and  what  we  peculiarly  call  social,  was  very  limited. 
Nor  is  this  surprising  when  we  recollect  that  it  has  been  so 
till  comparatively  a  recent  period. 

Guizot  has  copied  a  picturesque  description  of  a  feudal 
castle  in  the  fourteenth  century  from  Monteil's  "  Histoir  des 
Fran9ais  des  divers  Etats  aux  cin'q  demiers  Siecles."  It  is 
one  of  the  happiest  passages  in  that  writer,  hardly  more 
distinguished  by  his  vast  reading  than  by  his  skill  in  com- 
bining and  appljdng  it,  though  sometimes  bordering  on 
tediousness  by  the  profuse  expenditure  of  his  commonplace- 
books  on  the  reader. 

"Representez  vous  d*abord  une  position  superbe,  une 
montagne  escarpee,  h^rissde  de  rochers,  sillonde  de  ravins 
et  de  precipices ;  sur  le  penchant  est  le  chateau.  Les  petites 
maisons  qui  I'entourent  enfont  ressortir  la  grandeur  ;  I'lndre 
semble  s'ecarter  avec  respect ;  elle  fait  un  large  demi-cercle 
k  ses  pieds. 

"  H  faut  voir  ce  chateau  lorsqu'au  soleil  levant  ses  galeries 
exterieures  reluisent  des  armures  de  ceux  qui  font  le  guet, 
et  que  ses  tours  se  montrent  toutes  brillantes  de  leurs  grandes 
grilles  neuves.  H  faut  voir  tons  ces  hauts  batiments  qui 
remplissent  de  courage  ceux  qui  les  defendent,  et  de  frayeur 
ceux  qui  seraient  tentes  de  les  attaquer. 

"La  porte  se  presente  toute  couverte  de  tetes  de  sang- 
liers  ou  de  loups,  flanqu^e  de  tourelles  et  couronnee  d'  in 
haut  corps  de  garde.  Entrez-vous?  trois  encientes,  trois 
fosses,  trois  pont-levis  h  passer ;  vous  vous  trouverez  dans 
la  grande  cour  carr^e  oil  sont  les  citemes,  et  h  droite  ou  k 
gauche  les  ecuries,  les  poulaillers,  les  colombiers,  les  remises. 
Les  caves,  les  souterrains,  les  prisons  sont  par  dessous ;  par 
dessus  sont  les  logements,  les  magasins,  les  lardoirs  ou  saJoirs, 
le«t  arsenaux.    Tous  les  combles  sont  borders  des  machicoulis. 


des  parapets,  des  chemins  le  ronde,  des  gu^rites.  Au  milieu 
de  la  tour  est  le  donjon,  qui  renferme  les  archives  et  le  tresor. 
H  est  profondement  fossoye  dans  tout  son  pourtour,  et  on  n'y 
entre  que  par  un  pont  presque  toujours  lev^ ;  bien  que  les 
murailles  aient,  comme  celles  du  chateau,  plus  de  six  pieds 
d'epaisseur,  il  est  revetu  jusqu*k  la  moiti^  de  sa  hauteur, 
d'une  chemise,  ou  second  mur,  en  grosses  pierres  de  taille. 

"  Ce  chateau  vient  d'etre  refait  a  neuf.  II  y  a  quelque 
chose  de  leger,  de  frais,  que  n'avaient  pas  les  chateaux 
lourds  et  massifs  des  siecles  passes."  (Civilis.  en  France, 
Le9on  35.) 

And  this  was  true;  for  the  castles  of  the  tenth  and 
eleventh  centuries  wanted  all  that  the  progress  of  luxury 
and  the  cessation,  or  nearly  such,  of  private  warfare  had  in- 
troduced before  the  age  to  which  this  description  refers; 
they  were  strongholds,  and  nothing  more ;  dark,  small,  com- 
fortless, where  one  thought  alone  could  tend  to  dispel  their 
gloom,  that  life  and  honor,  and  what  was  most  valuable  in 
goods,  were  more  secure  in  them  than  in  the  champaign 
around. 

Note  XIH.    Page  196. 

M.  Guizot  has  declared  it  to  be  the  most  difficult  of  ques- 
tions relating  to  the  state  of  persons  in  the  period  from  the 
fifth  to  the  tenth  century,  whether  there  existed  in  the  coun- 
tries subdued  by  the  Germans,  and  especially  by  the  Franks, 
a  numerous  and  important  class  of  freemen,  not  vassals 
either  of  the  king  or  any  other  proprietor,  nor  any  way  de- 
pendent upon  them,  and  with  no  obligation  except  towards 
the  state,  its  laws  and  magistrates.     (Essais  sur  I'Hist.  de 
France,  p.  232.)     And  this  question,  contrary  to  almost  all 
his  predecessors,  he  inclines  to  decide  negatively.     It  is, 
indeed,  evident,  and  is  confessed  by  M.  Guizot,  that  in  the 
ages  nearest  to  the  conquest  such  a  class  not  only  existed, 
but  even  comprised  a  large  part  of  the  nation.     Such  were 
the  owners  of  sortes  or  of  terra  Salica,  the  alodialists  of  the 
early  period.      It  is  also  agreed,  as   has   been   shown  in 
another  place,  that,  towards  the  tenth  century,  the  number 
of  these  independent  landholders   was   exceedingly  dimin- 
ished by  territorial  commendation ;  that  is,  the  subjection  of 
their  laiads  to  a  feudal  tenure.    The  last  of  these  changes 


li 


I 


}iU 


FREEMEN. 


Notes  to 


Mf 


however,  cannot  have  become  general  under  Charlemagne, 
on  account  of  the  numerous  capitularies  which  distinguish 
those  who  held  lands  of  their  own,  or  alodia,  from  beneficiary 
tenants.  The  former,  therefore,  must  still  have  been  a 
large  and  important  class.  What  proportion  they  bore  to 
the  whole  nation  at  that  or  any  other  era  it  seems  impossi- 
ble to  pronounce ;  and  equally  so  to  what  extent  the  whole 
usage  of  personal  commendation,  contradistinguished  from 
territorial,  may  have  reached.  Still  alodial  lands,  as  has 
been  obsei*ved,  were  always  very  common  in  the  south  of 
France,  to  which  Flanders  might  be  added.  The  strength 
of  the  feudal  tenures,  as  Thierry  remarks,  was  between  the 
Sonune  and  the  Loire.  (Recits  des  T.  M.  i.  245.)  These 
alodial  proprietors  were  evidently  freemen.  In  the  law  of 
France  alodial  lands  were  always  noble,  like  fiefs,  till  the 
reformation  of  the  Coutume  de  Paris  in  1580,  when  "aleux 
roturiers "  were  for  the  first  time  recognized.  I  owe  this 
fact,  which  appears  to  throw  some  light  on  the  subject  of 
this  note,  to  Laferriere,  Hist,  du  Droit  Fran9ais,  p.  129. 
But,  perhaps,  this  was  not  the  case  in  Flanders,  which  was 
an  alodial  country:  —  "La  maxime  fran9aise,  nulle  terre 
sans  seigneur,  n'avait  point  lieu  dans  les  Pays-Bas.  On  s'en 
tenait  au  principe  de  la  liberte  naturelle  des  biens,  et  par 
suite  k  la  necessite  d*en  prouver  la  suj^tion  ou  la  servitude ; 
aussi  les  biens  aUodiaux  etaient  tres  nombreux,  et  rappe- 
laient  toujours  I'esprit  de  liberte  que  les  Beiges  ont  aime  et 
conserve  tant  a  I'egard  de  leurs  biens  que  de  leurs  person- 
nes."  (M^m.  de  TAcad.  de  Bruxelles,  vol.  iii.  p.  16.)  It 
bears  on  this,  that  in  all  the  customaiy  law  of  the  Nether- 
lands no  preference  was  given  to  sex  or  primogeniture  in 
succession  (p.  21). 

But  there  were  many  other  freemen  in  France,  even  in 
the  tenth  century,  if  we  do  not  insist  on  the  absolute  and 
insulated  independence  which  Guizot  requires.  "If  we 
must  understand,"  says  M.  Guerard  (Cartulaire  de  Chartres, 
p.  34),  "  by  freemen  those  who  enjoyed  a  liberty  without  re- 
striction, that  is,  who,  owing  no  duties  or  service  to  any  one, 
could  go  and  settle  wherever  they  pleased  they  would  not 
be  found  very  numerous  in  our  chartulary  during  the  pure 
feudal  regimen.  But  if,  as  we  should,  we  comprehend  under 
this  name  whoever  is  neither  a  noble  nor  a  serf,  the  number 
of  people  in  this  intennediate  condition  was  very  consid- 


chap.  n. 


COLONI. 


315 


erable.'*  And  of  these  he  specifies  several  varieties.  This 
was  in  the  eleventh  century,  and  partly  later,  when  the  con- 
version of  alodial  property  had  been  completed. 

Savigny  was  the  first  who  proved  the  Arimanni  of  Lom- 
bardy  to  have  been  freemen,  corresponding  to  the  Rachim- 
burgii  of  the  Franks,  and  distinguished  both  from  bondmen 
and  from  those  to  whom  they  owed  obedience.  Gtizens  are 
sometimes  called  Arimanni.  The  word  occurs,  though  very 
rarely,  out  of  Italy.  (Vol.  i.  p.  176,  English  translation.) 
Guizot  includes  among  the  Arimanni  the  leudes  or  benefi- 
ciary vassals.  See,  too,  Troja,  v.  146,  148.  There  seems, 
indeed,  no  reason  to  doubt  that  vassals,  and  other  commen- 
dati,  would  be  counted  as  Arimanni.  Neither  feudal  tenure 
uor  personal  commendation  could  possibly  derogate  from  a 
free  and  honorable  status* 


Note  XIV.    Page  197. 

These  names,  though  in  a  general  sense  occupying  simi- 
lar positions  in  the  social  scale,  denote  different  persons. 
The  coloni  were  Romans,  in  the  sense  of  the  word  then 
usual ;  that  is,  they  were  the  cultivators  of  land  under  the 
empire,  of  whom  we  find  abundant  notice  both  in  the  Theo- 
dosian  Code  and  that  of  Justinian.^  An  early  instance  of 
this  use  of  the  word  occurs  in  the  Historiae  Augustas  Scrip- 
tores.  Trebellius  Pollio  says,  after  the  great  victory  of 
Claudius  over  the  Goths,  where  an  immense  number  of  pris- 
oners was  taken  — "  Factus  miles  barbarus  ac  colonus  ex 
Gk>tho ; "  an  expression  not  clear,  and  which  perplexed  Salma- 
sius.  But  it  may  perhaps  be  rendered,  the  barbarians  partly 
entered  the  legions,  partly  cultivated  the  ground,  in  the  rank 
of  coloni.  It  is  thus  understood  by  Troja  (ii.  705).  He  con- 
ceives that  a  large  proportion  of  the  coloni,  mentioned  under 
the  Christian  emperors,  were  barbarian  settlers  (iii.  1074). 
They  came  in  the  place  of  praedial  slaves,  who,  though  not 
wholly  unknown,  grew  less  common  aft^r  the  establishment  of 
Christianity.  The  Roman  colonus  was  free ;  he  could  marry 
a  free  woman,  and  have  legitimate  children ;  he  could  serve 
in  the  army,  and  was  capable  of  property ;  his  peculium, 
unlike  that  of  the  absolute  slave,  could  not  be  touched  by 

1  See  Cod.  Theod.  1.  y.  tit.  9,  with  the  copious  Paratitlon  of  Oothofced.  —  Cod.  Juat 
si  m.  4il  et  alibi. 


^ 


816 


TRIBUTARH,  LIDI. 


Notes  to 


his  master.    Nor  could  his  fixed  rent  or  duty  be  enhanced. 
He  could  even  sue  his  master  for  any  crime  committed  with 
respect  to  him,  or  for  undue  exaction.     He  was  attached,  on 
the  other  hand,  to  the  soil,  and  might  in  certain  cases  re- 
ceive  corporal  punishment.     (Troja,  iii.  1072.)     He  paid  a 
capitation  tax  or  census  to  the  state,  the  frequent  enhance- 
ment of  which  contributed  to  that  decline  of  the  agricultural 
population  which  preceded  the  barbarian  conquest.     Guizot, 
in  whose  thirty-seventh  lecture  on  the  Civilization  of  I  ranee 
the  subject  is  well  treated,  derives  the  origin  of  this  state  ot 
society  from  that  of  Gaul  before  the  Roman  conquest.     Jiut 
since  we  find  it  in  the  whole  empire,  as  is  shown  by  many 
laws  in  the  Code  of  Justinian,  we  may  look  on  it  perhaps 
rather  as  a  modification  of  ancient  slavery,  unless  we  sup- 
pose all  the  coloni,  m  this  latter  sense  of  the  word,^  to  have 
been  originally  barbarians,  who  had  received  lands  on  con- 
dition  of  remaining  on  them.     But  this,  however  frequent, 
seems  a  basis  not  quite  wide  enough  for  so  extensive  a  ten- 
ure.    Nor  need  we  believe  that  the   coloni  were  always 
raised  from  slavery ;  they  might  have  descended  into  their 
own  order,  as  well  as  risen  to  it.    It  appears  by  a  passage  in 
Salvian,  about  the  middle  of  the  fifth  century,  that  many 
freemen  had  been  compelled  to  fall  into  this  condition ;  which 
confirms,  by  analogy,  the  supposition  above  mentioned  ot  M. 
Naudet,  as  to  a  similar  degradation  of  a  part  of  the  1?  ranks 
themselves  after  the  conquest.     It  was  an  inferior  species  ot 
commendation  or  vassalage,  or,  more  strictly,  an  analogous 
result  of  the  state  of  society. 

The  forms  of  Marculfus,  and  all  the  documents  of  the 
following  ages,  furnish  abundant  proofs  of  the  continuance  of 
the  coloni  in  this  middle  state  between  entire  freedom  and 
servitude.  And  these  were  doubtless  reckoned  among  the 
« tributarii "  of  the  Salic  law,  whose  composition  was  fixed 
at  forty-five  solidi ;  for  a  slave  had  no  composition  due  to  his 
kmdred ;  he  was  his  master's  chattel,  and  to  be  paid  for  as 
such.  But  the  tributary  was  not  necessarily  a  colonus.  All 
who  possessed  no  lands  were  subjected  by  the  irajrerial  fisc  to 
a  personal  capitation.  And  it  has  appeared  to  us  that  the 
Romans  in  Gaul  continued  regularly  to  pay  this  under  the 
house  of  Clovis.     To  these  Roman  tributaries  the  barbarian 

1  The  colonus  of  Cato  and  other  classical  authors  was  a  free  tenant  or  ftirmer,  at 
has  heen  already  mentioned. 


Chap.  n. 


VILLEINAGE. 


317 


iidi  seem  nearly  to  have  corresponded.  This  was  a  class,  as 
has  been  already  said,  not  quite  freeborn  ;  so  that  ^'  Francus 
ingenuus "  was  no  tautology,  as  some  have  fancied,  yet  far 
from  slaves  ;  without  political  privileges  or  rights  of  adminis- 
tering justice  in  the  county  court,  like  the  Rachimburgii,  and 
so  little  favored,  that,  while  the  Frank  accused  of  a  theft,  that 
is,  I  presume,  taken  in  the  fact,  was  to  be  brought  before  his 
peers,  the  lidus,  under  the  name  of  "  debiHor  persona,"  which 
probably  included  the  Roman  tributary,  was  to  be  hanged  on 
the  spot.  Throughout  the  Salic  and  Ripuarian  codes  the 
ingenuus  is  opposed  both  to  the  lidus  and  to  the  servus ;  so 
that  the  threefold  division  is  incontestable.  It  corresponds  in 
a  certain  degree  to  the  edelingi,  frilingi,  and  lazzij  or  the 
eorlj  ceorl,  and  thrall  of  the  northern  nations  (Grimm,  Deut- 
sche Rechts  Alterthumer,  p.  306  et  alibi)  ;  though  we  do  not 
find  a  strict  proportion  in  the  social  state  of  the  second  order 
in  every  country.  The  "coloni  partiarii,"  frequently  men- 
tioned in  the  Theodosian  Code,  were  metayers;  and  M. 
Guerard  says  that  lands  were  chiefly  held  by  such  in  the  age 
of  Charlemagne  and  his  family.  (Cart,  de  Chartres,  i.  109.) 
The  demesne  lands  of  the  manor,  however,  were  never  occu- 
pied by  coloni,  but  by  serfs  or  domestic  slaves. 

Note  XV.    Page  198. 

The  poor  early  felt  the  necessity  of  selling  themselves  foi 
subsistence  in  times  of  famine.  "  Subdiderunt  se  pauperes 
servitio,"  says  Gregory  of  Tours,  a.d.  585,  "  ut  quantuluna- 
cunque  de  alimento  porrigerent"  (Lib.  vii.  c.  45.)  This 
long  continued  to  be  the  practice  ;  and  probably  the  remark- 
able number  of  famines  which  are  recorded,  especially  in  the 
ninth  and  eleventh  centuries,  swelled  the  sad  list  of  those 
unhappy  poor  who  were  reduced  to  barter  liberty  for  bread. 
Mr.  Wright,  in  the  thirtieth  volume  of  the  Archaeologia  (p. 
223),  has  extracted  an  entry  from  an  Anglo-Saxon  manu- 
script, where  a  lady,  about  the  time  of  the  Conquest,  manu- 
mits some  slaves,  "  whose  heads,"  as  it  is  simply  and  forcibly 
expressed,  "  she  had  taken  for  their  meat  in  the  evil  days." 
Evil  indeed  were  those  days  in  France,  when  out  of  seventy- 
three  years,  the  reigns  of  Hugh  Capet  and  his  two  successors, 
forty-eight  were  years  of  famine.  Evil  were  the  days  for  five 
years  from  1015,  in  the  whole  western  world,  when  not  a 


P 


I 


318 


VILLEINAGE. 


Notes  to 


Chap.  II. 


VILLEINAGE. 


319 


country  could  be  named  that  was  not  destitute  of  bread. 
These  were  famines,  as  Radulfus  Glaber  and  other  contem- 
porary writers  tell  us,  in  which  mothers  ate  their  children, 
and  children  their  parents ;  and  human  flesh  was  sold,  with 
some  pretence  of  concealment,  in  the  markets.  It  is  probable 
that  England  suffered  less  than  France  ;  but  so  long  and  fre- 
quent a  scarcity  of  necessary  food  must  have  affected,  in  the 
latter  country,  the  whole  organic  frame  of  society. 

It  has  been  a  very  general  opinion  that  during  the  lawless- 
ness of  the  ninth  and  tenth  centuries,  the  aristocratic  element 
of  society  continually  gaining  ground,  the  cultivators  fell  into 
a  much  worse  condition,  and  either  from  freemen  became 
villeins,  or,  if  originally  in  the  order  of  tributaries,  became 
less  and  less  capable  of  enjoying  such  personal  rights  as  that 
state  implied ;  that  they  fell,  in  short,  almost  into  servitude. 
"  Dans  le  commencement  de  la  troisieme  race,"  says  Montes- 
quieu, "  presque  tout  le  bas  peuple  ^tait  serf.'*  (Lib.  xxviii. 
c.  45.)  Sismondi,  who  never  draws  a  favorable  picture,  not 
only  descants  repeatedly  on  this  oppression  of  the  common- 
alty, but  traces  it  by  the  capitularies.  "  Les  loix  seules  nous 
donnent  quelque  indication  d*une  revolution  importante  h 
laquelle  la  grande  masse  du  peuple  fut  expos^e  k  plusieurs 
reprises  dans  toute  I'^tendue  des  Gaules,  —  revolution  qui, 
s'etant  op^ree  sans  violence,  n'a  laisse  aucune  trace  dans 
I'histoire,  et  qui  doit  cependant  expliquer  seule  les  alterna- 
tives de  force  et  de  faiblesse  dans  les  ^tats  du  moyen  age. 
C'est  le  passage  des  cultivateurs  de  la  condition  Ubre  h  la 
condition  servile.  L*esclavage  ^tant  une  fois  introduite  et 
protegee  par  les  loix,  la  consequence  de  la  prosperite,  de 
Taccroissement  des  richesses  devait  etre  toujours  la  disparition 
de  toutes  les  petites  proprietes,  la  multiplication  des  esclaves, 
et  la  cessation  absolue  de  tout  travail  qui  ne  serait  pas  fait 
par  des  mains  serviles."  (Hist,  des  Fran9ais,  vol.  ii.  p.  273.) 
Nor  should  we  have  believed,  from  the  general  language  of 
historical  antiquaries,  that  any  change  for  the  better  took 
place  till  a  much  later  era.  We  know  indeed  from  history 
that,  about  the  year  1000,  the  Norman  peasantry,  excited  by 
oppression,  broke  out  into  a  general  and  well-organized  re- 
volt, quelled  by  the  severest  punishments.  This  is  told  at 
some  length  by  Wace,  in  the  "  Romar  de  Ron.**  And  every 
inference  from  the  want  of  all  law  except  what  the  lords 
exercised  themselves,  from  the  strength  of  their  castles,  from 


the  fierceness  of  their  characters,  from  the  apparent  inability 
of  the  peasants  to  make  any  resistance  which  should  not  end 
in  greater  sufferings,  converges  to  the  same  result. 

It  is  not  therefore  without  some  surprise  that,  in  a  recent 
publication,  we  meet  with  a  totally  opposite  hypothesis  on  this 
important  portion  of  social  history.  The  editor  of  the  Cartu- 
laire  de  Chartres  maintains  that  the  peasantry,  at  the  begin- 
ning of  the  eleventh  century,  enjoyed  rights  of  property  and 
succession  which  had  been  denied  to  their  ancestors  ;  that  the 
movement  from  the  ninth  century  had  been  upwards;  so 
that,  during  that  period  of  anarchy  which  we  presume  to 
have  been  exceedingly  unfavorable  to  their  privileges,  they 
had  in  reahty,  by  force,  usage,  or  concession,  gained  possession 
of  them.  They  could  not  indeed  leave  their  lands,  but  they 
occupied  them  subject  to  known  conditions. 

The  passage  wherein  M.  Gudrard,  in  a  concise  and  per- 
spicuous manner,  has  given  his  own  theory  as  to  the  gradual 
decline  of  servitude  deserves  to  be  extracted  ;  but  I  regret 
very  much  that  he  refers  to  another  work,  not  by  name,  and 
unkno\vn  to  me,  for  the  full  proof  of  what  has  the  air  of  an 
historical  paradox.  With  sufficient  proof  every  paradox 
loses  its  name;  and  I  have  not  the  least  right,  from  any 
deep  researches  of  my  own,  to  call  in  question  the  testimony 
which  has  convinced  so  learned  and  diligent  an  inquirer. 

"  La  servitude,  comme  je  I'ai  expose  dans  un  autre  travail, 
alia  toujours  chez  nous  en  s'adoucissant  jusqu'k  ce  qu'elle  fut 
entierement  abolie  k  la  chute  de  Tancien  regime:  d'abord 
c'est  Tesclavage  k-peu-pres  pur,  qui  reduisait  Thomme  pres- 
que h  I'etat  de  chose,  et  qui  le  mettait  dans  rentiere  depen- 
dance  de  son  maitre.     Cette  periode  pent  etre  prolongee 
jusqu'apres  la  conquete  de  Tempire  d'Occident  par  les  bar- 
bares.     Depuis  cette  epoque  jusques  vers  la  fin  du  regne  de 
Charles-le-Chauve,  Tesclavage  proprement  dit  est  remplace 
par  la  servitude,  dans  laquelle  la  condition  humaine  est  re- 
connue,  respectee,  protegee,  si  ce  n'est  encore  d'une  maniere 
suffisante,  par  les  loix  civiles,  au  moins  plus  efficacement  par 
celles  de  TEglise  et  par  les  moeurs  sociales.    Alors  le  pouvoir 
de  I'homme  sur  son  semblable  est  contenu  generalement  dans 
certains  hmites ;  un  frein  est  mis  d'ordinaire  a  la  violence ; 
la  regie  et  la  stabilite  Temportent  sur  I'arbitraire :  bref,  la 
liberte  et  la  propriete  penetrent  par  quelque  endroit  dans  la 
cabane  du  serf.    Enfin,  pendant  le  desordre  d'oii  sortit  triom- 


1 


320 


VILLEINAGE. 


Notes  to 


Chap.  II. 


VILLEINAGE. 


321 


phant  le  regime  feodal,  le  serf  soutient  centre  son  maitre  la 
lutte  soutenue  par  le  vassal  centre  son  seigneur,  et  par  les 
seigneurs  contre  le  roi.  Le  succes  fut  le  meme  de  part  et 
d'autre ;  I'usurpation  des  tenures  serviles  accorapagna  celle 
des  tenures  liberales,  et  Tappropriation  territoriale  ayant  eu 
lieu  partout,  dans  le  bas  comme  dans  le  haut  de  la  societd,  il 
fut  aussi  difficile  de  deposseder  un  serf,  de  son  manse  qu'un 
seigneur  de  son  benefice.  Des  ce  moment  la  servitude  fut 
transformee  en  servage;  le  serf,  ayant  retir^  sa  personne 
et  son  champ  des  mains  de  son  maitre,  dut  h  celui-ci  non 
plus  son  corps  ni  son  bien,  mais  seulement  une  partie  de 
son  travail  et  de  ses  revenus.  Des  ce  moment  il  a  cesse  de 
servir ;  il  n'est  plus  en  realite  qu*un  tributaire. 

*'  Cette  grande  revolution,  qui  tira  de  son  ^tat  abject  la 
classe  la  plus  nombreuse  de  la  population,  et  qui  I'investit  de 
droits  civile,  lorsque  auparavant  elle  ne  pouvait  guere  in- 
voquer  en  sa  faveur  que  les  droits  de  I'humanite,  n'avait  pas 
encore  ^te  signalee  dans  notre  liistoire.  Les  faits  qui  la  de- 
monstrent  ont  ete  developpe  dans  un  autre  travail  que  je  ne 
puis  reproduire  ici ;  mais  les  traces  seules  qu'elle  a  laiss^es 
dans  notre  Cartulaire  sont  assez  nombreuses  et  assez  profon- 
des  pour  la  faire  universelleraent  reconnaitre.  Elle  etait  depuis 
long-temps  consommee,  lorsque  le  moine  redigeait,  dans  la  sec- 
onde  moitie  du  xi".  siecle,  la  premiere  partie  du  present  recueil, 
et  lorsquMl  declarait  que  les  anciens  roles  (ecrits  au  ix°.) 
conserves  dans  les  archives  de  I'Abbaye,  n'accordent  aux 
paysans  ni  les  usages  ni  les  droits  dont  ils  jouissant  actuelle- 
ment.  Mais  ses  paroles  meritent  d'etre  repetdes:  —  ^Lectori 
intimare  curavi^  dit-il  dans  sa  Preface,  ^  quod  ea  quce  primo 
scripturus  sum  a  prcesenti  usu  admodum  discrepare  videntur; 
nam  roUi  conscripti  ah  antiquis  et  in  armaria  nostra  nunc 
reperti,  habuisse  minimi  ostendunt  illius  temporis  rusticos 
has  consuetudines  in  reditihus  quas  modemi  rustici  in  hoc 
tempore  dinoscuntur  habere,  neque  hahent  vocahula  rerum  quas 
tunc  sermo  hahehat  vulgaris,^  Ainsi  non  seulement  les  choses, 
mais  encore  les  noms,  tout  etait  change.'*  (Prolegomenes  a 
la  Cartulaire  de  Chartres,  p.  40.) 

The  characteristic  of  the  villein,  according  to  Beaumanoir, 
in  the  thirteenth  century,  that  his  obligations  were  fixed  in 
kind  and  degree,  would  thus  appear  to  have  been  as  old  as 
the  eleventh.  Many  charters  of  the  tenth  and  eleventh  cen- 
turies are  adduced  by  M.  Guerard,  wherein,  as  he  informs  us, 


"  On  s'efforce  de  se  soustraire  h.  la  violence,  et  d*y  substituer 
les  conventions  k  I'arbitraire ;  la  regie  et  la  mesure  tendent 
k  s'introduire  partout  et  jusques  dans  les  extortions  memes" 
(p.  109).  But  this  principle  of  limited  rent  was  also  that  of 
the  Roman  system  with  respect  to  the  coloni  before  the  con- 
quest of  Gaul  by  Clovis.  Nor  do  we  know  that  it  was  differ- 
ent afterwards.  No  law  at  least  could  have  effected  it ;  for 
the  Roman  law,  by  which  the  coloni  were  ruled,  underwent 
no  change. 

M.  Guerard  seems  hardly  to  have  taken  a  just  view  of  the 
status  of  the  Roman  tributary  or  colonus.  "  Nous  avons  dit 
que  les  personnes  de  condition  servile  s'etaient  appropries  leurs 
benefices.  Ce  que  vient  encore  nous  confirmer  dans  cette  opin- 
ion, c'est  le  changement  qu'on  observe  generalement  dans  la  con- 
dition des  terres  depuis  le  declin  du  x*  siecle.  La  terre,  apres 
avoir  ^t(5  cultiv^e  dans  I'antiquitd  par  I'esclave  au  profit  d« 
son  maitre,  le  fut  ensuite  par  un  espece  de  fermier  non  libre 
qui  partageait  avec  le  proprietaire,  ou  qui  faisait  les  fruits 
siens,  moyennant  certains  cens  et  services,  auxquels  il  ^tait 
oblige  envers  lui :  c'est  I'etat  qui  nous  est  represente  par  le 
Polyptyque  d'Irminon,  au  temps  de  Charlemagne,  et  qui  dura 
encore  un  siecle  et  demi  environ  apres  la  mort  de  ce  grand 
prince.  Puis  commence  une  troisieme  pdriode,  pendant  la- 
quelle  le  proprietaire,  n'est  plus  que  seigneur,  tandis  que  le 
tenancier  est  devenu  lui-meme  proprietaire,  et  paie,  non  plus 
de  fermages,  mais  seulement  des  droits  seigneuriaux.  Ainsi, 
d'abord  obligations  d'un  esclave  envers  un  maitre  ensuite  ob- 
ligations d'un  fermier  non  libre  envers  un  proprietaire ;  enfin, 
obligations  d'un  proprietaire  non  libre  envers  un  seigneur. 
C'est  k  la  demiere  periode  que  nous  sommes  parvenus  dans 
notre  Cartulaire.  Les  populations  s'y  montrent  en  jouissance 
du  droit  de  propri^te,  et  ne  sont  soumises,  h  raison  des  posses- 
sions, qu'k  de  simples  charges  feodales." 

It  may  be  observed  upon  this,  that  the  colonus  was  a  free 
man,  whether  he  divided  the  produce  with  his  lord,  like  the 
metayer  of  modern  times,  or  paid  a  certain  rent ;  and,  sec- 
ondly, that,  in  what  he  calls  the  third  period,  the  tenant,  if  he 
was  a  villein  or  homme  de  poote,  could  not  possibly  be  called 
"lui-meme  proprietaire  ; "  nor  were  his  liabilities  feudal,  but 
either  a  money-rent  or  personal  service  in  labor ;  which  can- 
not be  denominated  feudal  without  great  impropriety. 

"  II  est  vrai,"  he  proceeds,  "  que  ces  charges  sont  encore 

VOL.  I.  21 


I 


t; 


322 


LEGISLATIVE  ASSEMBLIES. 


NOTKS  TO 


lourdes  et  souvent  accablantes,  et  que  les  biens  ne  sont  pas 
plus  que  les  personnes  entierement  francs  et  l.bres ;  m  suffl- 
Lnment  k  I'abri  de  I'arbitraire  et  de  la  violence ;  mais  la 

liberie,  acquise  de  jour  en  jour  a  I'^o-^^f '  f  ««— T"* 
de  plus  en  plus  k  la  terre.  Le  paysau  etant  P~P™'«>e, 
ne  lui  restait  qu'i  degr^ver  et  affranch.r  la  propn^te.  C  est 
Tcet  ™  q^'il  travaiUera  desormais  avec  perseverance  et 
de  outes  sesVces,  jusqu'k  ce  qu'il  ait  enfin  obtenu  de  ne 
supporter  d'autres  charges  que  celles  qu.  convicnent  k 
I'homme  libre,  et  qui  sont  uniquement  fondles  sur  lutihte 

"tUs  passage  the  tenant  is  made  much  more  to  resemble 
the  free  soca.'er  of  England  than  the  viUem  or  homo  posta- 
tis  of  Pierre  des  Fontaines  or  Beaumanoir.    This  latter  class, 
however,  was   certainly  numerous   in  their  ^g^.  «;"d  .^uM 
hardly  have  been  less  so  some  centuries  before.    These  were 
subject  to  so  many  onerous  restrictions,  independent  of  their 
Sulsory  residence  on  the  land,  and  independently  also  of 
Swant^of  ability  to  resist  undue  exactions,  that  they  were 
fllwavs  eac'er  to  purchase  their  own  enfranchisement,     lueir 
Sges  were  not  valid  without  the  lord's  consent,  till  AdriaB 
rV.,  in  the  twelfth  century,  declared  them  indissoluble.     A 
freeman  marrying  a  serf  became  one  l\™««lf'  f  J'J  the^ 
children.    They  were  liable  to  occasional  as  weU  as  regular 
demands,  that  is,  to  tallages,  sometimes  in  a  very  arbitr^y 
banner.    It  waL  probably  the  less  frequency  of  such  de- 
mands, among  other  reasons,  that  rendered  the  condition  of 
Tccle^kstical  tenants  more  eligible  than  that  of  others.    Man- 
umissions of  serfs  by  the  church  were  very  common ;  an^ 
indeed,  the  greater  part  that  have  been  preserved,_as  may  be 
expected,  come  from  ecclesiastical  repositories.    It  is  observed 
in  my  text  that  the  English  clergy  are  said  to  have  been  slow 
in  Uberating  their  villeins.    But  a  villem  in  England  was 
real  property ;  and  I  conceive  that  a  monaste^  could  not  en- 
franchise him,  at  least  without  the  consent  of  some  superior 
authoritv,  any  more  than  it  could  alienate  its  lands.      Ihe 
church  were  not  generally  accounted  harsh  masters. 

Note  XVI.    Pages  213,  214. 

There  would  seem  naturally  little  doubt  that  majorum  can 
mean  nothing  but  the  higher  classes  of  clergy  and  laity,  ex- 


Chap.  II. 


LEGISLATIVE  ASSEMBLIES. 


323 


elusive  of*  parish  priests  and  ordinary  freemen,  were  it  not 
that  a  part  of  these  very  majores  are  afterwards  designated 
by  the  name  minores.     Who,  it  may  be  asked,  could  be  the 
majores  clerici,  except  prelates  and  abbots  ?     And  of  these, 
how  could  one  be  so  inferior  in  degree  to  another  as  to  be 
reckoned  among  minores  ?    It  may  perhaps  be  answered  that 
there  was  nevertheless  a  difference  of  importance,  though  not 
of  rank.    Guizot  translates  majores  "  les  grands,"  and  mino- 
res "  les  moins  considerables."     But  upon  this  construction, 
which  certainly  is  what  the   words  fairly  bear,  none  but  a 
class  denominated  majores,  relatively  to  the  rest  of  the  nation, 
were  members  of  the  national  council.     I  think,  nevertheless, 
that  Guizot,  on  any  hypothesis,  has  too  much  depreciated  the 
authority  of  these  general  meetings,  wherein  the  capitularies 
of  Charlemagne  were  enacted.     Grant,  against  Mably,  that 
they  were  not  a  democratic  assembly ;  still  were  they  not  a 
legislature  ?    "  Lex  consensu  fit  popuU  et  constitutione  regis." 
This  is  our  own  statute  language ;  but  does  it  make  parha- 
ment  of  no  avail?    "  En  lui  (Charlemagne)  reside  la  volenti 
et  rimpulsion ;  c'est  de  lui  que  toute  emane  pour  revenir  h 
lui."     (Essais  sur  I'Hist.  de  France,  p.  323.)     This  is  only 
to  say  that  he  was  a  truly  great  man,  and  that  his  subjects 
were  semi-barbarians,  comparatively  unfit  to  devise  methods 
of  ruling  the  empire.     No  one  can  doubt  that  he  directed 
everything.     But  a  weaker  sovereign  soon  found  these  rude 
nobles  an  overmatch  for  him.     It  is,  moreover,  well  pointed 
out  by  Sir  F.  Palgrave,  that  we  find  instances  of  petitions 
presented  by  the  lay  or  spmtual  members  of  these  assemblies 
to  Charlemagne,  upon  which  capitularies  or  edicts  were  after- 
wards founded.     (English  Commonwealth,  ii.  411.)     It  is  to 
be  inferred,  from  several  texts  in  the  capitularies  of  Charle- 
magne and  his  family,  that  a  general  consent  was  required  to 
their  legislative  constitutions,  and  that  without  this  a  capitu- 
lary did  not  become  a  law.     It  is  not,  however,  quite  so  clear 
in  what  method  this  was  testified  ;  or  rather  two  methods  ap- 
pear to  be  indicated.      One   was  that  above  described  by 
Hincmar,when  the  determination  of  the  seniores  was  referred 
to  the   minores  for  their  confirmation:   "interdum    pariter 
tractandum,  et  non  ex  potestate  sed  ex  proprio  mentis  intel- 
lectu  vel  sententia  confirmandum."     The  point  of  divergence 
between  two  schools  of  constitutional  antiquaries  in  France  is 
on  the  words  ex  potestate,     Mably,  and  others  whom  I  have 


324 


LEGISLATIVE  ASSEMBLIES. 


Notes  to 


!i 


if 


foUowed,  say  **not  by  compulsion,"  or  words  to  that  effect. 
But  Guizot  renders  the  words  differently :  "  quelquefois  on 
d^liberait  aussi,  et  les  confirmaient,  non  par  un  consentement 
formel,  mais  par  leur  opinion,  et  Vadh^sion  de  leur  mtelh- 
gence."  The  Latin  idiom  will,  I  conceive,  bear  either  con- 
struction.  But  the  context,  as  well  as  the  analogy  of  other 
authorities,  inclines  me  to  the  more  popular  interpretation, 
which,  though  the  more  popular,  does  not  necessarily  carry 
us  beyond  the  word  majores,  taking  that  as  descriptive  of  a 
numerous  aristocracy. 

If,  indeed,  we  are  so  much  bound  by  the  majorum  in  this 
passage  of  Hincmar  as  to  take  for  merely  loose  phrases  the 
continual  mention  of  the  populus  in  the  capitularies,  we  could 
not  establish  any  theory  of  popular  consent  in  legislation 
from  the  general  placita  held  almost  every  May  by  Charle- 
magne.     They  would  be    conventions   of  an  aristocracy; 
numerous   indeed,    and    probably  comprehending  by   right 
all  the  vassals  of  the  crown,  but  excluding  the  freemen  or 
petty  alodiahsts,  not  only  from  deliberating  upon  public  laws, 
but  from  consenting  to  them.     We  find,  however,  several 
proofs  of  another  method  of  obtdning  the  ratification  of  this 
class,  that  is  of  the  Frank  people.     I  do  not  allude  to  the 
important  capitulary  of  Louis  (though  I  cannot  think  that  M. 
Guizot  has  given  it  sufficient  weight),  wherein  the  count  i3 
directed  to  bring  twelve  Scabini  with  him  to  the  imperial 
placitum,  because  we  are  chiefly  at  present  referring  to  the 
reign  of  Charlemagne;  and  yet  this  provision  looks  like  one 
of  his  devismg.     The  scheme  to  which  I  refer  is  different 
and  less  satisfactory.     The  capitulary  determmed  upon  by  a 
national  placitum  was  sent  round  to  the  counts,  who  were  to 
read  it  in  their  own  mallus  to  the  people,  and  obtain  their 
confirmation.     Thus  in  803, "  Anno  tertio  clementissimi  domi- 
ni  nostri  Karoli  Augusti,  sub  ipso  anno  haec  facta  capitula 
sunt,  et  consignata  Stephano  comiti,  ut  haec  manifesta  faceret 
in  civitate  Parisiis,  mallo  publico,  et  ilia  legere  faceret  coram 
Scabiniis,  quod  ita  et  fecit.     Et  omnes  in  uno  consenserunt, 
quod  ipsi  voluissent  omni  tempore  observare  usque  in  poste- 
rum.     Etiam  omnes   Scabinii,  Episcopi,  Abbates,  Comites 
manu  propria  subter  signaverunt."     (Rec.  des  Hist.  v.  663.) 
No  text  can  be  more  perspicuous  than  this ;  but  several  other 
proofs  might  be  given,  extending  to  the  subsequent  reigns. 
Sir  F.  Palgrave  is,  perhaps,  the  first  who  has  drawn  at- 


Chap.  n. 


ROYAL  TRIBUNALS. 


325 


tention  to  this  scheme  of  local  sanction  by  the  people ;  though 
I  must  think  that  he  has  somewhat  obscured  the  subject  by 
supposing  the  ma/?i,  wherein  the  capitulary  was  confirmed, 
to  have  been  those  of  separate  nations  constituting  the  Frank 
empire,  instead  of  being  determined  by  the  territorial  juris- 
diction of  each  count.  He  gives  a  natural  interpretation  to 
the  famous  words,  "  Lex  consensu  popuU  fit,  constitutione 
regis."  The  capitulary  was  a  constitution  of  the  king, 
though  not  without  the  advice  of  his  great  men ;  the  law  was 
its  confirmation  by  the  nation  collectively,  in  the  great  placi- 
tum of  the  Field  of  March,  or  by  separate  consent  and  sub- 
scription in  each  county. 

We  are  not,  however,  to  be  confident  that  this  assent  of 
the  people  in  their  county  courts  was  virtually  more  than 
nominal.  A  little  consideration  will  show  that  it  could  not 
easily  have  been  otherwise,  except  in  the  strongest  cases  of 
unpopular  legislation.  No  Scabini  or  Rachimburgii  in  one 
county  knew  much  of  what  passed  at  a  distance ;  and 
dissatisfaction  must  have  been  universal  before  it  could 
have  found  its  organ  in  such  assemblies.  Before  that 
time  arrived  rebellion  was  a  more  probable  effect.  One 
capitulary,  of  823,  does  not  even  allude  to  consent :  "  In  suis 
comitatibus  coram  omnibus  relegant,  ut  cunctis  nostra  ordi- 
natio  et  voluntas  nota  fieri  possit."  But  we  cannot  set  this 
against  the  language  of  so  many  other  capitularies,  which 
imply  a  formal  ratification. 


!^ 


Note  XVII.    Page  242. 

The  court  of  the  palace  possessed  a  considerable  jurisdic- 
tion from  the  earliest  times.  We  have  its  judgments  under 
the  Merovingian  kings.  Thus  in  a  diploma  of  Clovis  HL, 
A.D.  693,  dated  at  Valenciennes  — "  Cum  ad  universorum 
causas  audiendas  vel  recta  judicia  terminanda  resideremus." 
(Rec.  des  Hist.  iv.  672.)  Under  the  house  of  Charlemagne 
it  is  fully  described  by  Hincmar  in  the  famous  passage  above 
mentioned.  It  was  not  so  much  in  form  a  court  of  appeal  as 
one  acting  by  the  sovereign's  authority,  to  redress  the  oppres- 
sion of  the  subject  by  inferior  magistrates.  Mr.  Allen  has 
well  rejected  the  singular  opinion  of  Meyer,  that  an  errone- 
ous or  corrupt  judgment  of  the  inferior  court  was  not  revers- 
ible by  this  royal   tribunal,   though  the  judges  might  be 


826 


ROYAL  TRIBUNALS. 


KOTES  TO 


ii'li 


punislied  for  giving  it.  (Inquiry  into  Royal  Prerogative, 
Appendix,  p.  29.)  Though,  according  to  what  is  said  by  M. 
Beugnot,  the  appeal  was  not  made  in  regular  form,  we  cannot 
doubt  that,  where  the  case  of  injury  by  the  inferior  judge 
was  made  out,  justice  would  be  done  by  annulling  his  sen- 
tence. The  emperor  or  king  often  presided  here ;  or,  in  his 
absence,  the  count  of  the  palace.  Bishops,  counts,  household 
ofl&cers,  and  others  constituted  this  court,  which  is  not  to  be 
confounded  with  that  of  the  seneschal,  having  only  a  local 
jurisdiction  over  the  domains  of  the  crown,  and  which  did 
not  continue  under  the  house  of  Capet.  (Beugnot,  Registres 
des  Arrets,  vol.  i.  p.  15,  18,  in  Documens  Inedits,  1839.) 

This  tribunal,  the  court  of  the  palace,  was  not  founded 
upon  any  feudal  principle ;  and  when  the  right  of  territorial 
justice  and  the  subordination  of  fiefs  came  to  be  thoroughly 
established,  it  ought,  according  to  analogy,  to  have  been 
replaced  by  one  wherein  none  but  the  great  vassals  of  France 
should  have  sat.  Such,  however,  was  not  the  case.  This  is 
a  remarkable  anomaly,  and  a  proof  that  the  spirit  of  mon- 
archy was  not  wholly  extinguished.  For,  weak  as  was  the 
crown  under  the  first  Capets,  their  court,  though  composed 
of  persons  by  no  means  the  peers  of  all  who  were  amenable 
to  it,  gave  several  judgments  affecting  some  considerable 
feudataries,  such  as  the  count  of  Anjou  under  Robert.  (Id. 
p.  22.)  No  court  composed  only  of  great  vassals  appears  in 
the  eleventh  or  twelfth  centuries ;  no  notion  of  judicial  subor- 
dination prevailed ;  the  vassals  of  the  crown  sat  with  those 
of  the  duchy  of  France ;  and  latterly  even  clerks  came  in  as 
assessors  or  advisers,  though  without  suffrage  (p.  31).  But 
an  important  event  brought  forward,  for  the  first  time,  the 
true  feudal  principle.  This  was  the  summons  of  John,  as 
duke  of  Normandy,  to  justify  himself  as  to  the  death  of 
Arthur.  It  has  been  often  said  that  twelve  peers  of  France 
had  appeared  at  the  coronation  of  Philip  Augustus,  in  1179. 
This,  however,  a  late  writer  has  denied,  and  does  not  place 
them  higher  than  the  proceedings  against  John,  in  1204. 
(Id.  p.  44.)  In  civil  causes,  as  has  above  been  said,  there 
had  been  several  instances  wherein  the  king's  court  had 
pronounced  judgment  against  vassals  of  the  crown.  The  idea 
had  gained  ground  that  the  king,  by  virtue  of  his  full  pre- 
rogative, communicated  to  all  who  sat  in  that  court  a  portion 
of  his  own  sovereignty.    Such  an  opinion  would  be  sanctioned 


Chap.  n. 


MUNICIPAL  GOVERNMENT. 


327 


by  the  bishops,  and  by  all  who  leaned  towards  the  imperial 
theory  of  government,  never  quite  eradicated  in  the  church. 
But  the  high  rank  of  John^  and  the  important  consequences 
likely  to  result  from  his  condemnation,  forbade  any  irregularity 
of  which  advantage  might  be  taken.  John  is  always  said  to 
have  been  sentenced,  "judicio  parium  suorum;"  whence  we 
may  conclude  that  inferior  lords  did  not  take  a  part.  (Id. 
ibid.)  And  from  that  time  we  find  abundant  proofs  of  the 
peerage  of  France,  composed  of  six  lay  and  six  spiritual 
persons ;  though  upon  this  supposition  Normandy  was  never 
a  substantial  member  of  that  class,  having  only  appeared  for 
a  moment,  to  vanish  in  the  next  by  its  reunion  to  the  domain. 
The  feudal  principle  seemed  now  to  have  recovered 
strength:  a  right  which  the  vassals  had  never  enjoyed, 
though  in  consistency  then*  due,  was  formally  conceded.  But 
it  was  too  late  in  the  thirteenth  century  to  render  any  new 
privilege  available  against  the  royal  power.  Though  it  was 
from  that  time  an  uncontested  right  of  the  peers  to  be  tried 
by  some  of  their  order,  this  was  construed  so  as  not  to  ex- 
clude others,  in  any  number,  and  with  equivalent  suffrage. 
One  or  more  peers  being  present,  the  court  was,  in  a  later 
phrase,  "  suffisamment  garnie  de  pairs  ; "  and  thus  the  lives 
and  rights  of  the  dukes  of  Guienne  or  Burgundy  were  at  the 
mercy  of  mere  lawyers. 

Note  XVm.     Page  249. 

Savigny,  in  his  History  of  Roman  Law  in  the  Middle 
Ages,  and  Raynouard,  in  his  Histoire  du  Droit  Municipal 
(1828),  have,  since  the  first  pubhcation  of  this  work  in  1818, 
traced  the  continuance  of  municipal  institutions,  in  several 
French  cities,  from  the  age  of  the  Roman  empire  to  the 
twelfth  century,  when  the  formal  charters  of  communities 
first  appear.  But  it  will  render  the  subject  clearer  if  we 
look  at  the  constitution  which  Rome  gave  to  the  cities  of 
Italy,  and  ultimately  of  the  provinces.  We  are  not  concerned 
with  the  privileges  of  Roman  citizenship,  whether  local  or 
personal,  but  with  those  appertaining  to  each  city.  These 
were  originally  founded  on  the  republican  institutions  of 
Rome  herself;  the  supreme  power,  so  far  as  it  was  conceded, 
and  the  choice  of  magistrates,  rested  with  the  assembly  of 
the  citizens.     But  after  Tiberius  took  this  away  from  the 


328 


MUNICIPAL  GOVERNMENT. 


NOTB3  TO 


Roman  comitia  to  vest  it  in  the  senate,  it  appears  that,  either 
through  imitation  or  bj  some  imperial  edict,  this  example  was 
followed  in  every  provincial  city.  We  find  everywhere  a 
class  named  "  curiales,"  or  "  decuriones  "  (synonymous  words), 
in  whom,  or  in  those  elected  by  them,  resided  whatever  au- 
thority was  not  reserved  to  the  proconsul  or  other  Roman 
magistrate.  Though  these  words  occur  in  early  writers,  it 
must  be  admitted  that  our  chief  knowledge  of  the  internal 
constitution  of  provincial  cities  is  derived  from  the  rescripts 
of  the  later  emperors,  especially  in  the  Theodosian  code. 

The  decurions  are  several  tunes  mentioned  by  Pliny. 
In  Greek  or  Asiatic  towns  the  word  (3ovX7i  answered  to  curia, 
and  (3ov?£VTTic  to  decurio.  Pliny  refers  to  a  lex  Pompeia, 
probably  of  the  great  Pompey,  which  appears  to  have  regu- 
lated the  internal  constitution,  at  least  of  the  Pontic  and 
Bithynian  cities.  According  to  this,  the  members  of  the 
council,  or  0ovXv,  were  named  by  certain  censors,  to  whose 
list  the  emperor,  in  the  tune  of  PUny,  added  a  few  by 
especial  favor.  (Phn.  Epist.  x.  113.)  In  later  times  the 
decurions  are  said  to  have  chosen  their  own  members,  which 
can  mean  little  more  than  that  the  form  of  election  was 
required,  for  birth  or  property  gave  an  inchoate  title.  They 
were  a  local  aristocracy,^  requiring  perhaps  originally  the 
qualification  of  wealth,  which  in  the  time  of  Pliny,  at  least 
in  Asia,  was  of  a  hundred  thousand  sesterces,  or  about  800/. 
(Epist.  i.  19.)  But  latterly  it  appears  that  every  son  of  a 
decurion  inherited  the  rights  as  well  as  the  liabilities  of  his 
father.  We  read,  "  qui  origine  sunt  curiales,"  and  "  honor 
quem  nascendo  meruit."  Property,  however,  gave  a  similar 
title;  every  one  possessing  twenty-five  jugera  of  freehold 
ought  to  be  inscribed  in  the  order.  This  title,  honorable  to 
Roman  ears,  ordo  decuriomim,  or  simply  ordo,  is  always 
applied  to  them.  They  were  summoned  on  the  Kalends  of 
March  to  choose  municipal  officers,  of  whom  the  most  re- 
markable were  the  duumvirs,  answering  to  the  consuls  of 
the  imperial  city.  These  possessed  a  slight  degree  of  civil 
and  criminal  jurisdiction,  and  were  bound  to  maintain  the 
peace.  They  belonged,  however,  only  to  cities  enjoying  the 
jus  Italicum,  a  distinction  into  which  we  need  not  now  in- 
quire ;  and  Savigny  maintains  that,  in  Gaul  especially,  which 

»  Though  I  use  this  word,  which  ex-    of  law,  the  decurions  were  "  nuUa  pnediti 
presses  a  general  truth,  yet,  ixx  Btrictnesa    diguitate."    (Cod.  Theod.  12, 1,  6:) 


Chap.  II. 


MUNICIPAL  GOVERNMENT. 


329 


we  cluefly  regard,  no  local  magistrate,  in  a  proper  sense, 
ever  existed,  the  whole  jurisdiction  devolving  on  the  impe- 
rial officers.  This  is  far  from  the  representation  of  Raynou- 
ard,  who,  though  writing  after  Savigny,  seems  ignorant  of 
his  work,  nor  has  it  been  adopted  by  later  French  inquirers. 
But  another  institution  is  highly  remarkable,  and  does 
peculiar  honor  to  the  great  empire  which  established  it,  that 
of  Defensor  Civitatis  — a  standing  advocate  for  the  city 
against  the  oppression  of  the  provincial  governor.  His 
office  is  only  known  by  the  laws  from  the  middle  of  the 
fourth  century,  the  earliest  being  of  Valentinian  and  Valens, 
in  365 ;  but  both  Cicero  (Epist.  xii.  56)  and  Pliny  (Epist. 
X.  3)  mention  an  Ecdicus  with  something  like  the  same 
functions ;  and  Justinian  always  uses  that  word  to  express 
the  Defensor  Civitatis.  He  was  chosen  for  five  years,  not 
by  the  curiales,  but  by  the  citizens  at  large.  Nor  could  any 
decurion  be  defensor ;  he  was  to  be  taken  "  ex  aliis  idoneis 
personis;"  which  Raynouard  translates,  "among  the  most 
distinguished  inhabitants;"  a  sense  neither  necessary  nor 
probable.  (Cod.  Theod.  i.  tit.  xi.;  Du  Cange;  Troja,  iii. 
1066;  Raynouard,  i.  71.) 

The  duties  of  the  defensor  will  best  appear  by  a  passage 
in  a  rescript  of  a.d.  385,  inserted  in  the  Code  of  Justinian :  -— 
«  Scilicet,  ut  in  primis  parentis  vicem  plebi  exhibeas,  descrip- 
tionibus  rusticos  urbanosque  non  patiaris  affligi;  officialium 
insolentias  et  judicum  procacitati,  salva  reverentia  pudoris, 
occurras ;  ingrediendi  cum  voles  ad  judicem  liberam  habeas 
facultatem ;  super  exigendi  damna,  vel  spolia  plus  petentium 
ab  his  quos  liberorum  loco  tueri  debes,  excludas ;  nee  patiaris 
quidquam  ultra  delegationem  solitam  ab  his  exigi,  quos  certum 
est  nisi  tali  remedio  non  posse  reparari."  (Cod.  i.  55,  4.) 
But  the  Defensores  were  also  magistrates  and  preservers  of 
order :  —  "  Per  omnes  regiones  in  quibus  fera  et  periculi  sui 
nescia  latronam  fervet  insania,  probatissimi  quique  et  dis- 
trictissimi  defensores  adsint  disciplinae,  et  quotidianis  actibus 
praesint,  qui  non  sinant  crimina  impunita  coaJescere ;  remove- 
ant  patrocinia  quae  favorem  reis,  et  auxilium  scelerosis  im- 
partiendo,  maturari  scelera  fecerunt."  (Id.  i.  55,  6.  See, 
too,  Theod.  ubi  supra,) 

It  may  naturally  be  doubted  whether  the  principles  of 
freedom  and  justice,  which  dictated  these  municipal  institu- 
tions of  the  empire,  were  fully  curried  out  in  effect.     Per- 


\v 


330 


MUNICIPAL  GOVERNMENT. 


Notes  to 


haps  it  might  be  otherwise  even  in  the  best  times  —^  those  of 
Trajan  and  the  Antonines.     But  in  the  decline  of  the  empire 
we  find  a  striking  revolution  in  the  condition  of  the  decurions. 
Those  evil  days  rendered  necessary  an  immense  pressure  of 
taxation ;  and  the  artificial  scheme  of  imperial  policy,  intro- 
duced by  Diocletian  and  perfected  by  Constantine,  had  for 
Its  mam  object  to  drain  the  resources  of  the  provinces  for  the 
imperial  treasury.     The  decurions  were  made  liable  to  such 
heavy  burdens,  then-  responsibility  for  local  as  weU  as  public 
charges  was  so  extensive  (in  every  case  their  private  estates 
being  required  to  make  up  the  deficiency  in  the  general  tax) 
that  the  barren  honors  of  the  office  afforded  no  compensation! 
and  many  endeavored  to  shun  them.    This  responsibility, 
indeed,  of  the  decurions,  and  their  obligation  to  remain  i 
the  city  of  the  domicile,  as  well  as  their  frequent  desire  to 
escape  from  the  burdens  of  their  lot,  is  manifest  even  in  the 
JJigest,  that  IS,  m  the  beginning  of  the  third  century  (when 
the  opinions  of  the  lawyers  therein  collected  were  given), 
while  the  empire  was  yet  unscathed ;  but  the  evil  became  more 
flagrant  in  subsequent  times.     The  laws  of  the  fourth  and 
^th  centuries,  m  the  Theodosian  code,  perpetually  compel 
the  decurions,  under  severe  penalties,  to  remain  at  home  and 
undergo  their  onerous  duties.     These  laws  are  192  in  num- 
ber,  filling  the  first  title  of  the  twelfth  book  of  that  code, 
truizot  mdeed,  Savigny,  and  even  Raynouard  (though  his  bias 
is  always  to  magnify  municipal  institutions),  have  drawn 
trom  this  source  such  a  picture  of  the  condition  of  the  decurions 
in  the  last  two  centuries  of  the  western  empire,  that  we  are 
^ost  at  a  loss  to  reconcile  this  absolute  impoverishment  of 
their  order  with  other  facts  which  apparently  bear  witness  to 
a  better  state  of  society.     For,  greatly  fallen  as  the  decurions 
of  the  provincial  cities  must  be  deemed,  in  comparison  with 
their  earber  condition,  there  was  still,  at  the  beginning  of 
the  fifth  century  especiaUy  in  Gaul,  a  liberal  clals  of  good 
tamily,  and  not  of  ruined  fortunes,  dwelling  mostly  in  cities 
or  sometimes  in  villas  or  country  houses  not  remote  from' 
cities,  from  whom  the  church  was  replenished,  and  who  kept 
up  the  politeness  and  luxury  of  the  empire.^    The  senators 
or  senatonal  famihes  ai-e  often  mentioned ;  and  by  the  latter 

for  his  age,  which  was  S  So  mkidle  of    oOhl  nr.  .^^^^^ '"■'^^  ^S^^^^  *he  vices 
the  centSr^ ;  and  the  stalJ  '^'fTJt^',    JLl^thTw^mSfrl^^orwrr ''"^ 


Chap.  n. 


MUNICIPAL  GOVERNMENT. 


331 


term  we  perceive  that  an  hereditary  nobility,  whatever  might 
be  the  case  with  some  of  the  barbarian  nations,  subsisted  in 
public  estimation,  if  not  in  privilege,  among  their  Roman 
subjects.  The  word  senate  appears  to  be  sometimes  used 
for  the  curia  at  large ;  ^  but  when  we  find  senatorius  ordo, 
or  senatorium  genus,  we  may  refer  it  to  the  higher  class,  who 
had  served  municipal  offices,  or  had  become  privileged  by 
imperial  favor,  and  to  whom  the  title  of  "  clarissimi "  legally 
belonged.  It  seems  probable  that  this  appellative  senator, 
rather  than  senior,  has  given  rise  to  seigneur,  sire,  and  the 
like  in  modem  languages.  The  word  senatoriy^  appears 
early  to  have  acquired  the  meaning  noble  or  gentlemanlike ; 
though  I  do  not  find  this  in  the  dictionaries.  This  is,  I  con- 
ceive, what  Pliny  means  by  the  "  quidam  senatorius  decor," 
which  he  ascribes  to  his  young  son-in-law  Acilianus.  (Epist. 
i.  14.)  It  is  the  air  noble,  the  indescribable  look,  rarely  met 
with  except  in  persons  of  good  birth  and  liberal  habits.  In 
the  age  of  Pliny  this  could  only  refer  to  the  Roman  senate.* 
A  great  number  of  laws  in  this  copious  title  of  the  Theo- 
dosian code,  many  of  which  are  cited  by  Raynouard  (vol.  i.  p. 
80),  manifest  a  distinction  between  the  curia  and  the  senate, 
or,  as  it  is  sometimes  called,  "  nobilissima  curia ; "  and 
though  perhaps,  in  certain  instances,  they  may  be  referred  to 
the  great  senates  of  Rome  or  Constantinople,  which  were  the 
fountains  of  all  provincial  dignity  of  this  kind,  there  are  oth- 
ers which  can  only  be  explained  on  the  supposition  that  they 
relate  to  decurions,  as  it  were  emeriti,  and  j)romoted  to  a 
higher  rank.  Thus,  one  of  Valentinian  and  Valens,  in  364, 
which  is  the  earliest  that  seems  explicit :  —  "  Nemo  ad  ordi- 
nem  senatorium  ante  functionem  omnium  munerum  munici- 
palium  senator  accedat.  Cum  autem  universis  transactis, 
patriae  stipendia  fuerit  emensus,  tum  eum  ita  ordinis  senatorii 
complexus   excipiet,  ut   reposcentium  civium  flagitatio   non 


1  This  was  rather  by  analogy  than  in 
strictness :  thus,  "  Suae,  si  sic  did  oportet, 
curiae  senatorem."  (Lib.  12,  tit.  1,  lex 
85.)  But  perhaps  the  language  in  dififer- 
ent  parts  of  the  empire,  or  in  different 
periods,  might  not  be  the  same.  The  law 
just  cited  is  of  Arcadius.  But  Majorian 
Bays,  in  the  next  age  and  in  the  West,  of 
the  curialeSj  "  Quorum  coetum  recte  ap- 
pellayit  antiquitas  minorem  senatum." 
(Gothofred,  in  leg.  85,  supri  citat. )  Some 
modern  writers  too  much  confound  all 
who  are  denominated  senators  with  the 
coriales. 


3  I  presume  that  Sidonius  Apollinaris 
means  something  complimentary  where 
he  says  —  "Prandebamus  breviter,  copi- 
ose,  senatorium  ad  vioretn ;  quo  insitum 
institutumque  multas  epulas  paucis  pa< 
ropsidibus  apponi."  —  Epist.  ii.  9. 

The  hereditary  nobility  of  the  senate, 
implying  purity  of  blood,  was  recognized 
very  early  in  imperial  Rome.  By  the 
lex  Julia,  the  descendants  of  senators  to 
the  fourth  generation  were  incapable  of 
marrying  libertina.  — Dig.  xxiii.  2,  44. 


332 


MUNICIPAL  GOVERNMENT. 


Notes  to 


fatiget."  (Lex.  Ivii.)  The  second  title  of  the  sixth  book  of 
the  Theodosian  code,  "  De  Senatoribus,"  is  unfortunately  lost ; 
but  Gothofred  has  restored  a  Paratitlon  from  other  parts  of 
the  same  code,  and  especially  from  the  title  above  mentioned, 
in  the  twelfth  book,  by  reference  to  which  this  part  of  the 
imperial  constitution  will  be  best  understood.  It  appears  dif- 
ficult to  explain  every  passage.  But  on  the  whole  we  cannot 
hesitate  to  agree  with  Guizot  and  Savigny,  that  the  name  of 
senator  was  given  to  a  privileged  class  in  the  provincial  cit- 
ies, who,  having  served  through  all  the  public  functions  of 
the  curia,  were  entitled  to  a  legal  exemption  in  future,  and 
ascended  to  the  dignity  of  "  Clarissimi."  Many  others,  inde- 
pendent of  the  decurions,  obtained  this  rather  by  the  empe- 
ror's favor,  or  by  the  performance  of  duties  which  regularly 
led  to  it.  They  were  nominated  by  the  emperor,  and  might 
be  removed  by  him ;  but  otherwise  their  rank  was  hereditary. 
Those  decurions,  therefore,  who  could  bear  the  burdens  of 
municipal  liabilities  without  impoverishment,  rose  so  far 
above  them  that  their  famihes  were  secure  in  wealth  as  well 
as  privilege.  Thus  the  word  senator  must  be  taken,  in  rela- 
tion to  them,  as  merely  an  aristocratic  distinction,  without 
regard  to  its  original  sense.^  It  is  sufficiently  clear  that  sen- 
atorial families,  by  whatever  means  separated  from  the  rest, 
constituted  the  nobility  of  Gaul.  Thus  we  read  in  Gregory  of 
Tours  (lib.  ii.  c.  21,  sub  ann,  475)  —  «  Sidonius  vir  secun- 
dum saeculi  dignitatem  nobilissimus,  et  de  primis  Galliarum 
senatoribus,  ita  ut  fiham  sibi  Aviti  imperatoris  in  matrimonio 
sociurit."  Another  is  called  "  vir  valde  nobilis  et  de  primis 
senatoribus  Galliarum."  Other  passages  from  the  same  his- 
torian might  be  adduced.  But  this  is  not  to  our  immediate 
purpose,  which  is  to  trace  briefly  the  state  of  municipal  insti- 
tutions in  Guul.  The  senatorial  order,  or  Roman  provincial 
nobility,  of  which  we  have  just  been  speaking,  is  different. 
Raynouard,  the  diligent  elucidator  of  this  great  question, 
answers  the  very  specious  objection  of  Mably,  drawn  from  the 
silence  of  the  capitularies,  which,  though  addressed  to  many 
classes  of  magistrates,  never  mention  any  pecuhar  to  the  cit- 
ies, by  observing  that  these  capitularies  were  not  designed  for 

1  For  this  distinction  between  eun'ales  all  of  wWch  throw  some  light  upon,  or 

and  senatores  the  reader  may  consult  relate  to,  this  rather  obscure  subject, 

the  title  of  the  Theodosian  code  on  De-  Guizot,  Savigny,  and  Raynouard  are  th« 

eunons,  above  cited.  Leg.  82,  90,  93, 108,  modem  guides. 
UO,  111,  118, 122, 129, 130, 180, 182, 183i 


Chaf.  XL 


MUNICIPAL  GOVERNMENT. 


333 


those  who  lived  by  the  Roman  law.  (Vol.  ii.  p.  160.)  Sa- 
vigny had  already  made  the  same  remark.  There  seems  to 
be  some  force  in  this  answer ;  and  at  least  it  is  impossible  to 
argue  with  Mably,  from  a  negative  probability,  against  the 
indisputable  evidence  that  the  municipal  magistrates  of  some 
cities  were  in  being.  It  may  be  justly  doubted,  indeed, 
whether  they  possessed  a  considerable  authority.  Subject  to 
the  count,  as  the  great  depositary  of  royal  power,  they  would 
not  perhaps  be  held  worthy  of  receiving  immediate  commands 
from  the  sovereign  in  the  national  council.  Troja  speaks  with 
contempt  of  these  "  curiae,"  whose  chief  business  was  to  regis- 
ter testaments  and  witness  deeds  :  "  Son  sempre  i  medisimi 
ed  anche  derisorj  i  ricordi  delle  curie,  ridotte  alle  funzioni  di 
registrar  testamenti,  donazioni  e  contratti,  o  ad  elegger  mag- 
istrati  che  non  poteano  difendere  il  Romano  dalle  violenze  dei 
Franchi,  senza  I'intervenzione  de'  vescovi  di  sangue  Romano, 
o  di  sangue  barbarico ;  ma  in  vano  si  cercherebbe  la  vita  e  la 
possanza  della  curia  Romana  in  questi  vani  simulacri." 
(Vol.  i.  part  v.  p.  133.)  They  might  be,  nevertheless,  quite 
as  important  as  under  the  later  emperors. 

It  is  not  necessary  to  conclude  that  every  city  in  which  the 
curia  or  the  defensor  subsisted  during  the  imperial  govern- 
ment retained  those  institutions  throughout  the  domination  of 
the  Franks.  It  appears  that  the  functions  of  "  defensor  civ- 
itatis,"  that  is  to  say,  the  protection  of  the  city  against  arbi- 
trary acts  of  the  provincial  governors,  and  the  exercise  of 
jurisdiction  within  its  boundaries,  frequently  devolved  upon 
the  bishop.  It  is  impossible  not  to  recognize  the  efficacy  of 
episcopal  government  in  sustaining  municipal  rights  during 
the  first  dynasty.  The  bishops  were  a  link,  or  rather  a 
shield,  between  the  barbarians  who  respected  them  and  the 
people  whom  they  protected,  and  to  whose  race  they  for  a 
long  time  commonly  belonged.  But  the  bishop  was  legally, 
and  sometimes  actually,  elected,  as  the  defensor  had  been,  by 
the  people  at  large.  This,  indeed,  ceased  to  be  the  case  be- 
fore the  reign  of  Charlemagne ;  and  the  crown,  or  (in  the 
progress  of  the  feudal  system)  its  chief  vassals,  usurped  the 
power  of  nomination,  though  the  formality  of  election  was 
not  abolished.  Certain  it  is  that  from  this  analogy  to  the  de- 
fensor, and  from  the  still  closer  analogy  to  the  feudal  vassal, 
after  royal  grants  of  jurisdiction  and  immunity  became  usual, 
not  less  than  by  the  respect  due  to  his  station,  the  bishop 


334 


MUNICIPAL  GOVERNMENT. 


Notes  to 


Chaf.  II. 


MUNICIPAL  GOVERNMENT. 


335 


became  as  much  the  civil  governor  of  his  city  as  the  count 
was  of  the  rural  district. 

This  was  a  great  revolution  in  the  internal  history  of  cit- 
ies and  one  which  generally  led  to  the  discontinuance  of  their 
popular  institutions ;  so  that  after  the  reign  of  Charlemagne, 
if  not  earUer,  we  may  perhaps  consider  a  municipality  choos- 
ing its  own  officers  as  an  exception,  though  not  a  very  unfre- 
quent  one,  to  the  general  usage.     But  instances  of  this  are 
more  commonly  found  to  the  south  of  the  Loire,  where  Ro- 
man laws  prevailed  and  the  feudal  spirit  was  less  vigorous 
than  in  the  northern  provinces.     Thus  Raynouard  has  de- 
duced the  municipal  government  of  ten  cities  from  the  fifth 
to  the  twelfth  century.     Seven  of  these  are  of  the  south  — 
Perigueux,  Bourges,  Aries,  Nismes,   Marseilles,  Toulouse, 
and  Narbonne;  three  only  of  the  north  —  Paris,  Rheims, 
and  Metz.     (Vol.  ii.  p.  177.)     It  seems,  however,  more  than 
probable  that  these  were  not  the  whole ;  even  in  the  north 
Meaux   and  Chalons  might  be  added,  and,  what  in  early 
times  was  undoubtedly  to  be  reckoned  a  Frank  city,  Cologne. 
The  corporate  character  of  many  of  these  is  displayed  by 
their  coins.    "  Civittis  Massiliensis,"  or  "  Narbonensis,"  will  be 
found  on   the  reverse  of  pieces  bearing  the  heads  of  the 
French  kings  of  the  three  dynasties,  especially  under  Louis 
the  Debonair  and  Charles  the  Bald  (p.  152).     But  it  seems 
to  me  that  the  evidence  of  a  popular  assembly  or  curioy  even 
in  Rheims,  which  has  always  been  wont  to  boast  peculiarly 
of  the  antiquity  of  her  privileges,  is  weak  comparatively  with 
what  M.  Raynouard  has  alleged  for  the  cities  of  Provence. 
As  to  Paris,  it  is  absolutely  none  at  all.    This  assembly  ap- 
pears to  have  hardly  survived  in  the  north  of  France,  and  to 
have  been  replaced  by  scabini.    These  were  originally  chos- 
en by  the  citizens,  but  gradually  on  the  bishop's  nomination. 
Those  of  Rheims  appear  in  847,  exercising  their  functions 
under  an  officer  of  the  archbishop.     (Archives  Administra- 
tifs  de  la  Ville  de  Rheims,  Preface,  p.  7,  in  Documens  Inedits, 
1839.     The  editor,  however  (M.  Varin),  inclines  to  adopt  the 
theory  of  a  Roman  origin  for  the  privileges  of  that  city.    The 
citizens  called  themselves  in  991,  addressing  the  archbishop, 
"  cives  tui ; "  whence  M.  Varin  infers  that  they  took  an  oath 
of  allegiance  to  that  prelate,  and  that  their  claims  to  a  pre- 
scriptive independence  must  be  given  up.     (Vol.  i.  p.  156.) 
Such  mdependence,  (that  is,  of  aS  but  the  sovereign)  can  at 


most  only  be  admitted  as  to  the  great  cities  of  Provence  and 
Languedoc,  which  in  the  twelfth  and  thirteenth  centuries  en- 
tered into  treaties  with  foreign  powers,  and  conducted  them- 
selves as  independent  republics,  though  perhaps  under  the 
nominal  superiority  of  the  counts.  Emulous,  as  it  appears, 
of  Italian  liberty,  they  adopted  the  government  by  consuls 
elected  by  the  community.  And  this  honorable  title  was 
given  to  the  chief  magistrates  in  most  cities  south  of  the 
Loire,  though  a  different  system,  as  we  shall  see,  prevailed 
on  the  other  bank. 

The  Benedictine  historians  of  Languedoc  are  of  opinion 
that  the  city  of  Nismes  had  municipal  magistrates  in  the  mid- 
dle of  the  tenth  century  (t.  ii.  p.  111).  The  burgesses  of 
Carcassonne  appear  by  name  in  a  charter  of  1107  (p.  515). 
In  one  of  1131  the  consuls  of  Beziers  are  mentioned  ;  they 
existed  therefore  previously  (p.  409,  and  Appendix,  p.  959). 
The  magistrates  of  St.  Antonin  en  Rouergue  are  named  in 
1136;  those  of  Montpellier  in  1142;  of  Narbonne  in  1148; 
and  of  St.  Gilles  in  1149  (p.  515,  432,  442,  464).  The 
capitouls  of  Toulouse  pretend  to  an  extravagant  antiquity ; 
but  were  in  fact  established  by  Alfonso  count  of  Toulouse, 
who  died  in  1148.  In  1152  Raymond  V.  confirmed  the  reg- 
ulations made  by  the  common  council  of  Toulouse,  which  be- 
came the  foundation  of  the  customs  of  that  city.   (p.  472). 

If  we  may  trust  altogether  to  the  Assises  de  Jerusalem  in 
their  present  shape,  the  court  of  burgesses,  having  jurisdic- 
tion over  persons  of  that  rank,  was  instituted  by  Godfrey  of 
Bouillon,  who  died  in  1100.  (Ass.  de  Jerus.  c.  2.)  This 
would  be  even  earlier  than  the  charter  of  London,  granted 
by  Henry  I.  Lord  Lyttelton  goes  so  far  as  to  call  it  "  cer- 
tain that  in  England  many  cities  and  towns  were  bodies  cor- 
porate and  communities  long  before  the  alteration  introduced 
into  France  by  the  charters  of  Louis  le  Gros."  (Hist,  of 
Henry  H.  vol.  iv.  p.  29.)  But  this  position,  as  I  shall  more 
particularly  show  in  another  place,  is  not  borne  out  by 
any  good  authority,  if  it  extends  to  any  internal  jurisdiction 
and  management  of  their  own  police ;  whereof,  except  in  the 
instance  of  London,  we  have  no  proof  before  the  reign  of 
Henry  H. 

The  legal  incorporation  of  communities  was  perhaps  ear- 
lier in  Spain  than  in  any  other  country.  Alfonso  V.  in  1020 
granted  a  charter  to  Leon,  which  is  said  to  mention  the  com- 


336 


MUNICIPAL  GOVERNMENT. 


Notes  to 


mon  council  of  that  city  in  terms  that  show  it  to  be  an  estab- 
lished institution.  During  the  latter  part  of  the  eleventh 
century,  as  well  as  in  subsequent  times,  such  charters  are 
very  frequent  (Marina,  Ensayo  Historico-Critico  sobre  las 
sieta  partidas.)  In  several  instances  we  find  concessions  of 
smaller  privileges  to  towns,  without  any  political  power. 
Thus  Berenger,  count  of  Barcelona,  in  1025  confirms  to  the 
inhabitants  of  that  city  all  the  franchises  which  they  already 
possess.  These  seem,  however,  to  be  confined  to  exemption 
from  paying  rent  and  from  any  jurisdiction  below  that  of  an 
officer  deputed  by  the  count.  (De  Marca,  Marca  Hispanica, 
p.  1038.)  Another  grant  occurs  in  the  same  volume  (p. 
909),  from  the  bishop  of  Barcelona  in  favor  of  a  town  of  his 
diocese.  By  some  inattention  Robertson  has  quoted  these 
charters  as  granted  to  "  two  villages  in  the  county  of  Rousil- 
lon."  (Hist.  Charles  V.  note  16.)  The  charters  of  Tortosa 
and  Lerida  in  1149  do  not  contain  any  grant  of  jurisdiction 
(p.  1303). 

The  corporate  towns  in  France  and  England  always  en- 
joyed fuller  privileges  than  these  Catalonian  charters  impart 
The  essential  characteristics  of  a  commune,  according  to  M. 
Brc^quigny,  were  an  association  confirmed  by  charter  °  a  code 
of  fixed  sanctioned  customs  ;  and  a  set  of  privileges,  always 
includhig  municipal  or  elective  government  (Ordonnances, 
p.  3.)  A  distinction  ought,  however,  to  be  pointed  out, 
which  is  rather  liable  to  elude  observation,  between  com- 
munes, or  corporate  towns,  and  boroughs  (bourgeoisies).  The 
main  difi'erence  was  that  in  the  latter  there  was  no  elective 
government,  the  magistrates  being  appointed  by  the  king  or 
other  superior.  In  the  possession  of  fixed  privileges  and°ex- 
emptions,  in  the  personal  liberty  of  their  inhabitants,  and  in 
the  certainty  of  their  legal  usages,  there  was  no  distinction 
between  corporate  towns  and  mere  boroughs :  and  indeed  it  is 
agreed  that  every  corporate  town  was  a  borough,  though  ev- 
ery borough  was  not  a  corporation.^  The  French  antiquary 
quoted  above  does  not  trace  these  inferior  communities  or 
boroughs  higher  than  the  charters  of  Louis  VI.  But  we 
find  the  name  and  a  good  deal  of  the  substance,  in  England 

r.r^^  preface  to  the  twelfth  volume    of  it,  however,  is  appUcablo  to  both  Bpe- 
of  Ordonnances  des  Rois  contains  a  fuU    cies,  or  rathir  to  threenus  and    th. 

ifrr/h"/  *''";^^'^"'"'  ««  '}^'  *o  the    species.    See,  too  that  toThefourfeento 
eleventh  does  of  communes.   A  great  part    volume  of  RecueU  des  llijtorieM,  j,Tu. 


Chaf.  n. 


MUNICIPAL  GOVERNMENT. 


337 


under  William  the  Conqueror,  as  is  manifest  from  Domes- 
day-Book. 

It  is  evident  that  if  extensive  privileges  of  internal  gov- 
ernment had  been  preserved  in  the  north  of  France,  there 
could  have  been  no  need  for  that  great  movement  towards 
the  close  of  the  eleventh  century,  which  ended  in  estab- 
lishing civic  freedom ;  much  less  could  the  contemporary  histo- 
rians have  spoken  of  this  as  a  new  era  in  the  state  of  France. 
The  bishops  were  now  almost  sovereign  in  their  cities ;  the 
episcopal,  the  municipal,  the  feudal  titles,  conspired  to  en- 
hance their  power  ;  and  from  being  the  protectors  of  the  peo- 
ple, from  the  glorious  ofiice  of  defensores  civitatis,  they  had, 
in  many  places  at  least,  become  odious  by  their  own  exac- 
tions. Hence  the  citizens  of  Cambray  first  revolted  against 
their  bishop  in  957,  and,  after  several  inefiectual  risings,  ulti- 
mately constituted  themselves  into  a  community  in  1076.  The 
citizens  of  Mans,  about  the  latter  time,  had  the  courage  to 
resist  William  Duke  of  Normandy;  but  this  generous  at- 
tempt at  freedom  was  premature.  The  cities  of  Noyon, 
Beauvais,  and  St.  Quentin,  about  the  beginning  of  the  next 
century,  were  successful  in  obtaining  charters  of  immunity 
and  self-government  from  their  bishops;  and  where  these 
were  violated,  on  one  side  or  the  other,  the  king,  Louis  VL, 
came  in  to  redress  the  injured  pai'ty  or  to  compose  the  dis- 
sensions of  both.  Hence  arose  the  royal  charters  of  the 
Picard  cities,  which  soon  extended  to  other  parts  of  France, 
and  were  used  as  examples  by  the  vassals  of  the  crown. 
This  subject,  and  especially  the  struggles  of  the  cities  against 
the  bishops  before  the  legal  establishment  of  communities  by 
charter,  is  abundantly  discussed  by  M.  Thierry,  in  his  Let- 
tres  sur  I'Histoire  de  France.  But  even  where  charters  are 
extant,  they  do  not  always  create  an  incorporated  community, 
but,  as  at  Laon,  recognize  and  regulate  an  internal  society 
already  established.  (Guizot,  Civilisation  en  France,  Lepon 
47.) 

AVe  must  here  distinguish  the  cities  of  Flanders  and  Hol- 
land, which  obtained  their  independence  much  earlier;  in 
fact,  their  self-government  goes  back  beyond  any  assignable 
date.  (Sismondi,  iv.  432.)  They  appear  to  have  sprung 
from  a  distinct  source,  but  still  from  the  great  reservoir  of 
Roman  institutions.  The  cities  on  the  Rhine  retained  more 
of  their  ancient  organization  than  we  find  in  northern  France. 

VOL.  I.  22 


338 


MUNICIPAL  GOVERNMENT. 


NoTsa  TO 


? 


Chap.  II. 


MUNICIPAL  GOVERNMENT. 


339 


The  Roman  language,  sajs  Thierry,  had  here  perished; 
the  institutions  survived.  At  Cologne  we  find  from  age  to 
age  a  corporation  of  citizens  exactly  resembling  the  curia^ 
and  whose  members  set  up  hereditary  pretensions  to  a  Ro- 
man descent;  we  find  there  a  particular  tribunal  for  the 
*|  cessio  bonorum,"  a  part  of  Roman  law  unknown  to  the  old 
jurispradence  of  Germany  as  much  as  to  that  of  the  feudal 
system.  In  the  twelfth  century  the  free  constitution  of 
Cologne  passed  for  ancient.  From  Cologne  and  Treves  mu- 
nicipal rights  spread  to  the  Rhenish  cities  of  less  remote 
origin,  and  reached  the  great  communities  of  Flanders  and 
Brabant.  Thierry  has  quoted  a  remarkable  passage  from 
the  life  of  the  empress  St.  Adelaide,  who  died  in  999,  whence 
we  may  infer  the  continuance,  at  least  in  common  estimation, 
of  Roman  privileges  in  the  Rhenish  cities.  "  Ante  duodeci- 
mum  circiter  annum  obitus  sui,  in  loco  qui  diciter  Salsa 
(Seltz  in  Alsace),  urbem  decrevit  fieri  sub  libertate  Bomand, 
quem  affectum  postea  ad  perfectum  perducit  effectum." 
(Recits  des  T.  M.  i.  274.) 

But  the  acuteness  of  this  writer  has  discovered  a  wholly 
different  origin  for  the  communes  in  the  north  of  France. 
He  deduces  them  from  the  old  Teutonic  institution  of  guilds, 
or  fraternities  by  voluntary  compact,  to  relieve  each  other  in 
poverty,  or  to  protect  each  other  from  injury.  Two  essential 
characteristics  belonged  to  them ;  the  common  banquet  and 
the  common  purse.  They  had  also  in  many  instances  a  relig- 
ious, sometimes  a  secret,  ceremonial  to  knit  more  firmly  the 
bond  of  fidelity.  They  became,  as  usual,  suspicious  to  gov- 
ernments, as  several  capitularies  of  Charlemagne  prove. 
But  they  spoke  both  to  the  heart  and  to  the  reason  in  a  voice 
which  no  government  could  silence.  They  readily  became 
connected  with  the  exercise  of  trades,  with  the  training  of 
apprentices,  with  the  traditional  rules  of  art.  We  find  them 
in  all  Teutonic  and  Scandinavian  countries;  they  are  fre- 
quently mentioned  in  our  Anglo-Saxon  documents,  and  are 
the  basis  of  those  corporations  which  the  Norman  kings  rec- 
ognized or  founded.  The  guild  was,  of  course,  in  its  'pnmsL- 
ry  character  a  personal  association ;  it  was  in  the  state,  but 
not  the  state ;  it  belonged  to  the  city  without  embracing  all 
the  citizens ;  its  purposes  were  the  good  of  the  fellows  alone. 
But  when  their  good  was  inseparable  from  that  of  their  little 
country,  their  walls  and  churches,  the  principle  of  voluntary 


association  was  readily  extended;  and  from  the  private 
guild,  possessing  already  the  vital  spirit  of  faithfulness  and 
brotherly  love,  sprung  the  sworn  community,  the  body  of 
citizens,  bound  by  a  voluntary  but  perpetual  obligation  to 
guard  each  other's  rights  against  the  thefts  of  the  weak  or 
the  tyranny  of  the  powerful. 

The  most  remarkable  proof  of  this  progress  from  a  mer- 
chant guild  to  a  corporation  is  exhibited  in  the  local  history 
of  Paris.  No  mention  of  a  curia  or  Roman  municipality  in 
that  city  has  been  traced  in  any  record :  we  are  driven  to 
Raynouard*s  argument  —  Could  Paris  be  destitute  of  insti- 
tutions which  had  become  the  right  of  all  other  cities  in 
Gaul  ?  A  couple  of  lines,  however,  from  the  poem  of  Guli- 
elmus  Brito,  under  Philip  Augustus,  are  liis  only  proof  (voL 
ii.  p.  219).  But  at  Paris  there  was  a  great  college  or  cor- 
poration of  nautce  or  marchands  d^eau  ;  that  is,  who  supplied 
the  town  with  commodities  by  the  navigation  of  the  Seine.^ 
These,  indeed,  do  not  seem  to  be  traced  very  far  back,  but 
the  necessary  documents  may  be  deficient.  They  appear 
abundantly  in  the  twelfth  century,  with  a  provost  and  scabini 
of  their  own.  And  to  this  body  the  kings  in  that  age  con- 
ceded certain  rights  over  the  inhabitants.  The  arms  borne 
by  the  city,  a  ship,  are  those  of  the  college  of  nautce.  The 
subsequent  process  by  which  this  corporation  slid  into  a  mu- 
nicipahty  is  not  clearly  developed  by  the  writer  to  whom  I 
must  refer. 

Thus  there  were  several  sources  of  the  municipal  institu- 
tions in  France ;  first,  the  Roman  system  of  decurions,  handed 
down  prescriptively  in  some  cities,  but  chiefly  in  the  south ; 
secondly,  the  German  system  of  voluntary  societies  or  guilds, 
spreading  to  the  whole  community  for  a  common  end ;  tWrdly, 
the  forcible  insurrection  of  the  inhabitants  against  their  lords 
or  prelates;  and  lastly,  the  charters,  regukrly  granted  by 
the  king  or  by  their  inmiediate  superior.  Few  are  like- 
ly now  to  maintain  the  old  theory  of  Robertson,  that  the 
kings  of  France  encouraged  the  communities,  in  order  to 
make  head  with  their  help  against  the  nobility,  which  a  closer 
attention  to  history  refutes.  We  must  here,  however,  dis- 
tinguish the  corporate  towns  or  communities  from  the  other 

JiJ^A^  inscription  quoted  by  the  edi-  institution  under  Tiberius.  But  this 
tors  ofDu  Gauge,  TOO.  Nautae,  be  genuine,  must  prim&  facie  be  BUspiciouB  in  no 
OwNautaeParifliaci  existed  as  a  corporate    trifling  degree. 


340 


MUNICIPAL  GOVERNMENT. 


Notes  to 


dass,  called  burgages,  bourgeoisies.  The  cMtelains  en- 
couraged the  growth  of  villages  around  their  castles,  from 
whom  they  often  derived  assistance  in  war,  and  conceded  to 
these  burgesses  some  privileges,  though  not  any  municipal 
independence. 

Guizot  observes,  as  a  difference  between  the  curial  system 
of  the  empire  and  that  of  the  French  communes  in  the 
twelfth  century,  that  the  former  was  aristocratic  in  its  spirit ; 
the  decurions  filled  up  vacancies  in  their  body,  and  ultimate- 
ly their  privileges  became  hereditary.  But  the  latter  were 
grounded  on  popular  election,  though  with  certain  modi- 
fications as  to  eligibility.  Yet  some  of  the  aristocratic  ele- 
ments continued  among  the  communes  of  the  south.  (Le9on 
48.) 

It  is  to  be  confessed  that  while  the  kings,  from  the  end  of 
the  thirteenth  century,  altered  so  much  their  former  pohcy  as 
to  restrain,  in  great  measure,  and  even  in  some  instances  to 
overthrow,  the  liberties  of  French  cities,  there  was  too  much 
pretext  for  this  in  their  lawless  spirit  and  proneness  to  injus- 
tice. The  better  class,  dreadmg  the  populace,  gave  aid  to 
the  royal  authority,  by  admitting  bailiffs  and  provosts  of  the 
crown  to  exercise  jurisdiction  within  their  walls.  But  by  this 
the  privileges  of  the  city  were  gradually  subverted.  (Guizot, 
Lejon  49  ;  Thierry,  Lettre  xiv.)  The  ancient  registers  of 
the  parliament  of  Paris,  called  Olim,  prove  this  continual 
interference  of  the  crown  to  establish  peace  and  order  in 
towns,  and  to  check  their  encroachment  on  the  rights  of  others. 
"  Nulle  part,"  says  M.  Beugnot,  "  on  ne  voit  aussi  bien  que 
les  communes  dtaient  un  instrument  puissant  pour  op^rer 
dans  Tetat  de  grands  et  d'heureux  changemens,  mais  non  une 
institution  qui  eut  en  elle-meme  des  conditions  de  dur^e." 
(Registres  des  Arrets,  vol.  i.  p.  192,  in  Documens  In^dits, 
1839.) 

A  more  favorable  period  for  civic  liberty  commenced  and 
possibly  terminated  with  the  most  tyrannical  of  French 
kings,  Louis  XI.  Though  the  spirit  of  rebellion,  which 
actuated  a  large  part  of  the  nobles  in  his  reign,  was  not 
strictly  feudal,  but  sprung  much  more  from  the  combination 
of  a  few  princes,  it  equally  put  the  crown  in  jeopardy,  and 
required  all  his  sagacity  to  withstand  its  encroachments.  He 
encouraged,  therefore,  with  a  policy  unusual  in  the  house  of 
Valois,  the  Tiers  Etat,  the  middle  orders,  as  a  counterpoise. 


Chap.  n. 


MUNICIPAL  GOVERNMENT. 


341 


What  has  erroneously  been  said  of  Louis  VI.  is  true  of  his 
subtle  descendant  "  His  ordinances,"  it  is  remarked  by 
Sismondi  (xiv.  314),  "are  distinguished  by  liberal  views  in 
government  He  not  only  gave  the  citizens,  in  several  places, 
the  choice  of  their  magistrates,  but  established  an  urban 
militia,  training  the  inhabitants  to  the  use  of  arms,  and  plac- 
ing in  their  hands  the  appointment  of  officers."  And  thus, 
at  the  close  of  our  mediaeval  period,  we  leave  the  municipal 
authority  of  France  in  no  slight  vigor.  It  may  only  be  added 
that,  for  miscellaneous  information  as  to  the  French  com- 
munes, the  reader  should  have  recourse  to  that  great  reposi- 
tory of  curious  knowledge,  the  "  Histoire  des  Francais,  par 
Monteil,  Siecle  XV." 

The  continuance  of  Italian  municipalities  has  been  more 
disputed  of  late  than  that  of  the  French,  which  both  Savigny 
and  Raynouard  have  placed  beyond  question.  The  former 
of  these  writers  maintains  that  not  only  under  the  Ostrogoths 
and  Greeks  (the  latter  indeed  might  naturally  be  expected) 
we  have  abundant  testimony  to  the  ordo  decunonum  and 
other  Roman  institutions  in  the  Italian  cities,  but  that,  even 
under  the  Lombard  dominion,  the  same  privileges  were  un- 
impaired, or  at  least  not  subverted.  This  is  naturally  con- 
nected with  the  general  question  as  to  the  condition  of  the 
natives  in  that  period ;  those  who  deny  them  any  rights  of 
citizenship,  or  even  protection  by  the  law,  will  not  be  inclined 
to  favor  the  supposition  of  an  internal  jurisdiction.  Troja 
accordingly,  following  older  writers,  rejects  the  notion  of  civic 
government  in  those  cities  which  endured  the  Lombard  yoke, 
and  elaborately  refutes  the  proofs  alleged  by  Savigny.  In 
this,  however,  he  does  not  seem  always  successful ;  but  the 
early  records  of  Italian  communities  are  by  no  means  so  de- 
cisive as  those  that  we  have  found  in  France. 

Liutprand,  as  Troja  conceives,  established  communities  of 
Lombards  alone.  But  he  suggests  that  even  before  the  reign 
of  Liutprand  there  may  have  been  such  a  district  government 
as  we  find  mentioned  by  Tacitus  among  the  Germans ;  and 
this  might  possibly  be  denominated  by  the  Lombards  curia 
or  ordo,  in  imitation  of  the  Roman  names.  If,  therefore,  we 
meet  with  these  terms  in  the  laws  or  records  of  Italy  before 
Charlemagne,  there  is  no  reason  why  they  should  not  relate 
to  Lombards  (p.  125).     This  is  hardly,  perhaps,  a  conjecture 


342 


MUNICIPAL  GOVERNMENT.    Notes  to  Chat.  H 


that  will  be  favored.  Charlemagne,  however,  when  he  in- 
troduced the  distinction  of  personal  law,  constituted  in  every 
city  a  new  Lombard  community,  taking  its  name  from  the 
most  numerous  people,  but  in  which  each  nation  chose  ita 
own  scaJnni  or  judges  (p.  295). 


Ttalt. 


STATE  OF  ITALY. 


343 


CHAPTER  m. 

THE  HISTORY  OF  ITALY,  FROM  THE  EXTINCTION  OF  THE 
CARLOVINGIAN  EMPERORS  TO  THE  INVASION  OF  NAPLES 
BY  CHARLES  VIU. 


PART  I. 

8tato  of  Italy  aft«r  the  Death  of  Charles  the  Fat — Coronation  of  Otho  the  Great  — 
state  of  Rome  —  Conrad  II.  —  Union  of  the  Kingdom  of  Italy  with  the  Empire — 
Establishment  of  the  Normans  in  Naples  and  Sicily  —  Roger  Guiscard — Rise  of 
the  Lombard  Cities  —  They  gradually  become  more  independent  of  the  Empire-— 
Their  internal  Wars  —  Frederic  Barbarossa — Destruction  of  Milan  —  Lombard 
League — Battle  of  Legnano  —  Peace  of  Constance — Temporal  Principality  of  the 
Popes  —  Quelf  and  Ghibelin  Factions  —  Otho  IV.  —  Frederic  II.  —  Arrangement 
of  the  Italian  Republics  —  Second  Lombard  War  —  Extinction  of  the  House  of 
Swabia — Causes  of  the  Success  of  Lombard  Republics  —  Their  Prosperity  —  and 
Forms  of  Government  —  Contentions  between  the  Nobility  and  People  —  Ciyll 
Wars — story  of  Giovanni  dl  Vicenza.i 


At  the  death  of   Charles  the  Fat  in  888,  that  part  of 
Italy  which  acknowledged  the  supremacy  of  the  state  of 
Western   empire   was  divided,   like   France   and  i*^y  »*  *^® 
Germany,  among  a  few  powerful  vassals,  heredi-  ninth 
tary  governors  of  provinces.     The  principal   of  ce^t'^y* 


1  The  authorities  upon  which  this 
chapter  is  founded,  and  which  do  not 
always  appear  at  the  foot  of  the  page, 
are  chiefly  the  following.  1.  Muratori's 
Annals  of  Italy  (twelve  volumes  in  4to. 
or  eighteen  in  8vo.)  comprehend  a  sum- 
mary of  its  history  from  the  beginning  of 
the  Christian  era  to  the  peace  of  Aix  la 
Chapelle.  The  volumes  relating  to  the 
middle  ages,  into  which  he  has  digested 
the  original  writers  contained  in  his 
great  collection,  Scriptores  Rerum  Itali- 
carum,  are  by  much  the  best ;  and  of 
these,  the  part  which  extends  from  the 
seventh  or  eighth  to  the  end  of  the 
twelfth  century  is  the  fullest  and  most 
useful.  Muratori's  accuracy  is  in  gen- 
eral almost  implicitly  to  be  trusted,  and 
his  plain  integrity  speaks  in  all  his  writ- 
ings ;  but  his  mind  was  not  philosophical 
enough  to  discriminate  the  wheat  from 
the  chaff,  and  his  habits  of  life  induced 


him  to  annex  an  imaginary  importance 
to  the  dates  of  diplomas  and  other  incon- 
siderable matters.  His  narrative  presents 
a  mere  skeleton  devoid  of  juices ;  and 
besides  its  intolerable  aridity,  it  labors 
under  that  confusion  which  a  merely 
chronological  arrangement  of  concurrent 
and  independent  events  must  always  pro- 
duce. 2.  The  Dissertations  on  Italian 
Antiquities,  by  the  same  writer,  may  be 
considered  either  as  one  or  two  worka. 
In  Latin  they  form  six  volumes  in  foho, 
enriched  with  a  great  number  of  original 
documents.  In  Italian  they  are  freely 
translated  by  Muratori  himself,  abridged 
no  doubt,  and  without  most  of  the  orig- 
inal instruments,  but  well  furnished  with 
quotations,  and  abundantly  sufficient  for 
most  purposes.  They  form  three  vol- 
umes in  quarto.  I  have  in  general 
quoted  only  the  number  of  the  disserta- 
tion, on  account  of  the  variance  between 


344 


STATE  OF  ITALY. 


Chap.  III.  Pabt  I. 


these  were  the  dukes  of  Spoleto  and  Tuscany,  the  marquises  of 
Ivrea,  Susa,  and  Friuli.  The  great  Lombard  duchy  of  Bene- 
vento,  which  had  stood  against  the  arms  of  Charlemagne,  and 
comprised  more  than  half  the  present  kingdom  of  Naples, 
had  now  fallen  into  decay,  and  was  straitened  by  the  Greeks 
in  Apulia,  and  by  the  principalities  of  Capua  and  Salerno, 
which  had  been  severed  from  its  o^vn  territory,  on  the  oppo- 
andinthe  ^itc  coast.^  Though  princes  of  the  Carlovingian 
J^*  part  of  line  continued  to  reign  in  France,  their  character 
was  too  little  distinguished  to  challenge  the  obedi- 
ence of  Italy,  already  separated  by  family  partitions  from  the 
Transalpine  nations;  and  the  only  contest  was  among  her 


the  Latin  and  Italian  works:  in  cases 
where  the  page  is  referred  to,  I  have  in- 
dicated by  the  title  which  of  the  two  I 
intend  to  vouch.  3.  St.  Marc,  a  learned 
and  laborious  Frenchman,  has  written  a 
chronological  abridgment  of  Italian  his- 
tory, somewhat  in  the  manner  of  Ile- 
nault,  but  so  strangely  divided  by  several 
parallel  columns  in  every  page,  that  I 
could  hardly  name  a  book  more  incon- 
venient to  the  reader.  His  knowledge, 
like  Muratori's,  lay  a  good  deal  in  points 
of  minute  inquiry ;  and  he  is  chiefly  to 
be  valued  in  ecclesiastical  history.  The 
work  descends  only  to  the  thirteenth 
century.  4.  Denina's  Rivoluzioni  d'lta- 
lia,  originally  published  in  1769,  is  a 
perspicuous  and  lively  book,  in  which  the 
principal  circumstances  are  well  selected. 
It  is  not  perhaps  free  from  errors  in  fact, 
and  still  less  from  those  of  opinion  :  but, 
till  lately,  I  do  not  know  from  what 
source  a  general  acquaintance  with  the 
history  of  Italy  could  have  been  so  easily 
derived.  5.  The  publication  of  M.  Sis- 
mondi's  Histoire  des  Republiques  Itali- 
ennes  has  thrown  a  blaze  of  light  around 
the  most  interesting,  at  least  in  many 
respects,  of  European  countries  during 
the  middle  ages.  I  am  happy  to  bear 
witness,  so  far  as  my  own  studies  have 
enabled  me,  to  the  learning  and  diligence 
of  this  writer;  qualities  which  the  world 
is  sometimes  apt  not  to  suppose,  where 
they  perceive  so  much  eloquence  and 
philosophy.  I  cannot  express  my  opin- 
ion of  M.  Sismondi  in  this  respect  more 
strongly  than  by  saying  that  his  work 
has  almost  superseded  the  Annals  of 
Muratori ;  I  mean  from  the  twelfth  cen- 
tury, before  which  period  his  labor  hardly 
begins.  Though  doubtless  not  more  ac- 
curate than  Muratori,  he  has  consulted 
a  much  more  extensive  list  of  authors ; 
and,  considered  as  a  register  of  facts 
alone,  his  history  is  incomparably  more 
useful.    Ttiese  are  combined  in  so  skilful 


a  manner  as  to  diminish,  in  a  g^reat  de- 
gree, that  inevitable  confusion  which 
arises  from  frequency  of  transition  and 
want  of  general  unity.  It  is  much  to  be 
regretted  that,  from  too  redundant  de- 
tails of  unnecessary  circumstances,  and 
sometimes,  if  I  may  take  the  liberty  of 
saying  so,  from  unnecessary  reflections, 
M.  Sismondi  has  run  into  a  prolixity 
which  will  probably  intimidate  tiie  lan- 
guid students  of  our  age.  It  is  the  more 
to  be  regretted,  because  the  History  of 
Italian  Republics  is  calculated  to  pro- 
duce a  good  far  more  important  than 
storing  the  memory  with  historical  fucts, 
that  of  communicating  to  the  reader's 
bosom  some  sparks  of  the  dignified  phi- 
losophy, the  love  for  truth  and  virtue, 
which  lives  along  its  eloquent  pajres. 
6.  To  Muratori's  collection  of  original 
writers,  the  Scriptores  Rerum  Itnlica- 
rum,  in  twenty -four  volumes  in  folio,  I 
have  paid  considerable  attention ;  perhaps 
there  is  no  volume  of  it  which  I  have  not 
more  or  less  consulted.  But,  after  the 
Annals  of  the  same  writer,  and  the  work 
of  M.  Sismondi,  I  have  not  thought  my 
self  bound  to  repeat  a  laborious  search 
into  all  the  authorities  upon  which  those 
writers  depend.  The  utility,  for  the 
most  part,  of  perusing  original  and  con- 
temporary authors,  consists  less  in  ascer- 
taining mere  facts  than  in  acquiring  that 
insight  into  the  spirit  and  temper  of  theil 
times  which  it  is  utterly  impnicticabl* 
for  any  compiler  to  impart.  It  would  bf 
impossible  for  me  to  distinguish  what 
information  I  have  derived  from  these 
higher  sources;  in  cases,  therefore,  where 
no  particular  authority  is  named,  I  would 
refer  to  the  writings  of  Muratori  and  Sis- 
mondi, especially  the  latter,  as  the  sub- 
stratum of  the  following  chapter. 

1  Giannone,  Istoria  Civile  di  Napoli, 
1.  vii. ;  Sismundi,  Hist,  des  Republiquet 
ItaUennes,  t.  i,  p.  244. 


Italy. 


OTHO  THE  GREAT. 


345 


native  cliiefs.  One  of  these,  Berenger,  originally  marquis  of 
Friuli,  or  the  March  of  Treviso,  reigned  for  thirty-six  years, 
but  with  continually  disputed  pretensions ;  and  after  his  death 
the  calamities  of  Italy  were  sometimes  aggravated  by  tyran- 
ny, and  sometimes  by  intestine  war.^  The  Hungarians  deso- 
lated Lombardy ;  the  southern  coasts  were  infested  by  the 
Saracens,  now  masters  of  Sicily.  Plunged  in  an  abyss,  from 
which  she  saw  no  other  means  of  extricating  herself,  Italy 
lost  sight  of  her  favorite  independence,  and  called  in  the  as- 
sistance of  Otho  the  First,  king  of  Germany.  Little  oppo- 
sition was  made  to  this  powerful  monarch.  Berenger  II.,  the 
reigning  sovereign  of  Italy,  submitted  to  hold  the  kingdom  of 
him  as  a  fief.^  But  some  years  afterwards,  new  q^^^  ^^^ 
disturbances  arising,  Otho  descended  from  the  Great. 
Alps  a  second  time,  deposed  Berenger,  and  re-  ^'^'  ^^^' 
ceived  at  the  hands  of  Pope  John  XII.  the  imperial  dignity, 
which  had  been  suspended  for  nearly  forty  years. 

Every  ancient  prejudice,  every  recollection,  whether  of 
Augustus  or  of  Charlemagne,  had  led  the  Itahans  to  annex 
the  notion  of  sovereignty  to  the  name  of  Roman  Emperor; 
nor  were  Otho,  or  his  two  immediate  descendants,  by  any 
means  inclined  to  waive  these  supposed  prerogatives,  which 
they  were  well  able  to  enforce.  Most  of  the  Lombard 
princes  acquiesced  without  apparent  repugnance  in  the  new 
German  government,  which  was  conducted  by  Otho  the 
Great  with  much  prudence  and  vigor,  and  occasionally  with 
severity.  The  citizens  of  Lombardy  were  still  better  satis- 
fied with  a  change  that  ensured  a  more  tranquil  and  regular 
administration  than  they  had  experienced  under  the  preced- 
ing kings.  But  in  one,  and  that  the  chief  of  Italian  cities, 
very  different  sentiments  were  prevalent.  We  find,  indeed, 
a  considerable  obscurity  spread  over  the  internal  history  of 


*  Berenger,  being  grandson,  by  a 
(laughter,  of  Louis  the  Debonair,  may 
be  reckoned  of  the  Carlovingian  £imily. 
He  was  a  Frank  by  laio,  according  to 
Troja,  who  denies  to  him  and  his  son, 
Berenger  II.,  the  name  of  Italians.  It 
was  Otho  I.  that  put  an  end  to  the  Frank 
dominion.    Storia  d'ltalia,  v.  357. 

"  Or  gii  tutto  all'  apparir  degli  Ottoni 
si  cangia  da  capo  in  Italia,  ncl  modo 
Btessoche  tutto  erasi  cangiato  aUa  venuta 
de'  Franchi.  IjO  citti  Longobarde  pren- 
dono  altra  faccia,  la  possanza  de'  vescovi 
•'  aumenta,  i  patti  fra  11  sacerdozio  e  V 


imperio  guardano  a  pii^  vasto  scopo  ed  i 
pontiflci  Romano  sono  dalla  forza  delle 
cose  chiamati  a  tenere  il  freno  intellettuale 
della  civiti  de'  popoli  di  tutta  Europa." 
Troja  deduces  the  Italian  communes 
"  dopo  il  mille"  from  a  German  rather 
than  a  Roman  origin.  '^  Lk  sono  vera- 
mente  i  comuni  dov'  h  la  spada  per 
difendergli ;  ma  nel  regno  Longobardico 
da  lunga  stagione  la  spada  piu  non  pen- 
dcva  dal  fianco  del  Romano  "  (p.  368). 

2  Muratori,  a.d.  951;  Denina,  Rivola. 
zioni  d'ltalLi,  1.  ix.  c.  6. 


346 


INTERNAL  STATE  OF  ROME.    Chap.  m.  Pari  L 


Internal        Rome  during  the  long  period  from  the  recovery 
Btote^of         of  Italy  by  Belisarius  to  the  end  of  the  eleventh 
century.     The   popes   appear  to   have   possessed 
some  measure  of  temporal  power,  even  while  the  city  was 
professedly  governed   by  the   exarchs  of   Ravenna,  in  the 
name  of  the  Eastern  empire.     This  power  became  more  ex- 
tensive after  her  separation  from  Constantinople.     It  was, 
however,  subordinate  to  the  undeniable  sovereignty  of  the 
new  unperial  family,  who  were  supposed  to  enter  ujwn  all  the 
rights  of  their  predecessors.     There  was  always  an  imperial 
officer,  or  prefect,  in  that  city,  to  render  criminal  justice ;  an 
oath  of  allegiance  to  the  emperor  was  taken  by  the  people; 
and  upon  any  irregular  election  of  a  pope,  a  circumstance  by 
no  means  unusual,  the  emperors  held  themselves  entitled  to 
mterpose.     But  the  spirit  and  even  the  institutions  of  the 
Romans  were  republican.     Amidst  the  darkness  of  the  tenth 
century,  which    no   contemporary   historian    dissipates,   we 
famtly  distinguish  the  awful  names  of  senate,  consuls,  and 
tribunes,  the  domestic  magistracy  of  Rome.     These  shadows 
of  past  glory  strike  us  at  first  with  surprise ;  yet  there  is  no 
miprobability  in  the  supposition  that  a  city  so  renowned  and 
populous,  and  so  happily  sheltered  from  the  usurpation  of  the 
Lombards,  might  have  preserved,  or  might  afterwards  es- 
tablish, a  kind  of  municipal  government,  which  it  would  be 
natural   to   dignify  with   those   august   titles   of  antiquity.* 
During  that  anarchy  which  ensued  upon  the  fall  of  the  Car- 
lovingian  dynasty,  the  Romans  acquired    an    independence 
which  they  did  not  deserve.     The  city  became  a  prey  to  the 
most  terrible  disorders ;  the  papal  chair  was  sought  for  at 
best  by  bribery  or  controlling  influence,  often  by  violence  and 
assassination ;  it  was  filled  by  such  men  as  naturally  rise  by 
such  nieans,  whose  sway  was  precarious,  and  generally  ended 
either  in  their  murder  or  degradation.     For  many  years  the 
supreme  pontiffs  were  forced  upon  the  church  by  two  women 
of  high  rank    but  infamous  reputation,  Theodora  and  her 
daughter  Marozia.     The  kings  of  Italy,  whose  election  in  a 
diet  of  Lombard  princes  and  bishops  at  Roncaglia  was  not 
conceived  to  convey  any  pretensions  to  the  sovereignty  of 
Rome,  could  never  obtain  any  decided  influence  in  papal 
elections,  which  were  the  object  of  struggling  factions  among 
the  resident  nobiHty.     In  this  temper  of  the  Romans,  they 

1  Muratori,  a.d.  967,  987, 1016, 1087 ;  Siamondl,  t.  i.  p.  165. 


Italy. 


HENRY  II.  AND  ARDOIN. 


347 


were  ill  disposed  to  resume  habits  of  obedience  to  a  foreign 
sovereign.  The  next  year  after  Otho*s  corona- 
tion they  rebelled,  the  pope  at  their  head ;  but  ^'^'  ^' 
were  of  course  subdued  without  difficulty.  The  same  repub- 
lican spirit  broke  out  whenever  the  emperors  were  absent  in 
Germany,  especially  during  the  minority  of  Otho  III.,  and 
directed  itself  against  the  temporal  superiority  of  the  pope. 
But  when  that  emperor  attained  manhood  he  besieged  and 
took  the  city,  crushing  all  resistance  by  measures  of  severity ; 
and  especially  by  the  execution  of  the  consul  Crescentius,  a 
leader  of  the  [wpular  faction,  to  whose  instigation  the  tumul- 
tuous license  of  Rome  was  principally  ascribed.^ 

At  the  death  of  Otho  III.  without  children,  in  1002,  the 
compact  between  Italy  and  the  emperors  of  the  Henry  n. 
house  of  Saxony  was  determined.  Her  engage-  '^^  Ardoin. 
ment  of  fidelity  was  certainly  not  applicable  to  every  sover- 
eign whom  the  princes  of  Germany  might  raise  to  their 
throne.  Accordingly  Ardoin  marquis  of  Ivrea  was  elected 
king  of  Italy.  But  a  German  party  existed  among  the 
Lombard  princes  and  bishops,  to  which  his  insolent  demeanor 
soon  gave  a  pretext  for  inviting  Henry  II.,  the  new  king  of 
Germany,  collaterally  related  to  their  late  sovereign.  Ardoin 
was  deserted  by  most  of  the  Italians,  but  retained  his  former 
subjects  in  Piedmont,  and  disputed  the  crown  for  many  years 
with  Henry,  who  passed  very  little  time  in  Italy.  During 
this  period  there  was  hardly  any  recognized  government; 
and  the  Lombards  became  more  and  more  accustomed, 
through  necessity,  to  protect  themselves,  and  to  provide  for 
their  own  internal  police.  Meanwhile  the  German  nation  had 
become  odious  to  the  Italians.  The  rude  soldiery,  insolent 
and  addicted  to  intoxication,  were  engaged  in  frequent  dis- 
putes with  the  citizens,  wherein  the  latter,  as  is  usual  in 
similar  cases,  were  exposed  first  to  the  summary  vengeance 
of  the  troops,  and  afterwards  to  penal  chastisement  for  sedi- 
tion.* In  one  of  these  tumults,  at  the  entry  of  Henry  II.  in 
1004,  the  city  of  Pavia  was  burned  to  the  ground,  which  in- 
spired its  inhabitants  with  a  constant  animosity  against  that 
emperor.  Upon  his  death  in  1024,  the  Italians  were  dispos- 
ed to  break  once  more  their  connection  with  Germany,  which 

1  Sismondi,  t.  i.  p.  164,  makes  a  patriot  of  history,  without  vouching  for  the  ac* 

hero  of  Crescentius.     But  we  know  so  curacy  of  its  representations. 

little  of  the  man  or  the  times,  that  it  3  Muratori,  a.d.  1027, 1037. 
seems  better  to  follow  the  common  tenor 


348 


CONRAD  n. 


Chap.  m.  Fast  L 


had  elected  as  sovereign  Conrad  duke  of  Franconia.  They 
oflPered  their  crown  to  Robert  king  of  France,  and  to  William 
duke  of  Guienne ;  but  neither  of  them  was  imprudent  enough 
to  involve  himself  in  the  difficult  and  faithless  politics  of 
Italy.  It  may  surprise  us  that  no  candidate  appeared  from 
among  her  native  princes.  But  it  had  been  the  dexterous 
policy  of  the  Othos  to  weaken  the  great  Italian  fiefs,  which 
were  still  rather  considered  as  hereditary  governments  than 
as  absolute  patrimonies,  by  separating  districts  from  their 
jurisdiction,  under  inferior  marquises  and  rural  counts.^  The 
bishops  were  incapable  of  becoming  competitors,  and  gen- 
erally attached  to  the  German  party.  The  cities  already 
possessed  material  influence,  but  were  disunited  by  mutual 
Election  of  jcalousics.  Sincc  ancient  prejudices,  therefore, 
Conrad  11.  precluded  a  federate  league  of  independent  princi- 
^'^'  '  palities  and  republics,  for  which  perhaps  the  actual 
condition  of  Italy  unfitted  her,  Eribert  archbishop  of  Milan, 
accompanied  by  some  other  chief  men  of  Lombardy,  repaired 
to  Constance,  and  tendered  the  crown  to  Conrad,  which  he  was 
already  disposed  to  claim  as  a  sort  of  dependency  upon  Ger- 
many. It  does  not  appear  that  either  Conrad  or  his  succes- 
sors were  ever  regularly  elected  to  reign  over  Ilaly ;  ^  but 
whether  this  ceremony  took  place  or  not,  we  may  certainly 
date  from  that  time  the  subjection  of  Italy  to  the  Germanic 
body.  It  became  an  unquestionable  maxim,  that  |he  votes 
of  a  few  German  princes  conferred  a  right  to  the  soVreignty 
of  a  country  which  had  never  been  conquered,  and  which  had 
never  formally  recognized  this  superiority.*  But  it  was  an 
equally  fundamental  rule,  that  the  elected  king  of  Germany 
could  not  assume  the  title  of  Roman  Emperor  until  his  cor- 
onation by  the  pope.  The  middle  appellation  of  King  of  the 
Romans  was  invented  as  a  sort  of  approximation  to  the  im- 


1  Denina,  1.  Ix.  o.  11;  Muratori,  Antiq. 
Ital.  Dissert.  8;  Annali  d'ltalia,  a.d.  d89. 

2  MuratorL  a.d.  1026.  It  is  said  after- 
Wards,  p.  367,  that  he  was  a  Romanis  ad 
Imperatorem  electus.  The  people  of 
Rome  therefore  preserred  their  noDiinal 
right  of  concurring  in  the  election  of  an 
emperor.  Muratori,  in  another  place, 
A.D.  1040,  supposes  that  Henry  III.  was 
chosen  king  of  Italy,  though  he  allows 
that  no  proof  of  it  exists ;  and  there 
eeems  no  reason  for  the  supposition. 

3  Qunther,  the  poet  of  Frederic  Bar- 
barofisa,  expresses  this  not  inelegantly: 


Roman!  gloria  regnl 
Nos  penes  est ;  quemcunque  sibi  Qerma- 

nia  regcm 
Prseficit,  huno    diyes   submisso  rertic* 
Roma  [Rhenus 

Accipit,  et  verso  Tiberim  regit  ordine 
Qunther.  Ligurinus  ap.  Struvium 
Corpus  Hist.  German,  p.  266. 
Tet  it  appears  from  Otho  of  Frisingen, 
an  unquestionable  authority,  that  some 
Italian  nobles  concurred,  or  at  least  were 
present  and  assisting,  in  the  election  of 
Frederic  himself :  1.  u.  e.  i. 


Italt. 


THE  NORMANS  AT  AVERSA. 


349 


perial  dignity.  But  it  was  not  till  the  reign  of  Maximilian 
that  the  actual  coronation  at  Rome  was  dispensed  with,  and 
the  title  of  emperor  taken  immediately  after  the  election. 

The  period  between  Conrad  of  Franconia  and  Frederic 
Barbarossa,  or  from  about  the  middle  of  the  eleventh  to  that 
of  the  twelfth  century,  is  marked  by  three  great  events  in 
Italian  history ;  the  struggle  between  the  empire  and  the 
papacy  for  ecclesiastical  investitures,  the  establishment  of  the 
Norman  kingdom  in  Naples,  and  the  formation  of  distinct  and 
nearly  independent  ropuMics  among  the  cities  of  Lombardy 
The  first  of  these  will  find  a  more  appropriate  place  in  a 
subsequent  chapter,  where  I  shall  trace  the  progress  of  eccle- 
siastical power.  But  it  produced  a  long  and  almost  incessant 
state  of  disturbance  in  Italy;  and  should  be  mentioned  at 
present  as  one  of  the  main  causes  which  excited  in  that 
country  a  systematic  opposition  to  the  imperial  authority. 

The  southern  provinces  of  Italy,  in  the  beginning  of  the 
eleventh  century,  were  chiefly  subject  to  the  Greek  empu-e, 
which  liad  latterly  recovered  part  of  its  losses,  and  exhibited 
some  ambition  and  enterprise,  though  without  any 
mtrmsic  vigor.      They  were  governed  by  a  lieu-  p^ces 
tenant,  styled  Catapan,^  who  resided  at  Ban  in  of  southern 
Apulia.   On  the  Mediterranean  coast  three  duchies,  ^*^^^' 
or  i-ather  republics  of  Naples,  Gaeta,  and  Amalfi,  had  for 
several  ages  preserved  their  connection  with  the  Greek  em- 
pure,  and  acknowledged  its  nominal  sovereignty.     The  Lom- 
bard principalities  of   Benevento,  Salerno,  and   Capua  had 
much  decHned  from  their  ancient  splendor.     The  Greeks 
were,  however,  not  likely  to  attempt  any  further  conquests : 
the  court  of  Constantinople  had  relapsed  into  its  usual  indo- 
lence ;  nor  had  they  much  right  to  boast  of  successes  rather 
due  to  the  Saracen  auxiliaries  whom  they  hired  from  Sicily. 
No  momentous  revolution  apparently  threatened  the  south  of 
Italy,  and  least  of  all  could  it  be  anticipated  from  what  quar- 
ter the  storm  was  about  to  gather. 

The  followers  of  RoUo,  who  rested  from  plunder  and  piracy 
in  the  quiet  possession  of  Normandy,  became  de- 
vout professors  of  the  Christian  faith,  and  particu-  Xr""* 
larly  addicted  to  the  custom  of  pilffrimage,  which  Normans  at 
gratmed  their  curiosity  and  spirit  of  adventure. 

»CatapanuB,  from  Kard,  rrov,  one  employed  in  general  administration  of  af 


350 


ROBERT  GI7ISCARD.        Chap.  HI.  Part  L 


In  small  bodies,  well  armed  on  account  of  the  lawless  charac- 
ter of  the  countries  through  which  thej  passed,  the  Norman 
pilgrims  visited  the  shrines  of  Italy  and  even  the  Holy  Land. 
Some  of  these,  very  early  in  the  eleventh  century,  were  en- 
gaged by  a  Lombard  prince  of  Salerno  against  the  Saracens, 
who  had  invaded  his  territory ;  and  through  that  superiority 
of  valor,  and  perhaps  of  corporal  strength,  which  this  singular 
people  seem  to  have  possessed  above  all  other  Europeans, 
they  made  surprising  havoc  among  the  enemy.^  This  ex- 
ploit led  to  fresh  engagements,  and  these  engagements  drew 
new  adventurers  from  Normandy ;  they  founded  the  little 
city  of  Aversa,  near  Capua,  and  were  employed  by  the 
Greeks  against  the  Saracens  of  Sicily.  But,  though  perform- 
ing splendid  services  in  this  war,  they  were  ill  repaid  by 
their  ungrateful  employers;  and  being  by  no  means  of  a  tem- 
per to  bear  with  injury,  they  revenged  themselves  by  a  sud- 
A.D.  1042.  ^^^  invasion  of  Apulia.  This  province  was  speedi- 
of  Ksr?  ^^  subdued,  and  divided  among  twelve  Norman 
Quiflcard.  counts ;  but  soon  afterwards  Robert  Guiscard,  one 
A.D.  1057.      ?^  twelve  brothers,  many  of  whom  were  renowned 

in  these  Italian  wars,  acquired  the  sovereignty; 
and,  adding  Calabria  to  his  conquests,  put  an  end  to  the  long 
dominion  of  the  Eastern  emperors  in  Italy.*  He  reduced 
the  principalities  of  Salerno  and  Benevento,  in  the  latter  in- 
stance sharing  the  spoil  with  the  pope,  who  took  the  city  to 
himself,  while  Robert  retained  the  territory.  His  conquests 
in  Greece,  which  he  invaded  with  the  magnificent  design  of 
A.D.106I.      overthrowing  the  Eastern  empire,  were  at  least 

equally  splendid,  though  less  durable.  Roger,  his 
younger  brother,  undertook  meanwhile  the  romantic  enter- 
prise, as  it  appeared,  of  conquering  the  island  of  Sicily  with 
a  small  body  of  Norman  volunteers.  But  the  Saracens  were 
broken  into  petty  states,  and  discouraged  by  the  bad  success 
of  their  brethren  in  Spain  and  Sardinia.  After  many  years 
of  war  Roger  became  sole  master  of  Sicily,  and  took  the 
title  of  Count.  The  son  of  this  prince,  upon  the  extinction 
of  Robert  Guiscard's  posterity,  united  the  two  Norman  sover- 


1  Giannone,  t.  U.  p.  7  [edit.  1763].  I 
should  obserye  that  St.  Marc,  a  more 
critical  writer  Jn  examination  of  facta 
than  Giannone,  treats  this  first  adventure 
of  the  Normans  as  unauthenticated.— 
Abr^ge  Chronologique,  p.  990. 


*  The  final  blow  was  pfiven  to  the  Greek 
domination  over  Italy  by  the  capture  of 
Bari  in  1071,  after  a  siege  of  four  years. 
It  had  for  some  time  been  confined  to 
this  8ingle  city.    Muratori,  St.  M&rc. 


Italy. 


PROGRESS  OF  THE  LOMBARD  CITIES. 


351 


eignties,  and,  subjugating  the    free  republics   of 
Naples  and  Amalfi,  and  the  principality  of  Capua,  ^'^"  ^^* 
established  a  boundary  which  has  hardly  been  changed  since 
his  time.^ 

The  first  successes  of  these  Norman  leaders  were  viewed 
unfavorably  by  tlie  popes.  Leo  IX.  marched  in  p^  ^j  ^^^ 
person  against  Robert  Guiscard  with  an  army  of  veXtur^ 
German  mercenaries,  but  was  beaten  and  made  ^^  ^^p^""^- 
prisoner  in  this  unwise  enterprise,  the  scandal  of  which  noth- 
ing but  good  fortune  could  have  lightened.  He  fell,  however, 
into  the  hands  of  a  devout  people,  who  implored  his  absolu- 
tion for  the  crime  of  defending  themselves;  and,  whether 
through  gratitude,  or  as  the  price  of  his  liberation,  invested 
them  with  their  recent  conquests  in  Apulia,  as  fiefs  of  the 
Holy  See.  This  investiture  was  repeated  and  enlarged  as 
the  popes,  especially  in  their  contention  with  Henry  IV.  and 
Henry  V.,  found  the  advantage  of  using  the  Normans  as 
faitliful  auxiliaries.  Finally,  Innocent  II.,  in  1139,  conferred 
upon  Roger  the  title  of  King  of  Sicily.  It  is  ditficult  to 
understand  by  what  pretence  these  countries  could  be  claimed 
by  the  see  of  Rome  in  sovereignty,  unless  by  virtue  of  the  pre- 
tended donation  of  Constantine,  or  that  of  Louis  the  Debonair, 
which  is  hardly  less  suspicious ;  ^  and  least  of  all  how  Lmo- 
cent  n.  could  surrender  the  liberties  of  the  city  of  Naples, 
whether  that  was  considered  as  an  independent  republic,  or 
as  a  portion  of  the  Greek  empire.  But  the  Normans,  who 
had  no  title  but  their  swords,  were  naturally  glad  to  give  an 
appearance  of  legitimacy  to  their  conquest ;  and  the  kingdom 
of  Naples,  even  in  the  hands  of  the  most  powerful  princes  in 
Europe,  never  ceased  to  pay  a  feudal  acknowledgment  to  the 
chair  of  St.  Peter. 

^  The  revolutions  which  time  brought  forth  on  the  opposite 
side  of  Italy  were  still  more  interesting.     Under  progress  of 
the  Lombard  and  French  princes  every  city  with  the  Lom- 
its  adjacent  district  was  subject  to  the  govern- ^^"^"^  ""^* 
ment  and  jurisdiction  of  a  count,  who  was  himself  subor- 


1  H.  Sismondi  has  excelled  himself  ia 
describing  the  conquest  of  Amalfl  and 
Naples  by  Roger  Guiscard  (t.  i.  c.  4); 
warming  his  imagination  vrith  visions  of 
liberty  and  virtue  in  those  obscure  re* 
publics,  which  no  real  history  survives 
to  dispel. 

^Maxatori  presumes  to  suppose  that 


the  interpolated,  if  not  spurious,  grants 
of  Louis  the  Debonair,  Otho  I.,  and 
Henry  II.  to  the  see  of  Rome,  were  pro- 
mulgated about  the  time  of  the  first  con- 
cessions to  the  Normans,  in  order  to  giT« 
the  popes  a  colorable  pretext  to  dispose 
of  the  southern  provinces  of  Italy,  a.d 
1059. 


352 


PROGRESS  OF  THE 


Chap.  in.  Pabt  1 


dinate  to  the  duke  or  marquis  of  the  province.  From  these 
counties  it  was  the  practice  of  the  first  German  emperors 
to  dismember  particular  towns  or  tracts  of  country,  grant- 
ing them  upon  a  feudal  tenure  to  rural  lords,  by  many  of 
whom  also  the  same  title  was  assumed.  Thus  by  degrees 
the  authority  of  the  original  officers  was  confined  almost  to 
the  walls  of  their  own  cities ;  and  in  many  cases  the  bishops 
obtained  a  grant  of  the  temporal  government,  and  exercised 
the  functions  which  had  belonged  to  the  count.^ 

It  is  impossible  to  ascertain  the  time  at  which  the  cities  of 
Lombardy  began  to  assume  a  republican  form  of  government, 
or  to  trace  with  precision  the  gradations  of  their  progress. 
The  last  historian  of  Italy  asserts  that  Otho  the  First  erected 
them  into  municipal  communities,  and  permitted  the  election 
of  their  magistrates ;  but  of  this  he  produces  no  evidence ; 
and  Muratori,  from  whose  authority  it  is  rash  to  depart  with- 
out strong  reasons,  is  not  only  silent  about  any  charters,  but 
discovers  no  express  unequivocal  testimonies  of  a  popular 
government  for  the  whole  eleventh  centur}-.*  The  first  ap- 
pearance of  the  citizens  acting  for  themselves  is  in  a  tumult 
at  Milan  in  991,  when  the  archbishop  was  expelled  from  the 
city.®  But  this  was  a  transitory  ebullition,  and  we  must  de- 
scend lower  for  more  specific  proofs.  It  is  possible  that  the 
disputed  succession  of  Ardoin  and  Henry,  at  the  beginning 
of  the  eleventh  age,  and  the  kind  of  interregnum  which  then 
took  place,  gave  the  inhabitants  an  opportunity  of  choosing 
magistrates  and  of  sharing  in  public  deliberations.  A  similar 
relaxation  indeed  of  government  in  France  had  exposed  the 
people  to  greater  servitude,  and  established  a  feudal  aristoc- 
racy. But  the  feudal  tenures  seem  not  to  have  produced  in 
Italy  that  systematic  and  regular  subordination  which  existed 
in  France  during  the  same  period;  nor  were  the  mutual 
duties  of  the  relation  between  lord  and  vassal  so  well  under- 
stood or  observed.  Hence  we  find  not  only  disputes,  but 
actual  civil  war,  between  the  lesser  gentry  or  vavassors,  and 
the  higher  nobility,  their  immediate  superiors.  These  differ- 
ences were  adjusted  by  Conrad  the  Salic,  who  published  a 
remarkable  edict  in  1037,  by  which  the  feudal  law  of  Italy 
was  reduced  to  more  certainty.*     From  this  disunion  among 

1  Muratori,  Antiquit.  Italise,  Dissert.  8 ;       >  Sismondi,  t.  i.  p.  97,  884 :  Muratori 
AnnaU  d'ltalia,  a.o.  989;  Antichita  £s-    Dissert.  49. 
tensi,  p.  26.  ^  Muratori,  Annali  d'ltalia. 

4  Muratori,  Annaii  d'ltalia.    St  Maro. 


ITALT. 


LOMBARD  CITIES. 


353 


the  members  of  the  feudal  confederacy,  it  was  more  easy  for 
the  citizens  to  render  themselves  secure  against  its  dominion. 
The  cities  too  of  Lombardy  were  far  more  populous  and 
better  defended  than  those  of  France ;  they  had  learned  to 
stand  sieges  m  the  Hungarian  invasions  of  the  tenth  century, 
and  had  acquired  the  right  of  protecting  themselves  by  strong 
fortifications.     Those  which  had  been  placed  under  the  tem- 
poral government  of  their  bishops  had  peculiar  advantages  in 
BUTjgglmg  for  emancipation.*     This  circumstance  in  the  state 
of  Lombardy  I  consider  as  highly  important  towards  explain- 
mg  the  subsequent  revolution.     Notwithstanding  several  ex- 
ceptions, a  churchman  was  less  hkely  to  be  bold  and  active 
m  command  than  a  soldier ;  and  the  sort  of  election  which 
was  always  necessary,  and  sometimes  more  than  nominal,  on 
a  vacancy  of  the  see,  kept  up  among  the  citizens  a  notion 
that  the  authority  of  their  bishop  and  chief  magistrate  ema- 
nated in  some  degree  from  themselves.     In  many  instances, 
especially  in  the  church  of  Milan,  the  earliest  perhaps,  and 
certainly  the  most  famous  of  Lombard  republics,  there  occurred 
a  disputed  election ;  two,  or  even  three,  competitors  claimed 
the  archiepiscopal  functions,  and  were  compelled,  in  the  ab- 
sence of  the  emperors,  to  obtiiin  the  exercise  of  them  by  means 
of  their  own  faction  among  the  citizens.^ 


J  The  bisliops  geem  to  have  become 
counts,  or  temporal  goyemors,  of  their 
Bees,  about  the  end  of  the  tenth,  or  bo- 
fore  the  middle  of  the  eleyeuth  century. 
Muratori,  Diss.  8;  Denina,  1.  ix.  c.  11: 
St.  Marc,  a.d.  1041,  1047,  1070.  In  Ar- 
nulfs  Uistory  of  Milan,  written  before 
the  close  of  the  latter  age,  wo  hare  a  con- 
temporary evidence.  And  from  the  peru- 
sal of  that  work  I  should  infer  that  the 
archbishop  was,  in  the  middle  of  the 
eleventh  century,  the  chief  magistrate  of 
the  city.  But,  at  the  same  time,  it  ap- 
pears highly  probable  that  an  assembly 
of  the  citizens,  or  at  least  a  part  of  the 
•citizens,  partook  in  the  administration 
of  public  affairs.  Muratori,  Scriptores 
Rerum  Italicarum,  t.  iv.  p.  16,  22,  23, 
and  particularly  the  last.  In  most  cities 
to  the  eastward  of  the  Tesino,  the  bishops 
lost  their  temporal  authority  in  the 
twelfth  century,  though  the  archbishop 
of  Milan  had  no  small  prerogatives  while 
Uiat  city  was  governed  as  a  republic. 
But  in  Piedmont  they  continued  longer 
in  the  enjoyment  of  power.  Vercelli, 
and  even  Turin,  were  almost  subject  to 
their  respective  prelates  till  the  thir- 
teenth century.    For  this  reason,  among 

VOU  I.  23 


others,  the  Piedmontese  cities  are  hardly 
to  be  reckoned  among  the  republics  of 
Lombardy.  —  Denina,  Istoria  dell'  Italia 
Occidentale,  t.  i.  p.  191. 

2  Muratori,  a.d.  1345.    Sometimes  the 
inhabitants  of  a  city  refused  to  acknowl- 
edge a  bishop  named  by  the  emperor,  as 
happened  at  Pavia  and  Asti  about  1057. 
Arnulf,  p.  22.    This  was,  in  other  words, 
setting  up  themselves  as  repubhcs.    But 
the   most   remarkable  instance  of  this 
kind  occurred  in  1070,  when  the  Blilanese 
absolutely    rejected    Godfrey,  appointed 
by  Henry  IV.,  and,  after  a  resistance  of 
several  years,  obliged  thie  emperor  to  fix 
upon  another  person.    The  city  had  been 
previously  involved  in  long  and  violent 
tumults,  which,  though  rather  belonging 
to  ecclesiastical  than  civil  history,  as  they 
arose  out  of  the  endeavors  made  to  re- 
form the  conduct  and  enforce  the  celibacy 
of  the  clergy,  had  a  considerable  tendency 
to  diminish  the  archbishop's  authority, 
and  to  give  a  republican  character  to  the 
inhabitants.    These  proceedings  are  told 
at  great  length  by  St.  Marc,  t.  iii.  a.d. 
1056-1077.    Arnulf  and  Landulf  are  the 
original  sources. 


354     PROGRESS  OF  THE  LOMBARD  CITIES.    Chap.  m.  Pabt  1. 


These  were  the  general  causes  which,  operating  at  various 
times  during  the  eleventh  century,  seem  gradually  to  have 
produced  a  republican  form  of  government  in  the  Italian  cit- 
ies.    But  this  part  of  history  is  very  obscure.     The  archives 
of  all  cities  before  the  reign  of  Frederic  Babarossa  have  per- 
ished.    For  many  years  there  is  a  great  deficiency  of  con- 
temporary Lombard  historians ;  and  those  of  a  later  age,  who 
endeavored  to  search  into  the  antiquities  of  their  country 
have  found  only  some  barren  and  insulated  events  to  record. 
We  perceive,  however,  throughout  the  eleventh  century,  that 
the  cities  were  continually  in  warfare  with  each  other.     This, 
indeed,  was  according  to  the  manners  of  that  age,  and  no 
inference  can  absolutely  be  drawn  from  it  as  to  their  internal 
freedom.     But  it  is  observable  that  their  chronicles  speak,  in 
recording  these  transactions,  of  the  people,  and  not  of  their 
leaders,  which  is  the  true  republican  tone  of  history.     Thus, 
in  the  Annals  of  Pisa,  we  read,  under  the  years  1002  and  1004, 
of  victories  gained  by  the  Pisans  over  the  people  of  Lucca ; 
in  1006,  that  the  Pisans  and  Genoese  conquered  Sardinia.* 
These  annals,  indeed,  are  not  by  a  contemporary  writer,  nor 
perhaps  of  much  authority.     But  we  have  an  original  account 
of  a  war  that  broke  out  in  1057,  between  Pavia  and  Milan, 
in  which  the  citizens  are  said  to  have  raised  armies,  made  al- 
liances, hired  foreign  troops,  and  in  every  respect  acted  like 
independent  states.^    There  was,  in  fact,  no  power  left  in  the 
empire  to  control  them.    The  two  Henrys  IV.  and  V.  were 
so  much  embarrassed  during  the  quarrel  concerning  investi- 
tures, and  the  continual  troubles  of  Germany,  that  they  were 
less  likely  to  interfere  with  the  rising  freedom  of  the  Italian 
cities,  than  to  purchase  their  assistance  by  large  concessions. 
Henry  IV.  granted  a  charter  to  Pisa  in  1081,  full  of  the  most 
important  privileges,  promising  even  not  to  name  any  mar- 
quis of  Tuscany  without  the  people's  consent ; '  and  it  is  possi 
ble  that,  although  the  instruments  have  perished,  other  places 
might  obtain  similar  advantages.     However  this  may  be,  it  is 
cerlain  that  before  the  death  of  Henry  V.,  in  1125,  almost  aU 


1  Marat.  Diss.  45.  Arnulfus,  the  his- 
torian of  Milan,  makes  no  mention  of 
any  temporal  counts,  which  seems  to  be 
a  proof  that  there  ¥rere  none  in  any 
authority.  He  speaks  always  of  Mediola- 
nenses,  Papiensea,  Ravenates,  &c.  This 
history  was  written  about  1085,  but  re- 
lates to  the  earlier  part  of  that  century. 


That  of  Landulphus  corroborates  this 
supposition,  which  indeed  is  capable  of 
proof  as  to  Milan  and  several  other  cities 
in  which  the  temporal  goyemment  had 
been  le^jally  rested  in  the  bishops. 

2Mur;it.  Diss.  45;  Arnulf.  Uist.  Medio- 
Ian.  p.  22. 

3Murat.  Dissert.  46. 


Italy. 


LOMBARD  ACQUISITIONS. 


355 


the  cities  of  Lombardy,  and  many  among  those  of  Tuscany 
were  accustomed  to  elect  their  own  magistrates,  and  to  act  as 
independent  communities  in  waging  war  and  in  domestic  gov- 
ernment.* 

The  territory  subjected  originally  to  the  count  or  bishop 
of  these  cities,  had  been  reduced,  as  I  mentioned  ^j^^.^ 
above,  by  numerous  concessions  to  the  rural  nobility.  quisUiSSs  of 
But  the  new  republics,  deeming  themselves  entitled  ^^"^^'y- 
to  all  which  their  former  governors  had  once  possessed,  began 
to  attack  their  nearest  neighbors,  and   to  recover  the  sov- 
ereignty of  all  their  ancient  territory.      They  besieged  the 
castles  of  the  rural  counts,  and  successively  reduced  them  into 
subjection.     They  suppressed  some  minor  communities,  which 
had  been  formed  in  imitation  of  themselves  by  little  towns 
belonging  to  their  district.     Sometimes  they  purchased  feudal 
superiorities  or  territorial  jurisdictions,  and,  according  to  a 
policy  not  unusual  with  the  stronger  party,  converted  the 
rights  of  property  into  those  of  government^     Hence,  at  the 
middle  of  the  twelfth  century,  we  are  assured  by  a  contempo- 
rary writer  that  hardly  any  nobleman  could  be  found,  except 
the  marquis  of  Montferrat,  who  had  not  submitted  to  some 
city.      We  may  except,  also,  I  should  presume,  the  families 
of  Este  and  Malaspina,  as  well  as  that  of  Savoy.     Muratori 
produces  many  charters  of   mutual   compact  between    the 
nobles  and  the  neighboring  cities  ;  whereof  one  invariable  ar- 
ticle is,  that  the  former  should  reside  within  the  walls  a  cer- 
tain number  of  months  in  the  year.*    The  rural  nobility,  thus 
deprived  of  the  independence  which  had  endeared  their  cas- 
tles, imbibed  a  new  ambition  of  directing  the  municipal  gov- 
ernment of  the  cities,  which  consequently,  during  this  period 
of  the  republics,  fell  chiefly  into  the  hands  of  the  superior 
families.     It  was   the  sagacious  policy  of  the  Lombards  to 
mvite  settlers  by  throwing  open  to  them  the  privileges  of  citi- 
zenship, and  sometimes  they  even  bestowed  them  by  compul- 
sion.    Sometimes    a   city,  imitating  the  wisdom  of  ancient 
Rome,  granted   these    privileges   to  all  the   inhabitants  of 


» Marat.  Annali  d'ltal.  a.d.  1107. 

'  n  dominio  utile  delle  citt4  e  de'  vil- 
fcggi  era  talvolta  diviso  fra  due  o  piu  pa- 
■roni,  ossia  che  s'  assegnassero  a  ciascuno 
fllTersl  quartieri,  o  si  dividessoro  i  pro- 
fenti  della  gabelle,  oyvero  che  I'uno  sig- 
oora  godesse  d'una  spezle  della  giurisdi- 


rione,  e  1'  altro  d'  un'  altra.  Penina,  1 
xii.  c.  3.  This  produced  a  vast  intricacy 
of  titles,  which  was  of  course  adyanta- 
geous  to  those  who  wanted  a  pretext  foi 
robbing  their  neighbors. 

3  Otho  Frisingens.  1.  ii  c.  18. 

^Murat.  Diss.  49. 


356 


THEIR  MUTUAL  ANIMOSITIES.    Chap.  IH.  Pakt  I 


another.*  Thus,  the  principal  cities,  and  especially  Milan, 
reached,  before  the  middle  of  the  twelfth  century,  a  degree  of 
population  very  far  beyond  that  of  the  capitals  of  the  great 
kingdoms.  Within  their  strong  walls  and  deep  trenches,  and 
in  the  midst  of  their  well-peopled  streets,  the  industrious 
dwelt  secure  from  the  license  of  armed  pillagers  and  the  op- 
pression of  feudal  tyrants.  Artisans,  whom  the  military 
landholders  contemned,  acquired  and  deserved  the  right  of 
bearing  arms  for  their  own  and  the  public  defence.*  Their 
occupations  became  liberal,  because  they  were  the  foundation 
of  their  political  franchises ;  the  citizens  were  classed  in  com- 
panies according  to  their  respective  crafts,  each  of  which  had 
its  tribune  or  standardbearer  (gonfalonier),  at  whose  com- 
mand, when  any  tumult  arose  or  enemy  threatened,  they 
rushed  in  arms  to  muster  in  the  market-place. 

But,  unhappily,  we  cannot  extend  the  sympathy  which  in- 
jjjg.,  stitutions  so  full  of  liberty  create  to  the  national 

mutual  conduct  of  these  little  republics.  Their  love  of 
08nes.  fpggdQjjj  ^^g  alloyed  by  that  restless  spirit,  from 
which  a  democracy  is  seldom  exempt,  of  tyrannizing  over 
weaker  neighbors.  They  played  over  again  the  tragedy  of 
ancient  Greece,  with  all  its  circumstances  of  inveterate  hatred, 
unjust  ambition,  and  atrocious  retaliation,  though  with  less 
consummate  actors  upon  the  scene.  Among  all  the  Lombard 
cities,  Milan  was  the  most  conspicuous,  as  well  for  power  and 
population  as  for  the  abuse  of  those  resources  by  arbitrary 
and  ambitious  conduct.  Thus,  in  1111,  they  razed  the  town 
of  Lodi  to  the  ground,  distributing  the  inhabitants  among  six 
villages,  and  subjecting  them  to  an  unrelenting  despotism.* 
Thus,  in  1118,  they  commenced  a  war  of  ten  years*  duration 
with  the  little  city  of  Como ;  but  the  surprising  perseverance 
of  its  inhabitants  procured  for  them  better  terms  of  capitula- 


»  Murat.  Diss.  49. 

9  Otho  Friflingensis  ap,  Murat.  Scr.  Her. 
Ital.  t.  vi.  p.  708.  Ut  etiam  ad  compri- 
mendos  yicinoa  materia  non  careant,  in- 
ferioris  ordinis  juvenes,  yel  quoslibet 
contemptibilium  etiam  mechanicarum 
artium  opifices,  quos  caeterae  gentes  ab 
honestioribus  et  liberioribus  studiis  tan- 
quam  pestem  propellunt,  ad  militiae  cin- 
gulum,  Tel  dignitatum  gradus  assumere 
non  dedignantur.  Ex  quo  fisictum  est, 
ut  caeteris  orbis  cmtatibus,  divitiis  et 
poteatii  praeemineant. 

■The  animosity  between   Milan  and 


Lodi  was  of  yery  old  standing.  It  origi- 
nated, according  to  Amulf,  in  the  resist- 
ance made  by  the  inhabitants  of  the  latter 
city  to  an  attempt  made  by  archbishop 
Eribert  to  force  a  bishop  of  his  own 
nomination  upon  them.  The  bloodshed, 
plunder,  and  conflagrations  which  had 
ensued,  would,  he  says,  fill  a  volume,  if 
they  were  related  at  length.  Scriptores 
Rerum  Italic,  t.  iy.  p.  16.  And  this  is 
the  testimony  of  a  writer  who  did  not 
live  beyond  1086.  Seventy  years  more 
either  of  hostility  or  servitude  elapsed 
before  Lodi  was  permitted  to  respire. 


iTAl^T. 


SOVEREIGNTY  OF  THE  EMPERORS. 


357 


tion,  though  they  lost  their  original  independence.  The  Cre* 
monese  treated  so  harshly  the  town  of  Crema  that  it  revolted 
from  them,  and  put  itself  under  the  protection  of  Milan. 
Cities  of  more  equal  forces  carried  on  interminable  hostilities 
by  wastmg  each  other's  territory,  destroying  the  harvests,  and 
burning  the  villages. 

The  sovereignty  of  the  emperors,  meanwhile,  though  not 
very   effective,   was   in   theory   always   admitted,  g^^^^. 
Their  name  was  used  in  public  acts,  and  appeared  of  toe 
upon  the  coin.     When  they  came  into  Italy  they  «°»p««>»- 
had  certain  customary  supplies  of  provisions,  called  fodrum 
re^e,  at  the  expense  of  the  city  where  they  resided  ;  during 
their  presence  all  inferior  magistracies  were  suspended,  and 
the  right  of  jurisdiction  devolved  upon  them  alone.    But  such 
was  the  jealousy  of  the  Lombards,  that  they  built  the  royal 
palaces  outside  their  gates ;  a  precaution  to  which  the  empe- 
rors were  compelled  to  submit.     This  was  at  a  very  early 
time  a  subject  of  contention  between  the  inhabitants  of  Pavia 
and  Conrad  II.,  whose  palace,  seated  in  the  heart  of  the  city, 
they  had  demolished  in  a  sedition,  and  were  unwilling  to  re- 
build in  that  situation.^ 

Such  was  the  condition  of  Italy  when  Frederic  Barbarossa, 
duke  of  Suabia,  and  nephew  of  the  last  emperor,  Frederic 
Conrad  III.,  ascended  the  throne  of  Germany.  Bw^arossa. 
His  accession  forms  the  commencement  of  a  new  period,  the 
duration  of  which  is  about  one  hundred  years,  and  which  is 
terminated  by  the  death  of  Conrad  IV.,  the  last  emperor  of 
the  house  of  Suabia.  It  is  characterized,  like  the  former,  by 
three  distinguishing  features  in  Italian  history ;  the  victorious 
struggle  of  the  Lombard  and  other  cities  for  independence,  the 
final  establishment  of  a  temporal  sovereignty  over  the  middle 
provinces  by  the  popes,  and  the  union  of  the  kingdom  of  Na- 
ples to  the  dominions  of  the  house  of  Suabia. 

In  Frederic  Barbarossa  the  Italians  found  a  very  different 
sovereign  from  the  two  last  emperors,  Lothaire  and  Conrad 
in.,  who  had  seldom  appeared  in  Italy,  and  with  forces  quite 
inadequate  to  control  such  insubordinate  subjects.  The  dis- 
tinguished valor  and  ability  of  this  prince  rendered  a  severe 
and  arbitrary  temper  and  a  haughty  conceit  of  his  imperial 
rights  more  formidable.    He  believed,  or  professed  to  believe, 


»Otho  Prisingens.  p.  710;   Muratori,  a.d.  1027. 


358 


FREDERIC  BARBAROSSA.    Chap.  HI.  Part  1. 


the  magnificent  absurdity,  that,  as  successor  of  Augustus,  he 
inherited  the  kingdoms  of  the  world.     In  the  same  right,  he 
more  powerfully,  if  not  more  rationally,  laid  claim  to  the 
entke  prerogatives  of  the  Roman  emperors  over  their  own 
subjects;  and  in  this  the  professors  of  the  civil  law,  which 
was  now  diligently  studied,  lent  him  their  aid  with  the  utmost 
servility.     To  such  a  disposition  the  self-goverament  of  the 
Lombard  cities  appeared  mere  rebellion.     Milan  especially, 
the  most  renowned  of  them  all,  drew  down  upon  herself  his 
inveterate  resentment.     He  found,  unfortunately,  too  good  a 
pretence  in  her  behavior  towards  Lodi.     Two  natives  of  that 
ruined  city  threw  themselves  at  the  emperor's  feet,  imploring 
him,  as  the  ultimate  source  of  justice,  to  redress  the  wrongs 
of  their  country.     It  is  a  striking  proof  of  the  terror  in- 
spired by  Milan  that  the  consuls  of  Lodi  disavowed  the  com- 
plaints of  their  countrymen,  and  the  inhabitants  trembled  at 
the  danger  of  provoking  a  summary   vengeance,   against 
which  the  imperial  arms  seemed  no  protection.^     The  Milan- 
ese, however,  abstained  from  attacking  the  people  of  Lodi, 
though  they  treated  with  contempt  the  emperor*s  order  to 
leave  them  at  liberty.     Frederic  meanwhile  came  into  Italy, 
and  held  a  diet  at  Roncaglia,  where  complaints  poured  in 
from  many  quarters  against  the  Milanese.     Pavia  and  Cre- 
mona, their  ancient  enemies,  were  impatient  to  renew  hostili- 
ties under   the   imperial   auspices.      Brescia,  Tortona,  and 
Crema  were  allies,  or  rather  dependents,  of  Milan.     Frederic 
soon  took  occasion  to  attack  the  latter  confederacy.    Tortona 
was  compelled  to  surrender  and  levelled  to  the  ground.     But 
a  feudal  army  was  soon  dissolved ;  the  emperor  had  much  to 
demand  his  attention  at  Rome,  where  he  was  on  ill  terms 
with  Adrian  IV. ;  and  when  the  imperial  troops  were  with- 
drawn from  Lombardy,  the  Milanese  rebuilt  Tortona,  and 
expelled  the  citizens  of  Lodi  from  their  dwellings.     Frederic 
assembled  a  fresh  army,  to  which  almost  every  city  of  Lom- 
bardy, willingly  or  by  force,  contributed  its  militia.     It  is  said 
to  have  exceeded  a  hundred  thousand  men.     The  Milanese 
shut  themselves  up  within  their  walls;  and  perhaps  might 
have  defied  the  imperial  forces,  if  their  immense  population, 
which  gave  them  confidence  in  arms,  had  not  exposed  them 

i  See  an  interesting  account  of  these  reproaches  Morena  for  partiality  towards 

drcumstances  in  the  uarrative  of  Otho  Fre«1eric  iu   the    Milanese    war,  should 

Ifotena,  a  citizen  of  Lodi.     Script.  Rer.  have  remembered    the    provocations  of 

Ital.  t.  Ti.  p.  966.    M.  Sismondi,  who  Lodi.    Uist.  des  R6pub.  ItaL  t.  U.  p.  102. 


ITALY. 


CAPTURE  OF  MILAN. 


b59 


to  a  different  enemy.    Milan  was  obliged  by  hunger  to  capitu- 
ate,  upon  conditions  not  very  severe,  if  a  vanquished  people 
could  ever  safely  rely  upon  the  convention  that  testifies  their 
submission. 

Frederic,  after  the  surrender  of  Milan,  held  a  diet  at 
Roncaglia,  where  the  effect  of  his  victories  was  p.^^  ^^ 
fatally  perceived.  The  bishops,  the  higher  nobility,  RoncagUa. 
the  lawyers,  vied  with  one  another  in  exalting  his  ^'^'  ^^' 
prerogatives.  He  defined  the  regalian  rights,  as  they  were 
called,  in  such  a  manner  as  to  exclude  the  cities  and  private 
proprietors  from  coining  money,  and  from  tolls  or  territorial 
dues,  which  they  had  for  many  years  possessed.  These, 
however,  he  permitted  them  to  retain  for  a  pecuniary  stipula- 
tion. A  more  important  innovation  was  the  appointment  of 
magistrates,  with  the  title  of  podest^,  to  administer  justice 
concurrently  with  the  consuls;  but  he  soon  proceeded  to 
abohsh  the  latter  office  in  many  cities,  and  to  throw  the  whole 
government  into  the  hands  of  his  own  magistrates.  He  pro- 
hibited the  cities  from  levying  war  against  each  other.  It 
may  be  presumed  that  he  showed  no  favor  to  Milan.  The 
capitulation  was  set  at  naught  in  its  most  express  provisions ; 
a  podestii  was  sent  to  supersede  the  consuls,  and  part  of  the 
territory  taken  away.  Whatever  might  be  the  risk  of  resist- 
ance, and  the  Milanese  had  experience  enough  not  to  under- 
value it,  they  were  determined  rather  to  see  their  liberties  at 
once  overthrown  than  gradually  destroyed  by  a  faithless 
tyrant.  They  availed  themselves  of  the  absence  of  his  army 
to  renew  the  war.  Its  issue  was  more  calamitous  than  that 
of  the  last.  Almost  all  Lombardy  lay  patient  under  subjec- 
tion. The  small  town  of  Crema,  always  the  faithful  ally  of 
Milan,  stood  a  memorable  siege  against  the  imperial  army ; 
but  the  inhabitants  were  ultimately  compelled  to  capitulate 
for  their  lives,  and  the  vindictive  Cremonese  razed  their 
dwellings  to  the  ground.^  But  all  smaller  calami-  capture  and 
ties  were  forgotten  when  the  great  city  of  Milan,  destruction 
worn  out  by  famine  rather  than  subdued  by  force,  ° 
was  reduced  to  surrender  at  discretion.  Lombardy  stood 
in  anxious  suspense  to  know  the  determination  of  Frederic 

1  The  Bi^^  of  Crema  is  told  at  great  count  of  the  methods  used  in  the  attack 

length  by  Otto  Morena ;  it  is  interesting,  and  defence  of  fortified  places  before  th« 

not  only  as  a  display  of  extraordinary,  introduction    of  artillery.     Scrip.    Ber. 

though  unsuccessful,  perseverance  and  Ital.  t.  vi.  p.  1032-1052. 
titrepidity,  but  as  the  most  detailed  ac- 


360 


LEAGUE  OF  LOMBARDY     Chap.  HI.  Part  L 


A.s.  1162. 


respecting  this  ancient  metropolis,  the  seat  of  the  early  Chria- 
tian  emperors,  and  second  only  to  Rome  in  the  hierarchy  of 
the  Latm  church.  A  delay  of  three  weeks  excited  fallacious 
hopes ;  but  at  the  end  of  that  time  an  order  was  given  to  the 
Milanese  to  evacuate  their  habitations.  The  deserted  streets 
were  instantly  occupied  by  the  imperial  army  ;  the  people  of 
Pavia  and  Cremona,  of  Lodi  and  Como,  were  commissioned 
to  revenge  themselves  on  the  respective  quarters  of  the  city 
assigned°to  them ;  and  in  a  few  days  the  pillaged  churches 
stood  alone  amidst  the  ruins  of  what  had  been  Milan. 

There  was  now  little  left  of  that  freedom  to  which  Lom- 
bardy  had  aspired:  it  was  gone  hke  a  pleasant 
dream,  and  she  awoke  to  the  fears  and  miseries  of 
servitude.     Frederic   obeyed   the  dictates  of  his  vindictive 
temper,  and  of  the  policy  usual  among  statesmen.     He  abro- 
gated the  consular  regimen  in  some  even  of  the  cities  which 
had  supported  him,  and  established  his  podesta  in  their  place. 
This  magistrate  was  always  a  stranger,  frequently  not  even 
an  Itahan  ;  and  he  came  to  his  office  with  all  those  prejudices 
against  the  people  he  was  to  govern  which  cut  off  every  hope 
of  justice  and  humanity.     The  citizens  of  Lombardy,  espe- 
cially the  Milanese,  who  had  been  dispersed  in  the  villages 
adjoinmg  their  ruined  capital,  were  unable  to  meet  the  per- 
petual demands  of  tribute.      In  some  parts,  it  is  said,  two 
thirds  of  the  produce  of  then-  lands,  the  only  wealth  that  re- 
mained, were  extorted  from  them  by  the  imperial  officers. 
It  was  in  vain  that  they  prostrated  themselves  at  the  feet  of 
Frederic.     He  gave  at  the  best  only  vague  promises  of  re- 
dress ;  they  were  in  his  eyes  rebels  ;  his  delegates  had  acted 
as  faithful  officers,  whom,  even  if  they  had  gone  a  Uttle  be- 
yond his  intentions,  he  could  not  be  expected  to  punish. 

But  there  still  remained  at  the  heart  of  Lombardy  the 
League  of  Strong  principle  of  national  Hberty,  imperishable 
Lombardy  among  the  perishing  armies  of  her  patriots,  incon- 
^?ric.  sumable  in  the  conflagration  of  her  cities.*  Those 
A.D.1167.  whom  private  animosities  had  led  to  assist  the 
German  conqueror  blushed  at  the  degnuiation  of  their  coun- 
try, and  at  the  share  they  had  taken  in  it.  A  league  was 
secretly  formed,  in  which  Cremona,  one  of  the  chief  cities  on 
♦he  imperial  side,  took  a  prominent  part.     Those  beyond 

1  Qn»  neqne  Dardaniis  campis  potuere  perire, 
Nee  cum  capta  capl,  nee  cum  combuBta  cremari. — JSmhuo. 


Italy. 


AGAINST  FREDERIC. 


861 


the  Adige,  hitherto  not  much  engaged  in  the  disputes  of 
central  Lombardy,  had  abeady  formed  a  separate  confederacy 
to  secure  themselves  from  encroachments,  which  appeared 
the  more  unjust,  as  they  had  never  borne  arms  against  the 
emperor.  Their  first  successes  corresponded  to 
the  justice  of  their  cause ;  Frederic  was  repulsed  ^"^' 
from  the  territory  of  Verona,  a  fortunate  augury  for  the  rest 
of  Lombardy.  These  two  clusters  of  cities  on  the  east  and 
west  of  the  Adige  now  united  themselves  into  the  famous 
Lombai'd  league,  the  terms  of  which  were  settled  in  a  general 
diet.  Their  alliance  was  to  last  twenty  years,  duiing  which 
they  pledged  themselves  to  mutual  assistance  against  any  one 
who  should  exact  more  from  them  than  they  had  been  used 
to  perform  from  the  time  of  Henry  to  the  first  coming  of 
Frederic  into  Italy ;  implying  in  this  the  recovery  of  their 
elective  magistracies,  their  rights  of  war  and  peace,  and  those 
lucrative  privileges  which,  under  the  name  of  regalian,  had 
been  wrested  from  them  in  the  diet  of  Roncagha.^ 

This  union  of  the  Lombard  cities  was  formed  at  a  very 
favorahle  juncture.  Frederic  had  almost  ever  since  his 
accession  been  engaged  in  open  hostility  with  the  see  of 
Rome,  and  was  pursuing  the  fruitless  policy  of  Henry  IV., 
who  had  endeavored  to  substitute  an  antipope  of  his  own 
faction  for  the  legitimate  pontiff.  In  the  prosecution  of  this 
scheme  he  had  besieged  Rome  with  a  great  army,  which,  the 
citizens  resisting  longer  than  he  expected,  fell  a  prey  to  the 
autumnal  pestilence  which  visits  the  neighborhood  of  that 
capital.  The  flower  of  German  nobility  was  cut  off  by  this 
calamity,  and  the  emperor  recrossed  the  Alps,  entirely  unable 
for  the  present  to  withstand  the  Lombard  confederacy.  Their 
first  overt  act  of  insurrection  was  the  rebuilding  of  Milan ; 
the  confederate  troops  all  joined  in  this  undertaking ;  and  the 
Milanese,  still  numerous,  though  dispersed  and  persecuted, 
revived  as  a  powerful  republic.  Lodi  was  compelled  to 
enter  into  the  league ;  Pavia  alone  continued  on  the  impe- 


J  For  the  nature  and  conditions  of  the 
Lombard  league,  besides  the  usual  au- 
thorities, see  Muratori's  48th  dissertation. 
The  words,  a  tempore  Uenrici  Regis  usque 
■d  introitum  imperatoris  Frederici,  leave 
it  ambiguous  which  of  the  Henries  was 
intended.  Muratori  thinks  it  was  Henry 
IV.,  because  the  cities  then  began  to  be 
independent.  It  seems,  however,  natu- 
ral, when  a  king  is  meutioued  without 


any  numerical  designation,  to  interpret 
it  of  the  last  bearing  that  name ;  as  w« 
say  King  William,  for  William  the  Third. 
And  certainly  the  liberties  of  Lombardy 
were  more  perfect  under  Henry  V.  than 
his  father;  besides  which,  the  one  reign 
might  still  be  remembered,  and  the  other 
rested  in  tradition.  The  question,  hov 
ever,  is  of  little  moment. 


362 


PEACE  OF  CONSTANCE.     Chap.  m.  Pact  I 


Italy. 


PEACE  OF  CONSTANCE. 


363 


m 


rial  side.     As  a  check  to  Pavia,  and  to  the  marquis  of  Mont- 
ferrat,   the  most   potent   of   the   independent    nobility,   the 
Lombards  planned  the  erection  of  a  new  city  between  the 
confines  of  these  two  enemies,  in  a  rich  plain  to  the  south  of 
the  Po,  and  bestowed  upon  it,  in  complunent  to  the  Pope, 
Alexander  III.,  the  name  of  Alessandria.     Though,  from  its 
hasty  construction,  Alessandria  was  even  in  that  age  deem- 
ed rude  in  appearance,  it  rapidly  became  a  thriving  and 
populous  city.^     The  intrinsic  energy  and  resources  of  Lom- 
bardy  were  now  made   manifest.      Frederic,  who  had  tri- 
umphed by  their  disunion,  was  unequal  to  contend  against 
their  league.     After   several   years  of  indecisive  war   the 
emperor  invaded  the  Milanese  territory ;  but  the  confederates 
gave  him  battle,  and  gained  a  complete  victory  at  Legnano. 
Battle  of        Frederic   escaped  alone   and   disguised   from  the 
i««i^p-       field,  with   little   hope  of  raising  a  fresh  army, 
^•^*    '  *       though  still  reluctant  from  shame  to  acquiesce  in 
the  freedom  of  Lombardy.     He  was  at  length  persuaded, 
through  the  mediation  of  the  republic  of  Venice,  to  consent 
to  a  truce  of  six  years,  the  provisional  terms  of  which  were 
all  favorable  to  the  league.    It  was  weakened,  however,  by 
the  defection  of  some  of  its  own  members ;  Cremona,  which 
had  never  cordially  united  with  her  ancient  enemies,  made 
separate  conditions  with  Frederic,  and  suffered  herself  to  be 
named  among  the  cities  on  the  imperial  side  in  the  armistice. 
Tortona    and  even  Alessandria  followed  the   same  course 
during  the  six  years  of  its  duration;  a  fatal  testimony  of 
unsubdued  animosities,  and  omen  of  the  calamities  of  Italy. 
At  the  expiration  of  the  truce  Frederic's  anxiety  to  secure 
Peace  of        ^^®  crown  for  his  son  overcame  his  pride,  and  the 

rTii83*'  ^^™^^^  P^^^^  ^^  Constance  established  the  Lom- 
bard republics  in  real  independence. 
By  the  treaty  of  Constance  the  cities  were  maintained  in 
the  enjoyment  of  all  the  regalian  rights,  whether  within  their 
walls  or  in  their  district,  which  they  could  claim  by  usage. 
Those  of  levying  war,  of  erecting  fortifications,  and  of  admin- 
istering civil  and  criminal  justice,  were  specially  mentioned. 
The  nomination  of  their  consuls,  or  other  magistrates,  was 
left  absolutely  to  the  citizens ;  but  they  were  to  receive  the 

1  Alessandria  was  surnamed,  in  deri-  Csesarea,  as  it  is  actually  called  in  the 

"^^Y ^ella  paglia,  from  the  thatch  with  peace  of  Constance,  being  at  that  time 

wwch  the  houses  were  covered.    Frederic  on  the  imperial  side.    But  it  soon  reco?- 

was  Tery  desirous  to  change  its  name  to  ered  its  former  appellation. 


investiture  of  their  office  from  an  imperial  legate.  The  cus- 
tomary tributes  of  provision  during  the  emperor's  residence 
in  Italy  were  preserved;  and  he  was  authorized  to  appoint  in 
every  city  a  judge  of  appeal  in  civil  causes.  The  Lombard 
league  was  confirmed,  and  the  cities  were  permitted  to  renew 
it  at  their  own  discretion ;  but  they  were  to  take  every  ten 
years  an  oath  of  fidelity  to  the  emperor.  This  just  compact 
preserved,  along  with  every  security  for  the  liberties  and 
welfiire  of  the  cities,  as  much  of  the  imperial  prerogatives  as 
could  be  exercised  by  a  foreign  sovereign  consistently  with 
the  people's  happiness.^ 

The  successful  insurrection  of  Lombardy  is  a  memorable 
refutation  of  that  system  of  policy  to  which  its  advocates  give 
the  appellation  of  vigorous,  and  which  they  perpetually  hold 
forth  as  the  only  means  through  which  a  disaffected  people 
are  to  be  restrained.     By  a  certain  class  of  statesmen,  and 
by  all  men  of  harsh  and  violent  disposition,  measures  of  con- 
ciliation, adherence  to  the  spirit  of  treaties,  regard  to  ancient 
privileges,  or  to  those  rules  of  moral  justice  which  are  para- 
mount to  all  positive  right,  are  always  treated  with  derision. 
Terror  is  their  only  specific;  and  the  physical  inabiUty  to 
rebel  their  only  security  for  allegiance.     But  if  the  razing  of 
cities,  the  abrogation  of  privileges,  the  impoverishment  and 
oppression  of  a  nation  could  assure  its  constant  submission, 
Frederic  Barbarossa  would  never  have  seen  the  militia  of 
Lombardy  arrayed  against  him  at  Legnano.     AThatever  may 
be  the  pressure  upon  a  conquered  people,  there  will  come  a 
moment   of  their  recoil.     Nor  is   it  material   to  allege,  in 
answer  to  the  present  instance,  that  the  accidental  destruction 
of  Frederic's  army  by  disease  enabled  the  cities  of  Lombardy 
to  succeed  in  their  resistance.     The  fact  may  well  be  dis- 
puted, since  Lombardy,  when  united,  appears  to  have  been 
more  than  equal  to  a  contest  with  any  German  force  that 
could  have  been  brought  against  her;  but  even  if  we  admit 
the  effect  of  this  circumstance,  it  only  exhibits  the  preca- 
riousness  of  a  policy  which  collateral  events  are  always  liable 
to  disturb.     Providence  reserves  to  itself  various  means  by 
which  the  bonds  of  the  oppressor  may  be  broken ;  and  it  is 
not  for  human  sagacity  to  anticipate  whether  the  army  of  a 
conqueror  shall  moulder  in  the  unwholesome  marshes  of 
Rome  or  stiffen  with  frost  in  a  Russian  winter. 

1  Muratori,  Antiquitates  Italia,  Diss  50. 


364 


AFFAIRS  OF  SICILY.        Chai  HI.  Part  I. 


Italy. 


INNOCENT  in. 


365 


The  peace  of  Constance  presented  a  noble  opportunity  to 
the  Lombards  of  establishing  a  permanent  federal  union  of 
small  republics ;  a  form  of  government  congenial  from  the 
earliest  ages  to  Italy,  and  that,  perhaps,  under  which  she  is 
again  destined  one  day  to  flourish.  They  were  entitled  by 
the  provisions  of  that  treaty  to  preserve  their  league,  the 
basis  of  a  more  perfect  confederacy,  which  the  course  of 
events  would  have  emancipated  from  every  kind  of  subjec- 
tion to  Germany.^  But  dark,  long-cherished  hatreds,  and 
that  implacable  vindictiveness  which,  at  least  in  former  ages, 
distinguished  the  private  manners  of  Italy,  deformed  her 
national  character,  which  can  only  be  the  aggregate  of  in- 
dividual passions.  For  revenge  she  threw  away  the  pearl 
of  great  price,  and  sacrificed  even  the  recollection  of  that 
liberty  which  had  stalked  like  a  majestic  spirit  among  the 
ruins  of  Milan.^  It  passed  away,  that  high  disdain  of  abso- 
lute power,  that  steadiness  and  self-devotion,  which  raised  the 
half-civilized  Lombards  of  the  twelfth  century  to  the  level  of 
those  ancient  republics  from  whose  history  our  first  notions 
of  freedom  and  virtue  are  derived.  The  victim  by  turns  of 
selfish  and  sanguinary  factions,  of  petty  tyrants,  and  of 
foreign  invaders,  Italy  has  fallen  like  a  star  from  its  place  in 
heaven;  she  has  seen  her  harvests  trodden  down  by  the 
horses  of  the  stranger,  and  the  blood  of  her  children  wasted 
in  quarrels  not  their  own :  Conquering  or  conquered,  in  the 
indignant  language  of  her  poet,  still  alike  a  slave,^  a  long 
retribution  for  the  tyranny  of  Rome. 

Frederic  did  not  attempt  to  molest  the  cities  of  Lombardy 
Aflaira  of  in  the  enjoyment  of  those  privileges  conceded  by 
Sicily.  the  treaty  of  Constance.     His  ambition  was  di- 

verted to  a  new  scheme  for  aggrandizing  the  house  of  Suabia 
by  the  marriage  of  his  eldest  son  Henry  with  Constance,  the 
aunt  and  heiress  of  William  II.,  king  of  Sicily.  That  king- 
dom, which  the  first  monarch  Roger  had  elevated  to  a  high 


1  Though  there  was  no  permanent  diet 
of  the  Lombard  league,  the  consuls  and 
^ode8t4s  af  the  respectiTe  cities  compos- 
ing it  occasionally  met  in  congress  to  do- 
liberate  upon  measures  of  general  safety. 
Thus  assembled,  they  were  called  Recto- 
res  Societatis  LombardiaD.  It  is  evident 
that,  if  Lombardy  had  continued  in  any 
degree  to  preserve  the  spirit  of  union, 
this  congress  might  readily  have  bocomo 
a  permanent  body,  like  the  Helvetic  diet, 
with  as  extensive  powers  as  are  necessary 


in  a  federal  constitution.  — Muratori,  An- 
tichiti  ItaUane,  t.  iii.  p.  126;  Dissert.  50; 
Sismondi,  t.  ii.  p.  189. 

2  Anzi  girar  la  liberty  mlrai, 
E  baciar  lieta  ogni  ruina,  e  dire, 
Ruine  si,  ma  serritu  non  mai. 
Gaetana  Passerini  (ossia  piutosto 
Qiovan    Battista   Pastorini,)  in 
Mathias,  Componimenti   lirici, 
vol.  iii.  p.  381. 
'  Per  servir  sempre,  o  Tlncitric*  o  rintfc 
— Filicaja. 


pitch  of  renown   and   power,  fell   into  decay  through  the 
misconduct  of  his  son  WUliam,  surnamed  the  Bad,  and  did 
not  recover  much  of  its  lustre  under  the  second  WilUam 
though  styled  the   Good.     His  death  without  issue  was 
apparently  no  remote  event;   and  Constance  was  the  sole 
legitimate  survivor  of  the  royal  family.     It  is  a  curious  cir- 
cumstance that  no  hereditary  kingdom  appears  absolutely  to 
have  excluded  females  from  its  throne,  except  that  which 
from  its  magnitude  was  of  all  the  most  secure  from  faUing 
into  the  condition   of  a  province.     The   Sicilians   felt  too 
late  the  defect  of  their  constitution,  which  permitted  an 
independent  people  to  be  transferred,  as  the  dowry  of  a 
woman,  to  a  foreign  prince,  by  whose  ministers  they  might 
justly  expect  to  be  insulted  and  oppressed.     Henry,  whose 
marriage  with  Constance  took  place  in  1186,  and  who  suc- 
ceeded in  her  right  to  the  throne  of  Sicily  three  years  after- 
wards, was  exasperated  by  a  courageous  but  unsuccessful 
effort  of  the  Norman  barons  to  preserve  the  crown  for  an 
megitimate  branch  of  the  royal  family ;   and  his  reign  is 
disgraced  by  a  series  of  atrocious  cruelties.     The  power  of 
the  house  of  Suabia  was  now  at  its  zenith  on  each  side  of  the 
Alps ;  Henry  received  the  Imperial  crown  the  year  after  his 
father's  death  in  the  third  crusade,  and  even  prevailed  upon 
the  pnnces  of  Germany  to  elect  his  infant  son  Frederic  as 
his  successor.     But  his  own  premature  decease  clouded  the 
prospects  of  his  family :  Constance  survived  bun  but  a  year ; 
and  a  chUd  of  four  years  old  was  left  with  the  inheritance  of 
a  kingdom  which  his  father's  severity  had  rendered  disaf- 
fected, and  which  the  leaders  of  German  mercenaries  in  his 
service  desolated  and  disputed. 

During  the  minority  of  Frederic  IL,  from  1198  to  1216, 
the  papal  chair  was  filled  by  Innocent  HL,  a  name  innocent 
second  only,  and  hardly  second,  to  that  of  Gregory  in. 
VII.  Young,  noble,  and  intrepid,  he  united  with  the  accus- 
tomed spirit  of  ecclesiastical  usurpation,  which  no  one  had 
ever  carried  to  so  high  a  point,  the  more  worldly  ambition  of 
consolidating  a  separate  principality  for  the  Holy  See  in  the 
centre  of  Italy.  The  real  or  spurious  donations  of  Constan- 
tme,  Pepin,  Charlemagne,  and  Louis,  had  given  rise  to  a 
perpetual  claim,  on  the  part  of  the  popes,  to  very  extensive 
dominions;  but  Uttle  of  this  had  been  effectuated,  and  in 
Rome  itself  they  were  thwarted  by  the  prefect,  an  officer 


366      BEQUEST  OF  COUNTESS  MATILDA.    Chap.  m.  Pabt  I. 


who  swore  fidelity  to  the  emperor,  and  by  the  insubordinate 
Bpirit  of  the  people.     In  the  very  neighborhood  the  small 
cities  owned  no  subjection  to  the  capital,  and  were  probably 
as  much  self-governed  as  those  of  Lombardy.     One  is  trans- 
ported back  to  the  earliest  times  of  the  republic  in  reading  of 
the  desperate  wars  between  Rome  and  Tibur  or  Tusculum ; 
neither  of  which  was  subjugated  till  the  latter  part  of  the 
twelfth  century.     At  a  further  distance  were  the  duchy  of 
Spoleto,  the  march  of  Ancona,  and  what  had  been  the  ex- 
archate of  Ravenna,  to  all  of  which  the  popes  had  more  or 
less  grounded  pretensions.     Early  in  the  last-mentioned  age 
the  famous  countess  Matilda,  to  whose  zealous  protection 
Gregory  YH.  had  been  eminently  indebted  during  his  long 
dispute  with  the  emperor,  granted  the  reversion  of  all  her 
possessions  to  the  Holy  See,  first  in  the  lifetime  of  Gregory, 
and  again  under  the  pontificate  of  Paschal  III.     These  were 
very  extensive,  and  held  by  different  titles.     Of  her  vast 
Bequest  of     JDiperial  fiefs,  Mantua,  Modena,  and  Tuscany,  she 
g^^^atess   certainly  could  not  dispose.     The  duchy  of  Spoleto 
and  march  of  Ancona  were  supposed  to  rest  upon 
a  different  footing.     I  confess  myself  not  distinctly  to  com- 
prehend the  nature  of  this  part  of  her  succession.     These 
had  been  formerly  among  the  great  fiefs  of  the  kingdom  of 
Italy.     But  if  I  understand  it  rightly,  they  had  tacitly  ceased 
to  be  subject  to  the  emperors  some  years  before  they  were 
seized  by  Godfrey  of  Lorraine,  father-in-law  and  step-father 
of  Matilda.     To  his  son,  her  husband,  she  succeeded  in  the 
possession  of  those  countries.     They  are  commonly  consid- 
ered as  her  alodial  or  patrimonial  property ;  yet  it  is  not  easy 
to  see  how,  being  herself  a  subject  of  the  empire,  she  could 
transfer  even  her  alodial  estates  from  its  sovereignty.     Nor 
on  the  other  hand  can  it  apparently  be  maintained  that  she 
was  lawful  sovereign  of  countries  which  had  not  long  since 
been  imperial  fiefs,  and  the  suzerainty  over  which  had  never 
been  renounced.     The  original  title  of  the  Holy  See,  there- 
fore, does  not  seem  incontestable  even  as  to  this  part  of  Ma- 
tilda's donation.     But  I  state  with  hesitation  a  difficulty  to 
which  the  authors  I  have  consulted  do  not  advert.^    It  is 


1  It  is  almost  hopeless  to  look  for  ex- 
plicit information  upon  the  rights  and 
pretensions  of  the  Roman  see  in  Italian 
jmters  even  of  the  eighteenth  century. 
Bloratori,  the  most  learned,  and  upon 


the  whole,  the  &ire8t  of  them  all,  moTes 
cautiously  over  this  ground ;  except  when 
the  claims  of  Rome  happen  to  clash  with 
those  of  the  house  of  Este.  But  I  hare 
not  been  able  to  satis^  myself  by  tbt 


Italy. 


ECCLESIASTICAI.  STATE  REDUCED. 


36 


certain,  however,  that  the  emperors  kept  possession  of  the 
whole  during  the  twelfth  century,  and  treated  both  Spoleto 
and  Ancona  as  parts  of  the  empire,  notwithstanding  continual 
remonstrances  from  the  Roman  pontiffs.      Frederic  Barba- 
rossa,  at  the  negotiations  of  Venice  in  1177,  promised  to 
restore  the  patrimony  of  Matilda  in  fifteen  years ;  but  at  the 
close  of  that  period  Henry  VI.  was  not  disposed  to  execute 
this  arrangement,  and  granted  the  county  in  fief  to  some  of 
his  German  followers.     Upon  his  death  the  circumstances 
were  favorable  to  Innocent  III.     The  infant  king  of  Sicily 
had  been  intrusted  by  Constance  to  his  guardianship.     A 
double  election  of   Philip,  brother  of  Henry  VI.,  and  of 
Otho  duke  of  Brunswick,  engaged  the  princes  of  Germany, 
who  had  entirely  overlooked  the  claims  of  young  Frederic, 
in  a  doubtful  civil  war.     Neither  party  was  in  a  condition  to 
enter  Italy ;  and  the  imperial  dignity  was  vacant  for  several 
years,  till,  the  death  of  Philip  removing  one  competitor,  Otho 
IV.,  whom  the  pope  had  constantly  favored,  was  crowned 
emperor.     During  this  interval  the  Italians  had  no  superior; 
and  Innocent  availed  himself  of  it  to  maintain  the  pretensions 
of  the  see.     These  he  backed  by  the  production  of  rather  a 
questionable  document,  the  will  of  Henry  VI.,  said  to  have 
been  found  among  the  baggage  of  Marquard,  one  of  the 
German  soldiers  who  had  been  invested  with  fiefs  by  the 
late  emperor.     The  cities  of  what  we  now  call  the  Ecciesiasti- 
ecclesiastical  state  had  in  the  twelfth  century  their  cai  state  re- 
own  municipal  government  like  those  of  Lombardy ;  innocent 
but  they  were  far  less  able  to  assert  a  complete  in-  ^^ 
dependence.     They  gladly,  therefore,  put  themselves  under 
the  protection  of  the  Holy  See,  which  held  out  some  prospect 
of  securing  them  from  Marquard  and  other  rapacious  parti- 
sans, without  disturbing  their  internal  regulations.     Thus  the 
duchy  of  Spoleto  and  march  of  Ancona  submitted  to  Innocent 
in. ;  but  he  was  not  strong  enough  to  keep  constant  posses- 
sion of  such  extensive  territories,  and  some  years  afterwards 
adopted  the  prudent  course  of  granting  Ancona  in  fief  to  the 
marquis  of  Este.     He  did  not,  as  may  be  supposed,  neglect 
his  authority  at  home ;  the  prefect  of  Rome  was  now  com- 
pelled to  swear  allegiance  to  the  pope,  which  put  an  end  to 

perusal  of  some  dry  and  tedious  disserta-  learning  scarcely  inferior  to  that  of  Mu- 
uona  in  St.  Marc  (Abr^  Chronologique  ratori,  possessed  more  opportunity  and 
M  rmst.  de  ritalie,  t.  It.),  who,  with    inclination  to  speak  out. 


Bmf 


368 


LEAGUE  OF  TUSCANY.     Chap.  Ul.  Pabt  L 


Italy. 


GUELFS  AND  GHIBELINS. 


369 


u; 


the  regular  imperial  supremacy  over  that  city,  and  the  privi- 
leges of  the  citizens  were  abridged.  This  is  the  proper  era 
of  that  temporal  sovereignty  which  the  bishops  of  Rome 
possess  over  their  own  city,  though  still  prevented  by  various 
causes,  for  nearly  three  centuries,  from  becoming  unques- 
tioned and  unlimited. 

The  pohcy  of  Rome  was  now  more  clearly  defined  than 
ever.     In  order  to  preserve  what  she  had  thus  suddenly 
gained  rather  by  opportunity  than  strength,  it  was  her  interest 
to  enfeeble  the  imperial  power,  and  consequently  to  maintain 
League  of       the  freedom  of  the  Italian  repubUcs.      Tuscany 
Tuscany.        j^^j  hitherto  been  ruled  by  a  marquis  of  the  em- 
peror's appointment,  though  her  cities  were  flourishing,  and, 
within  themselves,  independent.     In  unitation  of  the  Lom- 
bard confederacy,  and  impelled  by  Innocent  III.,  they  now 
(with  the  exception  of   Pisa,  which  was  always   strongly 
attached  to  the  empire)  formed  a  similar  league    for  the 
preservation  of  their  rights.      In  this  league  the  influence 
of  the  pope  was  far  more  strongly  manifested  than  in  that 
of   Lombardy.     Although  the  latter  had  been  m  alliance 
with  Alexander  III.,  and  was  formed  during  the  height  of 
his  dispute  with  Frederic,  this  ecclesiastical  quarrel  mingled 
so  little  in  their  struggle  for  liberty  that  no  allusion  to  it  is 
found  in  the  act  of  their  confederacy.    But  the  Tuscan  union 
was  expressly  established  "  for  the  honor  and  aggrandizement 
of  the  apostolic  see."     The  members  bound  themselves  to 
defend  the  possessions  and  rights  of  the  church,  and  not  to 
acknowledge  any  king  or  emperor  without  the  approbation 
of  the   supreme   pontiff.^     The  Tuscans   accordingly  were 
more  thoroughly  attached  to  the  church  party  than  The  Lom- 
bards, whose  principle  was  animosity  towards  the  house  of 
Suabia.     Hence,  when  Innocent  IIL,  some  time  after,  sup- 
ported Frederic  II.  against  the  emperor  Otho  IV.,  the  Mi- 
lanese and  their  allies  were  arranged  on  the  imperial  side ; 
but  the  Tuscans  continued  to  adhere  to  the  pope. 

In  the  wars  of  Frederic  Barbarossa  against  Milan  and 

Pactions  of     ^'^  ^^^^s,  we  havc  seen  the  cities  of  Lombardy 

GSdiSS"^     divided,  and  a  considerable  number  of  them  firmly 

attached  to  the  imperial  interest.     It  does  not  ap- 

WclesuBbonafldedefenderont;  etquod    probaret.    Muratori,  Divert.  48.    (LatiS] 
nuuum  In  regem  aut  imperatorem  reel-    t.  It.  p.  820;  Italian,  t.  iii  p  112  J         ' 


probable,  that  the  citizens  were  at  so  early  a  time  divided 
among  themselves,  as  to  their  line  of  public  policy,  and  tlS 
the  adherence  of  a  particular  city  to  the  emperorfor  to  £ 
Lombard  league,  was  only,  as  proved  afterwards  the  «Le 
that  one  f^t.on  or  another  acquired  an  ascendancy  in^t^ 
councils.  But  jealousies  long  existing  between  the  different 
classes,  and  only  suspended  by  the  national  struggle  wS 

IZrl  /'  ^""f "?''  ^^^  "^^  *"  "'^  modificafonsif  „- 
terests,  and  new  relations  towards  the  empire.     About  the 

!?■).  I-  -^J  r^^P'  "  ""'«  '«'«''  the  two  leading  pardes 
which  divided  the  cities  of  Lombardy,  and  whose  mutofarf! 

rS,-  ""i!^  "''  ^^"^"*'  '"''•'««*  °f  contention,  required  the 
association  of  a  name  to  dirw:t  as  well  as  invi<rorate  its  oreiu 

SS':rGht1"""t'>  "^^  celebnited°aSellalK- 
fh!t»  ?  <fhibelins;  the  former  adhering  to  the  papal  side. 
^  latter  to  that  of  the  emperor.     These  names  were^derL^ 

Z^.  ^Z^Tk"^^  ^'^  ^^  '^^  '*"y'"S  ^"-^  «<■  faction  for 
more  than  half  a  century  in  that  country  before  they  were 

transported  to  a  stiU  more  favorable  soilf   The  GueVsZk 

rt,eir  name  from  a  very  illustrious  family,  several  of  wh^m 

had   successively  been  dukes  of  Bavaria  in  the  tenth  m.d 

™n^°.?  TJ"™'-  ^^  ^''^'''  of  *e  last  of  these  intor- 
marned  with  a  younger  son  of  the  house  of  Este,  a  noble 

A:^"^r  "ear  Padua  and  possessed  of  great  e'smt^fjn 

toe  of  rL?f^  T   °T  ^\    ^^^^  save  birth  to  a  second 
line  of  Guelfs^  from  whom  the  royal  house  of  Brunswick  is 
descended.    The  name  of  Ghibelin  is  derived  from  a  vilU 
n  Franconia,  whence  Conrad  the  Salic  came,  the  pro-enito- 
through  female.^  of  the  Suabian  emperors.     At  the  e°Sn 

ft^l^T  '"  ^  f '  '}^  S-'^b'^"  fa™«y  ^«-e  disappointed 
of  what  they  considered  almost  an  hereditary  possession  ;  and 

Apm  tnHTK""!.  '>°^"''fy  appears  to  have  commenced  between 
them  and  the  house  of  Guelf,  who  were  nearly  related  to  Lo- 
thaire.  Hemy  the  Proud,  and  his  son  Henry  the  Lion,  rep- 
resentetives  of  the  latter  family,  were  frequently  pereecutS 
by  the  Suabian  emperors ;  but  their  fortunes  belong  to  the 
tetory  of  Germany.'  Meanwhile  the  elder  brancht  thou-h 
not  reserved  for  such  glorious  destinies  as  the  Guelfs)  contin- 

b™SV5™;"l,°eltriv'„il?:f3  r"-    J."""""  'n««fer«a  to  Italy.    Strurtu^ 

Wf  ,  century  before  we  e&d  the  denom-         ' 
VOL.  I.  24 


370 


OTHO  IV. 


Chap.  HI.  Part  I. 


:! 


ued  to  flourish  in  Italy  ;  the  marquises  of  Este  were  by  far 
the  most  powerful  nobles  in  eastern  Lombardy,  and  about  the 
end  of  the  twelfth  century  began  to  be  considered  as  the 
heads  of  the  church  party  in  their  neighborhood.  They  were 
frequently  chosen  to  the  office  of  podest.^,  or  chief  magistrate, 
by  the  cities  of  Romagna ;  and  in  1208  the  people  of  Fer- 
rara  set  the  fatal  example  of  sacrificing  their  freedom  for 
tranquillity,  by  electing  Azzo  VII.,  marquis  of  Este,  as  their 
lord  or  sovereign.* 

Otho  IV.  was  son  of  Henry  the  Lion,  and  consequently 
head  of  the  Guelfs.     On  his  obtaining  the  imperial 
Otho  IV.        crown,  the  prejudices  of  Italian  factions  were  di- 
verted out  of  their  usual  channel.     He  was  soon  engaged  in 
a  quarrel  with  the  pope,  whose  hostility  to  the  empire  was 
certain,  into  whatever  hands  it  might  fall.     In  Milan,  how- 
ever, and  generally  in  the  cities  which  had  belonged  to  the 
Lombard  league  against  Frederic  L,  hatred  of  the  house  of 
Suabia  prevailed  more  than  jealousy  of  the  imperial  prerog- 
atives ;  they  adhered  to  names  rather  than  to  principles,  and 
supported  a  Guelf  emperor  even  against  the  pope.     Terms 
of  this  description,  having  no  definite  relation  to  principles 
which  it  might  be  troublesome  to  learn  and  defend,  are  al- 
ways acceptable  to  mankind,  and  have  the  peculiar  advantage 
of  precluding  altogether  that  spirit  of  compromise  and  ac- 
conmiodation,  by  which  it  is  sometimes  endeavored  to  ob- 
struct their  tendency  to  hate  and  injure  each  other.     From 
this  time,  every  city,  and  ahnost  every  citizen,  gloried  in  one 
of  these  barbarous  denominations.     In  several  cities  the  im- 
perial party  predominated  through  hatred  of  their  neighbors, 
who  espoused  that  of  the  church.     Thus  the  inveterate  feuds 
between  Pisa  and  Florence,  Modena  and  Bologna,  Cremona 
and  Milan,  threw  them  into  opposite  factions.     But   there 
was  in  every  one  of  these  a  strong  party  against  that  which 
prevailed,  and  consequently  a  Guelf  city  frequently  became 
Ghibehn,  or  conversely,  accordmg  to  the  fluctuations  of  the 
time.* 


1  Sismondi,  t.  ii.  p.  829 

«  For  the  Guelf  and  Ghibelin  fections, 
besides  the  historians,  the  Slst  disserta- 
tion of  Muratori  should  be  read.  There 
b  some  degree  of  inaccuracy  in  his  lan- 
guage, where  he  speaks  of  these  distrac- 
tions expiring  at  the  beginning  of  the 
fifteenth  century.  Quel  secolo,  e  vero, 
abbondd  anch'  esse  di  molte  guerre,  ma 


nulla  Bi  oper5  sotto  nome  o  pretesto  delle 
fazioni  suddette.  Solamente  ritennero 
esse  piede  in  alcume  private  famigUe. 
AntichiU  ItaUane,  t.  iii.  p.  148.  But 
certainly  the  names  of  Guelf  and  Ghibe- 
lin, aa  party  distinctions,  may  be  traced 
all  through  the  fifteenth  century.  Th« 
former  faction  showed  itself  distiuotly  in 
the  insurrection  of  the  cities  subject  to 


Italt. 


FREDERIC  n. 


371 


The  change  to  which  we  have  adverted  in  the  politics  of 
the  Guelf  party  lasted  only  during  the  reign  of 
Otho  IV.     When  the  heir  of  the  house  of  Suabia  ^""^'"^^  "' 
grew  up  to  manhood,  Innocent,  who,  though  his  guardian 
had  taken  little  care  of  his  interests,  as  long  as  he  flattered 
himself  with  the  hope  of  finding  a  Guelf  emperor  obedient 
placed  the  young  Frederic  at  the  head  of  an  opposition,  com- 
posed of  cities  always  attached  to  his  family,  and  of  such  as 
miphcitly  followed  the  see  of  Rome.     He  met  with  consider- 
able success  both  in  Italy  and  Germany,  and  after  the  death 
of  Otho,  received  the  imperial  crown.     But  he  had  no  longer 
to  expect  any  assistance  from  the  pope  who  conferred  it.     In- 
nocent was  dead,  and  Honorius  IIL,  his  successor,  could  not 
behold  without  apprehension  the  vast  power  of  Frederic,  sup- 
ported m  Lombardy  by  a  faction  which  balanced  that  of  the 
church,  and  menacing  the  ecclesiastical  territories  on  the  oth- 
er side,  by  the  possession  of  Naples  and  Sicily.     This  king- 
dom, feudatory  to  Rome,  and  long  her  firmest  ally,  was  now, 
by  a  fatal  connection  which  she  had  not  been  able  to  prevent' 
thrown  into  the  scale  of  her  most  dangerous  enemy.     Hence 
the  temporal  dominion  which  Innocent  IIL  had   taken  so 
much  pains  to  establish,  became  a  very  precarious  possession, 
exposed  on  each  side  to  the  attacks  of  a  power  that  had  legit- 
miate   pretensions  to  almost  every   province  composing  it 
The  life  of  Frederic  II.  was  wasted  in  an  unceasing  conten- 
tion with  the  church,  and  with  his  Italian  subjects,  whom  she 
excited  to  rebellions  against  him.     Without  inveighing,  like 
the  popish  writers,  against  this  prince,  certainly  an  encour- 
ager  of  letters,  and  endowed  with  many  eminent  qualities, 
we  may  lay  to  his  charge  a  good  deal  of  dissimulation ;  I  will 
not  add  ambition,  because  I  am  not  aware  of  any  period  in 
tiie  reign  of  Frederic,  when  he  was  not  obliged  to  act  on  his 
defence  against  the  aggression  of  others.     But  if  he  had  been 
a  model  of  virtues,  such  men  as  Honorius  HI.,  Gregory  IX., 
and  Innocent  IV.,  the  popes  with  whom  he  had  successively 


Milan,  upon  the  death  of  Gian  Galeazzo 
Visconti  in  1404.  It  appeared  again  in 
the  attempt  of  the  Milanese  to  reSstab- 
Ilsh  their  republic  in  1447.  Sismondi, 
t-  ix.  p.  834.  So  in  1477,  Ludovico  Sforza 
made  use  of  Ghibelin  prgudices  to  ex- 
clude the  regent  Bonne  of  Savoy  as  a 
3uelf.  Sismondi,  t.  xi.  p.  79.  In  the 
•cclesiaatical  state  the  same  distinctions 
^pear  to  have  been  preserved  still  later. 


Stefano  Infessura,  in  1487,  speaks  iiEunil- 
iarly  of  them.  Script.  Rer.  Ital.  t.  iii. 
p.  1221.  And  even  in  the  conquest  of 
Milan  by  Louis  XII.  in  1500,  the  Guellii 
of  that  city  are  represented  as  attached 
to  the  French  party,  while  the  Ghibelins 
abetted  Ludovico  Sforza  and  Maximilian. 
Guicciardini,  p.  399.  Other  passages  in 
the  same  historian  show  these  factions  to 
have  been  alive  in  various  parts  of  Italj 


•  ,  _—  #    — - 


37^ 


FREDERICK  H. 


Chap.  111.  Past! 


Italy. 


HIS  WARS  WITH  THE  LOMBARDS. 


to  contend,  would  not  have  given  him  respite,  while  he  re- 
mained master  of  Naples,  as  well  as  the  empire.^ 

It  was  the  custom  of  every  pope  to  urge  princes  into  a 
crusade,  which  the  condition  of  Palestine  rendered  indispen- 
sable, or,  more  properly,  desperate.  But  this  great  piece  of 
supererogatory  devotion  had  never  yet  been  raised  into  an 
absolute  duty  of  their  station,  nor  had  even  private  persons 
been  ever  required  to  take  up  the  cross  by  compulsion.  Hono- 
rius  III.,  however,  exacted  a  vow  from  Frederic,  before  he  con- 
ferred upon  him  the  imperial  crown,  that  he  would  undertake 
a  crusade  for  the  deliverance  of  Jerusalem.  Frederic  sub- 
mitted to  this  engagement,  which  perhaps  he  never  designed 
to  keep,  and  certainly  endeavored  afterwards  to  evade. 
Though  he  became  by  marriage  nominal  king  of  Jerusalem,* 
his  excellent  understanding  was  not  captivated  with  so  barren 
a  prospect,  and  at  length  his  delays  in  the  performance  of  his 
vow  provoked  Gregory  IX.  to  issue  against  him  a  sentence 
of  excommunication.  Such  a  thunderbolt  was  not  to  be 
lightly  regarded ;  and  Frederic  sailed,  the  next  year,  for  Pal- 
estine. But  having  disdained  to  solicit  absolution  for  what 
he  considered  as  no  crime,  the  court  of  Rome  was  excited  to 
still  fiercer  indignation  against  this  profanation  of  a  crusade 
by  an  excommunicated  sovereign.  Upon  his  arrival  in  Pal- 
estine, he  received  intelligence  that  the  papal  troops  had 
broken  into  the  kingdom  of  Naples.     No  one  could  ration- 


373 


1  The  rancor  of  bigoted  Catholics 
against  Frederic  has  hardly  subsided  at 
the  present  day.  A  very  moderate  com- 
mendation of  him  in  Tiraboschi,  toI.  iv. 
t.  7,  was  not  suffered  to  pass  uncontra- 
dicted by  the  Roman  editor.  And  though 
Muratoii  shows  quite  enough  prejudice 
against  that  emperor's  character,  a  fierce 
Itoman  bigot,  whose  animadversions  are 

f>rinted  in  the  17th  volume  of  his  Annals 
8vo.  edition),  flies  into  paroxysms  of  fury 
at  every  syllable  that  looks  Uke  modera- 
tion. It  is  well  known  that,  although 
the  public  policy  of  Rome  has  long  dis- 
played the  pacific  temper  of  weakness, 
the  thermometer  of  ecclesiastical  senti- 
ment in  that  city  stands  very  nearly  as 
high  as  in  the  thirteenth  century  [1810]. 
Giannone,  who  suffered  for  his  boldness, 
has  drawn  Frederic  II.  very  favorably, 
perhaps  too  favorably,  in  the  16th  and 
17th  books  of  the  Istoria  Civile  di  Napoli. 
*The  second  wife  of  Frederic  was 
[olante,  or  Violante.  daughter  of  John, 
eountof  Brienne,  by  Maria,  eldest  daugh- 


ter and  heiress  of  Isabella,  wife  of  Conrad, 
marquis  of  Montferrat.  This  Isabella 
was  the  youngest  daughter  of  Aluiario 
or  Amaury,  king  of  Jerusalem,  and  by 
the  deaths  of  her  brother  Baldwin  IV., 
of  her  eldest  sister  Sibilla,  wife  of  Guy  de 
Lusignan,  and  that  sister's  child  Bald< 
win  v.,  succeeded  to  a  claim  upon  Jeru- 
salem, which,  since  the  victories  of 
Saladin,  was  not  very  profitable.  It  is 
said  that  the  kings  of  Naples  deduce 
their  title  to  that  sounding  inheritance 
from  this  marriage  of  Frederic  (Gian- 
none, 1.  xvi.  c.  2);  but  the  extinction  of 
Frederic's  posterity  must  have,  strictly 
speaking,  put  an  end  to  any  right  derived 
from  him;  and  Giannone  himself  indi- 
cates a  better  title  by  the  ccsstion  of 
Maria,  a  princess  of  Antioch,  and  legiti- 
mate heiress  of  Jerusalem,  to  Charles  of 
Anjou  in  1272.  How  far,  indeed,  this 
may  have  been  regularly  transmitted  to 
the  present  king  of  Naples,  I  do  not 
know,  and  am  sure  that  it  is  not  worth 
*hile  to  inquire. 


ally  have  blamed  Frederic,  if  he  had  quitted  the  Holy  Land 
as  he  found  it ;  but  he  made  a  treaty  with  the  Saracens, 
which,  though  by  no  means  so  disadvantageous  as  under  all 
the  circumstances  m^ht  have  been  expected,  served  as  a  pre- 
text for  new  calumnies  against  him  in  Europe.  The  charge 
of  irreligion,  eagerly  and  successfully  propagated,  he  repelled 
by  persecuting  edicts  against  heresy,  that  do  no  great  honor 
to  his  memory,  and  availed  him  little  at  the  time.  Over  his 
Neapolitan  dominions  he  exercised  a  rigorous  government, 
rendered  perhaps  necessary  by  the  levity  and  insubordination 
characteristic  of  the  inhabitants,  but  which  tended,  through 
the  artful  representations  of  Honorius  and  Gregory,  to  alarm 
and  alienate  the  Italian  republics. 

A  new  generation  had  risen  up  in   Lombardy  since  the 
peace  of  Constance,  and  the  prerogatives  reserved  „. 
by  that  treaty  to  the  empire  were  so  seldom  called  ^hhtS! 
mto  action,  that  few  cities  were  disposed  to  recol-  ^°^^^<*«- 
lect  their  existence.     They  denominated  themselves  Guelfs  or 
Ghibelins,  according  to  habit,  and  out  of  their  mutual  oppo- 
sition, but  without  much  reference  to  the  empire.    Those  how- 
ever of  the  former  party,  and  especially  Milan,  retained  their 
antipathy  to  the  house  of  Suabia.     Though  Frederic  II.  was 
entitled,  as  far  as  established  usage  can  create  a  right,  to  the 
sovereignty  of  Italy,  the  Milanese  would  never  acknowledge 
hun,  nor  permit  his  coronation  at  Monza,  according  to  ancient 
ceremony,  with  the  iron  crown  of  the  Lombard  kings.     The 
pope  fomented,  to  the   utmost  of  his  power,  this  disaffected 
spirit,  and  encouraged  the  Lombard  cities  to  renew  their  for- 
mer league.     This,  although  conformable  to  a  provision  in 
the  treaty  of  Constance,  was  manifestly  hostile  to  Frederic, 
and  may  be  considered  as  the  commencement  of  a  second 
contest  between  the  republican  cities  of  Lombardy  and  the 
empire.     But  there  was  a  striking  difference  between  this  and 
the  former  confederacy  against  Frederic  Barbarossa.     In  the 
league  of  1167,  almost  every  city,  forgetting  all  smaller  ani- 
mosities in  the  great  cause  of  defending  the  national  privi- 
leges, contributed  its  share  of  exertion  to  sustain  that  perilous 
conflict ;  and  this  transient  unanimity  in  a  people  so  distracted 
by  internal  faction  as  the  Lombards  is  the  surest  witness  to 
the  justice   of  their  undertaking.     Sixty  years   afterwards, 
their  war  against  the  second  Frederic  had  less  of  provocation 
and  less  of  public  spirit.     It  was  in  fact  a  party  struggle  of 


■^ 


874 


ABRANGEMENT  OF         Chap.  HI.  Part.  L 


Guelf  and  Ghibelin  cities,  to  which  the  names  of  the  church 
and  the  empire  gave  more  of  dignity  and  consistence. 

The  republics  of  Italy  in  the  thirteenth  century  were  so 

numerous  and  independent,  and  their  revolutions  so 
i^tot  frequent,  that  it  is  a  difficult  matter  to  avoid  con- 
dSes^*^       fusion   in   following  their    history.     It  will  give 

more  an*angement  to  our  ideas,  and  at  the  same 
time  illustrate  the  changes  that  took  place  in  these  little 
states,  if  we  consider  them  as  divided  into  four  clusters  or 
constellations,  not  indeed  unconnected  one  with  another,  yet 
each  having  its  own  centre  of  motion  and  its  own  boundaries. 
The  first  of  these  we  may  suppose  formed  of  the  cities  in 
central  Lombardy,  between  the  Sessia  and  the  Adige,  the 
Alps  and  the  Ligurian  mountains;  it  comprehends  Milan, 
Cremona,  Pavia,  Brescia,  Bergamo,  Parma,  Piacenza,  Man- 
tua, Lodi,  Alessandria,  and  several  others  less  distinguished. 
These  were  the  original  seats  of  Italian  liberty,  the  great 
movers  in  the  wars  of  the  elder  Frederic.  Milan  was  at  the 
head  of  this  cluster  of  cities,  and  her  influence  gave  an  ascen- 
dency to  the  Guelf  party ;  she  had,  since  the  treaty  of  Con- 
stance, rendered  Lodi  and  Pavia  almost  her  subjects,  and  was 
in  strict  union  with  Brescia  and  Piacenza.  Parma,  however, 
and  Cremona,  were  unshaken  defenders  of  the  empire.  In 
the  second  class  we  may  place  the  cities  of  the  march  of  Ve- 
rona, between  the  Adige  and  the  frontiers  of  Germany.  Of 
these  there  were  but  four  worth  mentioning :  Verona,  Vicenza, 
Padua  and  Treviso.  The  citizens  of  all  the  four  were  in- 
clined to  the  Guelf  interests ;  but  a  powerful  body  of  rural 
nobility,  who  had  never  been  compelled,  like  those  upon  the 
Upper  Po,  to  quit  their  fortresses  in  the  hilly  country,  or 
reside  within  the  walls,  attached  themselves  to  the  opposite 
denomination.^  Some  of  them  obtained  very  great  authority 
in  the  civil  feuds  of  these  four  republics ;  and  especially  two 
brothers,  Eccelin  and  Alberic  da  Romano,  of  a  rich  and  dis- 
tmguished  family,  known  for  its  devotion  to  the  empire.  By 
extraordinary  vigor  and  decision  of  character,  by  dissimula- 
tion and  breach  of  oaths,  by  the  intimidating  effects  of  almost 
unparalleled  cruelty,  Eccelin  da  Romano  became  after  some 
years  the  absolute  master  of  three  cities,  Padua,  Verona, 
and  Vicenza;    and  the   Guelf  party,  in  consequence,  was 

1  Sismondi,  t.  U.  p.  222. 


Italy. 


LOMBARD  CITIES. 


375 


entirely  subverted  beyond  the  Adige,  during  the  continuance 
of  his  tyranny.^  Another  cluster  was  composed  of  the  cities 
in  Romagna ;  Bologna,  Imola,  Faenza,  Ferrara,  and  several 
others.  Of  these,  Bologna  was  far  the  most  powerful,  and, 
as  no  city  was  more  steadily  for  the  interests  of  the  church, 
the  Guelfs  usually  predominated  in  this  class ;  to  which  also 
the  influence  of  the  house  of  Este  not  a  little  contributed. 
Modena,  though  not  geographically  within  the  limits  of  this 
division,  may  be  classed  along  with  it  from  her  constant  wars 
with  Bologna.  A  fourth  class  will  comprehend  the  whole 
of  Tuscany,  separated  almost  entirely  from  the  politics  of 
Lombardy  and  Romagna.  Florence  headed  the  Guelf  cities 
in  this  province,  Pisa  the  Ghibelin.  The  Tuscan  union  was 
formed,  as  has  been  said  above,  by  Innocent  III.,  and  was 
strongly  inclined  to  the  popes ;  but  gradually  the  Ghibelin 
party  acquired  its  share  of  influence ;  and  the  cities  of  Siena, 
Arezzo,  and  Lucca  shifted  their  policy,  according  to  external 
circumstances  or  the  fluctuations  of  their  internal  factions. 
The  petty  cities  in  the  region  of  Spoleto  and  Ancona  hardly 
perhaps  deserve  the  name  of  republics ;  and  Genoa  does  not 
readily  fall  into  any  of  our  four  classes,  unless  her  wars  with 
Pisa  may  be  thought  to  connect  her  with  Tuscany.* 

After  several  years  of  transient  hostility  and  precarious 
truce,  the  Guelf  cities  of  Lombardy  engaged  in  a  regular 
and  protracted  war  with  Frederic  II.,  or  more  properly  with 
their  Ghibelin  adversaries.  Few  events  of  this  contest  de- 
serve particular  notice.  Neither  party  ever  obtained  such 
decisive  advantages  as  had  alternately  belonged  to  Frederic 


*■  The  cruelties  of  Eccelin  excited  uni- 
versal horror  in  an  age  when  iuhumanitj 
towards  enemies  was  as  common  as  fear 
and  revenge  could  make  it.  It  was  an 
usual  trick  of  beggars,  all  over  Italy,  to 
pretend  that  they  had  been  deprived  of 
their  eyes  or  limbs  by  the  Veronese 
tyrant.  There  is  hardly  an  instance  in 
European  history  of  so  sanguinary  a 
government  subsisting  for  more  than 
twenty  years.  The  crimes  of  Eccelin  are 
remarkably  well  authenticated  by  the 
testimony  of  several  contemporary  writ- 
ers, who  enter  into  great  details.  Most 
of  these  are  found  in  the  seventh  volume 
of  Scriptores  Rerum  Italicarum.  Sis- 
mondi, t.  iii.  p.  33,  111,  203,  is  more  full 
than  any  of  the  modems. 

*  I  have  taken  no  notice  of  Piedmont 
la   thii  division.    The  history  of  that 


country  seems  to  be  less  elucidated  by 
ancient  or  modern  writers  than  that  of 
other  parts  of  Italy.  It  was  at  this  time 
divided  between  the  counts  of  Savoy 
and  marquises  of  Montferrat.  But  Asti, 
Chieri,  and  Turin,  especially  the  two 
former,  appear  to  have  had  a  republican 
form  of  government.  They  were,  how- 
ever, not  absolutely  independent.  The 
only  Piedmontese  city  that  can  properly 
be  considered  as  a  separate  state,  in  the 
thirteenth  century,  was  VercelU;  and 
even  there  the  bishop  seems  to  have 
possessed  a  sort  of  temporal  sovereignty. 
Denina,author  of  the  Rivoluzioni  d'ltalia, 
first  printed  in  1769,  lived  to  publish  iu 
his  old  age  a  history  of  western  Italy,  or 
Piedmont,  from  which  I  have  gleaned  a 
few  facts. — Istoria  dell'  Italia  Occidentale : 
Torino,  1809,  6  vols.  8to 


I 


376 


LOMBARD  CITIES. 


Chap.  HI.  Pabt  L 


Italy. 


COUNCIL  OF  LYONS. 


377 


Barbarossa  and  the  Lombard  confederacy,  during  the  war  of 
the  preceding  century.  A  defeat  of  the  Milanese  by  the 
emperor,  at  Corte  Nuova,  in  1237,  was  balanced  by  his 
unsuccessful  siege  at  Brescia  the  next  year.  The  Pisana 
assisted  Frederic  to  gain  a  great  naval  victory  over  the 
Grenoese  fleet,  in  1241;  but  he  was  obliged  to  rise  from  the 
blockade  of  Parma,  which  had  left  the  standard  of  Ghibelin- 
ism,  in  1248.  Ultimately,  however,  the  strength  of  the 
house  of  Suabia  was  exhausted  by  so  tedious  a  struggle ;  the 
Ghibelins  of  Italy  had  their  vicissitudes  of  success ;  but  their 
country,  and  even  themselves,  lost  more  and  more  of  the 
ancient  connection  with  Germany. 

In  this  resistance  to  Frederic  II.  the  Lombards  were  much 
indebted  to  the  constant  support  of  Gregory  IX.  and  his 
successor  Innocent  IV. ;  and  the  Guelf,  or  the  church  party, 
were  used  as  synonymous  terms.  These  pontiffs  bore  an 
unquenchable  hatred  to  the  house  of  Suabia.  No  concessions 
mitigated  their  animosity;  no  reconciliation  was  sincere. 
Whatever  faults  may  be  imputed  to  Frederic,  it  is  impossible 
for  any  one,  not  blindly  devoted  to  the  court  of  Rome,  to 
deny  that  he  was  iniquitously  proscribed  by  her  unprincipled 
ambition.  His  real  crime  was  the  inheritance  of  his  ances- 
tors, and  the  name  of  the  house  of  Suabia.  In  1239  he 
was  excommunicated  by  Gregory  IX.  To  this  he  was  tol- 
erably accustomed  by  former  experience ;  but  the  sentence 
was  attended  by  an  absolution  of  his  subjects  from  their 
allegiance,  and  a  formal  deposition.  These  sentences  were 
not  very  effective  upon  men  of  vigorous  minds,  or  upon  those 
whose  passions  were  engaged  in  their  cause ;  but  they  influ- 
enced both  those  who  feared  the  threatenings  of  the  clergy 
and  those  who  wavered  ah-eady  as  to  their  line  of  political 
conduct.  In  the  fluctuating  state  of  Lombardy  the  excom- 
munication of  Frederic  undermined  his  interests  even  in 
cities  like  Parma,  that  had  been  friendly,  and  seemed  to 
identify  the  cause  of  his  enemies  with  that  of  religion  —  a 
prejudice  artfully  fomented  by  means  of  calumnies  propagated 
against  himself,  and  which  the  conduct  of  such  leading 
Ghibehns  as  Eccelin,  who  lived  in  an  open  defiance  of  Grod 
and  man,  did  not  contribute  to  lessen.  In  1240,  Gregory 
proceeded  to  publish  a  crusade  against  Frederic,  as  if  he  had 
been  an  open  enemy  to  religion-  which  he  revenged  by 
putting  to  death  all  the  prisoners  he  made  who  wore  the 


cross.     There  was  one  thing  wanting  to  make  the  expulsion 
of  the  emperor  from  the  Christian  commonwealth  more  com- 
plete.    Gregory  IX.  accordingly  projected,  and  Innocent  IV 
carried  into  effect,  the  convocation  of  a   general  council. 
This  was  held  at  Lyons,  an  imperial  city,  but  over  councu  of 
which  Frederic  could  no  longer  retain  his  suprem-  ^yo°5^ 
acy.     In  this  assembly,  where  one  hundred  and  ^'^* 
forty  prelates  appeared,  the  question  whether  Frederic  ought 
to  be  deposed  was  solemnly  discussed ;  he  submitted  to  de- 
fend himself  by  his  advocates :  and  the  pope  in  the  presence, 
though  without  formally  collecting  the  suffrages  of  the  council, 
pronounced  a  sentence,  by  which  Frederic's  excommunica- 
tion was  renewed,  the  empire  and  all  his  kingdoms  taken 
away,  and  his  subjects  absolved  from  their  fidelity.     This  is 
the  most  pompous  act  of  usurpation  in  all  the  records  of  the 
church  of  Rome;  and  the  tacit  approbration  of  a  general 
council  seemed  to  incorporate  the  pretended  right  of  deposing 
kings,  which  might  have  passed  as  a  mad  vaunt  of  Gregory 
VII.  and  his  successors,  with  the  established  faith  of  Chris- 
tendom. 

Upon  the  death  of  Frederic  11.  in  1250,  he  left  to  his  son 
Conrad  a  contest  to  maintain  for  every  part  of  his  inheritance, 
as  well  as  for  the  imperial  crown.  But  the  vigor  ^^tv 
of  the  house  of  Suabia  was  gone ;  Conrad  was  re- 
duced to  fight  for  the  kingdom  of  Naples,  the  only  succession 
which  he  could  hope  to  secure  against  the  troops  of  Innocent 
IV.,  who  still  pursued  his  family  with  implacable  hatred,  and 
claimed  that  kingdom  as  forfeited  to  its  feudal  superior,  the 
Holy  See.  After  Conrad's  premature  death,  which  happen- 
ed in  1254,  the  throne  was  filled  by  his  illegitimate  brother 
Manfred,  who  retained  it  by  his  bravery  and  address,  in  de- 
spite of  the  popes,  till  they  were  compelled  to  call  in  the 
assistance  of  a  more  powerful  arm. 

The  death  of  Coniml  brings  to  a  termination  that  period 
in  Italian  history  which  we  have  described  as  nearly  coex- 
tensive with  the  greatness  of  the  house  of  Suabia.  It  is 
perhaps  upon  the  whole  the  most  honorable  to  Italy ;  that  in 
which  she  displayed  the  most  of  national  energy  and  patriot- 
ism. A  Florentine  or  Venetian  may  dwell  with  pleasure 
upon  later  times,  but  a  Lombard  will  cast  back  his  eye  across 
the  desert  of  centuries,  till  it  reposes  on  the  field  of  Legnano. 
Great  changes  followed  in  the  foreign  and  internal  policy,  in 


III 


378     CAUSES  OF  SUCCESS  OF  LOMBARDY.   Chap.  HI.  Part  L 


Italt. 


LOMLARD  CITIES. 


379 


the  moral  and  military  character  of  Italy.  But  before  we  de- 
scend to  the  next  period,  it  will  be  necessary  to  remark  some 
material  circumstances  in  that  which  has  just  passed  under 
our  review. 

The  successful  resistance  of  the  Lombard  cities  to  such 
Causes  of  the  princcs  as  both  the  Frederics  must  astonish  a 
success  of      reader  who  brings  to  the  story  of  these  middle 

moardy.  ^^^  notions  derived  from  modern  times.  But 
when  we  consider  not  only  the  ineffectual  control  which 
could  be  exerted  over  a  feudal  army,  bound  only  to  a  short 
term  of  service,  and  reluctantly  kept  in  the  field  at  its  own 
cost,  but  the  peculiar  distrust  and  disaffection  with  which 
many  German  princes  regarded  the  house  of  Suabia,  less 
reason  will  appear  for  surprise.  Nor  did  the  kingdom  of 
Naples,  almost  always  in  agitation,  yield  any  material  aid  to 
the  second  Frederic.  The  main  cause,  however,  of  that 
triumph  which  attended  Lombardy  was  the  intrinsic  energy 
of  a  free  government.  From  the  eleventh  century,  when  the 
cities  became  virtually  republican,  they  put  out  those  vigor- 
ous shoots  which  are  the  growth  of  freedom  alone.  Their 
domestic  feuds,  their  mutual  wars,  the  fierce  assaults  of  their 
national  enemies,  checked  not  their  strength,  their  wealth,  or 
their  population;  but  rather  as  the  limbs  are  nerved  by 
labor  and  hardship,  the  republics  of  Italy  grew  in  vigor  and 
courage  through  the  conflicts  they  sustained.  If  we  but  re- 
member what  savage  license  prevailed  during  the  ages  that 
preceded  their  rise,  the  rapine  of  public  robbers,  or  of  feudal 
nobles  little  differing  from  robbers,  the  contempt  of  industri- 
ous arts,  the  inadequacy  of  penal  laws  and  the  impossibility 
of  carrying  them  into  effect,  we  shall  form  some  notion  of 
the  change  which  was  wrought  in  the  condition  of  Italy  by 
ths  growth  of  its  cities.  In  comparison  with  the  blessings 
of  industry  protected,  injustice  controlled,  emulation  awak 
ened,  the  disorders  which  ruffled  their  surface  appear  slight 
and  momentary.  I  speak  only  of  this  first  stage  of  their  in- 
dependence, and  chiefly  of  the  twelfth  century,  before  those 
civil  dissensions  had  reached  their  height,  by  which  the  glory 
and  prosperity  of  Lombardy  were  soon  to  be  subverted. 

We  have  few  authentic  testimonies  as  to  the  domestic  im- 
provement of  the  free  Italian  cities,  while  they  still  deserve 
the  name.  But  we  may  perceive  by  history  that  their  power 
and  population,  according  to  their  extent  of  territory,  were 


almost  incredible.  In  Galvaneus  Flamma,  a  Milanese 
writer,  we  find  a  curious  statistical  account  of  that  city  in 
1288,  which,  though  of  a  date  about  thirty  years  after  its 
liberties  had  been  overthrown  by  usurpation,  must  be  con- 
sidered as  implying  a  high  degree  of  previous  advancement, 
even  if  we  make  allowance,  as  probably  we  should,  for  some 
exaggeration.  The  mhabitants  are  reckoned  at  200,000  ;  the 
private  houses  13,000 ;  the  nobility  alone  dwelt  in  sixty 
streets;  8,000  gentlemen  or  heavy  cavalry  (milites)  might 
be  mustered  from  the  city  and  its  district,  and  240,000  men 
capable  of  arms :  a  force  sufficient,  the  writer  observes,  to 
crush  all  the  Saracens.  There  were  in  Milan  six  hundred 
notaries,  two  hundred  physicians,  eighty  schoolmasters,  and 
fifty  transcribers  of  manuscripts.  In  the  district  were  one 
hundred  and  fifty  castles  with  adjoining  villages.  Such  was 
the  state  of  Milan,  Flamma  concludes,  in  1288  ;  it  is  not  for 
me  to  say  whether  it  has  gained  or  lost  ground  since  that 
time.^  At  this  period  the  territory  of  Milan  was  not  per- 
haps more  extensive  than  the  county  of  Surrey ;  it  was 
bounded  at  a  little  distance,  on  almost  every  side,  by  Lodi, 
or  Pavia,  or  Bergamo,  or  Como.  It  is  possible,  however, 
that  Flamma  may  have  meant  to  include  some  of  these  as 
dependencies  of  Milan,  though  not  strictly  united  with  it. 
How  flourishing  must  the  state  of  cultivation  have  been  in 
such  a  country,  which  not  only  drew  no  supplies  from  any 
foreign  land,  but  exported  part  of  her  own  produce !  It  was 
in  the  best  age  of  their  liberties,  immediately  after  the  battle 
of  Legnano,  that  the  Milanese  commenced  the  great  canal 
which  conducts  the  waters  of  the  Tesino  to  their  capital,  a 
work  very  extraordinary  for  that  time.  During  the  same 
period  the  cities  gave  proofs  of  internal  prosperity  that  in 
many  instances  have  descended  to  our  own  observation  in 
the  solidity  and  magnificence  of  their  architecture.  Eccle- 
siastical structures  were  perhaps  more  splendid  in  France 
and  England ;  but  neither  country  could  pretend  to  match 


II 


1  Muratori,  Script.  Rerum  Italic,  t.  xi. 
This  expression  of  Flamma  may  seem  to 
intimate,  that  Milan  had  declined  in  his 
time,  which  was  about  1340.  Yet  as 
she  had  been  continually  advancing  in 
power,  and  had  not  yet  experienced  any 
tyrannical  government,  I  cannot  imagine 
this  to  have  been  the  case ;  and  the  same 
Flamma,  who  is  a  great  flatterer  of  the 
Tiaconti,  and  has  dedicated  a  particular 


work  to  the  praises  of  Azzo,  asserts 
therein,  that  he  had  greatly  improved 
the  beauty  and  convenience  of  the  city  ; 
though  Brescia,  Cremona,  and  other 
places  had  declined.  Azarius,  too,  a  writer 
of  the  same  age,  makes  a  similar  repre- 
sentation. Script.  Rer.  Ital.  t.  xvi.  pp. 
314,  317.  Of  Luchino  Visconti  he  says : 
Statum  Madiolani  reintegravit  in  tantum, 
quod  non  civitas,  sed  provincia  videbatur . 


(l 


'1 


I 


I 


380 


LOMBARD  CITIES. 


Chap.  HI.  Part  1. 


the  palaces  and  public  bundings,  the  streets  flagged  with 
stone,  the  bridges  of  the  same  material,  or  the  commodious 
private  houses  of  Italy.^ 

The  courage  of  these  cities  was  wrought  sometimes  to  a 
tone  of  insolent  defiance  through  the  security  inspired  by 
their  means  of  defence.     From  the  time  of  the  Romans  to 
that  when  the  use  of  gunpowder  came  to  prevail,  little 
change  was  made,  or  perhaps  could  be  made,  in  that  part  ot 
military  science  which  relates  to  the  attack  and  defence  ot 
fortified  places.     We  find  precisely  the  same   engmes  ot 
offence ;  the  cumbrous  towers,  from  which  arrows  were  shot 
at  the  besieged,  the  machines  from  which  stones  were  dis- 
charged, the  battering-rams  which  assailed  the  waUs,  and 
the  basket-work  coveiing  (the  vinea  or  testudo  of  the  an- 
cients,  and  the  gattus  or  chat-chateil  of  the  middle  ages) 
under  which  those  who  pushed  the  battering  engines  were 
protected  from  the  enemy.     On  the  other  hand,  a  city  was 
fortified  with  a  strong  wall  of  brick  or  marble,  with  towers 
raised  upon  it  at  intervals,  and  a  deep  moat  in  front,     home- 
times  the  antemural  or  barbacan  was  added ;  a  rampart  ot 
less  height,  which  impeded  the  approach  of  the  hostile  en- 
gmes.    The  gates  were  guarded  with  a  portcuUis ;  an  inven- 
tion which,  as  well  as  the  barbacan,  was  borrowed  from  the 
Saracens.2     With  such  advantages  for  defence,  a  numerous 
and  intrepid  body  of  burghers  might  not  unreasonably  stand 
at  bay  against  a  powerful  army ;  and  as  the  consequences  ot 
capture  were  most  terrible,  while  resistance  was  seldom 
hopeless,  we  cannot  wonder  at  the  desparate  bravery  ot  so 
m^y  besieged  towns.    Indeed  it  seldom  happened  that  one 
of  considerable  size  was  taken,  except  by  famine  or  treach- 
ery.     Tortona  did  not  submit  to  Frederic  Barbarossa  till  the 
besie'^ers  had  corrupted  with  sulphur  the  only  fountain  that 
supplted  the  citizens ;  nor  Crema  till  her  walls  were  over- 
topped by  the  battering  engines.    Ancona  held  out  a  noble 
exiunple   of  sustaining  the    pressure    of  extreme   famine. 
Brescia  tried  all  the  resources  of  a  skilful  engineer  J^ainst 
the  second  Frederic ;  and  swerved  not  from  her  steadiness, 
when  that  prince,  imitating  an  atrocious  precedent  ot  his 
grandfather  at  the  siege  of   Crema,  exposed  his  prisoners 

iSismondi,  t.  ir.  p.  176;  Tiraboschi,    indeed,  apnUcable  to  a  period  rather  later 

tiy   p  S    See  alL  the 'observation    ^^^J^^\°^^r  If^^tT^^i^s^  26 
of  Denina  on  the  population  and  agrl-        «  Muraton,  Antiquit.  Ital.  Disaert.  M 

eulture  of  Italy,  1.  xiv.  c.  9, 10,  chiefly. 


IXAIiT. 


THEIR  INTERNAL  GOVERNMENT. 


381 


upon  his  battering  engines  to  the  stones  that  were  hurled  by 
their  fellow-citizens  upon  the  walls.* 

Of  the  government  which  existed  in  the  republics  of  Italy 
during  the  twelfth  and  thirteenth  centuries,  no  ^heir 
definite  sketch  can  be  traced.  The  chroniclers  of  internal 
those  times  are  few  and  jejune ;  and,  as  is  usual  ^o^®"^"^®"  ' 
with  contemporaries,  rather  intimate  than  describe  the  civil 
polity  of  their  respective  countries.  It  would  indeed  be  a 
weary  task,  if  it  were  even  possible,  to  delineate  the  consti- 
tutions of  thirty  or  forty  little  states  which  were  in  perpetual 
fluctuation.  The  magistrates  elected  in  almost  all  of  them, 
when  they  first  began  to  shake  off  the  jurisdiction  of  their 
count  or  bishop,  were  styled  consuls ;  a  word  very  expressive 
to  an  Italian  ear,  since,  in  the  darkest  ages,  tradition  must 
have  preserved  some  acquaintance  with  the  republican  gov- 
ernment of  Rome.^  The  consuls  were  always  annual ;  and 
their  office  comprehended  the  command  of  the  national  mili- 
tia in  war,  as  well  as  the  administration  of  justice  and  pre- 
servation of  public  order;  but  their  number  was  various; 
two,  four,  six,  or  even  twelve.  In  their  legislative  and  de- 
liberative councils  the  Lombards  still  copied  the  Roman  con- 
stitution, or  perhaps  fell  naturally  into  the  form  most  calcu- 
lated to  unite  sound  discretion  with  the  exercise  of  popular 
sovereignty.  A  council  of  trust  and  secrecy  (della  credenza) 
was  composed  of  a  small  number  of  persons,  who  took  the 
management  of  public  affairs,  and  may  be  called  the  minis- 
ters of  the  state.  But  the  decision  upon  matters  of  general 
importance,  treaties  of  alliance  or  declarations  of  war,  the 
choice  of  consuls,  or  ambassadors,  belonged  to  the  general 
council.  This  appears  not  to  have  been  uniformly  constitut- 
ed in  every  city ;  and  according  to  its  composition  the  gov- 
ernment was  more  or  less  democratical.  An  ultimate  sover- 
eignty, however,  was  reserved  to  the  mass  of  the  people ; 
and  a  parliament  or  general  assembly  was  held  to  deliberate 
on  any  change  in  the  form  of  constitution.* 

About  the  end  of  the  twelfth  century  a  new  and  singular 
species  of  magistracy  was  introduced  into  the  Lombard  cities. 


1  See  these  sieges  in  the  second  and 
third  voiumes  of  Slsniondi.  That  of 
Ancona.  t.  ii.  p.  146-206,  is  told  with  re- 
markable elegance,  and  several  interest- 
ing circumstances. 

2  Landulf.  the  younger,  whose  history 
Ot  Milan  extends  from  1094  to  1133,  calls 


himself  publicorum  offlciorum  particeps 
et  consulum  epistolarum  dictator.  Script. 
Rer.  Ital.  t.  v.  p.  486.  This  is,  I  l)elieve, 
the  earliest  mention  of  those  magistrates. 
Muratorl,  Annali  d'  Italia,  a.d.  1107. 

3Muratori,  Dissert.  46  and  52.    Sio* 
mondi,  t.  i.  p.  385. 


■1 


I 


382 


LOMBARD  CITIES. 


CuAP.  m.  Part  I. 


During  the  tyranny  of  Frederic  I.  he  had  appointed  officers 
of  his  own,  called  podestas,  instead  of  the  elective  consuls. 
It  is  remarkable  that  this  memorial  of  despotic  power  should 
not  have  excited  insuperable  alarm  and  disgust  in  the  free 
republics.     But,  on  the  contrary,  they  almost  universally, 
after  the  peace  of  Constance,  revived  an  office  which  had 
been  abrogated  when   they  first  rose  in  rebellion   against 
Frederic.   From  experience,  as  we  must  presume,  of  the  par- 
tiality which  their  domestic  factions  carried  into  the  adminis- 
tration of  justice,  it  became  a  general  practice  to  elect,  by 
the  name  of  podest^,  a  citizen  of  some  neighboring  state  as 
their  general,  their  criminal  judge,  and   preserver  of  the 
peace.    The  last  duty  was  frequently  arduous,  and  requir- 
ed a  vigorous  as  well  as  an  upright  magistrate.     Offences 
against  the  laws  and  security  of  the  commonwealth  were 
during  the  middle  ages  as  often,  perhaps  more  often,  com- 
mitted by  the  rich  and  powerful  than  by  the  inferior  class 
of  society.     Rude  and  Hcentious  manners,  family  feuds  and 
private  revenge,  or  the  mere  insolence  of  strength,  rendered 
the  execution  of  criminal  justice  practically  and  in  every 
day's  experience,  what  is  now  little  required,  a  necessary 
protection  to  the  poor  against  oppression.     The  sentence  of 
a  magistrate  against  a  powerful  offender  was  not  pronounced 
without  danger  of  tumult ;  it  was  seldom  executed  without 
force.     A  convicted  criminal  was  not,  as  at  present,  the 
stricken  deer  of  society,  whose  disgrace  his  kindred  shrink 
from  participating,  and  whose  memory  they  strive  to  forget 
Imputing  his  sentence  to  iniquity,  or  glorying  in  an  act  which 
the  laws  of  his  fellow-citizens,  but  not  their  sentiments,  con- 
demned, he  stood  upon  his  defence  amidst  a  circle  of  friends. 
The  law  was  to  be  enforced  not  against  an  individual,  but  a 
family  —  not  against  a  family,  but  a  faction  —  not  perhaps 
against  a  local  faction,  but  the  whole  Guelf  or  Ghibelin 
name,  which  might  become  interested  in  the  quarrel.     The 
podestk  was  to  arm  the  republic  against  her  refractory  citi- 
zen ;  his  house  was  to  be  besieged  and  razed  to  the  ground,  his 
defenders  to  be  quelled  by  violence :  and  thus  the  people, 
become  familiar  with  outrage  and  homicide  under  the  com- 
mand of  their  magistrates,  were  more  disposed  to  repeat 
such  scenes  at  the  instigation  of  their  passions.* 

1  Sismondi,  t.  iii.  p.  258;  from  whom    trated  by  Vlllani's  history  of  Floxenoe, 
the  substance  of  these  observations  is    and  Stella's  annals  of  Gene*, 
borrowed.    They  may  be  copiously  illiu- 


Italt. 


THEIR  DISSENSIONS. 


383 


The  podestiL  was  sometimes  chosen  in  a  general  assembly, 
Bometimes  by  a  select  number  of  citizens.  His  office  was 
annual,  though  prolonged  in  peculiar  emergencies.  He  was 
invariably  a  man  of  noble  family,  even  in  those  cities  which 
excluded  their  own  nobility  from  any  share  in  the  govern- 
ment He  received  a  fixed  salary,  and  was  compelled  to 
remain  in  the  city  after  the  expiration  of  his  office  for  the 
purpose  of  answering  such  charges  as  might  be  adduced 
against  his  conduct  He  could  neither  marry  a  native  of 
the  city,  nor  have  any  relation  resident  within  the  district, 
nor  even,  so  great  was  their  jealousy,  eat  or  drink  in  the 
house  of  any  citizen.  The  authority  of  these  foreign  magis- 
trates was  not  by  any  means  ahke  in  all  cities.  In  some  he 
seems  to  have  superseded  the  consuls,  and  commanded  the 
armies  in  war.  In  others,  as  Milan  and  Florence,  his  au- 
thority was  merely  judicial.  We  find  in  some  of  the  old 
annals  the  years  headed  by  the  names  of  the  podest^,  as  by 
those  of  the  consuls  in  the  history  of  Rome.* 

The  effects  of  the  evil  spirit  of  discord  that  had  so  fatally 
breathed  upon  the  republics  of  Lombardy  were  by  and  dissen- 
no  means  confined  to  national  interests,  or  to  the  "°'"* 
^rand  distinction  of  Guelf  and  Ghibelin.  Dissensions  glow- 
ed in  the  heart  of  every  city,  and  as  the  danger  of  foreign 
war  became  distant,  these  grew  more  fierce  and  unappeasa- 
ble. The  feudal  system  had  been  established  upon  the  prin- 
ciple of  territorial  aristocracy ;  it  maintained  the  authority, 
it  encouraged  the  pride  of  rank.  Hence,  when  the  rural 
nobility  were  compelled  to  take  up  their  residence  in  cities, 
they  preserved  the  ascendency  of  birth  and  riches.  From 
the  natural  respect  which  is  shown  to  these  advantages,  all 
offices  of  trust  and  conmiand  were  shared  amongst  them ;  it 
is  not  material  whether  this  were  by  positive  right  or  con- 
tinual usage.  A  limited  aristocracy  of  this  description, 
where  the  inferior  citizens  possess  the  right  of  selecting 
their  magistrates  by  free  suffrage  from  a  numerous  body  of 
nobles  is  not  among  the  worst  forms  of  government,  and 
affords  no  contemptible  security  against  oppression  and  an- 
archy. This  regimen  appears  to  have  prevailed  in  most  of 
the  Lombard  cities  during  the  eleventh  and  twelfth  centuries ; 
though,  in  so  great  a  deficiency  of  authentic  materials,  it 


iMoratori,  Dissert.  46. 


884 


LOMBARD  CITIES.  Chap.  III.  Pabt  I. 


Italy. 


THEIR  DISSENSIONS. 


385 


would  be  too  peremptory  to  assert  this  as  an  unequivocal 
truth.  There  is  one  very  early  instance,  in  the  year  1041, 
of  a  civil  war  at  Milan  between  the  capitanei,  or  vassals  of 
the  empire,  and  the  plebeian  burgesses,  which  was  appeased 
by  the  mediation  of  Henry  III.  This  is  ascribed  to  the  ill 
treatment  which  the  latter  experienced  —  as  was  usual  in- 
deed in  all  parts  of  Europe,  but  which  was  endured  with 
inevitable  submission  everywhere  else.  In  this  civil  war, 
which  lasted  three  years,  the  nobility  were  obliged  to  leave 
Milan,  and  carry  on  the  contest  in  the  adjacent  plains ;  and 
one  of  their  class,  by  name  Lanzon,  whether  moved  by  am- 
bition, or  by  virtuous  indignation  against  tyranny,  put  him- 
self at  the  head  of  the  people.^ 

From  this  time  we  scarcely  find  any  mention  of  dissen- 
sions among  the  two  orders  till  after  the  peace  of  Constance  — 
a  proof,  however  defective  the  contemporary  annals  may  be, 
that  such  disturbances  had  neither  been  frequent  nor  serious. 
A  schism  between  the  nobles  and  people  is  noticed  to  have 
occurred  at  Faenza  in  1185.  A  serious  civil  war  of  some 
duration  broke  out  between  them  at  Brescia  in  1200.  From 
this  time  mutual  jealousies  interrupted  the  domestic  tranquil- 
lity of  other  cities,  but  it  is  about  1220  that  they  appear  to 
have  taken  a  decided  aspect  of  civil  war ;  within  a  few  years 
of  that  epoch  the  question  of  aristocratical  or  popular  com- 
mand was  tried  by  arms  in  Milan,  Piacenza,  Modena,  Cremo- 
na, and  Bologna.^ 

It  would  be  in  vain  to  enter  upon  the  merits  of  these  feuds, 
which  the  meagre  historians  of  the  time  are  seldom  much 
disposed  to  elucidate,  and  which  they  saw  with  their  own 
prejudices.  A  writer  of  the  present  age  would  show  little 
philosophy  if  he  were  to  heat  his  passions  by  the  reflection, 
as  it  were,  of  those  forgotten  animosities,  and  aggravate,  like 
a  partial  contemporary,  the  failings  of  one  or  another  faction. 
We  have  no  need  of  positive  testimony  to  acquaint  us  with 
the  general  tenor  of  their  history.  We  know  that  a  nobility 
is  always  insolent,  that  a  populace  is  always  intemperate ;  and 
may  safely  presume  that  the  former  began,  as  the  latter  end- 
ed, by  injustice  and  abuse  of  power.  At  one  time  the  aris- 
tocracy, not  content  with  seeing  the  annual  magistrates  selected 


1  Landulfus,  Hist.  Mediolan.  in  Script. 
Return  Ital.  t.  iv.  p.  86;  Muratori,  Dis- 
sert. 52;  AnnaU  d'  Italia,  a.d.  lOil;  ^?t. 
Marc,  t.  iii.  p.  94. 


2  Sismondi,  t.  ii.  p.  444;    Muratori, 
Annali  d'  Italia,  a.d.  1185,  &o. 


from  their  body,  would  endeavor  by  usurpation  to  exclude 
the  bulk  of  the  citizens  from  suffrage.  At  another,  the  mer- 
chants, grown  proud  by  riches,  and  confident  of  their  strength, 
would  aim  at  obtaining  the  honors  of  the  state,  which  had 
been  reserved  to  the  nobility.  This  is  the  inevitable  conse- 
quence of  commercial  wealth,  and  indeed  of  freedom  and 
social  order,  which  are  the  parents  of  wealth.  There  is  in 
the  progress  of  civiHzation  a  term  at  which  exclusive  privi- 
leges must  be  relaxed,  or  the  possessors  must  perish  along 
with  them.  In  one  or  two  cities  a  temporary  compromise 
was  made  through  the  intervention  of  the  pope,  whereby  of- 
fices of  public  trust,  from  the  highest  to  the  lowest,  were  di- 
vided, in  equal  proportions,  or  otherwise,  between  the  nobles 
and  the  people.  This  also  is  no  bad  expedient,  and  proved 
singularly  efficacious  m  appeasing  the  dissensions  of  ancient 
Rome. 

There  is,  however,  a  natural  preponderance  in  the  popular 
scale,  which,  in  a  fair  trial,  invariably  gains  on  that  of  the 
less  numerous  class.     The  artisans,  who  composed  the  bulk 
of  the  population,  were  arranged  in  companies  according  to 
their  occupations.     Sometimes,  as  at  Milan,  they  formed  sep- 
arate associations,  with  rules  for  theh*  internal  government.* 
The  clubs,  called  at  Milan  la  Motta  and  la  Credenza,  obtamed 
a  degree  of  weight  not  at  all  surprising  to  those  who  consider 
the  spirit  of  mutual  attachment  which  belongs  to  such  frater- 
nities ;  and  we  shall  see  a  more  striking  instance  of  this  here- 
after in  the  repubhc  of   Florence.     To  so  formidable  and 
organized  a  democracy  the  nobles  opposed  their  numerous 
famihes,  the  generous  spirit  that  belongs  to  high  birth,  the  in- 
fluence of  wealth  and  established  name.     The  members  of 
each  distinguished  family  appear  to  have  lived  in  the  same 
street ;  their  houses  were  fortified  with  square  massive  towers 
of  commanding  height,  and  wore  the  semblance  of  castles 
within  the  walls  of  a  city.     Brancaleon,  the  famous  senator 
of  Rome,  destroyed  one  hundred  and  forty  of  these  domestic 
entrenchments,  which  were  constantly  serving  the  purpose  of 
civil  broils  and  outrage.     Expelled,  as  frequently  happened, 
from  the  city,  it  was  in  the  power  of  the  nobles  to  avail  them- 
selves  of  their  superiority  in  the  use  of  cavalry,  and  to  lay 
waste  the  district,  till  weariness  of  an  unprofitable  contention 


I 


VOL.  I. 


I  Muratori,  Dissert.  52:  Sismondi,  t.  iii.  p.  262. 
25 


386 


LO^IBARD  CITIES. 


Chap.  HI.  Part  I. 


IlAJ^T. 


CITIL  DISSENSIONS. 


387 


reduced  the  citizens  to  terms  of  compromise.  But  when  all 
these  resources  were  ineflfectual,  they  were  tempted  or  forced 
to  sacrifice  the  pubUc  liberty  to  their  own  welfare,  and  lent 
their  aid  to  a  foreign  master  or  a  domestic  usurper. 

In  all  these  scenes  of  turbulence,  whether  the  contest  was 
between  the  nobles  and  people  or  the  Guelf  or  Ghibelin  fac- 
tions, no  mercy  was  shown  by  the  conquerors.     The  van- 
quished lost  their  homes  and  fortunes,  and,  retiring  to  other 
cities  of  their  own  party,  waited  for  the  opportunity  of  revenge. 
In  a  popular  tumult  the  houses  of  the  beaten  side  were  fre- 
quently levelled  to  the  ground  —  not  perhaps  from  a  sort  of 
senseless  fury,  which  Muratori  inveighs  against,  but  on  ac- 
count of  the  injury  which  these  fortified  houses  inflicted  upon 
the  lower  citizens.     The  most  deadly  hatred  is  that  which 
men  exasperated  by  proscription  and  forfeiture  bear  to  their 
country ;  nor  have  we  need  to  ask  any  other  cause  for  the 
calamities  of  Italy  than  the  bitterness  with  which  an  unsuc- 
cessful faction  was   thus   pursued  into  banishment.      Wlien 
the  Ghibelins  were  returning  to  Florence,  afler  a  defeat  given 
to  the  prevailing  party  in  1260,  it  was  proposed  among  them 
to  demolish  the  city  itself  which  had  cast  them  out ;  and,  but 
for  the  persuasion  of  one  man,  Farinata  degl'  Uberti,  their 
revenge  would  have  thus  extinguished  all  patriotism.^     It  is 
to  this*  that  we  must  ascribe  their  proneness  to  call  in  assist- 
ance from  every  side,  and  to  invite  any  servitude  for  the  sake 
of  retahating  upon  their  adversaries.     The  simple  love  of 
pubhc  liberty  is  in  general,  I  fear,  too  abstract  a  passion  to 
glow  warmly  in  the   human  breast ;  and  though  oflen  in- 
vigorated  as   well  as   determined    by   personal   animosities 
and  predilections,  is  as  frequently  extinguished  by  the  same 

cause. 

Independently  of  the  two  leading  differences  which  embattled 
the  citizens  of  an  Itahan  state,  their  form  of  government  and 
their  relation  to  the  empire,  there  were  others  more  contemp- 
tible though  not  less  mischievous.  In  every  city  the  quarrels 
of  private  families  became  the  foundation  of  general  schism, 
sedition,  and  proscription.  Sometimes  these  blended  them- 
selves with  the  grand  distinctions  of  Guelf  and  GhibeUn ; 

1  Q.  Villani,  1.  vi.  c.  82.    Sismondi.  conyersation  of  the  poet  i^th  Farinate. 

I  cannot  forgive  Dante  for  placing  this  cant.  10,  is  very  fine,  and  lUustratiye  of 

patriot  trii  r  anime  piu  nere,  in  one  of  Florentine  history, 
the  worst  regions  of  his  Inferno.    The 


sometimes  they  were  more  nakedly  conspicuous.     This  may 
be  illustrated  by  one  or  two  prominent  examples.     Imilda  de' 
Lambertazzi,  a  noble  young  lady  at  Bologna,  was  surprised 
by  her  brothers  in  a  secret  interview  with  Boniface  Gieremei, 
whose  family  had  long  been  separated  by  the  most  inveterate 
enmity  from  her  own.     She  had  just  time  to  escape,  while 
the  Lambertazzi   despatched  her  lover  with  their  poisoned 
daggers.     On  her  return  she  found  his  body  still  warm,  and 
a  faint  hope  suggested  the  remedy  of  sucking  the  venom 
from  his  wounds.     But  it  only  communicated  itself  to  her 
own  veins,  and  they  were  found  by  her  attendants  stretched 
lifeless  by  each  other's  side.     So  cruel  an  outrage  wrought 
the  Gieremei  to  madness ;  they  formed  alliances  with  some 
neighboring  republics ;  the  Lambertazzi  took  the  samf  meas- 
ures; and  after  a  fight  in  the  streets  of   Bologna,  of  forty 
days'  duration,  the  latter  were  driven  out  of  the  city,  with  all 
the   GhibeHns,  their  political  associates.     Twelve  thousand 
citizens  were  condemned  to  banishment,  their  houses  razed,  and 
then-  estates  confiscated.^     Florence  was  at  rest  tiU,  in  1215, 
the  assassination  of  an  individual  produced  a  mortal  feud 
between  the  families  Buondelmonti  and  Uberti,  in  which  all 

i  onA  *^  i^^^  ^  P^**  ^^  outrage  committed  at  Pistoja  in 
IcJOO  split  the  inhabitants  into  the  parties  of  Bianchi  and 
JNeri ;  and  these,  spreading  to  Florence,  created  one  of  the 
most  virulent  divisions  which  annoyed  that  republic.  In  one 
of  the  changes  which  attended  this  little  ramification  of  fac- 
tion, Florence  expeUed  a  young  citizen  who  had  borne  of- 
fices of  magistracy,  and  espoused  the  cause  of  the  Bian- 
chi. Dante  Ahghieri  retired  to  the  courts  of  some  Ghibelin 
prmces,  where  his  subUme  and  inventive  mind,  in  the 
glwm  of  exile,  completed  that  original  combination  of  vast 
and  extravagant  conceptions  with  keen  political  satire,  which 
has  given  immortality  to  his  name,  and  even  lustre  to  the 
petty  contests  of  his  time.^ 

In  the  earlier  stages  of  the  Lombard  repubUcs  their  differ- 
ences, as  well  mutual  as  domestic,  had  been  frequently  ap- 
peased by  the  mediation  of  the  emperors ;  and  the  loss  of 
this  salutary  influence  may  be  considered  as  no  sHght  evil 

ul^^Z£?t\L^nA  ^-    '^^'  ^t^'y       '  »'°<^  Compagni,  in  Scr.  Rer.  Ital.  t, 

KK^a^u^ll^ri^n^^^^^^^^^^^^    ^^^'  ^'-  ^^-^'-  '•  ^-'  ^^' 

ttot  an  unnatural  picture  of  manned.         *'*"'""• 


I 


r 

I 


388 


GIOVANNI  DI  VICENZA.    Chap.  HI.  Part  I. 


Italy. 


GIOVANNI  DI  VICENZA. 


389 


attached  to  that  absolute  emancipation  which  Italy  attained 
in  the  thirteenth  century.  The  popes  sometimes  endeavored 
to  interpose  an  authority  which,  though  not  quite  so  direct, 
was  held  in  greater  veneration ;  and  if  their  own  tempers 
had  been  always  pure  from  the  selfish  and  vindictive  pas- 
sions of  those  whom  they  influenced,  might  have  produced 
more  general  and  permanent  good.  But  they  considered  the 
Ghibelins  as  their  own  peculiar  enemies,  and  the  triumph  of 
the  opposite  faction  as  the  church's  best  security.  Gregory 
X.  and  Nicholas  III.,  whether  from  benevolent  motives,  or 
because  their  jealousy  of  Charles  of  Anjou,  while  at  the 
head  of  the  Guelfs,  suggested  the  revival  of  a  Ghibelin 
party  as  a  counterpoise  to  his  power,  distinguished  their  pon- 
tificate by  enforcing  measures  of  reconciliation  in  all  Italian 
cities ;  but  their  successors  returned  to  the  ancient  policy  and 
prejudices  of  Rome.  . 

The  singular  history  of  an  individual  far  less  elevated  in 
Giovanni  di    Station  than  popes  or  emperors,  Fra  Giovanni  di 
vicenza,        Viccuza,  bclougs  to  thcsc  times  and  to  this  subject. 
This  Dominican  friar  began  his  career  at  Bologna  in  1233, 
preaching  the  cessation  of  war  and  forgiveness  of  injuries. 
He  repaired  from  thence  to  Padua,  to  Verona,  and  the  neigh- 
boring cities.     At  his  command  men  laid  down  their  in- 
struments of  war,  and  embraced  their  enemies.     With  that 
susceptibiUty  of  transient  impulse  natural  to  popular  govern- 
ments, several  republics  implored  him  to  reform  their  laws 
and  to  settle  their  differences.     A  general  meeting  was  sum- 
moned in  the  plam  of  Paquara,  upon  the  banks  of  the  Adige. 
The  Lombards  poured  themselves  forth  from  Romagna  and 
the  cities  of  the  March ;  Guelfs  and  Ghibelins,  nobles  and 
burghers,  free  citizens  and  tenantry  of  feudal  lords,  mar- 
shalled around  their  carroccios,  caught  from  the  lips  of  the 
preacher  the  allusive  promise  of  universal  peace.     They 
submitted  to  agreements  dictated  by  Fra  Giovanni,  which 
contain  little  else  than  a  mutual  amnesty ;  whether  it  were 
that  their  quarrels  had  been  really  without  object,  or  that  he 
had  dexterously  avoided  to  determine  the  real  points  of  con- 
tention.    But  power  and  reputation  suddenly  acquired  are 
transitory.     Not  satisfied  with  being  the  legislator  and  arbi- 
ter of  Italian  cities,  he  aimed  at  becoming  their  master,  and 
abused  the  enthusiasm  of  Vicenza  and  Verona  to  obtain  a 
grant  of  absolute  sovereignty.     Changed  from  an  apostle  to 


an  usurper,  the  fate  of  Fra  Giovanni  might  be  predicted ; 
and  he  speedily  gave  place  to  those  who,  though  they  made 
a  worse  use  of  their  power,  had,  in  the  eyes  of  mankind, 
more  natural  pretensions  to  possess  it.^ 

1  Tiraboichl,  Storia  della  Lettex»tara,  t.  It.  p.  214  (a  yery  well-written  accounts 
Sbmoadi,  1. 11.  p.  484.  ' 


\ 


t 


390 


STATE  OF  ITALY.        Chap.  HI.  Pam  IL 


Italy. 


AFFAIRS  OF  NAPLES. 


391 


PART  n. 

state  of  Italy  after  the  Extinction  of  tlie  House  of  Suabia— Conquest  of  Naplea 
by  Charles  of  Anjou  — The  Lombard  Republics  become  severally  subject  to  Princes 
or  Usurpers  — The  Visconti  of  Milan  — Their  Aggrandizement  —  Decline  of  the 
Imperial  Authority  over  Italy  —  Internal  State  of  Home  —  Kienzi  —  Florence — 
her  Forms  of  Government  historically  traced  to  the  End  of  the  Fourteenth  Cen- 
tury —  Conquest  of  Pisa  —  Pisa  —  its  Commerce,  Naval  Wars  with  Genoa,  and 
Decay  —  Genoa  —  her  Contentions  with  Venice  —  War  of  Chioggio  —  Government  of 
Genoa  —Venice  —  her  Origin  and  Prosperity  —  Venetian  Government  —  its  Vices  — 
Territorial  Conquests  of  Venice  —  Military  System  of  Italy  — Companies  of  Adven- 
ture—1,  foreign;  Guamieri,  Hawkwood— and  2,  native;  Braccio,  Sforza  — Im- 
provements in  Military  Service  — Arms,  offensive  and  defensive  —  Invention  of 
Gunpowder  —  Naples  —  First  Line  of  Aiyou  —  Joanna  I.  —  Ldidislaus  —  Joanna  II. 
—  Francis  Sforza  becomes  Duke  of  Milan  —  Alfonzo  King  of  Naples  —  State  of  Italy 
during  the  Fifteenth  Century  —  Florence  —  Rise  of  the  Medici,  and  Ruin  of  their 
Adversaries— Pretensions  of  Charles  VIII.  to  Naples. 

From  the  death  of  Frederic  11.  in  1250,  to  the  invasion 
of  Charles  VIII.  in  1494,  a  long  and  undistinguished  period 
occurs,  which  it  is  impossible  to  break  into  any  natural  divi- 
sions. It  is  an  age  in  many  respects  highly  brilliant :  the 
age  of  poetry  and  letters,  of  art,  and  of  continual  improve- 
ment Italy  displayed  an  intellectual  superiority  in  this 
period  over  the  Transalpine  nations  which  certainly  had  not 
appeared  since  the  destruction  of  the  Roman  empire.  But 
her  political  history  presents  a  labyrinth  of  petty  facts  so 
obscure  and  of  so  little  influence  as  not  to  arrest  the  atten- 
tion, so  intricate  and  incapable  of  classification  as  to  leave 
only  confusion  in  the  memory.  The  general  events  that  are 
worthy  of  notice,  and  give  a  character  to  this  long  period, 
are  the  establishment  of  small  tyrannies  upon  the  ruins  of 
republican  government  in  most  of  the  cities,  the  gradual  rise 
of  three  considerable  states,  Milan,  Florence,  and  Venice, 
the  naval  and  commercial  rivalry  between  the  last  city  and 
Genoa,  the  final  acquisition  by  the  popes  of  their  present 
territorial  sovereignty,  and  the  revolutions  in  the  kinpjioiiA  '♦f 
Naples  under  the  lines  of  Anjou  and  Aragon. 

After  the  death  of  Frederic  II.  the  distinctions  of  Guelf 
and  Ghibelin  became  destitute  of  all  rational  meaning.  The 
most  odious  crimes  were  constantly  perpetrated,  and  the  ut- 
most miseries  endured,  for  an  echo  and  a  shade  that  mocked 


the  deluded  enthusiasts  of  faction.  None  of  the  Guelfs  de- 
nied the  nominal  but  indefinite  sovereignty  of  the  empire 
and  beyond  a  name  the  Ghibelins  themselves  would  have 
been  little  disposed  to  carry  it.  But  the  virulent  hatreds  at- 
tached to  these  words  grew  continually  more  implacable,  till 
ages  of  ignominy  and  tyrannical  government  had  extin- 
guished every  energetic  passion  in  the  bosoms  of  a  degraded 
people. 

In  the  fall  of  the  house  of  Suabia,  Rome  appeared  to  have 
consummated  her  triumph ;  and  although  the  Ghibelin  party 
was  for  a  little  time  able  to  maintain  itself,  and  even  to  gain 
ground,  in  the  north  of  Italy,  yet  two  events  that  occurred 
not  long  afterwards  restored  the  ascendency  of  their  adver- 
saries.  The  first  of  these  was  the  fall  of  Eccelin  da  Romano, 
whose  rapid  successes  in  Lombardy  appeared  to       -259. 
threaten  the  establishment  of  a  tremendous  despot- 
ism, and  induced  a  tempoi-ary  union  of  Guelf  and  Ghibelin 
states,  by  which  he  was  overthrown.    The  next  and  far  more 
important  was  the  change  of  dynasty  in  Naples.  AfEurs  of 
This  kingdom  had  been  occupied,  after  the  death  Naples. 
of  Conrad,  by  his  illegitimate  brother,  Manfred,  in  the  be- 
half, as  he  at  first  pretended,  of  young  Conradin 
the  heir,  but  in  fact  as  his  own  acquisition.     He 
was  a  prince  of  an  active  and  fii'm  mind,  well  fitted  for  his 
difficult  post,  to  whom  the  Ghibelins  looked  up  as  their  head, 
and  as  the  representative  of  his  father.    It  was  a  natural  ob- 
ject with  the  popes,  independently  of  their  ill-will  towards 
a  son  of  Frederic  II.,  to  see  a  sovereign  on  whom  they  could 
better  rely  placed  upon  so  neighboring  a  throne,  charies  of 
Charles  count  of  Anjou,  brother  of  St.  Louis,  was  ^^i^^- 
tempted  by  them  to  lead  a  crusade  (for  as  such  all  wars  for 
the   interest  of   Rome   were  now  considered)  against   the 
Neapolitan  usurper.     The  chance  of  a  battle  de- 
cided  the  fate  of  Naples,  and  had  a  striking  in- 
fluence upon  the  history  of  Europe  for  several  centuries. 
Manfred  was  killed  in  the  field:    but  there  remained  the 
legitimate  heir  of  the  Frederics,  a  boy  of  seventeen  years 
old,  Conradin,  son  of  Conrad,  who  rashly,  as  we  say  at  least 
after  the  event,  attempted  to  regain  his  inheritance.    He  fell 
into  the  hands  of  Charles  ;  and  the  voice  of  those  rude  ages, 
as  well  as  of  a  more  enlightened  posterity,  has  united  in  brand- 
ing with  everlasting  infamy  the  name  of  that  prince,  who 


1'  I 


A.B.  1268. 


392  DECLINE  OF  THE  GHIBELINS.    Chap.  HI.  Part  H 

did  not  hesitate  to  purchase  the  security  of  his 
own  title  by  the  public  execution  of  an  honorable 
competitor,  or  rather  a  rightful  claimant  of  the  throne  he 
had  usurped.  With  Conradin  the  house  of  Suabia  was  ex- 
tinguished; but  Constance  the  daughter  of  Manfred  had 
transported  Ms  right  to  Sicily  and  Naples  into  the  house  of 
Aragon,  by  her  marriage  with  Peter  III. 

This  success  of  a  monarch  selected  by  the  Koman  pontitls 
^,.  .  as  their  particular  champion,  turned  the  tide  of 
SJ  GMSeUa  faction  ovcr  all  Italy.  He  expelled  the  Ghibelins 
P*'*y-  from  Florence,  of  which  they  had  a  few  years 

before  obtained   a  complete   command  by  means  of  their 
memorable  victory  upon  the  river  Arbia.     After  the  fall  ot 
Conradin  that  party  was  everywhere  discouraged.     Germany 
held  out  small  hopes  of  support,  even  when  the  imperial 
throne,  which  had  long  been  vacant,  should  be  filled  by  one 
of  her  princes.    The   populace  were  m  almost  every  city 
attached  to  the  church  and  to  the  name  of  Guelf ;  the  kings 
of  Naples  employed  their  arms,  and  the  popes  their  excom- 
munications ;  so  that  for  the  remainder  of  the  thirteenth  cen- 
tury  the  name  of  Ghibelin  was  a  term  of  proscription  in  the 
majority  of  Lombard  and  Tuscan  republics.     Charles  was 
constituted  by  the  pope  vicar-general  in  Tuscany.     This  was 
a  new  pretension  of  the  Roman  pontiffs,  to  name  the  lieuten- 
ants of  the  empire  during  its  vacancy,  which  mdeed  coiUd 
not  be  completely  filled  up  without  their  consent.     It  soon, 
however,  became  evident  that  he  aimed  at  the  s^ereignty  ot 
Italy.     Some  of  the  popes  themselves,  Gregory  X.  and  Nich- 
olas IV.,  grew  jealous  of  their  own  creature.     At  the  congress 
of  Cremona,  in  1269,  it  was  proposed  to  confer  upon  Charles 
the  seigniory  of  all  the  Guelf  cities ;  but  tlie  greater  part 
were  prudent  enough  to  choose  him  rather  as  a  friend  than  a 
TTi  aster 

The  Lom"  The  citics  of  Lombardy,  however,  of  either  de- 

bard  cities     nomination,  were   no  longer  influenced  by  that 
jTc?  to  lo^r^.  generous  disdain  of  one  man's  wiU  which  is  to  re- 


Italy. 


SUBJECTION  OF  LOMBARD  CITIES. 


393 


1  Sismondi,  t.  ill.  p.  417.  Several,  how- 
ever, including  Milan,  took  an  oath  of 
fidelity  to  Charles  the  same  year.  Ibid. 
In  1273  he  was  lord  of  Alessandria  and 
Piacenza,  and  received  tribute  from  Mi- 
lan, Bologna,  and  most  Lombard  cities. 
Muratori.  It  was  evidently  his  intention 
to  avail  himself  of  the  vacancy  of  the 


empire,  and  either  to  acquire  that  title 
himself,  or  at  least  to  stand  in  the  same 
relation  as  the  emperors  had  done  to  the 
Italian  states ;  which,  according  to  the 
usage  of  the  twelflh  and  thirteenth  cen- 
turies, left  them  in  possession  of  every- 
thing that  wo  call  independence,  wttQ 
the  reservation  of  a  nominal  allegiance. 


publican  governments  what  chastity  is  to  women  —  a  conser- 
vative principle,  never  to  be  reasoned  upon,  or  subjected  to 
calculations  of  utility.     By  force,  or  stratagem,  or  free  con- 
sent, almost  all  the  Lombard  republics  had  already  fallen  un- 
der the  yoke  of  some  leading  citizen,  who  became  the  lord 
(signore)  or,  in   the  German  sense,  tyrant  of  his  country. 
The  first  instance  of  a  voluntary  delegation  of  sovereignty 
was  that  above  mentioned  of  Ferrara,  which  placed  itself 
under  the  lord  of  Este.     Eccehn  made  himself  truly  the 
tyrant  of  the  cities  beyond  the  Adige ;  and  such  experience 
ought  naturally  to  have  inspired  the   Italians  with  more 
universal  abhorrence  of  despotism.     But  every  danger  ap- 
peared trivial  in   the   eyes  of  exasperated  factions   when 
compared  with  the  ascendency  of  their  adversaries.     Weary 
of  unceasing  and  useless  contests,  in  which  ruin  fell  with  an 
alternate  but  equal  hand  upon  either  party,  liberty  withdrew 
from  a  people  who  disgraced  her  name ;  and  the  tumultuous, 
the  brave,  the  intractable  Lombards  became  eager  to  submit 
themselves   to  a  master,  and   patient  under  the  heaviest 
oppression.     Or,  if  tyranny  sometimes  overstepped  the  limits 
of  forbearance,  and  a  seditious  rising  expelled  the  reigning 
prince,  it  was  only  to  produce  a  change  of  hands,  and  transfer 
the  impotent  people  to  a  different,  and  perhaps  a  worse,  des- 
potism.^    In  many  cities  not  a  conspiracy  was  planned,  not  a 
sigh  was  breathed,  in  favor  of  republican  government,  after 
once  they  had  passed  under  the  sway  of  a  single  person. 
The  progress  indeed  was  gradual,  though  sure,  from  limited 
to  absolute,  from  temporary  to  hereditary  power,  from  a  just 
and  conciliating  rule  to  extortion  and  cruelty.     But  before 
the  middle  of  the  fourteenth  century,  at  the  latest,  all  those 
cities  which  had  spumed  at  the  faintest  mark  of  submission 
to  the  emperors  lost  even  the  recollection  of  self-government, 
and  were  bequeathed,  like  an  undoubted  patrimony,  among 
the  children  of  their  new  lords.     Such  is  the  progress  of 
usurpation;  and  such  the  vengeance  that  Heaven  reserves 


1  See  an  instance  of  the  manner  in 
which  one  tyrant  was  exclianged  for  an- 
other, in  the  fate  of  Passerino  Bonaccorsi, 
lord  of  Mantua,  in  1328.  Luigi  di  Qon- 
raga  surprised  him,  rode  the  city  (corse 
la  citti)  with  a  troop  of  horse,  crying, 
Viva  il  popolo,  e  muoja  Messer  Passerino 
•  le  sue  gabelle'  killed  Passerino  upon 


the  spot,  put  his  son  to  death  in  cold 
blood,  e  poi  si  fece  signore  della  terra. 
Villani,  1.  x.  c.  99,  observes,  like  a  good 
republican,  that  God  had  fulfilled  in  this 
the  words  of  his  Gospel  (query,  what 
Gospel?),  I  will  slay  my  enemy  by  my 
enemy  —  abbattendo  Puno  tiranno  per 
I'altro. 


394 


THE  TORRIANI  AND  VISCONTI.    Chap.  HI.  Pakt  H. 


|i 


for  those  who  waste  in  license  and  faction  its  first  of  social 
blessings,  liberty.^ 

The  city  most  distinguished  in  both  wars  against  the  house 
The  of  Suabia,  for  an   unconquerable  attachment  to 

andvS-  republican  institutions,  was  the  first  to  sacrifice 
conti  at  them  in  a  few  years  after  the  death  of  Frederic 
Milan.  jj^     Milan  had  for  a  considerable  time  been  agi- 

tated by  civil  dissensions  between  the  nobility  and  inferior 
citizens.     These  parties  were  pretty  equally  balanced,  and 
their  success  was  consequently  alternate.     Each  had  its  own 
podest^,  as  a  party-leader,  distinct  from  the  legitimate  magis- 
trate of  the  city.     At  the  head  of  the  nobility  was  their  arch- 
bisliop,  Fra  Leon  Perego ;  the  people  chose  Martin  della 
ToiTe,  one  of  a  noble  family  which  had  ambitiously  sided 
with  the  democratic  faction.     In  consequence  of  the  crime  of 
a  nobleman,  who  had  murdered  one  of  his  creditors,  the  two 
parties  took  up  arms  in  1257.     A  civil  war,  of  vai-ious  suc- 
cess, and  interrupted  by  several  pacifications,  which  in  that 
unhappy  temper  could  not  be  durable,  was  terminated  in 
about  two  years  by  the  entire  discomfiture  of  the  aristocracy, 
and  by  the  election  of  Martin  della  Torre  as  chief  and  lord 
(capitano  e  signore)  of  the  people.    Though  the  Milanese 
did  not  probably  intend  to  renounce  the  sovereignty  resident 
in  their  general  assemblies,  yet  they  soon  lost  the  republican 
spirit ;  five  in  succession  of  the  family  della  Torre  might  be 
said  to  reign  in  Milan ;  each,  indeed,  by  a  formal  election, 
but  with  an  implied  recognition  of  a  sort  of  hereditary  title. 
Twenty  years  afterwards  the  Visconti,  a  family  of  opposite 
interests,  supplanted  the  Torriani  at  Milan ;  and  the  rivalry 
between  these  great  houses  was  not  at  an  end  till  the  final 
establishment  of  Matteo  Visconti  in  1313;  but  the  people 
were  not  otherwise  considered  than  as  aiding  by  force  the  one 
or  other  party,  and  at  most  deciding  between  the  pretensions 
of  their  masters. 

The  vigor  and  concert  infused  into  the  Guelf  party  by  the 


1  See  the  obserrations  of  SLsmondi,  t. 
Iv.  p.  212,  on  the  conduct  of  the  Lom- 
bard signori  (I  know  not  of  any  EnglUh 
■word  that  characterizes  them,  except 
tyrant  in  its  primitire  sense)  during  the 
first  period  of  their  dominion.  They 
were  generally  chosen  in  an  assembly  of 
the  people,  sometimes  for  a  short  term, 
prolonged  in  the   same   manner.     The 


people  was  consulted  upon  eeyeral  oc<»- 
sions.  At  Milan  there  was  a  council  ot 
900  nobles,  not  permanent  or  represent- 
ative, but  selected  and  convened  at  the 
discretion  of  the  government,  throughout 
the  reigns  of  the  Visconti.  Corio,  p.  619, 
583.  Thus,  as  Sismondi  remarks,  they 
respected  the  sovereignty  of  the  people, 
while  they  destroyed  its  liberty. 


Italy. 


REVIVAL  OF  THE  GHIBELINS. 


395 


successes  of  Charles  of  Anjou,  was  not  very  dura-  Revival  of 
ble.     That  prince  was  soon  involved  in  a  protracted  *1i<j  Ghibe- 
and  unfortunate  quarrel  with  the  kings  of  Aragon,  ^  ^^^^^' 
to  whose  protection  his  revolted  subjects  in  Italy  had  recurred. 
On  the  other  hand,  several  men  of  energetic  character  retrieved 
the  Ghibelin  interests  in  Lombardy,  and  even  in  the  Tuscan 
cities.    The  Visconti  were  acknowledged  heads  of  that  faction. 
A  family  early  established  as  lords  of  Verona,  the  della  Scala, 
maintained  the  credit  of  the  same  denomination  between  the 
Adige  and  the  Adriatic.     Castruccio  Castrucani,  an  adven- 
turer of  remarkable  ability,  rendered  himself  prince  of  Lucca, 
and  drew  over  a  formidable  accession  to  the  imperial  side 
from  the  heart  of  the  church-party  in  Tuscany,  though  his 
death  restored   the  ancient  order  of  things.     The  inferior 
tyrants  were  partly  Guelf,  partly  Ghibelin,  according  to  local 
revolutions ;  but  upon  the  whole  the  latter  acquired  a  gradual 
ascendency.     Those  indeed  who  cared  for  the  independence 
of  Italy,  or  for  their  own  power,  had  far  less  to  fear  from  the 
phantom  of  imperial  prerogatives,  long  intermitted  and  inca- 
pable of  being  enforced,  than  from  the  new  race  of  foreign 
princes  whom  the  church  had  substituted  for  the 
house  of  Suabia.     The  Angevin  kings  of  Naples  f^es^'L 
were  sovereigns  of  Provence,  and   from  thence  **  command 
easily  encroached  upon  Piedmont,  and  threatened  ^^  ^^^' 
the^  Milanese.     Robert,  the  third  of  this  hue,  ahnost  openly 
aspired,  like  his  grandfather  Charles  I.,  to  a  real  sovereignty 
over  Italy.     His  offers  of  assistance  to  Guelf  cities  in  war 
were   always   coupled   with  a  demand   of  the   sovereignty. 
Many  yielded  to  his  ambition;   and  even  Florence  twice 
bestowed  upon  him  a  temporary  dictatorship.     In  1314  he 
was  acknowledged  lord  of  Lucca,  Florence,  Pavia,  Alessan- 
dria, Bergamo,  and  the  cities  of  Romagna.     In   1318  the 
Guelfs  of  Genoa  found  no  other  resource  against  the  Ghibe- 
lin emigrants  who  were  under  their  walls  than  to  resign  their 
liberties  to  the  king  of  Naples  for  the  term  of  ten  years, 
which  he  procured  to  be  renewed  for  six  more.     The  Avignon 
popes,  especially  John  XXII.,  out  of  blind  hatred  to  the  em- 
peror Louis  of  Bavaria  and  the  Visconti  family,  abetted  all 
these  measures  of  ambition.     But  they  were  rendered  abor- 
tive by  Robert's  death  and  the  subsequent  disturbances  of  his 
kingdom. 

At  the  latter  end  of  the  thirteenth  century  there  were 


396 


STATE  OF  LOMBARDY.     Chap.  III.  Part  It 


almost  as  many  princes  in  the  north  of  Italy  as  there  had 
been  free  cities  in  the  preceding  age.     Their  equality,  and 
the  frequent  domestic  revolutions  which  made  their  seat  un- 
steady, kept  them  for  a  while  from  encroaching  on  each  other. 
Gradually,  however,  they  became  less  numerous :  a  quantity 
of  obscure  tyrants  were  swept  away  from  the  smaller  cities ; 
and  the  people,  careless  or  hopeless  of  liberty,  were  glad  to 
exchange  the  rule  of  despicable  petty  usurpers  for 
iSJTbJrdy      that  of  more  distinguished  and  powerful  famihes. 
S  the™^*^*^^^  About  the  year  1350  the  central  parts  of  Lombar- 
fourteenth      dy  had  fallen  under  the  dominion  of  the  Visconti. 
century.        YouT  Other  houscs  occupied  the  second  rank  ;  that 
of  Este  at  Ferrara  and  Modena ;  of  Scala  at  Verona,  which 
under  Cane  and  Mastino  della  Scala  had  seemed  likely  to 
contest  with  the  lords  of  Milan  the  supremacy  over  Lombar- 
dy;   of  Carrara  at  Padua,  which  later  than  any  Lombard 
city  had  resigned  her  liberty ;  and  of  Gonzaga  at  Mantua, 
which,  without  ever  obtaining  any  material  extension  of  terri- 
tory, continued,   probably   for  that  reason,  to  reign   undis- 
Powerofthe  turbed   till   the   eighteenth   century.      But   these 
Visconti.        united  were  hardly  a  match,  as  they  sometimes 
experienced,  for  the  Visconti.     That  family,  the  object  of 
every  league  formed  in  Italy  for  more  than  fifty  years,  in  con- 
stant hostility  to  the  church,  and  well  inured  to  interdicts  and 
excommunications,  producing  no  one  man  of  military  talents, 
but  fertile  of  tyrants  detested  for  their  perfidiousness  and 
cruelty,  was  nevertheless  enabled,  with  almost  uninterrupted 
success,  to  add  city  after  city  to  the  dominion  of  Mian  till  it 
absorbed  all  the  north  of  Italy.    Under  Gian  Galeazzo,  whose 
reign  began  in  1385,  the  viper  (their  armorial  bearing)  as- 
sumed indeed  a  menacing  attitude :  ^  he  overturned  the  great 
family  of  Scala,  and  annexed  their  extensive  possessions  to  his 
own ;  no  power  intervened  from  Vercelli  in  Piedmont  to  Fel- 
tre  and  Belluno  ;  while  the  free  cities  of  Tuscany,  Pisa,  Siena, 
Perugia,  and  even  Bologna,  as  if  by  a  kmd  of  witchcraft, 
voluntarily  called  in  a  dissembling  tyrant  as  their  master. 

Powerful  as  the  Visconti  were  in  Italy,  they  were  long  in 
washing  out  the  tinge  of  recent  usurpation,  which  humbled 
them  before  the  legitimate  dynasties  of  Europe.    At  the  siege 


1  Allusions  to  heraldry  are  very  com-    bitually  use  the  viper,  il  biscione,  as  a 
mon  in  the  Italian  writers.    All  the  his-    synonym  for  the  power  of  Milan, 
torians   of  the  fourteenth  century  ha- 


Italy. 


RELATIONS  WITH  THE  EMPIRE. 


397 


of  Genoa  in  1318  Robert  king  of  Naples  rejected  with  con- 
tempt the  challenge  of  Marco  Visconti  to  decide  their  quar- 
rel in  single  combat.^  But  the  pride  of  sovereigns,  like  that 
of  private  men,  is  easily  set  aside  for  their  interest.  Gale- 
azzo Visconti  purchased  with  100,000  florins  a  daughter  of 
France  for  his  son,  which  the  French  historians  mention  as  a 
deplorable  humihation  for  their  crown.  A  few  years  after- 
wards, Lionel  duke  of  Clarence,  second  son  of  Edward  IIL, 
certainly  not  an  inferior  match,  espoused  Galeazzo's  daughter. 
Both  these  connections  were  short-lived ;  but  the  union  of 
Valentine,  daughter  of  Gian  Galeazzo,  with  the  duke  of  Or- 
leans,  in  1389,  produced  far  more  important  consequences, 
and  served  to  transmit  a  claim  to  her  descendants,  Louis  XII. 
and  Francis  I.,  from  which  the  long  calamities  of  Italy  at  the 
beginning  of  the  sixteenth  century  were  chiefly  derived.  Not 
long  after  this  marriage  the  Visconti  were  tacitly  admitted 
among  the  reigning  princes,  by  the  erection  of 
Milan  into  a  duchy  under  letters-patent  of  the  ^'^'  ^^' 
emperor  Wenceslaus.^ 

The  imperial  authority  over  Italy  was  almost  entirely  sus- 
pended after  the  death  of  Frederic  11.  A  long  interregnum 
followed  in  Germany ;  and  when  the  vacancy  was  supplied 
by  Rodolph  of  Hapsburg,  he  was  too  prudent  to  „  ,  ,. 

J.     .      ,      I  .  J        .  1        ^    ,  Relations  of 

dissipate  liis  moderate  resources  where  the  great  the  empire 
house  of   Suabia  had  failed.     About  forty  years  ''**^^*^^* 
afterwards  the  emperor  Henry  of  Luxemburg,  a  ^'^'    '  ' 
prince,  like  Rodolph,  of  small  hereditary  posses-  ^^^"^  '^• 
sions,  but  active  and  discreet,  availed  himself  of  ^'^'  ^^' 
the  ancient  respect  borne   to  the  imperial  name,  and   the 
mutual  jealousies  of  the  Italians,  to  recover  for  a  very  short 
time  a  remarkable  influence.     But,  though  professing  neu- 
trality and  desire  of  union  between  the  Guelfs  and  Ghibelins, 
he  could  not  succeed  in  removing  the  distrust  of  the  former ; 
his  exigencies  impelled  him  to  large  demands  of  money ;  and 
the  Italians,  when  they  counted  his  scanty  German  cavalry, 
perceived  that  obedience  was  altogether  a  matter  of  their 
own  choice.     Henry  died,  however,  in  time  to  save  himself 
from  any  decisive  reverse.     His  successors,  Louis  of  Bavaria 
and  Charles  IV.,  descended  from  the  Alps  with  similar  mo- 

1  Delia  qual  cosa  il  Rd  molto  sdegno  nobleman  of  Pisa,  though  a  sort  of  princ* 

ne  prese.    Villani,  1.  ix.  c.  93.    It  was  in  Sardinia,  to  marry  one  of  the  ViscontL 

reckoned  a   misalliance,  as    Dante  tella  Pun^itcrio,  cant.  Tiii. 
U8,  in  the  widow  of  Nino  di  Galium,  a       2  Corio,  p.  538. 


398 


CESSION  OF  ROMAGNE.     Chat.  IH.  Part  IL 


Italy. 


INTERNAL  STATE  OF  ROME. 


399 


tives,  but  after  some  temporary  good  fortune  were  obliged  to 
return,  not  without  discredit.     Yet  the  Italians  never  broke 
that  ahnost  invisible  thread  which  connected  them  with  Ger- 
many; the  fallacious  name  of  Roman  emperor   still   chal- 
lenged their  allegiance,  thougli  conferred  by  seven  Teutonic 
electors  without  their  concurrence.     Even  Florence,  the  most 
independent  and  high-spirited  of  republics,  was  induced  to 
make  a  treaty  with  Charles  IV.  in  1355,  which,  while  it  con- 
firmed all  her  actual  liberties,  not  a  little,  by  that  very  con- 
firmation, affected  her  sovereignty.*     This  deference  to  the 
supposed  prerogatives  of  the  empire,  even  while  they  were 
least  formidable,  was  partly  owing  to  jealousy  of  French  or 
Neapolitim  interference,  partly  by  the  national  hatred  of  the 
popes  who  had  seceded  to  Avignon,  and  in  some  degree  to  a 
misplaced  respect  for  antiquity,  to  which  the  revival  of  let- 
ters had  given  birth.     The  great  civilians,  and  the  much 
greater  poets,  of  the  fourteenth  century,  taught  Italy  to  con- 
sider her  emperor   as  a  dormant  sovereign,  to  whom  her 
various  principalities  and   republics  were   subordinate,  and 
during  whose  absence  alone  they  had  legitimate  authority. 
In  one  part,  however,  of  that  country,  the  empire  had. 
Cession  of      soou  after  the  commencement  of  this  period,  spon- 
Bomagnato    taucously  rcnouuced  its  sovereignty.     From  the 
the  popes.      ^^^  ^^  Pepin's  donation,  confirmed  and  extended 
by  many  subsequent  charters,  the  Holy  See  had  tolerably 
just  pretensions  to  the  province  entitled  Romagna,  or  the 
exarchate  of  Ravenna.     But  the  popes,  whose  menaces  were 
dreaded  at  the  extremities  of  Europe,  were  still  very  weak 
as  temporal  princes.     Even  Innocent  III.  had  never  been 


1  The    republic    of  Florence    was  at 

this  time  in  considerable  peril  from  a 

coalition  of  the  Tuscan  cities  against  her, 

which  rendered    the  protection  of  the 

emperor  convenient.    But  it  was  very 

reluctantly  that  she  acquiesced  in  even  a 

nominal  submission  to  his  authority.  The 

Florentine  envoys,  in  their  first  address, 

would  only  use  the  words,  Santa  Corona, 

or  Serenissimo  Principe  ;  senza  ricordarlo 

imperadore,  o  dimostrargli  alcuna  reve- 

renza  di  suggezzione,  domandando  che 

11  commune  di  Firenze  volea  essendogli 

nbbidiente,  le  cotali  e    le  cotali    fran- 

chigie  per  mantenere  il  suo  popolo  nell' 

usata  libertade.     Mat.   Villani,  p.  274. 

(Script.  Her.  Ital.  t.  xiv.)     This  style 

made  Charles  angry ;  and  the  city  soon 

atoned  for  it  by  accepting  his  privilege. 


Tn  this,  it  must  be  owned,  he  assumes  a 
decided  tone  of  sovereignty.  The  gon- 
falonier and  priors  are  declared  to  be  his 
vicars.  The  deputies  of  the  city  did 
homage  and  swore  obedience.  Circum 
stances  induced  the  principal  citizens  to 
make  this  submission,  which  they  knew 
to  be  merely  nominal.  But  the  high- 
spirited  people,  not  so  indifferent  about 
names,  came  into  it  very  unwillingly. 
The  treaty  was  seven  times  proposed, 
and  as  often  rejected,  in  the  consiglio  del 
popolo,  before  their  feelings  were  sub- 
dued. Its  publication  was  received  with 
no  marks  of  joy.  The  public  buildings 
alone  were  illuminated  :  but  a  sad  silence 
indicated  the  wounded  pride  of  every 
private  citizen.  —  M.  Villani,  p.  286,  290 
Sismondi,  t.  vi.  p.  238. 


able  to  obtain  possession  of  this  part  of  St.  Peter's  patri- 
mony. The  circumstiinces  of  Rodolph's  accession  inspired 
Nicholas  III.  with  more  confidence.  That  emperor  granted 
a  confirmation  of  everything  included  in  the  donations  of 
Louis  I.,  Otho,  and  his  other  predecessors ;  but  was  still  re- 
luctant or  ashamed  to  renounce  his  imperial  rights.  Accord- 
ingly his  charter  is  expressed  to  be  granted  without  diminu- 
tion of  the  empire  (sine  demembratione  imperii) ;  and  his 
chancellor  received  an  oath  of  fidelity  from  the  cities  of  Ro- 
magna. But  the  pope  insisting  firmly  on  his  own  claim, 
Rudolph  discreetly  avoided  involving  himself  in  a  fatal  quar- 
rel, and,  in  1278,  absolutely  released  the  imperial  supremacy 
over  all  the  dominions  already  granted  to  the  Holy  See.^ 

This  is  a  leading  epoch  in  the  temporal  monarchy  of  Rome. 
But  she  stood  only  in  the  place  of  the  emperor ;  and  her 
ultimate  sovereignty  was  compatible  with  the  practicable  in- 
dependence of  the  free  cities,  or  of  the  usurpers  who  had 
risen  up  among  them.  Bologna,  Faenza,  Rimini,  and  Ra- 
venna, with  many  others  less  considerable,  took  an  oath  in- 
deed to  the  pope,  but  continued  to  regulate  both  their  inter- 
nal concerns  and  foreign  relations  at  their  own  discretion. 
The  first  of  these  cities  was  far  preeminent  above  the  rest 
for  population  and  renown,  and,  though  not  without  several 
intermissions,  preserved  a  republican  character  till  the  end 
of  the  fourteenth  century.  The  rest  were  soon  enslaved  by 
petty  tyrants,  more  obscure  than  those  of  Lombardy.  It  was 
not  easy  for  the  pontiffs  of  Avignon  to  reinstate  themselves 
in  a  dominion  which  they  seemed  to  have  abandoned ;  but 
they  made  several  attempts  to  recover  it,  sometimes  with 
spu-itual  arms,  sometimes  with  the  more  efficacious  aid  of 
mercenary  troops.  The  annals  of  this  part  of  Italy  are 
peculiarly  uninteresting. 

Rome  itself  was,  throughout  the  middle  ages,  very  little 
disposed  to  acquiesce  in  the  government  of  her  internal 
bishop.     His  rights  were  indefinite,  and  uncon-  state  of 
firmed  by  positive  law ;    the  emperor  was  long  ^°™°* 
sovereign,  the  people  always  meant  to  be  free.     Besides  the 
common  causes  of  insubordination  and  anarchy  among  the 
Italians,  which  applied  equally  to  the  capital  city,  other  sen- 
timents more  peculiar  to  Rome  preserved  a  continual,  though 

» Muratori,  ad  ann.  1274,  1275,  1278 ;  Sismondi,  t.  iii.  p.  4fil. 


400 


INTERNAL  STATE  OF  ROME.    Chap.  III.  Part  n. 


Italy. 


RIENZI. 


401 


not  uniform,  influence  for  many  centuries.     There  still  re- 
mained enough  in  the  wreck  of  that  vast  inheritance  to 
swell  the  bosoms  of  her  citizens  with  a  consciousness  of  their 
own  dignity.     They  bore  the  venerable  name,  they  contem- 
plated Ihe  monuments  of  art  and  empire,  and  forgot,  in  the 
illusions  of  national  pride,  that  the  tutelar  gods  of  the  build- 
ing were  departed  forever.     About  the  middle  of  the  twelfth 
century  these  recollections  were  heightened  by  the  eloquence 
of  Arnold  of  Brescia,  a  political  heretic  who  preached  against 
the  temporal  jurisdiction  of  the  hierarchy.     In  a  temponiry 
intoxication  of  fancy,  they  were  led  to  make  a  ridiculous 
show  of  self-importance  towards  Frederic  Barbarossa,  when 
he  came  to  receive  the  imperial  crown;  but  the  German 
sternly  chided  their  ostentation,  and  chastised  their  resistance.^ 
With  the  popes  they  could  deal  more  securely.     Several  of 
them  were  expelled  from  Rome  during  that  age  by  the  sedi- 
tious citizens.     Lucius  II.  died  of  hurts  received  in  a  tumult. 
The  government  was  vested  in  fifty-six  senators,  annually 
chosen  by  the  people,  through  the  intervention  of  an  electoral 
body,  ten  delegates  from  each  of  the  thirteen  districts  of  the 
city.2    This  constitution  lasted  not  quite  fifty  years.     In  1192 
Rome  imitated  the  prevailing  fashion  by  the  appointment  of 
an  annual  foreign  magistrate.*     Except  in  name,  the  senator 
of  Rome  appears  to  have  perfectly  resembled  the  podest^  of 
other  cities.     This  magistrate  superseded  the  representative 
senate,  who  had  proved  by  no  means  adequate  to  control  the 
most  lawless  aristocracy  of  Italy.     I  shaU  not  repeat  the  story 
of  Brancaleon's  rigorous  and  inflexible  justice,  which  a  great 
historian  has  already  drawn  from  obscurity.     It  illustrates 
not  the  annals  of  Rome  alone,  but  the  general  state  of  Italian 
society,  the  nature  of  a  podestii's  duty,  and  the  difliculties  of 
its  execution.    The  office  of  senator  survives  after  more  than 
six  hundred  years ;  but  he  no  longer  wields  the  "  iron  flail "  * 
of  Brancaleon ;  and  his  nomination  proceeds,  of  course,  from 
the  supreme  pontiff,  not  from  the  people.     In  the  twelfth  and 


1  The  Impertinent  address  of  a  Roman 
orator  to  Frederic,  and  his  answer,  are 
preserved  in  Otho  of  Frisingen,  1.  ii. 
c.  22 ;  but  80  much  at  length,  that  we 
may  suspect  some  exaggeration.  Otho 
is  rather  rhetorical.  They  may  be  read 
In  Gibbon,  c.  69. 

s  Sismondi,  t.  ii.  p.  36.  Besides  Sis- 
mondi  and  Muratori,  I  would  refer  for 
the  histoxy  of  Borne  during  the  middle 


ages  to  the  last  chapters  of  Gibbon's 
Inline  and  Fall. 

»  Sismondi,  t.  ii.  p.  308. 

4  The  readers  of  Spenser  wiU  recollect 
the  iron  flail  of  Talus,  the  attendant 
of  Arthop:al,  emblematic  of  the  severe 
justice  of  the  lord  deputy  of  Ireland, 
Sir  Arthur  Grey,  shadowed  under  that 
allegory. 


thirteenth  centuries  the  senate,  and  the  senator  who  succeeded 
them,  exercised  one  distinguishing  attribute  of  sovereignty, 
that  of  coining  gold  and  silver  money.  Some  of  their  coins 
still  exist,  with  legends  in  a  very  republican  tone.^  Doubt- 
less the  temporal  authority  of  the  popes  varied  according  to 
their  personal  character.  Innocent  III.  had  much  more  than 
his  predecessors  for  almost  a  century,  or  than  some  of  his 
successors.  He  made  the  senator  take  an  oath  of  fealty  to 
him,  which,  though  not  very  comprehensive,  must  have  passed 
in  those  times  as  a  recognition  of  his  superiority.^ 

Though  there  was  much  less  obedience  to  any  legitimate 
power  at  Rome  than  anywhere  else  in  Italy,  even  during  the 
thirteenth  century,  yet,  after  the  secession  of  the  popes  to 
Avignon,  their  own  city  was  left  in  a  far  worse  condition  than 
before.     Disorders  of  every  kind,  tumult  and  robbery,  pre- 
vailed in  the  streets.     The  Roman  nobility  were  engaged  in 
perpetual  war  with  each  other.     Not  content  with  their  own 
fortified  palaces,  they  turned  the  sacred  monuments  of  antiq- 
uity into  strongholds,  and  consummated  the  destruction  of 
time  and  conquest.     At  no  period  has  the  city  endured  such 
irreparable  injuries;  nor  was  the  downfall  of  the  western 
empire  so  fatal  to  its  capital  as  the  contemptible  feuds  of  the 
Orsini  and  Colonna  families.     Whatever  there  was  of  gov- 
ernment, whether  administered  by  a  legate  from  Avignon  or 
by  the  municipal  authorities,  had  lost  all  hold  on  these  power- 
ful barons.     In  the  midst  of  this  degradation  and  wretched- 
ness, an  obscure  man,  Nicola  di  Rienzi,  conceived  ^j^^  tribune 
the  project  of  restoring  Rome,  not  only  to  good  Wenzi. 
order,  but  even  to  her  ancient  greatness.     He  had  ^'^'  ^^^* 
received  an  education  beyond  his  birth,  and  nourished  his 
mind  with  the  study  of  the  best  writers.     After  many  ha- 
rangues to  the  people,  which  the  nobility,  blinded  by  their 
self-confidence,  did  not  attempt  to  repress,  Rienzi  suddenly 
excited  an  insurrection,  and  obtained  complete  success.     He 
was  placed  at  the  head  of  a  new  government,  with  the  title 
of  Tribune,  and  with  almost  unlimited  power.     The  first 
effects  of  this  revolution  were  wonderful.     All  the  nobles 
submitted,  though  with  great  reluctance;    the  roads  were 
cleared  of  robbers ;  tranquillity  was  restored  at  home  ;  some 
severe  examples  of  justice  intimidated  offenders;   and  the 


\\ 


VOL.  I. 


»  Gibbon,  vol.  xli.  p.  289 ;  Muratori,  Antiquit.  Ital.  Dissert.  27. 
8  Sismondi,  p.  309. 
26 


402 


AFFAIRS  OF  ROME-       Chap.  HI.  Part  II 


tribune  was  regarded  by  all  the  people  as  the  destined  re- 
storer of  Rome  and  Italy.     Though  the  court  of  Avignon 
could   not  approve   of   such   an   usurpation,  it   temporized 
enough  not  directly  to  oppose  it.     Most  of  the  Italian  repub- 
lics, and  some  of  the  princes,  sent  ambassadors,  and  seemed 
to  recognize  pretensions  which  were  tolerably  ostentatious 
The  king  of  Hungary  and  queen  of  Naples  submitted  theii 
quarrel  To  the  arbitration  of  Rienzi,  who  did  not,  however 
undertake  to  decide  upon  it.     But  this  sudden  exaltation  in- 
toxicated his  understanding,  and  exhibited  failings  entirely 
incompatible  with  his  elevated  condition.     If  Rienzi  had  lived 
in  our  own  age,  his  talents,  which  were  really  great,  would  have 
found  their  proper  orbit.     For  his  character  was  one  not 
unusual  among  literary  politicians  —  a  combination  of  knowl- 
edge, eloquence,  and  enthusiasm  for  ideal  excellence,  with 
vanity,  inexperience  of  mankind,  unsteadiness,  and  physical 
timidity.     As  these  latter  qualities  became  conspicuous,  they 
eclipsed  his  virtues  and  caused  his  benefits  to  be  forgotten ; 
he  was  compelled  to  abdicate  his  government,  and  retire  into 
exile.     After  several  years,  some  of  which  he  passed  in  the 
prisons  of  Avignon,  Rienzi  was  brought  back  to  Rome,  with 
the  title  of  Senator,  and  under  the  command  of  the  legate. 
It  w^as  supposed  that  the  Romans,  who  had  returned  to  their 
habits  of  insubordination,  would  gladly  submit  to  their  favor- 
ite tribune.    And  this  proved  the  case  for  a  few  months ;  but 
after  that  time  they  ceased  altogether  to  respect  a  man  who  so 
little  respected  himself  in  accepting  a  station  where  he  could 
no  longer  be  free ;  and  Rienzi  was  killed  in  a  sedition.^ 
Once  more,  not  long  after  the  death  of  Rienzi,  the  free- 
uent    ^^^  ^^  Rome  seems  to  have  revived  in  republican 
-  -^^^^^     institutions,  though  with  names  less  calculated  to 
inspire  peculiar  recollections.     Magistrates  called 


a&irsof 
Borne. 


1  Sismondi,  t.  v.  c.  37;  t.  vi.  p.  201 ; 
Gibbon,  c.  70 ;  De  Sade,  Vie  de  Petraroue, 
t.  ii.  passim  ;  Tiraboschi,  t.  vi.  p.  339. 
It  is  difficult  to  resist  the  admiration 
which  all  the  romantic  circumstances  of 
Rienzi's  history  tend  to  excite,  and  to 
which  Petrarch  so  blindly  gave  way. 
That  great  man's  characteristic  excel- 
lence was  not  good  common  sense.  He 
had  Imbibed  two  notions,  of  which  it  is 
hard  to  say  which  was  the  more  absurd : 
that  Rome  had  a  legitimate  right  to  all 
her  ancient  authority  over  the  rest  of  the 
■world;  and  that  she  was  likely  to  re- 
lOTCT  this  authority  in  consequence  of 


the  revolution  produced  by  Rienzi.  Gio- 
vanni Villani,  living  at  Florence,  and  a 
stanch  republican,  formed  a  very  differ- 
ent estimate,  which  weighs  more  than 
the  enthusiastic  panegyrics  of  Petrarch. 
La  detta  impresa  del  tribuno  era  un' 
opera  IJEintaBtica,  e  di  poco  durare.  1.  xii. 
c.  90.  An  illustrious  female  writer  has 
drawn  with  a  single  stroke  the  character 
of  Rienzi,  Crescentius,  and  Arnold  of 
Brescia,  the  fond  restorers  of  Roman  lib- 
erty, qui  ont  pris  Us  souvenirs  pour  Us 
esperanees.  Corinne,  t.  i.  p.  169.  Could 
Tacitus  have  excelled  this  ? 


I  ^^T 


Italy. 


AFFAIRS  OF  ROME. 


403 


bannerets,  chosen  from  the  thirteen  districts  of  the  city,  with 
a  militia  of  three  thousand  citizens  at  their  command,  were 
placed  at  the  head  of  this  commonwealth.     The  great  object 
of  this  new  organization  was  to  intimidate  the  Roman  nobil- 
ity, whose  outrages,  in  the  total  absence  of  government,  had 
grown  intolerable.     Several  of  them  were  hanged  the  first 
year  by  order  of  the  bannerets.     The  citizens,  however,  had 
no  serious  intention  of  throwing  off  their  allegiance  to  the 
popes.     They  provided  for  their  own  security,  on  account  of 
the  lamentable  secession  and  neglect  of  those  who  claimed 
allegiance  while  they  denied  protection.     But  they  were  ready 
to  acknowledge  and  welcome  back  their  bishop  as  their  sov- 
ereign.    Even  without  this  they  surrendered  their  republican 
constitution  in  1362,  it  does  not  appear  for  what  reason,  and 
permitted  the  legate  of  Innocent  VI.  to  assume  the  govern- 
naent^     We  find,  however,  the  institution  of  bannerets  re- 
vived and  in  full  authority  some  years  afterwards.     But  the 
internal  history  of  Rome  appears  to  be  obscure,  and  I  have 
not  had  opportunities  of  examining  it  minutely.     Some  de- 
gree of  political  freedom  the  city  probably  enjoyed  during 
the  schism  of  the  church;  but  it  is  not  easy  to  discriminate 
the   assertion  of  legitimate   privileges  from  the   licentious 
tumirits  of  the  barons  or  populace.     In  1435  the  Romans 
formally  took  away  the  government  from  Eugenius  IV.,  and 
elected  seven  signiors  or  chief  magistrates,  like  the  priors 
of  Florence.2    But  this  revolution  was  not  of  iong  continuance. 
On  the  death  of  Eugenius  the  citizens  deliberated  upon  pro- 
posing a  constitutional  charter  to  the  future  pope.     Stephen 
Porcaro,  a  man  of  good  family  and  inflamed  by  a  strong 
spirit  of  liberty,  was  one  of  their  principal  instigators.     But 
the  people  did  not  sufficiently  partake  of  that  spirit.     No 
measures  were  taken  upon  this  occasion ;  and  Porcaro,  whose 
ardent  imagination  disguised  the  hopelessness  of  his  enter- 
prise, tampering  in  a  fresh  conspiracy,  was  put  to  death  under 
the  pontificate  of  Nicholas  V.« 

The  province  of  Tuscany  continued  longer  cities  of 
than  Lombardy  under  the  government  of  an  im-  Tuscany. 
perial  lieutenant     It  was  not  tiU  about  the  mid-  ^^^"^^«- 

mon^f ";  ^F*?*'cJ?-  ^J?'  ^'  709 ;  Sis-       »  Script.  B«rum  ItaUc.  t.  ill.  pars  2, 

J!!«l^    J  the  former  period  of  govern-       3  w.  p.   U31    1134.    Sismondi,  t.  x 
ment  by  bannerets,  and  refers  their  in-    p.  18.  '  '    °"'"''°"»  ^  *' 

•titution  to  13^5. 


t'< 


404 


CITIES  OF  TUSCANY.     Chap.  HI.  Part  II 


die  of  the  twelfth  century  that  the  cities  of  Florence,  Lucca, 
Pisa,  Siena,  Arezzo,  Pistoja,  and  several  less  considerable 
which  might,  perhaps,  have  already  their  own  elected  magis- 
trates, became  independent  republics.    Their  history  is,  with 
the  exception  of  Pisa,  very  scanty  till  the  death  of  Frederic 
II.     The  earUest  fact  of  any  importance  recorded  of  Flor- 
ence occurs  in  1184,  when  it  is  said  that  Frederic  Barbarossa 
took  from  her  the  dominion  over  the  district  or  county,  and 
restored  it  to  the  rural  nobility,  on  account  of  her  attach- 
ment to  the  church.^     This  I  chiefly  mention  to  illustrate 
the  system  pursued  by  the  cities,  of  bringing  the  territorial 
proprietors  in  their  neighborhood  under  subjection.     During 
the  reign  of  Frederic  II.  Florence  became,  as  far  as  she  was 
able,  an  ally  of  the  popes.     There  was,  indeed,  a  strong 
Ghibelin  party,  comprehending  many  of  the  greatest  fami 
lies,  which  occasionally  predominated  through  the  assistance 
of  the  emperor.     It  seems,  however,  to  have  existed  chiefly 
among  the  nobility ;  the  spirit  of  the  people  was  thoroughly 
GuelfT    After    several  revolutions,  accompanied  by  alter- 
nate proscription  and  demolition  of  houses,  the  Guelf  party, 
through  the  assistance  of  Charles  of  Anjou,  obtained  a  final 
ascendency  in  1266;  and  after  one  or  two  unavailing  schemes 
of  accommodation  it  was  established  as  a  fundamental  law  in 
the  Florentine  constitution  that  no  person  of  Ghibelin  ances- 
try could  be  admitted  to  offices  of  public  trust,  which,  in  such 
a  government,  was  in  effect  an  exclusion  from  the  privileges 
of  citizenship. 

The  changes  of  internal  government  and  vicissitudes  of 
Government  succcss  among  factions  were  so  frequent  at  Flor- 
of  Florence,  q^^q  f^j,  many  years  after  this  time  that  she  is 
compared  by  her  great  banished  poet  to  one  in  sickness, 
who,  unable  to  rest,  gives  herself  momentary  ease  by  con- 
tinual change  of  posture  in  her  bed.*  They  did  not  become 
much  less  numerous  after  the  age  of  Dante.  Yet  the  revo- 
lutions of  Florence  should,  perhaps,  be  considered  as  no  more 
than  a  necessary  price  of  her  liberty.  It  was  her  boast  and 
her  happiness  to  have  escaped,  except  for  one  short  period, 
that  odious  rule  of  vile  usurpers,  under  which  so  many  other 
free  cities  had  been  crushed.     A  sketch  of  the  constitution 


1  Villani,  1.  r.  c.  12. 
s  E  86  ben  ti  ricor^,  «  yedi  il  lame. 
T«drai   te  somigUante  a  quella 
fenna, 


ia- 


Che  non  pa6  trorar  posa  in  sti  le 

piume, 
Ma  con  dar  Tolta  suo  dolore  scherma. 
Purgatorio,  eant.  H 


Italy. 


GOVERNMENT  OF  FLORENCE. 


405 


of  so  famous  a  republic  ought  not  to  be  omitted  in  this  place. 
Nothing  else  in  the  history  of  Italy  after  Frederic  II.  is  so 
worthy  of  our  attention.' 

The  basis  of  the  Florentine  polity  was  a  division  of  the 
citizens  exercising  commerce  into  their  several  companies  or 
arts.  These  were  at  first  twelve  ;  seven  called  the  greater 
arts,  and  five  lesser ;  but  the  latter  were  gradually  increased 
to  fourteen.  The  seven  greater  arts  were  ^  those  of  lawyers 
and  notaries, 'of  dealers  in  foreign  cloth,  called  sometimes 
Calimala,  of  bankers  or  money-changers,  of  woollen-drapers, 
of  physicians  and  druggists,  of  dealers  in  silk,  and  of  fur- 
riers. The  inferior  arts  were  those  of  retailers  of  cloth, 
butchers,  smiths,  shoemakers,  and  builders.  This  division, 
so  far  at  least  as  regarded  the  greater  arts,  was  as  old  as  the 
beginning  of  the  thirteenth  century.^  But  it  was  fully 
established  and  rendered  essential  to  the  constitution  in  1266. 
By  the  provisions  made  in  that  year  each  of  the  seven  greater 
arts  had  a  council  of  its  own,  a  chief  magistrate  or  consul, 
who  administered  justice  in  civil  causes  to  all  members  of 
his  company,  and  a  banneret  (gonfaloniere)  or  military  ofli- 
cer,  to  whose  standard  they  repaired  when  any  attempt  was 
made  to  disturb  the  peace  of  the  city. 

The  administration  of  criminal  justice  belonged  at  Flor- 
ence, as  at  other  cities,  to  a  foreign  podesta,  or  rather  to  two 
foreign  magistrates,  the  podesta  and  the  capitano  del  popolo, 
whose  jurisdiction,  so  far  as  I  can  trace  it,  appears  to  have 
been  concurrent.^  In  the  first  part  of  the  thirteenth  century 
the  authority  of  the  podestk  may  have  been  more  extensive 
than  afterwards.  These  offices  were  preserved  till  the  in- 
novations of  the  Medici.  The  domestic  magistracies  under- 
went more  changes.  Instead  of  consuls,  which  had  been  the 
first  denomination  of  the  chief  magistrates  of  Florence,  a 
college  of  twelve  or  fourteen  persons  called  Anziani  or  Buo- 
nuomini,  but  varying  in  name  as  well  as  number,  according 
to  revolutions  of  party,  was  established  about  the  middle  of 
the  thirteenth  century,  to  direct  pubhc  affairs.*     This  order 

press  themselves  rather  inaccurately,  as 
if  they  had  been  erected  at  that  time, 
which  indeed  is  the  era  of  their  political 


» 1  have  found  considerable  difficulties 
In  this  part  of  my  task;  no  author  with 
whom  I  am  acquainted  giving  a  tolerable 
view  of  the  Florentine  government,  ex- 
cept M.  Sisuiondi,  who  is  himself  not 
always  satiffactory. 

2  Ammirato,  ad  ann.  1204  et  1235. 
Villam  intimates,  1.  vii.  c.  13,  that  the 
arts  existed  as  commercial  companies  be- 
lore  1266,    Machiavelli  and  Siemondi  ex- 


importance. 

sMatteo  Villani,  p.  194.  Q.  Villani 
places  the  institution  of  the  podesta  in 
1207;  we  find  it,  however,  as  early  as 
1184.     Ammirato. 

*  G.  Villani,  1.  vi.  c.  39. 


406 


GOVERNMENT  OF  FLORENCE.    Chap.  m.  Part.  II 


Italy. 


GOVERNMENT  OF  FLORENCE. 


407 


I 


was  entiiely  changed  in  1282,  and  gave  place  to  a  new  form 
of  supreme  magistracy,  which  lasted  till  the  extinction  of  the 
republic.     Six  priors,  elected  every  two  months,  one  from 
each  of  the  six   quarters  of  the  city,  and  from  each  of  the 
greater  arts,  except  that  of  lawyers,  constituted  an  executive 
magistracy.     They  lived  during  their  continuance  in  office 
in  a  palace  belonging  to  the  city,  and  were  maintained  at  the 
pubUc  cost.     The  actual  priors,  jointly  with  the  chiefs  and 
councils  (usually  called  la  capitudine)  of  the  seven  greater 
arts,  and  with  certain  adjuncts  (arroti)  named  by  themselves, 
elected  by  ballot  their  successors.     Such  was  the  practice 
for  about  forty  years  after  this  government  was  established. 
But  an  innovation,  begun  in  1324,  and  perfected  four  years 
afterwards,  gave  a  peculiar  character  to  the  constitution  of 
Florence.     A  lively  and  ambitious  people,  not  merely  jeal- 
ous of  their  public  sovereignty,  but  deemmg  its  exercise  a 
matter  of  personal  enjoyment,  aware  at  the  same  time  that 
the  will  of  the  whole  body  could  neither  be  immediately  ex- 
pressed on  all  occasions,  nor  even  through  chosen  representa- 
tives, without  the  risk  of  violence  and  partiality,  fell  upon 
the  singular  idea  of  admitting  all  citizens  not  unworthy  by 
their  station  or  conduct  to  offices  of  magistracy  by  rotation. 
Lists  were  separately  made  out  by  the  priors,  the  twelve 
buonuomini,  the  chiefs  and  councils  of  arts,  the  bannerets 
and  other   respectable  persons,  of  all    citizens,  Guelfs  by 
origin,  turned  of  thirty  years  of  age,  and,  in  their  judgment, 
worthy  of  public   trust.     The  lists  thus  formed  were  then 
united,  and  those  who  had  composed  them,  meeting  together,  in 
number  ninety-seven,  proceeded  to  ballot  upon  every  name. 
Whoever  obtained  sixty-eight  black  balls  was  placed  upon 
the  reformed  list ;  and  all  the  names  it  contained,  being  put 
on  separate  tickets  into  a  bag  or  purse  (imborsati),  were 
drawn  successively  as  the  magistracies  were  renewed.     As 
there  were  above  fifty  of  these,  none  of  which  could  be  held 
for  more  than  four  months,  several  hundred  citizens  were 
called  in  rotation  to  bear  their  share  in  the  government  with- 
in two  years.     But  at  the  expiration  of  every  two  years  the 
scrutiny  was  renewed,  and  fresh  names  were  mingled  with 
those  which  still  continued  undrawn ;  so  that  accident  might 
deprive  a  man  for  life  of  his  portion  of  magistracy.* 

1  Villani,  1.  ix.  c.  27, 1.  x.  c.  110, 1.  xi.  an  apparent  fairness  and  incompatibU- 
e.  105  i  Sismondi,  t.  v.  p.  174.  This  spe-  ity  with  undue  influence,  wa«  ^V^^J 
oies  of  lottery,  recommending  itself  by    adopted  in  all  the  neighboring  repubucs, 


Four  councils  had  been  established  by  the  constitution  of 
1266  for  the  decision  of  all  propositions  laid  before  them  by 
the  executive  magistrates,  whether  of  a  legislative  nature  or 
relating  to  public  policy.  These  were  now  abrogated ;  and 
in  their  places  were  substituted  one  of  300  members,  all  ple- 
beians, called  consiglio  di  popolo,  and  one  of  250,  called  con- 
siglio  di  commune,  into  which  the  nobles  might  enter.  These 
were  changed  by  the  same  rotation  as  the  magistracies,  every 
four  months.^  A  parliament,  or  general  assembly  of  the 
Florentine  people,  was  rarely  convoked;  but  the  leading 
principle  of  a  democratical  republic,  the  ultimate  sovereignty 
of  the  multitude,  was  not  forgotten.  This  constitution  of 
1324  was  fixed  by  the  citizens  at  large  in  a  parliament ;  and 
the  same  sanction  was  given  to  those  temporary  delegations 
of  the  signiory  to  a  prince,  which  occasionally  took  place. 
What  is  technically  called  by  their  historians  yamjoojoo/o  was 
the  assembly  of  a  parliament,  or  a  resolution  of  all  deriv- 
ative powers  into  the  immediate  operation  of  the  popular 
will. 

The  ancient  government  of  this  republic  appears  to  have 
been  chiefly  in  the  hands  of  its  nobihty.  These  were  very 
numerous,  and  possessed  large  estates  in  the  district.  But  by 
the  constitution  of  1266,  which  was  nearly  coincident  with 
the  triumph  of  the  Guelf  faction,  the  essential  powers  of 
magistracy  as  well  as  of  legislation  were  thrown  into  the 
scale  of  the  commons.  The  colleges  of  arts,  whose  functions 
became  so  eminent,  were  altogether  commercial.  Many,  in- 
deed, of  the  nobles  enrolled  themselves  in  these  companies, 
and  were  among  the  most  conspicuous  merchants  of  Flor- 
ence. These  were  not  excluded  from  the  executive  college 
of  the  priors  at  its  first  institution  in  1282.  It  was  neces- 
sary, however,  to  belong  to  one  or  other  of  the  greater  arts  in 
order  to  reach  that  magistracy.  The  majority,  therefore,  of 
the  ancient  families  saw  themselves  pushed  aside  from  the 
helm,  which  was  intrusted  to  a  class  whom  they  had  habitu- 
ally held  in  contempt. 

It  does  not  appear  that  the  nobiUty  made  any  overt  oppo- 
sition to  these  democratical  institutions.     Confident  in  a  force 


and  baa  always  continued,  according  to    the  privilege  of  choosing  their  municipal 
Sismondi,  in  Lucca,  and  in  those  cities    officers :  p.  95. 

of  the  ecclesiastical  state  which  preserved       ^  Villani.  1.  ix.  c.  27, 1.  x.  c.  110, 1.  xi. 

c.  105;  Sismondi,  t.  v.  p.  174. 


408 


GOVERNMENT  OF  FLORENCE.    Chap.  HI.  Part  H. 


beyond  the  law,  they  cared  less  for  what  the  law  might  pro- 
vide against  them.  They  still  retained  the  proud  spirit  of 
personal  independence  which  had  belonged  to  their  ancestors 
in  the  fastnesses  of  the  Apennines.  Though  the  laws  of 
Florence  and  a  change  in  Italian  customs  had  transplant- 
ed their  residence  to  the  city,  it  was  in  strong  and  lofty  houses 
that  they  dwelt,  among  their  kindred,  and  among  the  fellows 
of  their  rank.  Notwithstanding  the  tenor  of  the  constitution, 
Florence  was  for  some  years  after  the  establishment  of  priors 
incapable  of  resisting  the  violence  of  her  nobility.  Her  his- 
torians all  attest  the  outrages  and  assassinations  committed  by 
them  on  the  inferior  people.  It  was  in  vain  that  justice  was 
offered  by  the  podesta  and  the  capitano  del  popolo.  Wit- 
nesses dared  not  to  appear  against  a  noble  offender ;  or  if,  on 
a  complaint,  the  officer  of  justice  arrested  the  accused,  his 
family  made  common  cause  to  rescue  their  kinsman,  and  the 
populace  rose  in  defence  of  the  laws,  till  the  city  was  a  scene 
of  tumult  and  bloodshed.  I  have  already  alluded  to  this  in- 
subordination of  the  higher  classes  as  general  in  the  Italian 
republics ;  but  the  Florentine  writers,  being  fuller  than  the 
rest,  are  our  best  specific  testimonies.^ 

The  dissensions  between  the  patrician  and  plebeian  orders 
-OQK  ran  very  high,  when  Giano  della  Bella,  a  man  of 
ancient  Imeage,  but  attached,  without  ambitious 
views,  so  far  as  appears,  though  not  without  passion,  to  the 
popular  side,  introduced  a  series  of  enactments  exceedingly 
disadvantageous  to  the  ancient  aristocracy.  The  first  of 
these  was  the  appointment  of  an  executive  officer,  the  gonfa 
lonier  of  justice,  whose  duty  it  was  to  enforce  the  sentences 
of  the  podesta  and  capitano  del  popolo  in  cases  where  the  or 
dinary  officers  were  insufficient.  A  thousand  citizens,  after- 
wards increased  to  four  times  that  number,  were  bound  to 
obey  his  commands.  They  were  distributed  into  companies, 
the  gonfaloniers  or  captains  of  which  became  a  sort  of  cor- 
poration or  college,  and  a  constituent  part  of  the  government. 
A.D.  1296.  ^^^^  ^^^^  militia  seems  to  have  superseded  that 
of  the  companies  of  arts,  which  I  have  not  ob- 
served to  be  mentioned  at  any  later  period.  The  gonfalonier 
of  justice  was  part  of  the  signiory  along  with  the  priors,  of 
whom  he  was  reckoned  the  president,  and  changed,  like  them, 

lyuiani,  1.  vii.  c.  113,  1.  yiii.  c.  8;  Ammirato,  Storia  Fiorentina,  L  ir.  in 
cominciameuto. 


Italy. 


GOVERNMENT  OF  FLORENCE. 


409 


every  two  months.  He  was,  in  fact,  the  first  magistrate  of 
Florence.'  If  Giano  della  Bella  had  trusted  to  the  efficacy 
of  this  new  security  for  justice,  his  fame  would  have  been 
beyond  reproach.  But  he  followed  it  up  by  harsher  pro- 
visions. The  nobility  were  now  made  absolutely  ineligible 
to  the  office  of  prior.  For  an  offence  committed  by  one  of  a 
noble  family,  his  relations  were  declared  responsible  in  a 
])enalty  of  3000  pounds.  And,  to  obviate  the  difficulty  aris- 
ing from  the  frequent  intimidation  of  witnesses,  it  was  pro- 
vided that  common  fame,  attested  by  two  credible  persons, 
should  be  sufficient  for  the  condemnation  of  a  nobleman.^ 

These  are  the  famous  ordinances  of  justice  which  passed 
at  Florence  for  the  great  charter  of  her  democracy.  They 
have  been  reprobated  in  later  times  as  scandalously  unjust ; 
and  I  have  little  inclination  to  defend  them.  The  last,  espe- 
cially, was  a  violation  of  those  eternal  principles  which  for- 
bid us,  for  any  calculations  of  advantage,  to  risk  the  sacrifice 
of  innocent  blood.  But  it  is  impossible  not  to  perceive  that 
the  same  unjust  severity  has  sometimes,  under  a  like  pretext 
of  necessity,  been  applied  to  the  weaker  classes  of  the  peo- 
ple, which  they  were  in  this  instance  able  to  exercise  towards 
their  natural  superiors. 

The  nobility  were  soon  aware  of  the  position  in  which 
they  stood.  P^or  half  a  century  their  great  object  was  to 
procure  the  relaxation  of  the  ordinances  of  justice.  But 
they  had  no  success  with  an  elated  enemy.  In  three  years' 
time,  indeed,  Giano  della  Bella,  the  author  of  these  institu- 
tions, was  driven  into  exile ;  a  conspicuous,  though  by  no 
means  singular,  proof  of  Florentine  ingratitude.*  The  wealth 
and  physical  strength  of  the  nobles  were,  however,  untouched ; 
and  their  influence  must  always  have  been  considerable.  In 
the  great  feuds  of  the  Bianchi  and  Neri  the  ancient  famihes 
were  most  distinguished.  No  man  plays  a  greater  part  in  the 
annals  of  Florence  at  the  beginning  of  the  fourteenth  century 


1  It  ia  to  be  regretted  that  the  ac- 
complished biographer  of  Lorenzo  de' 
Medici  should  have  taken  no  pains  to 
inform  himself  of  the  most  ordinary  par- 
ticulars in  the  constitution  of  Florence. 
Among  manj'  other  errors  he  says,  toI.  ii. 

J).  51,  5th  edit.,  that  the  gonfalonier  of 
ustico  was  subordinate  to  the  delegated 
mechanics  (a  bad  expression),  or  priori 
dell'  arti.whosc  number,  too,  he  augments 
to  ten.  The  proper  style  of  the  republic 
leems  to  run  thus :  I  priori  dell'  arti  e 


gonfaloniere  di  giustizia,  il  popolo  e  U 
comune  della  citti  di  Firenze.  G.  Villani, 
1.  xii.  c.  109. 

2  Villani,  1.  viii.  c.  1 ;  Ammirato,  p. 
188,  edit.  1647.  A  magistrate,  called 
1'  esecutor  della  giustizia,  was  appointed 
with  authority  equal  to  that  of  the  po- 
desti  for  the  special  purpose  of  watching 
over  the  observation  of  the  ordinances  of 
justice.     Ammirato,  p.  666. 

3  Villani,  1.  viii.  c.  8. 


410 


GOVERNMENT  OF  FLORENCE.    Chap.  m.  Part  II 


Italy. 


GOVERNMENT  OF  FLORENCE. 


411 


than  Corso  Donati,  chief  of  the  latter  faction,  who  might  pass 
as  representative  of  the  turbulent,  intrepid,  ambitious  citizen- 
noble  of  an  Italian  republic.^  But  the  laws  gradually  be- 
came more  sure  of  obedience  ;  the  sort  of  proscription  which 
attended  the  ancient  nobles  lowered  their  spirit ;  while  a  new 
aristocracy  began  to  raise  its  head,  the  aristocracy  of  famihes 
who,  after  filling  the  highest  magistracies  for  two  or  three 
generations,  obtained  an  hereditary  importance,  which  an- 
swered the  purpose  of  more  unequivocal  nobility ;  just  as  in 
ancient  Rome  plebeian  families,  by  admission  to  curule  of- 
fices, acquired  the  character  and  appellation  of  nobility,  and 
were  only  distinguishable  by  their  genealogy  from  the  origi- 
nal patricians.^  Florence  had  her  plebeian  nobles  (popolani 
grandi),  as  well  as  Rome ;  the  Peinizzi,  the  Ricci,  the  Albizi, 
the  Medici,  correspond  to  the  Catos,  the  Pompeys,  the  Bru- 
tuses,  and  the  Antonies.  But  at  Rome  the  two  orders,  after  an 
equal  partition  of  the  highest  oflfices,  were  content  to  respect 
their  mutual  privileges ;  at  Florence  the  commoner  preserved  a 
rigorous  monopoly,  and  the  distinction  of  high  birth  was,  that 
it  debarred  men  from  political  franchises  and  civil  justice.* 

This  second  aristocracy  did  not  obtain  much  more  of  the 
popular  affection  than  that  which  it  superseded.  Public  out- 
rage and  violation  of  law  became  less  frequent ;  but  the  new 
leaders  of  Florence  are  accused  of  continual  misgovemment 
at  home  and  abroad,  and  sometimes  of  peculation.  There 
was  of  course  a  strong  antipathy  between  the  leading  com- 
moners and  the  ancient  nobles;  both  were  disliked  by  the 
people.  In  order  to  keep  the  nobles  under  more  control  the 
governing  party  more  than  once  introduced  a  new  foreign 
magistrate,  with  the  title  of  captain  of  defence  (della  guar- 
dia),  whom  they  invested  with  an  almost  unbounded  criminal 
A.D.  1336.  jurisdiction.  One  Gabrielli  of  Agobbio  was  twice 
A.D.  1340.  fetched  for  this  purpose ;  and  in  each  case  he  be- 
haved in  so  tyrannical  a  manner  as  to  occasion  a  tumult.* 
His  office,  however,  was  of  short  duration,  and  the  title  at 
least  did  not  import  a  sovereign  command.     But  very  soon 


1  Dino  Compagni ;  Villanl. 

s  La  nobilitl  civile,  se  bene  non  in 
baronaggi,  h  capace  di  grandissimi  honori, 
percioche  esercitando  i  supremi  magis- 
trati  della  sua  patria,  viene  spesso  a 
comandare  a  capitani  d'  eserciti  e  ella 
Btessa  per  se  6  in  mare,  6  in  terra,  molte 
Tota  i  supremi  carichi  adopera.    E  tale 


i  la  Fiorentina  nobillti.  Ammirato  delle 
Famiglie  Florentine.  Firenze,  1614,  p.  25. 
3  Quello,  che  all'  altre  citt^  suolo 
recare  splendore,  in  Firenie  era  dAnnoso, 
o  Teramentc  vano  e  inutile,  says  Am- 
mirato of  nobility.  Storia  norentinai 
p.  161. 

«  Villanl,  l.ii.e.  39  and  U7. 


afterwards  Florence  had  to  experience  one  taste  of  a  cup 
which  her  neighbors  had  drunk  off  to  the  dregs,  and  to  ani- 
mate her  magnanimous  love  of  freedom  by  a  knowledge  of 
the  calamities  of  tyranny. 

A  war  with  Pisa,  unsuccessfully,  if  not  unskilfully,  con- 
ducted, gave  rise  to  such  dissatisfaction  in  the  city,  that  the 
leading  commoners  had  recourse  to  an  appointment  some- 
thing  Uke   that   of    Grabrielli,   and    from   similar   motives. 
Walter  de  Brienne,  duke  of  Athens,  was  descended  from  one 
of  the  French  crusaders  who  had  dismembered  the  Grecian 
empire  in  the  preceding  century;    but  his  father,  defeated 
in  battle,  had  lost  the  principality  along  with  his  life,  and  the 
titular  duke  was  an  adventurer  in  the  court  of  France.     He 
had  been,  however,  slightly  known  at  Florence  on  a  former 
occasion.     There  was  an  uniform  maxim  among  the  Italian 
republics   that   extraordinary   powers   should   be   conferred 
upon  none  but  strangers.     The  duke  of  Athens  was  accord- 
ingly pitched  upon  for  the  military  command,  which  was 
united   with  domestic  jurisdiction.     This  appears   to   have 
been  promoted  by  the  governing  party  in  order  to  curb  the 
nobility;  but  they  were  soon  undeceived  in  their  expecta- 
tions.    The  first  act  of  the  duke  of  Athens  was  to  bring  four 
of  the  most  eminent  commoners  to  capital  punishment  for 
military  offences.     These  sentences,  whether  just  or  other- 
wise, gave  much  pleasure  to  the  nobles,  who  had  so  frequently 
been  exposed  to  similar  severity,  and  to  the  populace,  who 
are  naturally  pleased  with  the  humiliation  of  their  superiors. 
Both  of  these  were  caressed  by  the  duke,  and  both  conspired, 
with  blind  passion,  to  second  his  ambitious  views.     It  was 
proposed  and  carried  in  a  full  parliament,  or  assembly  of  the 
people,  to  bestow  upon  him  the  signiory  for  life.     The  real 
friends  of  their  country,  as  well  as  the  oligarchy, 
shuddered  at  this  measure.     Throughout  all  the  ^'"* 
vicissitudes  of  party  Florence  had  never  jet  lost  sight  of 
republican  institutions.     Not  that  she  had  never  accommo- 
dated herself   to  temporary   circumstances    by  naming    a 
signior.     Charles  of  -Ajijou  had  been  invested  with  that  dig- 
nity for  the  term  of  ten  years ;  Robert  king  of  Naples  for 
five;  and  his  son,  the  duke  of  Calabria,  was  at  his  death 
Bignior  of  Florence.     These  princes  named  the  podestk,  if 
not  the  priors ;  and  were  certainly  pretty  absolute  in  their 
executive  powers,  though  bound  by  oath  not  to  alter  the 


n 


412 


GOVERNMENT  OF  IXORENCE.    Chap.  HI.  Part  II. 


statutes  of  the  city.^  But  their  office  had  always  been  tem- 
porary. Like  the  dictatorship  of  Rome,  it  was  a  confessed, 
unavoidable  evil ;  a  suspension,  but  not  extinguishment,  of 
rights.  Like  that,  too,  it  was  a  dangerous  precedent, 
through  which  crafty  ambition  and  popular  rashness  might 
ultimately  subvert  the  republic.  If  Walter  de  Brienne  had 
possessed  the  subtle  prudence  of  a  Matteo  Visconti  or  a  Cane 
della  Scala,  there  appears  no  reason  to  suppose  that  Florence 
would  have  escaped  the  fate  of  other  cities ;  and  her  history 
might  have  become  as  useless  a  record  of  perfidy  and  assas- 
sination as  that  of  Mantua  or  Verona.* 

But,  happily  for  Florence,  the  reign  of  tyranny  was  very 
short.     The   duke   of   Athens   had   neither  judgment   nor 
activity  for  so  difficult  a  station.     He  launched  out  at  once 
into  excesses  which  it  would  be  desirable  that  arbitrary  power 
should  always  commit  at  the  outset.     The  taxes  were  consid- 
erably increased ;  their  produce  was  dissipated.     The  honor 
of  the  state  was  sacrificed  by  an  mglorious  treaty  with  Pisa ; 
her  territory  was  diminished   by  some  towns  throwing  off 
their  dependence.    Severe  and  multiphed  punishments  spread 
terror  through  the  city.     The  noble  families,  who  had  on  the 
duke's   election   destroyed  the   ordinances   of  justice,  now 
found  themselves  exposed  to  the  more  partial  caprice  of  a 
despot.     He  filled  the  magistracies  with  low  creatures  from 
the  inferior  artificers ;  a  class  which  he  continued  to  flatter.* 
Ten  months  passed  in  this  manner,  when  three  separate  con- 
spiracies, embracing  most  of  the  nobility  and  of  the  great 
commoners,  were  planned  for  the  recovery  of  freedom.     The 
duke  was  protected  by   a   strong  body  of  hired   cavah-y. 
Revolutions  in  an  Italian  city  were  generally  effected  by 
surprise.     The  streets  were  so  narrow  and  so  easily  secured 
by  barricades,  that,  if  a  people  had  time  to  stand  on  its 
defence,  no  cavalry  was  of  any  avail.     On  the  other  hand,  a 
body  of  lancers  in  plate-armor  might  dissipate  any  number 
of  a  disorderly  populace.     Accordingly,  if  a  prince  or  usurper 
would  get  possession  by  surprise,  he,  as  it  was  called,  rode  the 
city;  that  is,  galloped  with  his  cavalry  along  the  streets,  so 
as  to  prevent  the  people  from  collecting  to  erect  barricades. 
This  expression  is  very  usual  with  historians  of  the  four- 
teenth century.*      The  conspirators  at   Florence  were  too 


1  Villani,  1.  ix.  c.  55,  60, 135, 328. 
a  Id.  1.  xu.  c.  1, 2,  3. 


3  Villani,  c.  8. 

♦  ViUani,  1.  x.  c.  81;  Castrucclo  .  . 


Italy. 


GOVERNMENT  OF  FLORENCE. 


413 


quick  for  the  duke  of  Athens.  The  city  was  barricaded  in 
every  direction;  and  aft«r  a  contest  of  some  duration  he 
consented  to  abdicate  his  signiory. 

Thus  Florence  recovered  her  liberty.  Her  constitutional 
laws  now  seemed  to  revive  of  themselves.  But  the  nobility, 
who  had  taken  a  very  active  part  in  the  recent  liberation  of 
their  country,  thought  it  hard  to  be  still  placed  under  the 
rigorous  ordinances  of  justice.  Many  of  the  richer  com- 
moners acquiesced  in  an  equitable  partition  of  magistracies, 
which  was  established  through  the  influence  of  the  bishop. 
But  the  populace  of  Florence,  with  its  characteristic  forget- 
fulness  of  benefits,  was  tenacious  of  those  proscriptive  ordi- 
nances. The  nobles  too,  elated  by  their  success,  began  again 
to  strike  and  injure  the  inferior  citizens.  A  new  civil  war 
in  the  city-streets  decided  their  quarrel ;  after  a  desperate 
resistance  many  of  the  principal  houses  were  pillaged  and 
burned ;  and  the  perpetual  exclusion  of  the  nobility  was 
confirmed  by  fresh  laws.  But  the  people,  now  sure  of  their 
triumph,  relaxed  a  little  upon  this  occasion  the  ordinances  of 
justice ;  and  to  make  some  distinction  in  favor  of  merit  or 
innocence,  effaced  certain  families  from  the  list  of  nobility. 
Five  hundred  and  thirty  persons  were  thus  elevated,  as  we 
may  call  it,  to  the  rank  of  commoners.^  As  it  was  beyond 
the  competence  of  the  republic  of  Florence  to  change  a  man's 
ancestors,  this  nominal  alteration  left  all  the  real  advantages 
of  birth  as  they  were,  and  was  undoubtedly  an  enhancement 
of  dignity,  though,  in  appearance,  a  very  singular  one. 
Conversely,  several  unpopular  commoners  were  ennobled,  in 
order  to  disfranchise  them.  Nothing  was  more  usual  in  sub- 
sequent times  than  such  an  arbitrary  change  of  rank,  as  a 
penalty  or  a  benefit.^  Those  nobles  who  were  rendered 
plebeian  by  favor,  were  obliged  to  change  their  name  and 
arms.'  The  constitution  now  underwent  some  change. 
From  six  the  priors  were  increased  to  eight;   and  instead 


corse  la  citti  di   Pisa  due  volte.      Sis- 
mondi,  t.  r.  p.  105. 

I  Villani,  1.  xU.  c.  18-23.  Sismondi 
says,  by  a  momentary  oversight,  cinq 
cent  irent^  families^  t.v.  p  377.  There 
were  but  thirty -seven  noble  families  at 
Florence,  as  M.  Sismondi  himself  in- 
forms us,  t.  iv.  p.  66  ;  though  Villani 
reckons  the  number  of  individuals  at 
1500.  Nobles,  or  grandi  as  they  are 
more  strictly  called,  were  such  as  bad 
t>een  inicribed,  or  rather  proscribed,  as 


such  in  the  ordinances  of  justice ;  at  least 
I  do  not  know  what  other  definition 
there  was. 

2  Messer  Antonio  di  Baldinaccio  degli 
Adimari,  tutto  che  fosse  de  piii  grandi  e 
nobili,  per  grazia  era  messo  tra  '1  popolo 
—  Villani,  1.  xii.  c.  108. 

3  Ammirato,  p.  748.  There  were  several 
exceptions  to  this  rule  in  later  times. 
The  Pazzi  were  made  popolani,  plebeians, 
by  favor  of  Cosmo  de'  Medici.  Machia- 
velli. 


414 


GOVERNMENT  OF  FLORENCE.    Chap.  III.  Pabt  II. 


of  being  chosen  from  each  of  the  greater  arts,  they  were 
taken  from  the  four  quarters  of  the  city,  the  lesser  artisans, 
as  I  conceive,  being  admissible.  The  gonfaloniers  of  compa- 
nies were  reduced  to  sixteen.  And  these,  along  with  the 
signiory,  and  the  twelve  buonuomini,  formed  the  college, 
where  every  proposition  was  discussed  before  it  could  be 
offered  to  the  councils  for  their  legislative  sanction.  But  it 
could  only  originate,  strictly  speaking,  in  the  signiory,  that  is, 
the  gonfalonier  of  justice,  and  eight  priors,  the  rest  of  the 
college  having  merely  the  function  of  advice  and  assist- 
ance.^ 

Several  years  elapsed  before  any  material  disturbance  arose 
at  Florence.  Her  contemporary  historian  complains,  indeed, 
that  mean  and  ignorant  persons  obtained  the  office  of  prior, 
and  ascribes  some  errors  in  her  external  policy  to  this  cause.* 
Besides  the  natural  effects  of  the  established  rotation,  a  par- 
ticular law,  called  the  divieto,  tended  to  throw  the  better 
families  out  of  public  office.  By  this  law  two  of  the  same 
name  could  not  be  drawn  for  any  magistracy :  which,  as  the 
ancient  families  were  extremely  numerous,  rendered  it  diffi- 
cult for  their  members  to  succeed ;  especially  as  a  ticket  once 
drawn  was  not  replaced  in  the  purse,  so  that  an  individual 
liable  to  the  divieto  was  excluded  until  the  next  biennial  rev- 
olution.* This  created  dissatisfaction  among  the  leading 
famiUes.  They  were  hkewise  divided  by  a  new  faction, 
entirely  founded,  as  far  as  appears,  on  personal  animosity 
between  two  prominent  houses,  the  Albizi  and  the  Ricci. 
The  city  was,  however,  tranquil,  when  in  1357  a  spring  was 
set  in  motion  which  gave  quite  a  different  character  to  the 
domestic  history  of  Florence. 

At  the  time  when  the  Guelfs,  with  the  assistance  of 
Charles  of  Anjou,  acquired  an  exclusive  domination  in  the 
republic,  the  estates  of  the  Ghibelins  were  confiscated. 
One  third  of  these  confiscations  was  allotted  to  the  state ; 
another  went  to  repair  the  losses  of  Guelf  citizens ;  but  the 
remainder  became  the  property  of  a  new  corporate  society, 
denominated  the  Guelf  party  (parte  Guelfa),  with  a  regular 
internal  organization.  The  Guelf  party  had  two  councils, 
one  of  fourteen  and  one  of  sixty  members ;  three,  or  after- 

1  Nardi,  Storia  di  Fii«nxe,  p.  7,  edit.       >  Matteo  Villani  in  Script.  Ber.  Italie. 
1581    Villani,  loc.  cit.  t.  xiv.  p.  98,  244. 

3  gismondi,  t.  Ti.  p.  888* 


Italy. 


GOVERNMENT  OF  FLORENCE. 


415 


wards  four,  captains,  elected  by  scrutiny  every  two  months,  a 
treasury,  and  common  seal ;  a  little  repubUc  within  the  repub- 
lic of  Florence.  Their  primary  duty  was  to  watch  over  the 
Guelf  interest ;  and  for  this  purpose  they  had  a  particular 
officer  for  the  accusation  of  suspected  Ghibehns.^  We  hear 
not  much,  however,  of  the  Guelf  society  for  near  a  century 
after  their  establishment.  The  Ghibelins  hardly  ventured 
to  show  themselves  aft^r  the  fall  of  the  White  Guelfs  in 
1304,  with  whom  they  had  been  connected,  and  confiscation 
had  almost  annihilated  that  unfortunate  faction.  But  as  the 
oligarchy  of  Guelf  families  lost  part  of  its  influence  through 
the  divieto  and  system  of  lottery,  some  persons  of  Ghibelin 
descent  crept  into  public  offices ;  and  this  was  exaggerated 
by  the  zealots  of  an  opposite  party,  as  if  the  fundamental 
policy  of  the  city  was  put  into  danger. 

The  Guelf  society  had  begun,  as  early  as  1346,  to  mani- 
fest some  disquietude  at  the  foreign  artisans,  who,  settling  at 
Florence  and  becoming  members  of  some  of  the  trading  cor- 
porations, pretended  to  superior  offices.  They  procured  ac- 
cordingly a  law  excluding  from  pubhc  trust  and  magistracy 
all  persons  not  being  natives  of  the  city  or  its  territory. 
Next  year  they  advanced  a  step  farther ;  and,  with  a  view  to 
prevent  disorder,  which  seemed  to  threaten  the  city,  a  law 
was  passed  declaring  every  one  whose  ancestors  at  any  time 
since  1300  had  been  known  Ghibelins,  or  who  had  not  the 
reputation  of  sound  Guelf  principles,  incapable  of  being 
drawn  or  elected  to  offices.^  It  is  manifest  from  the  lanffuasce 
of  the  historian  who  relates  these  circumstances,  and  whose 
testimony  is  more  remarkable  from  his  having  died  several 
years  before  the  politics  of  the  Guelf  corporation  more 
decidedly  showed  themselves,  that  the  real  cause  of  their 
jealousy  was  not  the  increase  of  Ghibelinism,  a  merely 
plausible  pretext,  but  the  democratical  character  which  the 
government  had  assumed  since  the  revolution  of  1343  ;  which 
i-aised  the  fourteen  inferior  arts  to  the  level  of  those  which 
the  great  merchants  of  Florence  exercised.  In  the  Guelf 
society  the  ancient  nobles  retained  a  considerable  influence. 
The  laws  of  exclusion  had  never  been  applied  to  that  corpo- 
ration. Two  of  tte  captains  were  always  noble,  two  were 
commoners.    The  people,  in  debarring  the  nobihty  from  ordi- 


1 G.  VUlanl,  1.  vii.  c.  16. 


s  G.  Villani,  1.  zii.  c  72  and  79. 


416 


GOVERNMENT  OF  FLORENCE.    Chap.  m.  Part  II. 


nary  privileges,  were  little  aware  of  the  more  dangerous  chan- 
nel which  had  been  left  open  to  their  ambition.  With  the  no- 
bility some  of  the  great  commoners  acted  in  concert,  and  espe- 
cially the  family  and  faction  of  the  Albizi.  The  introduction 
of  obscure  persons  into  office  still  continued,  and  some  meas- 
ures more  vigorous  than  the  law  of  1347  seemed  necessary 
to  restore  the  influence  of  their  aristocracy.  They  proposed, 
and,  notwithstanding  the  reluctance  of  the  priors,  carried  by 
violence,  both  in  the  prehminary  deliberations  of  the  signiory 
and  in  the  two  councils,  a  law  by  which  every  person  ac- 
cepting an  office  who  should  be  convicted  of  Ghibehnism  or 
of  Ghibelin  descent,  upon  testimony  of  public  fame,  became 
liable  to  punishment,  capital  or  pecuniary,  at  the  discretion 
of  the  priors.  To  this  law  they  gave  a  retrospective  effect, 
and  indeed  it  appears  to  have  been  little  more  than  a  revival 
of  the  provisions  made  in  1347,  which  had  probably  been 
disregarded.  Many  citizens  who  had  been  magistrates  with- 
in a  few  years  were  cast  in  heavy  fines  on  this  indefinite 
charge.  But  the  more  usual  practice  was  to  warn  (am- 
monire)  men  beforehand  against  undertaking  public  trust. 
If  they  neglected  this  hint,  they  were  sure  to  be  treated  as 
convicted  Ghibelins.  Thus  a  very  numerous  class,  called 
Ammoniti,  was  formed  of  proscribed  and  discontented  per- 
sons, eager  to  throw  off  the  intolerable  yoke  of  the  Guelf 
society.  For  the  imputation  of  Ghibelin  connections  was 
generally  an  unfounded  pretext  for  crushing  the  enemies  of 
the  governing  faction.^  Men  of  approved  Guelf  principles 
and  origin  were  every  day  warned  from  their  natural  privi- 
leges of  sharing  in  magistracy.  This  spread  an  universal 
alarm  through  the  city ;  but  the  great  advantage  of  union  and 
secret  confederacy  rendered  the  Guelf  society,  who  had  also 
the  law  on  their  side,  irresistible  by  their  opponents.  Mean- 
while the  public  honor  was  well  supported  abroad ;  Florence 
had  never  before  been  so  distinguished  as  during  the  preva- 
lence of  this  oligarchy.^ 


1  Besides   the   effect  of  ancient   pre- 

iudice,  Ghibelinism  was  considered  at 
?loience,  in  the  fourteenth  century,  as 
immediately  connected  with  tyrannical 
usurpation.  The  Guelf  party,  says  Matteo 
Villain,  is  the  foundation  rock  of  liberty 
in  Italy  ;  so  that,  if  any  Quelf  becomes  a 
tyrant,  he  must  of  necessity  turn  to  the 
Ghibelin  side ;  and  of  this  there  have  been 
many  instances:  p.  481.    So  Giovanni 


Villanl  says  of  Passerino,  lord  of  Mantua, 
that  his  ancestors  had  been  Guelfs,  ma 
per  essere  signore  e  tiranno  si  fece  Ohib- 
ellino :  1.  x.  c.  99.  And  Matteo  Villani 
of  the  Pepoli  at  Bologna ;  essendo  di  na- 
tura  Guelfi,  per  la  tirannia  erano  quasi 
alicnati  della  parte  :  p.  69. 

2M.  Villani,  p.  631,  637,  731.    Am- 
mirato ;  Machiavelli ;  SiJamondi. 


Italy. 


GOVERNMENT  OF  FLORENCE. 


417 


The  Guelf  society  had  governed  with  more  or  less  abso- 
luteness for  near  twenty  years,  when  the  republic  became  in- 
volved, through  the  perfidious  conduct  of  the  papal  legate,  in 
a  war  with  the  Holy  See.  Though  the  Florentines  were  by 
no  means  superstitious,  this  hostility  to  the  church  appeared 
ahnost  an  absurdity  to  determined  Guelfs,  and  shocked  those 
prejudices  about  names  which  make  up  the  politics  of  vulgar 
minds.  The  Guelf  society,  though  it  could  not  openly  resist 
the  popular  indignation  against  Gregory  XI.,  was  not  heartily 
inclined  to  this  war.  Its  management  fell  therefore  into  the 
hands  of  eight  commissioners,  some  of  them  not  well  affected 
to  the  society ;  whose  administration  was  so  successful  and 
popular  as  to  excite  the  utmost  jealousy  in  the  Guelfs.  They 
began  to  renew  their  warnings,  and  in  eight  months  excluded 
fourscore  citizens.^ 

The  tyranny  of  a  court  may  endure  for  ages ;  but  that  of 
a  faction  is  seldom  permanent.     In  June,  1378,  the  gonfa- 
lonier of  justice  was  Salvestro  de*  Medici,  a  man  of  approved 
patriotism,  whose  family  had  been  so  notoriously  of  Guelf 
principles,  that  it  was  impossible   to  warn  him  from  office. 
He  proposed  to  mitigate  the  severity  of  the  existing  law. 
His  proposition  did  not  succeed ;  but  its  rejection  provoked 
an  insurrection,  the  forerunner  of  still  more  alarming  tumults. 
The  populace  of  Florence,  like  that  of  other  cities,  was  ter- 
rible in  the  moment  of  sedition ;  and  a  party  so  long  dreaded 
shrunk  before  the  physical  strength  of  the  multitude.     Many 
leaders  of  the  Guelf  society  had  their  houses  destroyed,  and 
some  fled  from  the  city.     But  instead  of  annulling  their  acts, 
a  middle  course  was  adopted  by  the  committee  of'magistrates 
who  had  been  empowered  to  reform  the  state ;  the  Ammoniti 
were  suspended  three  years  longer  from  office,  and  the  Guelf 
society  preserved  with  some  limitations.     This  temporizing 
course  did  not  satisfy  either  the  Ammoniti  or  the  populace. 
The  greater  arts  were  generally  attached  to  the  Guelf  society. 
Between  them  and  the  lesser  arts,  composed  of  retail  and 
mechanical  traders,  there  was  a  strong  jealousy.     The  latter 
were  adverse  to  the  prevailing  oligarchy  and  to  the  Guelf 
society,  by  whose  influence  it  was  maintained.     They  were 
eager  to  make  Florence  a  democracy  in  fact  as  well  as  in 
name,  by  participating  in  the  executive  government. 


VOL.  I. 


27 


1  Ammirato,  p.  709. 


418 


GOVERNMENT  OF  FLORENCE.    Chap.  IH.  Part  II. 


But  every  political  institution  appears  to  rest  on  too  con- 
fined a  basis  to  those  whose  point  of  view  is  from  beneath  it. 
While  the  lesser  arts  were   murmuring   at   the   exclusive 
privileges  of  the  commercial  aristocracy,  there  was  yet  an  m- 
ferior  class  of  citizens  who  thought  their  own  claims  to  equal 
privilec'es    irrefragable.      The   arrangement  of  twenty-one 
trading  companies  had  still  left  several  kinds  of  artisans  un- 
incorporated, and  consequently  unprivileged.  These  had  been 
attached  to  the  art  with  which  their  craft  had  most  connec- 
tion in  a  sort  of  dependent  relation.     Thus  to  the  company 
of  drapers,  the  most  wealthy  of  all,  the  various  occupations 
instrumental  in  the  manufacture,  as  woolcombers,  dyers,  and 
weavers,  were  appendant.^    Besides  the  sense  of  political 
exclusion,  these  artisans  alleged  that  they  were  oppressed 
by  their  employers  of  the  art,  and  that,  when   they  com- 
plained  to  the  consul,  their  judge  in  civil  matters,  no  redress 
could  be  procured.     A  still  lower  order  of  the  community 
was  the  mere  populace,  who  did  not  practise  any  regular 
trade,  or  who  only  worked  for  daily  hire.     These  were  called 
Gompi,  a  corruption,  it  is  smd,  of  the  French  compere. 

«  Let  no  one,"  says  Machiavel  in  this  place,  "  who  begins 
an  innovation  in  a  state  expect  that  he  shall  stop  it  at  his 
pleasure,  or  regulate  it  according  to  his  intention."     After 
about  a  month  from  the  first  sedition  another  broke  out,  in 
which  the  ciompi,  or  lowest  populace,  were  alone  concerned. 
Through  the  surprise,  or  cowardice,  or  disaffection  of  the  su- 
perior "citizens,  this  was  suffered  to  get  ahead,  and  for  three 
days  the  city  was  in  the  hand  of  a  tumultuous  rabble.     It 
was  vain  to  withstand  their  propositions,  had  they  even  been 
more  unreasonable  than  they  were.    But  they  only  demanded 
the  establishment  of  two  new  arts  for  the  trades  hitherto  de- 
pendent, and  one  for  the  lower  people  ;  and  that  three  of  the 
priors  should  be  chosen  from  the  greater  arts,  three  from  the 
fourteen  lesser,  and  two  from  those  just  created.     Some  de- 
lay, however,  occurring  to  prevent  the  sanction  of  these  in- 
novations by  the  councils,  a  new  fury  took  possession  of  the 
populace ;  the  gates  of  the  palace  belonging  to  the  signiory 
were  forced  open,  the  priors  compelled  to  fly,  and  no  appear- 
ance of  a  constitutional  magistracy  remained  to  throw  the 
veil  of  law  over  the   excesses  of  anarchy.     The  repubUc 

1  Before  the  year  1340,  according  to  Villani's  calculation,  the  woolen  tnO* 
occupied  30,000  persons.  1.  xi.  c.  93. 


Italy. 


GOVERNMENT  OF  FLORENCE. 


419 


seemed  to  rock  from  its  foundations ;  and  the  circumstance  to 
which  historians  ascribe  its  salvation  is  not  the  least  singular 
in  this  critical  epoch.  One  Michel  di  Lando,  a  woolcomber 
half  dressed  and  without  shoes,  happened  to  hold  the  standard 
of  justice  wrested  from  the  proper  officer  when  the  populace 
burst  into  the  palace.  Whether  he  was  previously  conspicu- 
ous in  the  tumult  is  not  recorded ;  but  the  wild,  capricious 
mob,  who  had  destroyed  what  they  had  no  conception  how  to 
rebuild,  suddenly  cried  out  that  Lando  should  be  gonfalonier 
or  signior,  and  reform  the  city  at  his  pleasure. 

A  choice,  arising  probably  from  wanton  folly,  could  not 
have  been  better  made  by  wisdom.  Lando  was  a  man  of 
courage,  moderation,  and  integrity.  He  gave  immediate 
proofs  of  these  qualities  by  causing  his  office  to  be  respected. 
The  eight  commissioners  of  the  war,  who,  though  not  insti- 
gators of  the  sedition,  were  well  pleased  to  see  the  Guelf 
pai'ty  so  entirely  prostrated,  now  fancied  themselves  masters, 
and  began  to  nominate  priors.  But  Lando  sent  a  message  to 
them,  that  he  was  elected  by  the  people,  and  that  he  could 
dispense  with  their  assistance.  He  then  proceeded  to  the 
choice  of  priors.  Three  were  taken  from  the  greater  arts  ; 
three  from  the  lesser ;  and  three  from  the  two  new  arts  and 
the  lower  people.  This  eccentric  college  lost  no  time  in  re- 
storing tranquillity,  and  compelled  the  populace,  by  threat  of 
punishment,  to  return  to  their  occupations.  But  the  ciompi 
were  not  disposed  to  give  up  the  pleasures  of  anarchy  so 
readily.  They  were  dissatisfied  at  the  small  share  allotted 
to  them  in  the  new  distribution  of  offices,  and  murmured  at 
their  gonfalonier  as  a  traitor  to  the  popular  cause.  Lando 
was  aware  that  an  insurrection  was  projected ;  he  took  meas- 
ures with  the  most  respectable  citizens ;  the  insurgents,  when 
they  showed  themselves,  were  quelled  by  force,  and  the  gon- 
lalonier  retired  from  office  with  an  approbation  which  all  his- 
torians of  Florence  have  agreed  to  perpetuate.  Part  of  this 
has  undoubtedly  been  founded  on  a  consideration  of  the  mis- 
chief which  it  was  in  his  power  to  inflict.  The  ciompi,  once 
checked,  were  soon  defeated.  The  next  gonfalonier  was, 
like  Lando,  a  woolcomber ;  but,  wanting  the  intrinsic  merit  of 
Lando,  his  mean  station  excited  universal  contempt.  None 
of  the  ai'ts  could  endure  their  low  coadjutors  ;  a  short  struggle 
was  made  by  the  populace,  but  they  were  entirely  overpow- 
ered with  considerable  slaughter,  and  the  government  was 


420 


GOVERNMENT  OF  FLORENCE.     Chap.  HI.  Past  II. 


divided  between  the  seven  greater  and  sixteen  lesser  arts,  in 
nearly  equal  proportions. 

The  party  of  the  lesser  arts,  or  inferior  tradesmen,  which 
had  begun  this  confusion,  were  left  winners  when  it  ceased. 
Three  men  of  distinguished  families  who  had  instigated  the 
revolution  became  the  leaders  of  Florence ;  Benedetto  Alber- 
ti,  Tomaso  Strozzi,  and  Georgio  Scali.     Their  government 
had  at  first  to  contend  with  the  ciompi,  smarting  under  loss 
and  disappointment.     But  a  populace  which  is  beneath  the 
inferior  mechanics  may  with  ordinary  prudence  be  kept  in 
subjection  by  a  government  that  has  a  well-organized  mihtia 
at  its  command.     The  Guelf  aristocracy  was  far  more  to  be 
dreaded.      Some  of  them  had  been  banished,  some  fined, 
some  ennobled :  the  usual  consequences  of  revolution  which 
they  had  too  often  practised  to  complain.     A  more  iniquitous 
proceeding  disgraces  the  new  administration.     Under  pre- 
tence of  conspiracy,  the  chief  of  the  house  of  Albizi,  and 
several  of  his  most  eminent  associates,  were  thrown  into 
prison.     So  little  evidence  of  the  charge  appeared  that  the 
podesta  refused  to  condemn  them  ;  but  the  people  were  clam- 
orous for  blood,  and  half  with,  half  without  the  forms  of  jus- 
tice, these  noble  citizens  were  led  to  execution.     The  part  he 
took  in  this  murder  sullies  the  fame  of  Benedetto  Alberti, 
who  in  his  general  conduct  had  been  more  uniformly  influ- 
enced by  honest  prmciples  than  most  of  his  contemporaries. 
Those  who  shared  with  him  the  ascendency  in  the  existing 
government,  Strozzi  and  Scah,  abused  their  power  by  oppres- 
sion towards  their  enemies,  and  insolence  towards  all.     Their 
popularity  was,  of  course,  soon  at  an  end.     Alberti,  a  sin- 
cere lover  of  freedom,   separated  himself  from   men  who 
seemed  to  emulate  the  arbitrary  government  they  had  over- 
thrown.    An  outrage  of  Scali,  in  rescuing  a  criminal  from 
justice,  brought  the  discontent  to  a  crisis ;  he  was  arrested, 
and  lost  his  head  on  the  scaffold ;  while  Strozzi,  his  colleague, 
fled  from  the  city.     But  this  event  was  instantly  followed  by 
a  reaction,  which  Alberti,  perhaps,  did  not  anticipate.    Armed 
men  filled  the  streets ;  the  cry  of  "  Live  the  Guelfs ! "  was 
heard.    After  a  three  years'  depression  the  aristocratical  party 
regamed  its  ascendency.     They  did  not  revive  the  severity 
practised  towards  the  Ammoniti ;  but  the  two  new  arts,  cre- 
ated for  the  small  trades,  were  aboUshed,  and  the  lesser  arts 
reduced  to  a  third  part,  instead  of  something  more  than  one 


Italy. 


GOVERNMENT  OF  FLORENCE. 


421 


half,  of  public  offices.  Several  persons  who  had  favored  the 
plebeians  were  sent  into  exile ;  and  among  these  Michel  di 
Lando,  whose  great  services  in  subduing  anarchy  ought  to 
have  secured  the  protection  of  every  government.  Bene- 
detto Alberti,  the  enemy  by  turns  of  every  faction  —  because 
every  faction  was  in  its  turn  oppressive  —  experienced  some 
years  afterwards  the  same  fate.  For  half  a  century  after 
this  time  no  revolution  took  place  at  Florence.  The  Guelf 
aristocracy,  strong  in  opulence  and  antiquity,  and  rendered 
prudent  by  experience,  under  the  guidance  of  the  Albizi 
family,  maintained  a  preponderating  influence  without  much 
departing,  the  times  considered,  from  moderation  and  respect 
for  the  laws.^ 

It  is  sufficiently  manifest,  from  this  sketch  of  the  domestic 
history  of  Florence,  how  far  that  famous  republic  was  from 
affording  a  perfect  security  for  civil  rights  or  general  tranquil- 
lity. They  who  hate  the  name  of  free  constitutions  may  ex- 
ult in  her  internal  dissensions,  as  in  those  of  Athens  or  Rome. 
But  the  calm  philosopher  will  not  take  liis  standard  of  com- 
parison from  ideal  excellence,  nor  even  from  that  practical 
good  which  has  been  reached  in  our  own  unequalled  consti- 
tution, and  in  some  of  the  republics  of  modern  Europe.  The 
men  and  the  institutions  of  the  fourteenth  century  are  to  be 
measured  by  their  contemporaries.  Who  would  not  rather 
have  been  a  citizen  of  Florence  than  a  subject  of  the  Vis- 
conti  ?  In  a  superficial  review  of  history  we  are  sometimes 
apt  to  exaggerate  the  vices  of  free  states,  and  to  lose  sight  of 
those  inherent  in  tyrannical  power.  The  bold  censoriousness 
of  republican  historians,  and  the  cautious  servility  of  writers 
under  an  absolute  monarchy,  conspire  to  mislead  us  as  to  the 
relative  prosperity  of  nations.  Acts  of  outrage  and  tumultu- 
ous excesses  in  a  free  state  are  blazoned  in  minute  detail,  and 
descend  to  posterity ;  the  deeds  of  tyranny  are  studiously  and 
perpetually  suppressed.  Even  those  historians  who  have  no 
particular  motives  for  concealment  turn  away  from  the  monoto- 
nous and  disgusting  crimes  of  tyrants.  "  Deeds  of  cruelty,"  it 
is  well  observed  by  Matteo  Villani,  after  relating  an  action  of 


I  For  this  part  of  Florentine  history, 
besides  Animirato,  Machiavel,  and  Sis- 
mondi,  I  have  read  an  interesting  narra- 
tive of  the  sedition  of  the  ciompi,  by 
Oino  Capponi,  in  the  eighteenth  Tolnme 
vf  Mumtori's  collection.  It  has  an  air 
of  liveliness  and  truth  t?liich  is  very 


pleasing,  but  it  breaks  off  rather  toe 
soon,  at  the  instant  of  Lando's  assuming 
the  office  of  banneret.  Another  con- 
temporary writer,  Melchione  de  Stefani, 
who  seems  to  have  furnished  the  materi- 
als of  the  three  historians  above  men* 
tioned,  has  not  fallen  in  my  way. 


422  ACQUISITION  OF  TERRITORY      Chap.  HI.  Part  II. 

Bemabo  Visconti,  «  are  little  worthy  of  remembrance ;  yet  let 
me  be  excused  for  having  recounted  one  out  of  many,  as  an 
example  of  the  peril  to  which  men  are  exposed  under  the 
yoke  of  an  unbounded  tyranny."  ^     The  reign  of  Bemabo  af- 
forded abundant  instances  of  a  like  kind.     Second  only  to 
Eccelin  among  the  tyrants  of  Italy,  he  rested  the  security  ot 
his  dominion  upon  tortures  and  death,  and  his  laws  themselves 
enact  the  protraction  of  capital  punishment  through  torty 
days  of  suffering.2     His  nephew,  Giovanni  Maria,  is  said, 
with  a  madness  Hke  that  of  Nero  or  Commodus,  to  have 
coursed  the   streets  of  Milan  by  night  with  blood-hounds, 
ready  to  chase  and  tear  any  unlucky  passenger.      Nor  were 
other  Italian  principalities  free  from  similar  tyrants,  though 
none,  perhaps,  upon  the  whole,  so  odious  as  the  Visconti.    The 
private  history  of  many  families,  such,  for  instance,  as  the 
Scala  and  the  Gonzaga,  is  but  a  series  of  assassinations,    i  he 
ordinary  vices  of  mankind  assumed  a  tint  of  portentous  guilt 
in  the  palaces  of  Italian  princes.    Their  revenge  was  fratri- 
cide, and  their  lust  was  incest.  j.  ,  .  ,    n?! 
Though  fertile  and  populous,  the  proper  distnct  ot  J^  ior- 
. .,.  °    ence  was  by  no  means  extensive.     An  mdepen- 
of  SSy    dent  nobility  occupied  the  Tuscan  Appennines  with 
by  Florence,   ^j^^jj.  (jostles.    Of  thcsc  the  most  couspicuous  wcrc 
the  counts  of  Guidi,  a  numerous  and  powerful  family,  who 
possessed  a  material  influence  in  the  affairs  of  Florence  and 
of  all  Tuscany  till  the  middle  of  the  fourteenth  century,  and 
some  of  whom  preserved  their  independence  much  longer. 
To  the  south,  the  republics  of  Arezzo,  Perugia,  and  Siena; 
to  the  west,  those  of  Volterra,  Pisa,  and  Lucca ;  Prato  and 
Pistoja  to  the  north,  limited  the  Florentme  territory.    It  was 
late  before  these   boundaries  were  removed.     During  the 
usurpations  of  Uguccione  at  Pisa,  and  of  Castruccio  at  Lucca, 
the  republic  of  Florence  was  always  unsuccessful  in  the  field 
After  the  death  of  Castruccio  she  began  to  act  more  vigor 
ously,  and  engaged  in  several  confederacies  with  the  powers 
of  Lombardy,  especially  in  a  league  with  Venice  against 
Mastino  deUa  Scala.     But  the  republic  made  no  acquisition 
of  territory  till  1351,  when  she  annexed  the  small  city  of 

1  p  434  The  last  of  the  counts  Quldi,  baring  un- 

2  sismondi,  t.  Yi.  p.  316;  Corio,  1st.  di  wisely  embarked  in  a  confederacy  ^^^^ 
llUano,  p.  m.  Florence,  was  obbgedto  give  up  bis  an 

3  Corio,  p.  595.  cient  patrimony  In  1440. 

4  Q.  VUIani.  1.  v.  c.  87,  41,  et  aUbi. 


Italy. 


BY  FLORENCE. 


423 


Prato,  not  ten  miles  from  her  walls.^  Pistoja,  though  still 
nominally  independent,  received  a  Florentine  garrison  about 
the  same  time.  Several  additions  were  made  to  the  district 
by  fair  purchase  from  the  nobility  of  the  Appennines,  and  a 
few  by  main  force.  The  territory  was  still  very  little  pro- 
portioned to  the  fame  and  power  of  Florence.  The  latter 
was  founded  upon  her  vast  commercial  opulence.  Every 
Italian  state  employed  mercenary  troops,  and  the  richest  was^ 
of  course,  the  most  powerful.  In  the  war  against  Mestino 
della  Scala  in  1336  the  revenues  of  Florence  are  reckoned 
by  Villani  at  three  hundred  thousand  florins,  which,  as  he 
observes,  is  more  than  the  king  of  Naples  or  of  Aragon  pos- 
sesses.^ The  expenditure  went  at  that  time  very  much  be- 
yond the  receipt,  and  was  defrayed  by  loans  from  the  princi- 
pal mercantile  firms,  which  were  secured  by  public  funds, 
the  earliest  instance,  I  believe,  of  that  financial  resource.' 
Her  population  was  computed  at  ninety  thousand  souls. 
Villani  reckons  the  district  at  eighty  thousand  men,  I  sup- 
pose those  only  of  military  age ;  but  this  calculation  must 
have  been  too  large,  even  though  he  included,  as  we  may 
presume,  the  city  in  his  estimate.*     Tuscany,  though  well 


1  M.  Villani,  p.  72.  This  \yas  rather 
a  measure  of  usurpation  ;  but  the  repub> 
lie  had  some  reason  to  apprehend  that 
Prato  might  fall  into  the  hands  of  the 
Visconti.  Their  conduct  towards  Pistoja 
was  influenced  by  the  same  motive  ;  but 
it  was  still  further  removed  from  abso- 
lute justice,  p.  91. 

3  Q.  Villani,  1.  ix.  c  90-93.  These 
chapters  contain  a  very  full  and  interest- 
ing statement  of  the  revenues,  expenses, 
population,  and  internal  condition  of 
Florence  at  that  time.  Part  of  them  is 
extracted  by  M.  Sismondi,  t.  v.  p.  365. 
The  gold  tloriu  was  worth  about  ten 
shillings  of  our  money.  The  district  of 
Florence  was  not  then  much  larger  than 
Middlesex. 

a  G.  Villani,  1.  xi.  c.  49. 

*  C.  93.  Troviamo  diligentemente,  che 
in  quest!  tempi  avea  in  Firenze  circa  a 
25  mila  uomini  da  portare  arme  da  15 
in  70  anni  —  Stiniavasi  avere  in  Firenze 
da  90  mila  bocche  tra  uomini  e  femine  e 
fanciulli,  per  1'  avviso  del  pane  bisognava 
al  continuo  alia  citti.  These  proportions 
of  25,000  men  between  fifteen  and  sev- 
enty, and  of  90,000  souls,  are  as  nearly 
as  possible  consonant  to  modern  calcula- 
tion, of  which  Villani  knew  nothing, 
which  confirms  his  accuracy  ;  though  M. 
Sismondi  asserts,  p.  869,  that  the  city 


contained  150,000  inhabitants,  on  no  bet- 
ter authority,  as  far  as  appears,  than 
that  of  Boccaccio,  who  says  that  100,000 
perished  in  the  great  plague  of  1348, 
which  was  generally  supposed  to  destroy 
two  out  of  three.  But  surely  two  vague 
suppositions  are  not  to  bo  combined,  in 
order  to  overthrow  such  a  testimony  as 
that  of  Villani,  who  seems  to  have  con- 
sulted all  registers  and  other  authentic 
documents  in  his  reach. 

What  VilLani  says  of  the  population 
of  the  district  may  lead  us  to  reckon  it, 
perhaps,  at  about'180,000  souls,  allowing 
the  baptisms  to  be  one  in  thirty  of  the 
population,  llagionavasi  in  questi  tempi 
avere  nel  contado  e  distretto  di  Firenze 
de  80  mila  uomini.  Troviamo  del  pio- 
vano,  che  battezzava  i  fanciulli,  impe- 
roche  per  ogni  maschio,  che  battezzava 
in  San  Giovanni,  per  avere  il  novero, 
metea  una  fava  nera,  e  per  ogni  femina 
una  bianca,  trovo,  ch'  erano  1'  anno  in 
questi  tempi  dalle  5800  in  sei  mila,  avan- 
zando  le  piu  volte  il  sesso  masculino  da 
300  in  500  per  anno.  Baptisms  could 
only  be  performed  in  one  public  font,  at 
Florence,  Pisa,  and  some  other  cities. 
The  building  that  contained  this  font 
was  called  the  Baptistery.  The  baptis- 
teries of  Florence  and  Pisa  still  remain, 
and  are  well  known.    Du  Cange,  v.  Bap- 


424 


PISA. 


Chap.  III.  Pabt  IL 


cultivated  and  flourishing,  does  not  contain  by  any  means  so 
great  a  number  of  inhabitants  in  that  space  at  present. 

The  first  eminent  conquest  made  by  Florence  was  that  of 
pj^  Pisa,  early  in  the  fifteenth  century.     Pisa  had 

been  distinguished  as  a  commercial  city  ever  since 
the  age  of  the  Othos.     From  her  ports,  and  those  of  Genoa, 
the  earliest  naval  armaments  of  the  western  nations  were 
fitted  out  against  the  Saracen  corsairs  who  infested  the  Medi- 
terranean coasts.     In  the  eleventh  century  she  undertook, 
and,  after  a  pretty  long  struggle,  completed,  the  important, 
or  at  least  the  splendid,  conquest  of  Sardinia,  an  island  long 
subject  to  a  Moorish  chieftain.     Several  noble  families  of 
Pisa,  who  had  defrayed  the  chief  cost  of  this  expedition, 
shared  the  island  in  districts,  which  they  held  in  fief  of  the 
republic'     At  a  later  period  the  Balearic  isles  were  sub- 
jected, but  not  long  retained,  by  Pisa.     Her  naval  prowess 
was  supported  by  her  commerce.     A  writer  of  the  twelfth 
century  reproaches  her  with  the  Jews,  the  Arabians,  and 
other  "  monsters  of  the  sea,"  who  thronged  in  her  streets." 
The  crusades  poured  fresh  wealth  into  the  lap  of  the  mari- 
time Itahan  cities.     In  some  of  those  expeditions  a  great 
portion  of  the  armament  was  conveyed  by  sea  to  Palestine, 
and  freighted  the  vessels  of  Pisa,  Genoa,  and  Venice.    When 
the  Christians  had  bought  with  their  blood  the  sea-coast  of 
Syria,  these  republics  procured  the  most  extensive  privileges 
in  the  new  states  that  were  formed  out  of  their  slender  con- 
quests, and  became  the  conduits  through  which  the  produce 
of  the  East  flowed  in  upon  the  ruder  nations  of  Europe. 
Pisa  maintained  a  large  share  of  this  commerce,  as  well  as 
of  maritime  greatness,  till  near  the  end  of  the  thirteenth  cen- 
tury.    In  1282,  we  are  told  by  Villani,  she  was  in  great 
power,  possessing  Sardinia,  Corsica,  and  Elba,  from  whence 


tlsterium .  But  there  were  fifty-seven  par- 
ishes and  one  hundred  and  ten  churches 
within  the  city.  Villani,  ibid.  Mr.  Ros- 
coe  has  published  a  manuscript,  evi- 
dently written  after  the  taking  of  Pisa  in 
1406,  though,  as  I  should  guess,  not  long 
after  that  event,  containing  a  proposi- 
tion for  an  income-tax  of  ten  per  cent, 
throughout  the  Florentine  dominions. 
Among  its  other  calculations,  the  popu- 
lation is  reckoned  at  400,000 ;  assuming 
that  to  be  the  proportion  to  80,000  men 
of  military  age,  though  certainly  beyond 
the  mark.    It  is  singular  that  the  dis- 


trict of  Florence  in  1343  is  estimated  by 

Villani  to  contain  as  great  a  number. 

before  Pisa,  Vol  terra,  or  even  Prato  and 

Pistoja,  had  been  annexed  to  it. — Ros- 

coe's  Life  of  Lorenzo.    Appendix,  No.  16. 

1  Sismondi,  t.  i.  p.  ^5.  872. 

s  Qui  pergit  Pisas,  videt  illic  monstra 

marina ; 

Haec  urbs,  Paganis,  Turchls,  Libycif 

quoque,  Parthis, 
Sordida ;  Ctudd^i  sua  lustrant  moenia 
tetri. 
Donizo,  Vita  Comitisfie  Mathildis, 
apud  Muratori,  Dissert.  31. 


Italy. 


PISA. 


425 


the  republic,  as  well  as  private  persons,  derived  large  rev- 
enues, and  almost  ruled  the  sea  with  their  ships  and  mer- 
chandises, and  beyond  sea  were  very  powerful  in  the  city  of 
Acre,  and  much  connected  with  its  principal  citizens.^  The 
prosperous  era  of  Pisa  is  marked  by  her  public  edifices. 
She  was  the  first  Italian  city  that  took  a  pride  in  architect- 
ural magnificence.  Her  cathedral  is  of  the  eleventh  cen- 
tury ;  the  baptistery,  the  famous  inclined  tower,  or  belfry,  the 
arcades  that  surround  the  Campo  Santo,  or  cemetery  of 
Pisa,  are  of  the  twelfth,  or,  at  latest,  of  the  thirteenth.^ 

It  would  have  been  no  slight  anomaly  in  the  annals  of 
Italy,  or,  we  might  say,  of  mankind,  if  two  neighboring  cities, 
competitors  in  every  mercantile  occupation  and  every  naval 
enterprise,  had  not  been  perpetual  enemies  to  each  other.  One 
is  more  surprised,  if  the  fact  be  true,  that  no  war  broke  out 
between  Pisa  and  Genoa  till  1119.*  From  this  time  at  least 
they  continually  recurred.  An  equality  of  forces  and  of 
courage  kept  the  conflict  uncertain  for  the  greater  part  of 
two  centuries.  Their  battles  were  numerous,  and  sometimes, 
taken  separately,  decisive ;  but  the  public  spirit  and  resources 
of  each  city  were  called  out  by  defeat,  and  we  generally  find 
a  new  armament  replace  the  losses  of  an  unsuccessful  com- 
bat. In  this  respect  the  naval  contest  between  Pisa  and 
Gknoa,  though  much  longer  protracted,  resembles  that  of 
Rome  and  Carthage  in  the  first  Punic  war.  But  Pisa  was 
reserved  for  her  JEgades.  In  one  fatal  battle,  off  the  little 
isle  of  Meloria,  in  1284,  her  whole  navy  was  destroyed. 
Several  unfortunate  and  expensive  armaments  had  almost  ex- 
hausted the  state,  and  this  was  the  last  effort,  by  private  sac- 
rifices, to  equip  one  more  fleet.  After  this  defeat  it  was  in 
vain  to  contend  for  empire.  Eleven  thousand  Pisans  lan- 
guished for  many  years  in  prison ;  it  was  a  cuiTent  saying 
that  whoever  would  see  Pisa  should  seek  her  at  Genoa.  A 
treacherous  chief,  that  count  Ugolino  whose  guilt  was  so 
terribly  avenged,  is  said  to  have  purposely  lost  the  battle, 
and  prevented  the  ransom  of  the  captives,  to  secure  his 
power:  accusations  that  obtain  easy  credit  with  an  unsuc- 
cessful people. 

From  the  epoch  of  the  battle  of  Meloria,  Pisa  ceased  to 

1  Villani,  1.  vi.  c.  83. 

3  Sismondi,  t.  iv.  p.  178 ;  Tiraboschi,  t.  iU.  p.  406. 

»  Muratori,  ad  ann.  1119. 


426 


GENOA. 


Chap.  III.  Part  IL 


Italy. 


HER  WARS. 


427 


be  a  maritime  power.  Forty  years  afterwards  she  was  strip- 
ped of  her  ancient  colony,  the  island  of  Sardinia.  The  four 
Pisan  families  who  had  been  invested  with  that  conquest  had 
been  apt  to  consider  it  as  their  absolute  property ;  their  appel- 
lation of  judge  seemed  to  indicate  deputed  power,  but  they 
sometimes  assumed  that  of  king,  and  several  attempts  had  been 
made  to  estabhsh  an  immediate  dependence  on  the  empire, 
or  even  on  the  pope.  A  new  potentate  had  now  come  for- 
ward on  the  stage.  The  malecontent  feudataries  of  Sardinia 
made  overtures  to  the  king  of  Aragon,  who  had  no  scruples 
about  attacking  the  indisputable  possession  of  a  declining 
republic.  Pisa  made  a  few  unavailing  efforts  to  defend  Sai^ 
dinia ;  but  the  nominal  superiority  was  hardly  worth  a  con- 
test; and  she  surrendered  her  rights  to  the  crown  of  Aragon. 
Her  commerce  now  dwindled  with  her  greatness.  During 
the  fourteenth  century  Pisa  almost  renounced  the  ocean  and 
directed  her  main  attention  to  the  poUtics  of  Tuscany.  Ghib- 
elin  by  invariable  predilection,  she  was  in  constant  opposition 
to  the  Guelf  cities  which  looked  up  to  Florence.  But  in  the 
fourteenth  century  the  names  of  freeman  and  Ghibelin  were 
not  easily  united ;  and  a  city  in  that  interest  stood  insulated 
between  the  repubhcs  of  an  opposite  faction  and  the  tyrants 
of  her  own.  Pisa  fell  several  times  under  the  yoke  of 
usurpers ;  she  was  included  in  the  wide-spreading  acquisitions 
of  Gian  Galeazzo  Visconti.  At  his  death  one  of  his  family 
seized  the  dominion,  and  finally  the  Florentines  purchased 
for  400,000  florins  a  rival  and  once  equal  city.  The  Pisans 
made  a  resistance  more  according  to  what  they  had  been 
than  what  they  were. 

The  early  history  of  Genoa,  in  all  her  foreign  relations,  is 
Genoa.  involved  in  that  of  Pisa.     As  allies  against  the 

Her  wars  Saraccns  of  Africa,  Spain,  and  the  Mediterranean 
islands,  as  corrivals  in  commerce  with  these  very  Saracens 
or  with  the  Christians  of  the  East,  as  cooperators  in  the 
great  expeditions  under  the  banner  of  the  cross,  or  as  engaged 
in  deadly  warfare  with  each  other,  the  two  republics  stand  in 
continual  parallel.  From  the  beginning  of  the  thirteenth 
century  Genoa  was,  I  think,  the  more  prominent  and  flour- 
ishing of  the  two.  She  had  conquered  the  island  of  Corsica 
with  Pisa  ^*  ^^^  Same  time  that  Pisa  reduced  Sardinia ;  and 
her  acquisition,  though  less  considerable,  was  longer 
preserved.     Her  territory  at  home,  the  ancient  Liguria,  was 


much  more  extensive,  and,  what  was  most  important,  con- 
tained a  greater  range  of  sea-coast  than  that  of  Pisa.  But 
the  commercial  and  maritime  prosperity  of  Genoa  may  be 
dated  from  the  recovery  of  Constantinople  by  the  Greeks  in 
1261.  Jealous  of  the  Venetians,  by  whose  arms  the  Latin 
emperors  had  been  placed,  and  were  still  maintained,  on  their 
throne,  the  Genoese  assisted  Palasologus  in  overturning  that 
usurpation.  They  obtained  in  consequence  the  suburb  of 
Pera  or  Galata,  over  against  Constantinople,  as  an  exclusive 
settlement,  where  their  colony  was  ruled  by  a  magistrate  sent 
from  home,  and  frequently  defled  the  Greek  capital  with  its 
armed  galleys  and  intrepid  seamen.  From  this  convenient 
station  Genoa  extended  her  commerce  into  the  Black  Sea, 
and  estabhshed  her  principal  factory  at  Caffa,  in  the  Crimean 
peninsula.  This  commercial  monopoly,  for  such  she  endeav- 
ored to  render  it,  aggravated  the  animosity  of 
Venice.  As  Pisa  retired  from  the  field  of  waters,  *°^  ^''^''• 
a  new  enemy  appeared  upon  the  horizon  to  dispute  the  mari- 
time dominion  of  Genoa.  Her  first  war  with  Venice  was  in 
1258.  The  second  was  not  till  after  the  victory  of  Meloria 
had  crushed  her  more  ancient  enemy.  It  broke  out  in  1293, 
and  was  prosecuted  with  determined  fury  and  a  great  display 
of  naval  strength  on  both  sides.  One  Genoese  armament, 
as  we  are  assured  by  an  historian,  consisted  of  one  hundred 
and  fifty-five  galleys,  each  manned  with  from  two  hundred 
and  twenty  to  tliree  hundred  sailors ;  ^  a  force  astonishing  to 
those  who  know  the  more  slender  resources  of  Italy  in  mod- 
em times,  but  which  is  rendered  credible  by  several  analogous 
facts  of  good  authority.  It  was,  however,  beyond  any  other 
exertion.  The  usual  fleets  of  Genoa  and  Venice  were  of 
seventy  to  ninety  galleys. 

Perhaps  the  naval  exploits  of  these  two  republics  may 
afford  a  more  interesting  spectacle  to  some  minds  than  any 
other  part  of  Italian  history.  Compared  with  military  trans- 
actions of  the  same  age,  they  are  more  sanguinary,  more 
brilliant,  and  exhibit  full  as  much  skill  and  intrepidity.  But 
maritime  warfare  is  scanty  in  circumstances,  and  the  indefi- 
niteness  of  its  locality  prevents  it  from  resting  in  the  memory. 
And  though  the  wars  of  Grenoa  and  Venice  were  not  always 
BO  unconnected  with  territorial  politics  as  those  of  the  former 

X Muratori,  ad.  1296 


a 


^1 


428 


GENOA. 


chaf.  m.  pabi  n. 


Italt. 


HER  WARS. 


429 


city  with  Pisa,  yet,  from  the  alternation  of  success  and  equal- 
ity of  forces,  they  did  not  often  produce  any  decisive  effect 
One  memorable  encounter  in  the  Sea  of  Marmora,  where 
the  Genoese  fought  and  conquered  single-handed  against  the 
Venetians,  the  Catalans,  and  the  Greeks,  hardly  belongs  to 
Italian  history.^ 

But  the  most  remarkable  war,  and  that  productive  of  the 
D  1352       greatest  consequences,  was  one  that  commenced  in 
War  of  '       1378,  after  several  acts  of  hostility  in  the  Levant, 
Chioggia.       wherein  the  Venetians  appear  to  have  been  the 
principal  aggressors.     Genoa  did  not  stand  alone  in  this  war. 
A  formidable  confederacy  was  raised  against  Venice,  who 
had  given  provocation  to  many  enemies.     Of  this  Francis 
Carrara,  signor  of  Padua,  and  the  king  of  Hungary  were  the 
leaders.     But  the  principal  struggle  was,  as  usual,  upon  the 
waves.     During  the  winter  of  1378  a  Genoese  fleet  kept  the 
sea,  and  ravaged  the  shores  of  Dalmatia.     The  Venetian 
armament  had  been  weakened  by  an  epidemic  disease,  and 
when  Vittor  Pisani,  their  admiral,  gave  battle  to  the  enemy, 
he  was  compelled  to  fight  with  a  hasty  conscription  of  lands- 
men against  the  best  sailors  in  the  world.     Entirely  defeated, 
and  taking  refuge  at  Venice  with  only  seven  galleys,  Pisani 
was  cast  into  prison,  as  if  his  ill  fortune  had  been  his  crime. 
Meanwhile  the  Genoese  fleet,  augmented  by  a  strong  rein- 
forcement, rode  before  the  long  natural  ramparts  that  separate 
the  lagunes  of  Venice  from  the  Adriatic.     Six  passages  in- 
tersect the  islands  which  constitute  this  barrier,  besides  the 
broader  outlets  of  Brondolo  and  Fossone,  through  which  the 
waters  of  the  Brenta  and  the  Adige  are  discharged.     The 
lagune  itself,  as  is  well  known,  consists  of  extremely  shallow 
water,  unnavigable  for  any  vessel  except  along  the  course 
of  artificial  and  intricate  passages.     Notwithstanding  the  ap- 
parent difliculties  of  such  an  enterprise,  Pietro  Doria,  the 
Genoese  admiral,  determined  to  reduce  the  city.     His  first 
successes  gave  him  reason  to  hope.     He  forced  the  passage, 
and  stormed  the  little  town  of  Chioggia,^  built  upon  the  inside 
of  the  isle  bearing  that  name,  about  twenty-five  miles  south 
of  Venice.     Nearly  four  thousand  prisoners  fell  here  into 
his   hands:    an  augury,  as  it  seemed,  of  a  more  splendid 

1  Gibbon,  c.  63.  of  the  Venetian  dialect,  which  change! 

2  Chioggia,  known  at  Venice  by  the    the  g  into  z. 
Bame  of  Chioza,  according  to  the  usage 


triumph.  In  the  consternation  this  misfortune  inspired  at 
Venice  the  first  impulse  was  to  ask  for  peace.  The  ambas- 
sadors carried  with  them  seven  Genoese  prisoners,  as  a  sort 
of  peace-offering  to  the  admiral,  and  were  empowered  to 
make  large  and  humiliating  concessions,  reserving  nothing 
but  the  liberty  of  Venice.  Francis  Carrara  strongly  urged 
his  allies  to  treat  for  peace.  But  the  Genoese  were  stimu 
lated  by  long  hatred,  and  intoxicated  by  this  unexpected 
opportunity  of  revenge.  Doria,  calling  the  ambassadors 
into  council,  thus  addressed  them:  "Ye  shall  obtain  no 
peace  from  us,  I  swear  to  you,  nor  from  the  lord  of  Padua, 
till  first  we  have  put  a  curb  in  the  mouths  of  those  wild 
horses  that  stand  upon  the  place  of  St.  Mark.  When  they 
are  bridled  you  shall  have  enough  of  peace.  Take  back 
with  you  your  Genoese  captives,  for  I  am  coming  within  a 
few  days  to  release  both  them  and  their  companions  from 
your  prisons."  When  this  answer  was  reported  to  the 
senate,  they  prepared  to  defend  themselves  with  the  charac- 
teristic finnness  of  their  government.  Every  eye  was  turned  . 
towards  a  great  man  unjustly  punished,  their  admiral  Vittor 
Pisani.  He  was  called  out  of  prison  to  defend  his  country 
amidst  general  acclamations ;  but,  equal  in  magnanimity  and 
simple  republican  patriotism  to  the  noblest  characters  of 
antiquity,  Pisani  repressed  the  favoring  voices  of  the  multi- 
tude, and  bade  them  reserve  their  enthusiasm  for  St.  Mark, 
the  symbol  and  war-cry  of  Venice.  Under  the  vigorous 
command  of  Pisani  the  canals  were  fortified  or  occupied  by 
large  vessels  armed  with  artillery ;  thirty-four  galleys  were 
equipped ;  every  citizen  contributed  according  to  his  power ; 
in  the  entire  want  of  commercial  resources  (for  Venice  had 
not  a  merchant-ship  during  this  war)  private  plate  was 
melted ;  and  the  senate  held  out  the  promise  of  ennobling 
thirty  families  who  should  be  most  forward  in  this  strife  of 
patriotism. 

The  new  fleet  was  so  ill  provided  with  seamen  that  for 
some  months  the  admiral  employed  them  only  in  manoeuv- 
ring along  the  canals.  From  some  unaccountable  supine- 
ness,  or  more  probably  from  the  insuperable  diflSculties  of  the 
undertaking,  the  Genoese  made  no  assault  upon  the  city. 
They  had,  indeed,  fair  grounds  to  hope  its  reduction  by 
famine  or  despair.  Every  access  to  the  continent  was  cut 
off  by  the  troops  of  Padua ;  and  the  king  of  Hungary  had 


430 


WAKS  OF  GENOA.         Chap.  III.  Part  II. 


Italy. 


HER  GOVERmiENT. 


431 


mastered  almost  all  the  Venetian  to^vns  in  Istria  and  along 
the  Dahnatian  coast.     The  doge  Contarini,  taking  the  chief 
command,  appeared  at  length  with  his  fleet  near  Chioggia, 
before  the  Genoese  were  aware.     They  were  still  less  aware 
of  his  secret  design.     He  pushed  one  of  the  large  round 
vessels,  then  called  cocche,  into  the  narrow  passage  of  Chiog- 
gia which  connects  the  lagune  with  the  sea,  and,  mooring  her 
athwart  the   channel,  interrupted  that  communication.     At- 
tacked with  fury  by  the  enemy,  this  vessel  went  down  on  the 
spot,  and  the  doge  improved  his  advantage  by  sinking  loads 
of  stones  until  the  passage  became  absolutely  unnavigable. 
It  was  still  possible  for  the  Genoese  fleet  to  follow  the  prin- 
cipal canal  of  the  lagune  towards  Venice  and  the  northern 
passages,  or  to  sail  out  of  it  by  the  harbor  of  Brondolo ;  but, 
whether  from  confusion  or  from  miscalculating  the  dangers 
of  their  position,  they  suffered  the  Venetians  to  close  the 
canal  upon  them  by  the  same  means  they  had  used  at  Chiog- 
gia, and  even  to  place  their  fleet  in  the  entrance  of  Brondolo 
so  near  to  the  lagune  that  the  Genoese  could  not  form  their 
ships  in  line  of  battle.     The  circumstances  of  the  two  com- 
batants were  thus  entirely  changed.     But  the  Genoese  fleet, 
though  besieged  in  Chioggia,  was   impregnable,  and  their 
command  of  the  land  secured  them  from  famine.     Venice, 
notwithstanding  her  unexpected  success,  was  still  very  far 
from  secure ;  it  was  difficult  for  the  doge  to  keep  his  position 
through  the  winter ;  and  if  the  enemy  could  appear  in  open 
sea,  the  risks  of  combat  were  extremely  hazardous.     It  is 
said  that  the  senate  deliberated  upon  transporting  the  seat  of 
their  liberty  to  Candia,  and  that  the  doge  had  announced  his 
intention  to  raise  the  siege  of  Chioggia,  if  expected  succors 
did  not  arrive  by  the  1st  of  January,  1380.     On  that  very 
day  Carlo  Zeno,  an  admiral  who,  ignorant  of  the  dangers  of 
his  country,  had  been  supporting  the  honor  of  her  flag  in  the 
Levant  and  on  the  coast  of  Liguria,  appeared  with  a  rein- 
forcement of  eighteen   galleys   and   a  store   of  provisions. 
From  that  moment  the  confidence  of  Venice  revived.     The 
fleet,  now  superior  in  strength  to  the  enemy,  began  to  attack 
them  with  vivacity.     After  several  months  of  obstinate  re- 
sistance the  Genoese,  whom  their  republic  had  ineffectually 
attempted  to  relieve  by  a  fresh  armament,  blocked  up  in  the 
town  of  Chioggia,  and  pressed  by  hunger,  were  obliged  to 
surrender.     Nineteen  galleys  only  out  of  forty-eight  were  in 


good  condition;  and  the  crews  were  equally  diminished  in 
the  ten  months  of  their  occupation  of  Chioggia.  The  pride 
of  Genoa  was  deemed  to  be  justly  humbled ;  and  even  her 
own  historian  confesses  that  God  would  not  suffer  so  noble  a 
city  as  Venice  to  become  the  spoil  of  a  conqueror.^ 

Each  of  the  two  republics  had  sufficient  reason  to  lament 
their  mutual  prejudices,  and  the  selfish  cupidity  of  their  mer- 
chants, which  usurps  in  all  maritime  countries  the  name  of 
patriotism.  Though  the  capture  of  Chioggia  did  not  termi- 
nate the  war,  both  parties  were  exhausted,  and  willing,  next 
year,  to  accept  the  mediation  of  the  duke  of  Savoy.  By  the 
peace  of  Turin,  Venice  surrendered  most  of  her  territorial 
possessions  to  the  king  of  Hungary.  That  prince  and 
Francis  Carrara  were  the  only  gainers.  Genoa  obtained  the 
isle  of  Tenedos,  one  of  the  original  subjects  of  dispute ;  a 
poor  indemnity  for  her  losses.  Though,  upon  a  hasty  view, 
the  result  of  this  war  appears  more  unfavorable  to  Venice, 
yet  in  fact  it  is  the  epoch  of  the  decline  of  Genoa.  From 
this  time  she  never  commanded  the  ocean  with  such  navies 
as  before ;  her  commerce  gradually  went  into  decay ;  and 
the  fifteenth  century,  the  most  splendid  in  the  annals  of 
Venice,  is,  till  recent  times,  the  most  ignominious  in  those  of 
Genoa.  But  this  was  partly  owing  to  internal  dissensions, 
by  which  her  liberty,  as  well  as  glory,  was  for  a  while  sus- 
pended. 

At  Genoa,  as  in  other  cities  of  Lombardy,  the  principal 
magistrates  of  the  republic  were  originally  styled  Government 
Consuls.  A  chronicle  drawn  up  under  the  inspec-  °^  Genoa. 
tion  of  the  senate  perpetuates  the  names  of  these  early 
magistrates.  It  appears  that  their  number  varied  from  four 
to  six,  annually  elected  by  the  people  in  their  full  parlia- 
ment These  consuls  presided  over  the  republic  and  com- 
manded the  forces  by  land  and  sea ;  while  another  class  of 
magistrates,  bearing  the  same  title,  were  annually  elected  by 
the  several  companies  into  which  the  people  were  divided, 
for  the  administration  of  civil  justice.^  This  was  the  regi- 
men of  the  twelfth  century ;  but  in  the  next  Genoa  fell  into 
the  fashion  of  intrusting  the  executive  power  to  a  foreign 

1 0.  Stella,  Annales  Oenuenses ;  Ga-  Sismondi's  narrative  is  very  clear  and 

tare,  Istoria  Padovana.    Both  these  con-  spirited.  —  Hist,  des  R^publ.  Ital.  t.  yii. 

temporary  works,  of   which   the  latter  p.  205-232. 

gires  the  best  relation,  are  in  the  seven-  2  Sismondi,  t.  i.  p.  853. 
ttentb  TOlume  of  Muratori's  collection. 


I 


*f| 


432 


GOVERNIHENT  OF  GENOA.   Chap.  III.  Part  II. 


podesta.  The  podesta  was  assisted  by  a  council  of  eiglit, 
chosen  by  the  eight  companies  of  nobility.  This  institution, 
If  indeed  it  were  anything  more  than  a  custom  or  usurpation, 
originated  probably  not  much  later  than  the  beginning  of 
the  thirteenth  century.  It  gave  not  only  an  aristocratic,  but 
almost  an  ohgarchical  character  to  the  constitution,  since 
many  of  the  nobility  were  not  members  of  these  eight  socie- 
ties. Of  the  senate  or  councils  we  hardly  know  more  than 
their  existence ;  they  are  very  little  mentioned  by  historians. 
Everything  of  a  general  nature,  everything  that  required  the 
expression  of  public  will,  was  reserved  for  the  entire  and  un- 
represented sovereignty  of  the  people.  In  no  city  was  the 
parliament  so  often  convened;  for  war,  for  peace,  for  al- 
liance, for  change  of  government.^  These  very  dissonant 
elements  were  not  likely  to  harmonize.  The  people,  suf- 
ficiently accustomed  to  the  forms  of  democracy  to  imbibe  its 
spirit,  repined  at  the  practical  influence  which  was  thrown 
into  the  scale  of  the  nobles.  Nor  did  some  of  the  latter  class 
scruple  to  enter  that  path  of  ambition  which  leads  to  power 
by  flattery  of  the  populace.  Two  or  three  times  within  the 
thirteenth  century  a  high-bom  demagogue  had  nearly  over- 
turned the  general  liberty,  like  the  Torriani  at  Milan,  through 
the  pretence  of  defending  that  of  individuals.^  Among  the 
nobility  themselves  four  houses  were  distinguished  beyond 
all  the  rest  —  the  Grimaldi,  the  Fieschi,  the  Doria,  the  Spi- 
nola ;  the  two  former  of  Guelf  politics,  the  latter  adherents 
of  the  empire.*  Perhaps  their  equality  of  forces,  and  a  jeal- 
ousy which  even  the  families  of  the  same  faction  entertained 
of  each  other,  prevented  any  one  from  usurping  the  signiory 
at  Genoa.  Neither  the  Guelf  nor  Ghibelin  party  obtaining  a 
decided  preponderance,  continual  revolutions  occun-ed  in  the 
city.  The  most  celebrated  was  the  expulsion  of  the  Ghibe- 
lins  under  the  Doria  and  Spinola  in  1318.  They  had  re- 
course to  the  Visconti  of  Milan,  and  their  o^ti  resources 
were  not  unequal  to  cope  with  their  country.  The  Guelfs 
thought  it  necessary  to  call  in  Robert  king  of  Naples,  always 
ready  to  give  assistance  as  the  price  of  dominion,  and  con- 
ferred upon  him  the  temporary  sovereignty  of  Genoa.  A 
siege  of  several  years'  duration,  if  we  believe  an  historian  of 
that  age,  produced  as  many  remarkable  exploits  as  that  of 

1  Sismondi,  p.  324.  -  Id.  t.  iii  p.  319.  t  Id.  t.  Ui.  p.  828. 


Italy. 


THE  FIRST  DOGE. 


433 


Troy.  They  have  not  proved  so  interesting  to  posterity 
The  Ghibehns  continued  for  a  length  of  time  excluded  from 
the  city,  but  in  possession  of  the  seaport  of  Savona,  whence 
they  traded  and  equipped  fleets,  as  a  rival  republic,  and  even 
entered  into  a  separate  war  with  Venice.^  Experience  of 
the  uselessness  of  hostiUty,  and  the  loss  to  which  they  ex- 
posed their  common  country,  produced  a  reconciliation,  or 
rather  a  compromise,  in  1331,  when  the  Ghibelins  returned 
to  Genoa.  But  the  people  felt  that  many  years  of  misfor- 
tune had  been  owing  to  the  private  enmities  of  four  over- 
bearing families.  An  opportunity  soon  offered  of  reducing 
their  influence  within  very  narrow  bounds. 

The  Ghibelin  faction  was  at  the  head  of  affairs  in  1339, 
a  Doria  and  a  Spinola  being  its  leaders,  when  the  jag^tion  of 
discontent  of  a  large  fleet  in  want  of  pay  broke  the  first 
out  in  open  insurrection.  Savona  and  the  neigh-  ^'^' 
boring  towns  took  arms  avowedly  against  the  aristocratical 
tyranny ;  and  the  capital  was  itself  on  the  point  of  joining 
the  insurgents.  There  was,  by  the  Genoese  constitution,  a 
magistrate  named  the  Abbot  of  the  people,  acting  as  a  kin4 
of  tribune  for  their  protection  against  the  oppression  of  the 
nobility.  His  functions  are  not,  however,  in  any  book  I  have 
seen,  very  clearly  defined.  This  office  had  been  abolished  by 
the  present  government,  and  it  was  the  first  demand  of  the 
malecontents  that  it  should  be  restored.  This  was  acceded 
to,  and  twenty  delegates  were  appointed  to  make  the  choice. 
While  they  delayed,  and  the  populace  was  grown  weary  with 
waiting,  a  nameless  artisan  called  out  from  an  elevated  station 
that  he  could  direct  them  to  a  fit  person.  When  the  people, 
in  jest,  bade  him  speak  on,  he  uttered  the  name  of  Simon 
Boccanegra.  This  was  a  man  of  noble  birth,  and  well  es- 
teemed, who  was  then  present  among  the  crowd.  The  word 
was  suddenly  taken  up ;  a  cry  was  heard  that  Boccanegra 
should  be  abbot ;  he  was  instantly  brought  forward,  and  the 
sword  of  justice  forced  into  his  hand.  As  soon  as  silence 
could  be  obtained  he  modestly  thanked  them  for  their  favor, 
but  declined  an  office  which  his  nobility  disqualified  him  from 
exercising.  At  this  a  single  voice  out  of  the  crowd  exclaimed, 
"  Signior  !  "  and  this  title  was  reverberated  from  every  side. 
Fearful  of  worse  consequences,  the  actual  magistrates  urged 


TOL.  I. 


1  Villani,  1.  iz.  passim. 
28 


434 


REVOLUTIONS  OF  GENOA.     Chap.  III.  Part  II 


Italy.  ' 


VENICE. 


435 


him  to  comply  with  the  people  and  accept  the  office  of  abbot. 
But  Boccanegra,  addressing  the  assembly,  declared  his  readi- 
ness to  become  their  abbot,  signior,  or  whatever  they  would. 
The  cry  of  "  Signior  !  "  was  now  louder  than  before ;  while 
others  cried  out°  "  Let  him  be  duke  ! "  The  latter  title  was 
received  with  greater  approbation ;  and  Boccanegra  was  con- 
ducted to  the  palace,  the  first  duke,  or  doge,  of  Genoa.* 

Caprice  alone,  or  an  idea  of  more  pomp  and  dignity,  led 
Subsequent    the  populacc,  wc  may  conjecture,  to  prefer   this 
wToiutions.    title  to  that  of  signior  ;  but  it  produced  important 
and  highly  beneficial  consequences.     In  all  neighboring  cities 
an  arbitrary  government  had  been  already  established  under 
their  respective  signiors  ;  the  name  was  associated  with  indef- 
inite power,  while  that  of  doge  had  only  been  taken  by  the 
elective  and  very  hmited  chief  magistrate  of  another  mari- 
time republic.     Neither  Boccanegra  nor  his  successors  ever 
rendered  their  authority  unlimited  or  hereditary.     The  con- 
stitution of  Genoa,  from  an  oppressive  aristocracy,  became 
a  mixture  of  the  two  other  forms,  with  an  exclusion  of  the 
nobles  from  power.     Those  four  great  families  who  had  dom- 
ineered alternately  for  ahnost  a  century  lost  their  influence 
at  home  after  the  revolution  of  1339.     Yet,  what  is  remarka- 
ble enough,  they  were  still  selected  in   preference  for  the 
highest  of  trusts ;  their  names  are  still  identified  with  the 
glory  of  Genoa ;  her  fleets  hardly  sailed  but  under  a  Dona, 
a  Spinola,  or  a  Grimaldi ;  such  confidence  could  the  repubhc 
bestow  upon  their  patriotism,  or  that  of  those  whom  they 
commanded.     Meanwhile  two  or  three  new  families,  a  ple- 
beian oligarchy,  filled  their  place  in  domestic  honors ;  the 
Adomi,  the  Fregosi,  the  Montalti,  contended  for  the  ascend- 
ant.    From  their  competition  ensued  revolutions  too  numer- 
ous almost  for  a  separate  history;  in  four  years,  from  1390 
to  1394,  the  doge  was  ten  times  changed ;  swept  away  or 
brought  back  in  the  fluctuations  of  popular  tumult     Antoni- 
otto  Adorno,  four  times  doge  of  Genoa,  had  sought  the  friend- 
ship of   Gian    Galeazzo  Visconti;   but  that  crafty   tyrant 
meditated  the  subjugation  of  the  republic,  and  played  her 
factions  against  one  another  to  render  her  fall  secure.   Adomo 
perceived  that  there  was  no  hope  for  ultunate  mdependence 
but  by  makmg  a  temporary  sacrifice  of  it.     His  own  power 

1 G.  Stella.    Annal.  Genuenfies,  In  Script.  Rer.  Ital.  t.  xyii.  p.  1072. 


ambitious  as  he  had  been,  he  voluntarily  resigned,  and  placed 
the  republic  under  the  protection  or  signiory  of  the  king  of 
France.  Terms  were  stipulated  very  favorable  to  her  liber- 
ties ;  but,  with  a  French  garrison  once  received  into  the  city, 
they  were  not  always  sure  of  observance.^ 

While  Genoa  lost  even  her  political  independence,  Venice 
became  more  conspicuous  and  powerful  than  be-  ^   . 
fore.      That  famous   repubUc    deduces    its    origi-    *^^* 
nal,  and   even   its  liberty,   from  an   era   beyond  the   com- 
mencement of  the  middle  ages.     The  Venetians  boast  of  a 
perpetual  emancipation  from  the  yoke  of  barbarians.     From 
that  ignominious  servitude  some  natives,  or,  as  their  histori- 
ans will  have  it,  nobles,  of  Aquileja  and  neighboring  towns,* 
fled  to  the  small  cluster  of  islands  that  rise  amidst  the  shoals 
at  the  mouth  of  the   Brenta.     Here  they  built  the  town  of 
Rivoalto,  the  modem  Venice,  in  421 ;  but  their  chief  settle- 
ment was,  till  the  beginning  of  the  ninth  century,  at  Mala- 
mocco.     A  living  writer  has,  in  a  passage  of  remarkable  elo- 
quence, described  the  sovereign  republic,  immoveable  upon 
the  bosom  of  the  waters  from  which  her  palaces  emerge, 
contemplating  the  successive  tides  of  continental  invasion,  the 
rise  and  fall  of  empires,  the  change  of  dynasties,  the  whole 
moving  scene  of  human  revolution,  till,  in  her  own  turn,  the 
last  surviving  witness  of  antiquity,  the  common  link  between 
two  periods  of  civilization,  has  submitted  to  the  destroying 
hand  of  time.'     Some  part  of  this  renown  must,  on  a  cold- 
blooded scrutiny,  be  detracted  from  Venice.     Her  independ- 
ence was,  at  the  best,  the  fruit  of  her  obscurity. 
Neglected  upon  their  islands,  a  people  of  fisher-  ^w'^ortSt 
men  might   without  molestation  elect  their  own  <^ree^ 
magistrates ;  a  very  equivocal  proof  of  sovereignty  ®"^"*' 
in  cities  much  more  considerable  than  Venice.     But  both  the 
western  and  the  eastern  empire  alternately  pretended  to  ex- 
ercise dominion  over  her ;  she  was  conquered  by  Pepin,  son 
of  Charlemagne,  and  restored  by  him,  as  the  chronicles  say, 
to  the  Greek  emperor  Nicephorus.     There  is  every  appear- 
ance that  the  Venetians  had  always  considered  themselves 
as  subject,  in  a  large  sense  not  exclusive  of  their  municipal 
self-government,  to  the  eastern  empire.*    And  this  connec- 


1  Sismondi,  t.  vii.  p.  237,  367. 

*  Ebbe  principio,  gays  Sanuto  haugh- 
tily, non  da  pastori,  come  ebbe  Roma, 
nft  da  potenti,  e  nobili. 


s  Sismondi,  t.  i.  p.  809. 

*  Nicephorus  stipulates  with  Charle 
magne  for  his  faithful  city  of  Venicei, 
Qu»  in  deTotione  imperii  illibatte  ste. 


I 


436  ACQUISITIONS  OF  VENICE.    Chap.  HI.  Part  H. 

tion  was  not  broken,  in  the  early  part,  at  least,  of  the  tenth 
century.     But,  for  every  essential   purpose,  Venice   might 
lonff  before  be  deemed  an  independent  state.     Her  doge  wa3 
not  confirmed  at  Constantinople;  she  paid  no  tribute,  and 
lent  no  assistance  in  war.     Her  own  navies,  m  the  ninth  cen- 
tury,  encountered  the  Normans,  the  Saracens,  and  the  Scla- 
vonians  in  the  Adriatic  Sea.     Upon  the  coast  of  Dahnatia 
were  several  Greek  cities,  which  the  empire  had  ceased  to 
protect,  and  which,  like  Venice  itself,  became  repubhcs  for 
want  of  a  master.     Ragusa  was  one  of  these,  and,  more  for- 
tunate  than  the  rest,  survived  as  an  independent  city  till  our 
Conquest  of    own  age.     In  return  for  the  assistance  of  Vemoe, 
Daimatia.       ^j^^g^  ^^^\q  scaports  put  themselvcs  under  her  gov- 
A.B.  997.        ernment ;  the  Sclavonian  pirates  were  repressed ; 
and  after  acquiring,  partly  by  consent,  partly  by  arms,  a 
large  tract  of  maritime  territory,  the  doge  took  the  title  of  duke 
of  Dahnatia,  which  is  said  by  Dandolo  to  have  been  confirmed 
at  Constantinople.   Three  or  four  centuries,  however,  elapsed 
before  the  republic  became  secure  of  these  conquests,  which 
were  frequently  wrested  from  her  by  rebellions  of  the  inhab- 
itants,  or  by  her  powerful  neighbor,  the  kmg  of  Hungary. 
A  more  hnportant  source  of  Venetian  greatness  was  com- 
merce.    In  the  darkest  and  most  barbarous  penod, 
SHu '     before  Genoa  or  even  Pisa  had  entered  into  mer- 
the  Levant.    ^^^^:^q  pursuits,  Vcnicc  Carried  on  an  extensive 
traffic  both  with  the  Greek  and  Saracen  regions  of  the  Le- 
vant.    The  crusades  enriched  and  aggrandized  Venice  more, 
perhaps,  than  any  other  city.     Her  splendor  may,  however, 
be  dated  from  the  taking  of  Constantinople  by  the  Latms  m 
1204.    In  this  famous  enterprise,  which  diverted  a  great  ar- 
mament  destined  for  the  recovery  of  Jerusalem,  the  t  rench 
and  Venetian  nations  were  alone  engaged ;  but  Uie  tormer 
only  as  private  adventurers,  the  latter  with  the  whole  strength 

tenmt    DandtiliChronicon,  inMur&tori,    Giannone's  history,  t.  ii.  p.  288»  «dlt, 
£riSt  Re?   iS.  t.  xii.  p.'l56.    In  the    Haia,  1763,^  MuraW  infotms^uji  that 
tenth   century   Constantine    Porphyro- 
ankitus,  in  his  book  De  Administratione 
Imperii,  claims  the  Venetians  as  iiis  sub- 
jects, though  he  admits  that  they  had, 
for  peace  sake,  paid  tribute  to  Pepin  and 
his  successora  as  kings  of  Italy.  P-  7f- 
I  have  not  read  the  famous  Squittinio 
lella  libertii  Veneta,  which  gave  the  re- 
public 80  much  offence  in  the  seventeenth 
century ;  but  a  very  strong  case  is  made 
out  against  their  early  independence  in 


so  late  as  1084  the  doge  obtained  the  title 
of  imperialis  Protosevastos  from  the 
court  of  Constantinople;  a  title  which 
he  continued  always  to  use.  (Annali 
d'  ItaUa,  ad  ann.)  But  I  should  lay  no 
streaa  on  this  circumstance.  The  Greek, 
like  the  German  emperors  in  modern 
times,  had  a  mint  of  specious  titUs, 
which  passed  Ibr  ready  money  over 
Christendom. 


\ 


Italy. 


HER  GOVERNMENT. 


437 


of  their  republic  under  its  doge  Henry  Dandolo.  Three 
eighths  of  the  city  of  Constantinople,  and  an  equal  propor- 
tion of  the  provinces,  were  allotted  to  them  in  the  partition 
of  the  spoil,  and  the  doge  took  the  singular  but  accurate  title, 
Duke  of  three  eigths  of  the  Roman  empire.  Their  share 
was  increased  by  purchases  from  less  opulent  crusaders,  es- 
pecially one  of  much  importance,  the  island  of  Candia,  which 
they  retained  till  the  middle  of  the  seventeenth  century.  These 
foreign  acquisitions  were  generally  granted  out  in  fief  to  pri- 
vate Venetian  nobles  under  the  supremacy  of  the  republic* 
It  was  thus  that  the  Ionian  islands,  to  adopt  the  vocabulary 
of  our  day,  came  under  the  dominion  of  Venice,  and  guar- 
anteed that  sovereignty  which  she  now  began  to  affect  over 
the  Adriatic.  Those  of  the  Archipelago  were  lost  in  the 
sixteenth  century.  This  political  greatness  was  sustained 
by  an  increasing  commerce.  No  Christian  state  preserved 
80  considerable  an  intercourse  with  the  Mohammedans. 
While  Genoa  kept  the  keys  of  the  Black  Sea  by  her  colo- 
nies of  Pera  and  Caffa,  Venice  directed  her  vessels  to  Acre 
and  Alexandria.  These  connections,  as  is  the  natural  effect 
of  trade,  deadened  the  sense  of  religious  antipathy ;  and  the 
Venetians  were  sometimes  charged  with  obstructing  all  efforts 
towards  a  new  crusade,  or  even  any  partial  attacks  upon  the 
Mohammedan  nations. 

The  earliest  form  of  government  at  Venice,  as  we  collect 
from  an  epistle  of  Cassiodorus  in  the  sixth  century,  Venetian 
was  by  twelve  annual  tribunes.  Perhaps  the  eo^emment. 
union  of  the  different  islanders  was  merely  federative. 
However,  in  697,  they  resolved  to  elect  a  chief  magistrate 
by  name  of  duke,  or,  in  their  dialect,  doge  of  Venice. 
No  councils  appear  to  have  limited  his  power,  or  represented 
the  national  will.  The  doge  was  general  and  judge ;  he  was 
sometimes  permitted  to  associate  his  son  with  him,  and  thus 
to  prepare  the  road  for  hereditary  power ;  his  government 
had  all  the  prerogatives,  and,  as  far  as  in  such  a  state  of 
manners  was  possible,  the  pomp,  of  a  monarchy.  But  he 
acted  in  important  matters  with  the  concurrence  of  a  general 
assembly,  though,  from  the  want  of  positive  restraints,  his 
executive  government  might  be  considered  as  nearly  abso- 
lute.   Time,  however,  demonstrated  to  the  Venetians  the 


1  Sismondi,  t.  U.  p.  431 


438 


GOVERNMENT  OF  VENICE.    Chap.  m.  Part  II. 


Ill 


imperfections  of  such  a  constitution.  Limitations  were  ac- 
cordingly imposed  on  the  doge  in  1032  ;  he  was  prohibited 
from  associating  a  son  in  the  government,  and  obliged  to  act 
with  the  consent  of  two  elected  counsellors,  and,  on  impor- 
tant occasions,  to  call  in  some  of  the  principal  citizens.  No 
other  change  appears  to  have  taken  place  till  1172,  long 
after  every  other  Italian  city  had  provided  for  its  liberty  by 
constitutional  laws,  more  or  less  successful,  but  always  mani- 
festing a  good  deal  of  contrivance  and  complication.  Venice 
was,  however,  dissatisfied  with  her  existing  institutions. 
General  assemblies  were  found,  in  practice,  inconvenient 
and  unsatisfactory.  Yet  some  adequate  safeguard  against 
a  magistrate  of  indefinite  powers  was  required  by  freemen. 
A  representative  council,  as  in  other  republics,  justly  appear- 
ed the  best  innovation  that  could  be  introduced.* 

The  great  council  of  Venice,  as  established  in  1172,  was 
to  consist  of  four  hundred  and  eighty  citizens,  equally  taken 
from  the  six  districts  of  the  city,  and  annually  renewed.     But 
the  election  was  not  made  unmediately  by  the  people.     Two 
electors,  called  tribunes,  from  each  of  the  six  districts,  ap- 
pointed the  members  of  the  council  by  separate  nomination. 
These  tribunes  at  first  were  themselves  chosen  by  the  people, 
so  that  the  intervention  of  this  electoral  body  did  not  appar- 
ently trespass  upon  the  democratical  character  of  the  consti- 
tution.    But  the  great  council,  principally  composed  of  men 
of  high  birth,  and  invested  by  the  law  with  the  appointment 
of  the  doge,  and  of  all  the  councils  of  magistracy,  seem, 
early  in  the  thirteenth  century,  to  have  assumed  the  right  of 
naming  their  own  constituents.    Besides  appointing  the  trib- 
unes, they  took  upon  themselves  another  privilege,  that  of 
confirming  or  rejecting  their  successors  before  they  resigned 
their  ftinctions.      These  usurpations  rendered  the   annual 
election  almost  nugatory ;  the  same  members  were  usually 
renewed ;  and  though  the  dignity  of  councillor  was  not  yet 
hereditary,  it  remained,  upon  the  whole,  in  the  same  farnilies. 
In  this  transitional  state  the  Venetian  government  continued 
during  the  thirteenth  century ;  the  people  actually  debarred 


1  Slsmondi,  t.  iil.  p.  287.  As  I  haye 
neyer  read  the  Storia  civile  Veneta  by 
Vettor  SaDdi,  In  nine  vols.  4to.,  or  even 
Laugier's  History  of  Venice,  my  reliance 
has  chiefly  been  placed  on  M.  Sismondi, 
•who  has  made  use  of  Sandi,  the  latest, 
•nd  probably  the  most  accurate,  histo- 


rian. To  avoid  frequent  reference,  the 
principal  passages  in  Sismondi  relative  to 
the  domestic  revolutions  of  Venice  are 
t.  i.  p.  823,  t.  iii.  p.  287-300,  t.  iv.  p.  849- 
370.  Tht  history  of  Daru  had  not  been 
published  when  this  was  written. 


iTALT. 


GOVERNMENT  OF  VENICE. 


439 


of  power,  but  an  hereditary  aristocracy  not  completely  or 
legally  confirmed.  The  right  of  electing,  or  rather  of  re- 
electing, the  great  council  was  transferred,  in  1297,  from  the 
tribunes,  whose  office  was  abolished,  to  the  council  of  forty ; 
they  balloted  upon  the  names  of  the  members  who  already  sat ; 
and  whoever  obtained  twelve  favoring  balls  out  of  forty  re- 
tained his  place.  The  vacancies  occasioned  by  rejection  or 
death  were  filled  up  by  a  supplemental  list  formed  by  three 
electors  nominated  in  the  great  council.  But  they  were  ex- 
pressly prohibited,  by  laws  of  1298  and  1300,  from  inserting 
the  name  of  any  one  whose  paternal  ancestors  had  not  en- 
joyed the  same  honor.  Thus  an  exclusive  hereditary  aris- 
tocracy was  finally  established.  And  the  personal  rights  of 
noble  descent  were  rendered  complete  in  1319  by  the  aboli- 
tion of  all  elective  forms.  By  the  constitution  of  Venice  as 
it  was  then  settled,  every  descendant  of  a  member  of  the 
great  council,  on  attaining  twenty-five  years  of  age,  entered 
as  of  right  into  that  body,  which,  of  course,  became  un- 
limited in  its  numbers.* 

But  an  assembly  so  numerous  as  the  great  council,  even 
before  it  was  thus  thrown  open  to  all  the  nobility,  could 
never  have  conducted  the  public  afiairs  with  that  secrecy 
and  steadiness  which  were  characteristic  of  Venice ;  and 
without  an  intermediary  power  between  the  doge  and  the 
patrician  multitude  the  constitution  would  have  gained 
nothing  in  stability  to  compensate  for  the  loss  of  popular 
freedom.  The  great  council  had  proceeded  very  soon  after 
its  institution  to  limit  the  ducal  prerogatives.  That  of  exer- 
cising criminal  justice,  a  trust  of  vast  importance,  was  trans- 
ferred in  1179  to  a  council  of  forty  members  annually 
chosen.  The  executive  government  itself  was  thought  too 
considerable  for  the  doge  without  some  material  limitations. 
Instead  of  naming  his  own  assistants  or  pregadi,  he  was 
only  to  preside  in  a  council  of  sixty  members,  to  whom  the 
care  of  the  state  in  all  domestic  and  foreign  relations,  and 


1  These  gradual  changes  between  1297 
and  1319  were  first  made  known  by  Sandi, 
from  whom  M.  Sismondi  has  introduced 
the  facts  into  his  own  history.  I  notice 
this,  because  all  former  writers,  both  an- 
cient and  modern,  fix  the  complete  and 
final  establishment  of  the  Venetian  aris- 
tocracy in  1297. 

Twenty-five  years  complete  was  the 
statutable  age  at  which  every  Venetian 


noble  had  a  right  to  take  his  scat  in  the 
great  council.  But  the  names  of  those 
who  had  passed  the  age  of  twenty  were 
annually  put  into  an  urn,  and  one  fifth 
drawn  out  by  lot,  who  were  thereupon 
admitted.  On  an  average,  therefore,  the 
age  of  admission  was  about  twenty-three. 
Janotus  de  Rep.  Venet.  —  Contarini. — 
Amelot  de  la  Uoussaye. 


I  ,' 


440 


GOVERNMENT  OF  VENICE.    Chap.  HI.  Pabt  Ii. 


Xtalt. 


GOVERNMENT  OF  VENICE. 


441 


the  previous  deliberation  upon  proposals  submitted  to  the 
great  council,  was  confided.  This  council  of  pregadi,  gen- 
erally called  in  later  times  the  senate,  was  enlarged  in 
the  fourteenth  century  by  sixty  additional  members;  and 
as  a  great  part  of  the  magistrates  had  also  seats  in  it,  the 
whole  number  amounted  to  between  two  and  three  hundred. 
Though  the  legislative  power,  properly  speaking,  remained 
with  the  great  council,  the  senate  used  to  impose  taxes,  and 
had  the  exclusive  right  of  making  peace  and  war.  It  was 
annually  renewed,  like  almost  all  other  councils  at  Venice, 
by  the  great  council.  But  since  even  this  body  was  too  nu- 
merous for  the  prehminary  discussion  of  business,  six  coun- 
cillors, forming,  along  with  the  doge,  the  signiory,  or  visible 
representative  of  the  republic,  were  empowered  to  dispatch 
orders,  to  correspond  with  ambassadors,  to  treat  with  foreign 
states,  to  convoke  and  preside  in  the  councils,  and  perform 
other  duties  of  an  administration.  In  part  of  these  they 
were  obliged  to  act  with  the  concurrence  of  what  was  term- 
ed the  college,  comprising,  besides  themselves,  certain  select 
councillors,  from  different  constituted  authorities.* 

It  might  be  imagined  that  a  dignity  so  shorn  of  its  lustre 
as  that  of  doge  would  not  excite  an  overweening  ambition. 
But  the  Venetians  were  still  jealous  of  extinguished  power ; 
and  while  their  constitution  was  yet  inmiature,  the  great 
council  planned  new  methods  of  restricting  their  chief  mag- 
istrate. An  oath  was  taken  by  the  doge  on  his  election,  so 
comprehensive  as  to  embrace  every  possible  check  upon  un- 
due influence.  He  was  bound  not  to  correspond  with  foreign 
states,  or  to  open  their  letters,  except  in  the  presence  of  the 
signiory;  to  acquire  no  property  beyond  the  Venetian  do- 
minions, and  to  resign  what  he  might  already  possess ;  to  in- 
terpose, directly  or  indirectly,  in  no  judicial  process ;  and  not 
to  permit  any  citizen  to  use  tokens  of  subjection  in  saluting 
him.  As  a  further  security,  they  devised  a  remarkably  com- 
plicated mode  of  supplying  the  vacancy  of  his  office.  Elec- 
tion by  open  suflfrage  is  always  liable  to  tumult  or  corruption ; 
nor  does  the  method  of  secret  ballot,  while  it  prevents  the 


1  The  college  of  Say]  consisted  of  six- 
teen persons ;  and  it  possessed  the  t nitm- 
tive  ia  all  public  measures  that  required 
the  assent  of  the  senate.  For  no  single 
senator,  much  less  any  noble  of  the  great 
council^  could  propose  anything  for  de- 


hate.  The  signiory  had  the  same  privi- 
lege. Thus  the  rirtual  powers  even  of 
the  senate  were  far  more  limited  than 
they  appear  at  first  sight ;  and  no  possi* 
bility  remained  of  innovation  in  the  fun- 
damental principles  of  the  constitution 


one,  afford  in  practice   any  adequate   security  against  the 
other.     Election  by  lot  incurs  the  risk  of  placing  incapable 
persons  in  situations  of  arduous  tnist.     The  Venetian  scheme 
was  intended  to  combine  the  two  modes  without  their  evils, 
by  leaving  the  absolute  choice  of  theu*  doge  to  electors  taken 
by  lot.     It  was  presumed  that,  among  a  competent  number 
of  persons,  though  taken  promiscuously,  good  sense  and  right 
principles  would  gain  such  an  ascendency  as  to  prevent  any 
flagrantly  improper  nomination,  if  undue  influence  could  be 
excluded.     For  this  purpose  the  ballot  was  rendered  exceed- 
ingly complicated,  that   no  possible  ingenuity  or  stratagem 
might  ascertain  the  electoral   body  before  the  last  naoment. 
A  single  lottery,  if  fairly  conducted,  is  certainly  sufficient  for 
this  end.     At  Venice  as  many  balls  as  there  were  members 
of  the  great  council  present  were  placed  in  an  urn.     Thirty 
of  these  were  gilt     The  holders  of  gilt  balls  were  reduced 
by  a  second  ballot  to  nine.     The  nine  elected  forty,  whom 
lot  reduced  to  twelve.     The   twelve   chose  twenty-five  by 
separate  nomination.*     The  twenty-five  were  reduced  by  lot 
to  nine  ;  and  each  of  the  nine  chose  five.     These  forty-five 
were  reduced  to  eleven  as  before ;  the  eleven  elected  forty- 
one,  who  were  the  ultimate  voters  for  a  doge.     This  intri- 
cacy appears  useless,  and  consequently  absurd ;  but  the  original 
principle  of  a  Venetian  election  (for  something  of  the  same 
kind  was  applied  to  all  their  councils  and  maf^'strates)  may 
not  always  be  unworthy  of  imitation.    In  one  of  our  best 
modem  statutes,  that  for  regulating  the  trials  of  contested 
elections,  we  have  seen  this  mixture  of  chance  and  selection 
very  happily  introduced.* 

An  hereditary  prince  could  never  have  remained  quiet  in 
such  trammels  as  were  imposed  upon  the  doge  of  Venice. 
But  early  prejudice  accustoms  men  to  consider  restraint,  even 
upon  themselves,  as  advantageous ;  and  the  limitations  of  du- 
cal power  appeared  to  every  Venetian  as  fundamental  as  the 
great  laws  of  the  English  constitution  do  to  ourselves.  Many 
doges  of  Venice,  especially  in  the  middle  ages,  were  consid- 
erable men  ;  but  they  were  content  with  the  functions  assigned 


1  Amelot  de  la  Houssaye  asserts  this : 
but,  according  to  Contarini,  the  method 
was  by  ballot. 

iThis  was  written  about  1810.  The 
statute  to  which  I  allude  grew  out  of 
flkTor  afterwards.   But  there  is  too  much 


reason  to  doubt  whether  grosser  instances 
of  partial  or  unjust,  or  at  best  erroneous, 
determination  have  not  taken  place  since 
a  new  tribunal  was  erected,  than  could 
be  imputed  to  the  celebrated  Qrenville 
Act.    [1850.] 


442 


GOVERNMENT  OF  VENICE.    Chap.  HI.  Part  II. 


Italy. 


GOVERNMENT  OF  VENICE. 


443 


to  them,  which,  if  they  could  avoid  the  tantalizing  comparison 
of  sovereign  princes,  were  enough  for  the  ambition  of  repub- 
licans. For  life  the  chief  magistrates  of  their  country,  her 
lioble  citizens  for  ever,  they  might  thank  her  in  their  own 
name  for  what  she  gave,  and  in  that  of  their  posterity  for 
what  she  withheld.  Once  only  a  doge  of  Venice  was  tempted 
1355  *^  betray  the  freedom  of  the  republic.  Marin 
Falieri,  a  man  far  advanced  in  life,  engaged,  from 
some  petty  resentment,  in  a  wild  intrigue  to  overturn  the 
government.  The  conspiracy  was  soon  discovered,  and  the 
doge  avowed  his  guilt.  An  aristocracy  so  firm  and  so 
severe  did  not  hesitate  to  order  his  execution  in  the  ducal 
palace. 

For  some  years  after  what  was  called  the  closing  of  the 
great  council  by  the  law  of  1296,  which  excluded  all  but  the 
families  actually  in  possession,  a  good  deal  of  discontent 
showed  itself  among  the  commonalty.  Several  commotions 
took  place  about  the  beginning  of  the  fourteenth  century,  with 
the  object  of  restoring  a  more  popular  regimen.  Upon  the 
suppression  of  the  last,  in  1310,  the  aristocracy  sacrificed  their 
own  individual  freedom,  along  with  that  of  the  people,  to  the 
preservation  of  an  imaginary  privilege.  They  established 
the  famous  council  of  ten,  that  most  remarkable  part  of  the 
Venetian  constitution.  This  council,  it  should  be  observed, 
consisted  in  fact  of  seventeen,  comprising  the  signiory,  or  the 
doge  and  his  six  councillors,  as  well  as  the  ten  properly  so 
called.  The  council  of  ten  had  by  usage,  if  not  by  right,  a 
controlling  and  dictatorial  power  over  the  senate  and  other 
magistrates,  rescinding  their  decisions,  and  treating  separately 
with  foreign  princes.  Their  vast  influence  strengthened  the 
executive  government,  of  which  they  formed  a  part,  and 
gave  a  vigor  to  its  movements  which  the  jealousy  of  the 
councils  would  possibly  have  impeded.  But  they  are  chiefly 
known  as  an  arbitrary  and  inquisitorial  tribunal,  the  standing 
tyranny  of  Venice.  Excluding  the  old  council  of  forty,  a 
regular  court  of  criminal  judicature,  not  only  from  the  inves- 
tigation of  treasonable  charges  but  of  several  other  crimes 
of  magnitude,  they  inquired,  they  judged,  they  punished,  ac- 
cording to  what  they  called  reason  of  state.  The  public  eye 
never  penetrated  the  mystery  of  their  proceedings ;  the  ac- 
cused was  sometimes  not  heard,  never  confronted  with  wit- 
nesses; the   condemnation   was   secret  as  the  inquiry,   the 


punishment  undivulged  like  both.^  The  terrible  and  odious  ma- 
chinery of  a  police,  the  insidious  spy,  the  stipendiary  informer, 
unknown  to  the  carelessness  of  feudal  governments,  found  their 
natural  soil  in  the  republic  of  Venice.  Tumultuous  assem- 
blies were  scarcely  possible  in  so  peculiar  a  city ;  and  private 
conspiracies  never  failed  to  be  detected  by  the  vigilance  of 
the  council  of  ten.  Compared  with  the  Tuscan  republics  the 
tranquillity  of  Venice  is  truly  striking.  The  names  of  Guelf 
and  Ghibelin  hardly  raised  any  emotion  in  her  streets,  though 
the  government  was  considered  in  the  first  part  of  the  four- 
teenth century  as  rather  inclined  towards  the  latter  party.' 
But  the  wildest  excesses  of  faction  are  less  dishonoring  than 
the  stillness  and  moral  degradation  of  servitude.* 

It  was  a  very  common  theme  with  political  writers  till 
about  the  beginning  of  the  last  century,  when  Venice  fell 
almost  into  oblivion,  to  descant  upon  the  wisdom  of  this  gov- 
ernment. And,  indeed,  if  the  preservation  of  ancient  insti- 
tutions be,  as  some  appear  to  consider  it,  not  a  means  but  an 
end,  and  an  end  for  which  the  rights  of  man  and  laws  of 
God  may  at  any  time  be  set  aside,  we  must  acknowledge  that 
it  was  a  wisely  constructed  system.  Formed  to  compress  the 
two  opposite  forces  from  which  resistance  might  be  expected, 
it  kept  both  the  doge  and  the  people  in  perfect  subordination. 
Even  the  coalition  of  an  executive  magistrate  with  the  multi- 
tude, so  fatal  to  most  aristocracies,  never  endangered  that  of 
Venice.  It  is  most  remarkable  that  a  part  of  the  constitution 
which  destroyed  every  man's  security,  and  incurred  general 
hatred,  was  still  maintained  by  a  sense  of  its  necessity.  The 
council  of  ten,  annually  renewed,  might  annually  have  been 
annihilated.     The  great  council  had  only  to  withhold  their 


^  Ilium  etiam  morem  observant,  ne 
reum,  cum  de  eo  judicium  laturi  sunt, 
in  collegium  admittant,  ncque  cognito- 
rem,  aut  oratorem  quempiam,  qui  ejus 
causam  agat.    Contarini  de  Rep.  Venet. 

3  Villani  several  times  speaks  of  the 
Venetians  as  reguLir  Ghibelins.  1.  ix.  c. 
2, 1.  X.  c.  89,  &c.  But  this  is  put  much 
too  strongly  :  though  their  government 
may  have  had  a  slight  bias  towards  that 
Ikction,  they  were  in  reality  neutral,  and 
fer  enough  removed  from  any  domestic 
feuds  upon  that  score. 

3  By  the  modem  law  of  Venice  a  noble- 
man could  not  engage  in  trade  without 
derogating  from  his  rank :  I  do  not  find 
this  peculiarity  observed  by  Jaunotti  and 
Contarini,  the  oldest  writers  on  the  Vene- 


tian government:  but  Daru  informs  us 
it  was  by  a  law  enacted  in  1400.  Hist, 
de  Venise,  1.  589.  It  is  noticed  by  Ame- 
lot  de  la  Houssaye,  who  tells  us  also,  as 
Daru  does,  that  the  nobility  evaded  the 
law  by  secret  partnership  with  the  privi- 
leged merchants  or  cittadini,  who  formed 
a  separate  class  at  Venice.  This  was  the 
custom  in  modern  times.  But  I  liave 
never  understood  the  principle  or  com- 
mon sense  of  such  a  restriction,  espe- 
cially combined  with  that  other  funda- 
mental law  which  disqualified  a  Venetian 
nobleman  from  possessing  a  landed  estate 
on  the  terra  firma  of  the  republic.  The 
latter,  however,  did  not  extend,  as  I  have 
been  informed,  to  Dalmatia,  or  the  Ionian 
islands. 


I 


444  GOVERNMENT  OF  VENICE.     Chap.  HI.  Part  U 

suffrages  from  the  new  candidates,  and  the  tyranny  expired 
of  itself.     This  was  several  times  attempted  (I  speak  now  of 
more  modern  ages) ;  but  the  nobles,  though  detesting  the 
council  of  ten,  never  steadily  persevered  in  refusing  to  re- 
elect it.    It  was,  in  fact,  become  essential  to  Venice.    So  great 
were  the  vices  of  her  constitution  that  she  could  not  endure 
their  remedies.     If  the  council  of  ten  had  been  abolished  at 
any  time  since  the  fifteenth  century,  if  the  removal  of  that 
jealous  despotism  had  given  scope  to  the  corruption  of  a  poor 
and  debased  aristocracy,  to  the  license  of  a  people  unworthy 
of  freedom,  the  republic  would  have  soon  lost  her  territorial 
possessions,  if  not  her  own  independence.     If,  indeed,  it  be 
true,  as  reported,  that  during  the  last  hundred  years  this  for- 
midable tribunal  had  sensibly  relaxed  its  vigilance,  if  the  Ve- 
netian government  had  become  less  tyrannical  through  sloth 
or  decUne  of  national  spirit,  our  conjecture  will  have  acquired 
the  confirmation  of  experience.      Experience   has  recently 
shown  that  a  worse  calamity  than  domestic  tyranny  might 
befall  the  queen  of  the  Adriatic.     In  the  Place  of  St.  Mark, 
among  the  monuments  of  extinguished  greatness,  a  traveller 
may  regret  to  think  that  an  insolent  German  soldiery  has  re- 
placed even  the  senators  of  Venice.     Her  ancient  liberty,  her 
bright  and  romantic  career  of  glory  in  countries  so  dear  to  the 
imagination,  her  magnanimous  defence  in  the  war  of  Chiog- 
gia,'a  few  thmly  scattered  names  of  illustrious  men,  will  rise 
Spon  his  mind,  and  mingle  with  his  indignation  at  the  treach- 
ery which  robbed  her  of  her  independence.     But  if  he  has 
learned  the  true  attributes  of  wisdom  in  civil  policy,  he  will 
not  easily  prostitute  that  word  to  a  constitution  formed  without 
reference  to  property  or  to  population,  that  vested  sovereign 
power  partly  in  a  body  of  impoverished  nobles,  partly  in  an 
overruling  despotism ;  or  to  a  practical  system  of  government 
that  made  vice  the  ally  of  tyranny,  and  sought  impunity  for 
its  own  assassinations  by  encouraging  dissoluteness  of  private 
life.     Perhaps,  too,  the  wisdom  so  often  imputed  to  the  sen- 
ate in  its  foreign  policy  has  been  greatly  exaggerated.     The 
balance  of  power  established  in  Europe,  and  above  all  in  Italy, 
maintained  for  the  two  last  centuries  states  of  small  intrinsic 
resources,  without  any  efforts  of  their  own.     In  the  ultimate 
crisis,  at  least,  of  Venetian  hberty,  that  solemn  mockery  of 
statesmanship  was  exhibited  to  contempt;  too  blind  to  avert 
danger,  too  cowardly  to  withstand  it,  the  most  ancient  gov- 


Italt. 


STATE  OF  LOMBARDY. 


445 


emment  of  Europe  made  not  an  instant's  resistance;  the 
peasants  of  Underwald  died  upon  their  mountains  ;  the  nobles 
of  Venice  clung  only  to  their  lives.^ 

UntU  ahnost  the  middle  of  the  fourteenth  century  Venice 
had  been  content  without  any  territorial  possessions  in  Italy ; 
unless  we  reckon  a  very  narrow  strip  of  sea-coast,  bordering 
on  her  lagunes,  called  the  Dogato.     Neutral  in  Territorial 
the  great  contests  between  the  church  and  the  JJ<i^^^^*;^°* 
empire,  between  the  free  cities  and  their  sover- 
eigns, she  was  respected  by  both  parties,  while  neither  ven- 
tured to  claim  her  as  an  ally.     But  the  rapid  progress  of 
Mastino  della  Scala,  lord  of  Verona,  with  some  particular 
injuries,  led  the  senate  to  form  a  league  with  Florence 
against  him.     ViUani  mentions  it  as  a  singular  honor  for  his 
country  to  have  become  the  confederate  of  the  Venetians, 
"  who,  for  their  great  excellence  and  power,  had  never  allied 
themselves  with  any  state  or  prince,  except  at  their  ancient 
conquest  of  Constantinople  and  Romania."  ^    The  result  of 
this  combination  was  to  annex  the  district  of  Treviso  to  the 
Venetian  dominions.     But  they  made  no  further  conquests 
in  that  age.     On  the  contrary,  they  lost  Treviso  in  the 
unfortunate  war  of  Chioggia,  and  did  not  regain  it  till  1389. 
Nor  did  they  seriously  attempt  to  withstand  the  progress  of 
Gian  Galeazzo  Visconti,  who,  after  overthrowing  the  family 
of  Scala,  stretched  almost  to  the  Adriatic,  and  altogether 
subverted  for  a  time  the  balance  of  power  in  Lombardy. 
But  upon  the  death  of  this  prince,  in  1404,  a  remarkable 
crisis  took  place  in  that  country.     He  left  two  s^te  of^ 
sons,  Giovanni   Maria  and  Filippo  Maria,  both  ^J'^/''  ^ 
young,  and  under  the  care  of  a  mother  who  was  ^J^J^^°g 
little  fitted  for  her  situation.     Through  her  mis-  fifteenth 
conduct  and  the  selfish  ambition  of  some  military  century. 


1  The  circumstances  to  which  Venice 
was  reduced  in  her  last  agony  by  the 
^olence  and  treachery  of  Napoleon,  and 
the  apparent  impossibility  of  an  effective 
Ksistance,  so  fully  described  by  Daru, 
and  still  better  by  Botta,  induce  me  to 
modify  the  severity  of  this  remark.  In 
former  editions  I  have  by  mistake  said 
that  the  last  doge  of  Venice,  Manini,  is 
buried  in  the  church  of  the  Scalzi,  with 
the  inscription  on  the  stone,  Manini 
Cineres.  This  church  was  indeed  built 
by  the  contributions  of  several  noble 
flunilies,  among  them  the  Manini,  most 
of  whom  are  interred  there ;  but  the  last 


doge  himself  lies  in  that  of  the  Jesuits. 
The  words  Manini  Cineres  may  be  read 
in  both,  which  probably  was  the  cause 
of  my  forgetfulness.  [1850.] 

See  in  the  Edinburgh  Review,  vol.  xil. 
p.  379,  an  account  of  a  book  which  is, 
perhaps,  little  known,  though  interest- 
ing  to  the  history  of  our  own  age :  a  col- 
lection of  documents  illustrating  the  fall 
of  the  republic  of  Venice.  The  article  is 
well  written,  and,  I  presume,  contains  a 
faithful  account  of  the  work  ;  the  author 
of  which,  Signor  Barzoni,  is  respected  aS 
a  patriotic  writer  in  Italy. 

3  L.  xi.  c.  49. 


446 


STATE  OF  LOMBARDY.    Chap.  HI.  Pabt  II. 


Italy. 


WARS  OF  MILAN  AND  VENICE. 


447 


leaders,  who  had  commanded  Gian  Galeazzo's  mercenaries, 
that  extensive  dominion  was  soon  broken  into  fragments. 
Bergamo,  Como,  Lodi,  Cremona,  and  other  cities  revolted, 
submitting  themselves  in  general  to  the  families  of  their 
former  princes,  the  earlier  race  of  usurpers,  who  had  for 
nearly  a  century  been  crushed  by  the  Visconti.  A  Guelf 
faction  revived  after  the  name  had  long  been  proscribed  in 
Lombardy.  Francesco  da  Carrara,  lord  of  Padua,  availed 
himself  of  this  revolution  to  get  possession  of  Verona,  and 
seemed  likely  to  unite  all  the  cities  beyond  the  Adige.  No 
femily  was  so  odious  to  the  Venetians  as  that  of  Carrara. 
Though  they  had  seemed  indifferent  to  the  more  real  danger 
in  Gian  Galeazzo's  lifetime,  they  took  up  arms  against  this 
inferior  enemy.  Both  Padua  and  Verona  were  reduced, 
and,  the  duke  of  Milan  ceding  Vicenza,  the  repubUc  of 
Venice  came  suddenly  into  the  possession  of  an  extensive 
territory.  Francesco  da  Carrara,  who  had  surrendered  in 
his  capital,  was  put  to  death  in  prison  at  Venice. 

Notwithstanding  the  deranged  condition  of  the  Milanese, 
no  further  attempts  were  made  by  the  senate  of  Venice  for 
twenty  years.  They  had  not  yet  acquired  that  decided  love 
of  war  and  conquest  which  soon  began  to  influence  them 
against  all  the  rules  of  their  ancient  policy.  There  were  still 
left  some  wary  statesmen  of  the  old  school  to  check  ambitious 
designs.  Sanuto  has  preserved  an  interesting  account  of 
the  wealth  and  commerce  of  Venice  in  those  days.  This  is 
thrown  mto  the  mouth  of  the  Doge  Mocenigo,  whom  he 
represents  as  dissuading  his  country,  with  his  dying  words, 
from  undertaking  a  war  against  Milan.  "Through  peace 
our  city  has  every  year,"  he  said,  "  ten  millions  of  ducats 
employed  as  mercantile  capital  in  different  parts  of  the 
world;  the  annual  profit  of  our  traders  upon  this  sum 
amounts  to  four  millions.  Our  housing  is  valued  at  7,000,000 
ducats ;  its  annual  rental  at  500,000.  Three  thousand  mer- 
chant-ships carry  on  our  trade ;  forty-three  galleys  and  three 
hundred  smaller  vessels,  manned  by  19,000  sailors,  secure 
our  naval  power.  Our  mint  has  coined  1,000,000  ducats 
within  the  year.  From  the  Milanese  dominions  alone  we 
draw  1,654,000  ducats  in  coin,  and  the  value  of  900,000 
more  in  cloths ;  our  profit  upon  this  traffic  may  be  reckoned 
at  600,000  ducats.  Proceeding  as  you  have  done  to  acquire 
this  wealth,  you  will  become  masters  of  all  the  gold  in  Chris- 


tendom ;  but  war,  and  especially  unjust  war,  will  lead  infal- 
libly to  ruin.  Already  you  have  spent  900,000  ducats  in  the 
acquisition  of  Verona  and  Padua ;  yet  the  expense  of  pro- 
tecting these  places  absorbs  all  the  revenue  which  they  yield. 
You  have  many  among  you,  men  of  probity  and  experience ; 
choose  one  of  these  to  succeed  me ;  but  beware  of  Francesco 
Foscari.  If  he  is  doge,  you  will  soon  have  war,  and  war 
will  bring  poverty  and  loss  of  honor."  ^  Mocenigo  died,  and 
Foscari  became  doge :  the  prophecies  of  the  former  were 
neglected ;  and  it  cannot  wholly  be  aflirmed  that  they  were 
fulfilled.  Yet  Venice  is  described  by  a  writer  thirty  years 
later  as  somewhat  impaired  in  opulence  by  her  long  warfare 
with  the  dukes  of  Milan. 

The  latter  had  recovered  a  great  part  of  their  dominions 
as  rapidly  as  they  had  lost  them.     Giovanni  Maria,  ^^^  ^^ 
the  elder  brother,  a  monster  of  guilt  even  among  Milan  and 
the  Visconti,   having   been   assassinated,   Filippo 
Maria  assumed  the  government  of  Milan  and  Pavia,  almost 
his  only  possessions.     But  though  weak  and  unwarlike  him- 
self, he  had  the  good  fortune  to  employ  Carmagnola,  one  of 
the  greatest  generals  of  that  military  age.     Most  of  the 
revolted  cities  were  tired  of  their  new  masters,  and,  their 
inclinations   conspiring  with   Carmagnola's   eminent   talents 
and  activity,  the  house  of  Visconti  reassumed  its  former  as- 
cendency from  the  Sessia  to  the  Adige.     Its  fortunes  might 
have  been  still  more  prosperous  if  Filippo  Maria  had  not 
rashly  as  well  as  ungratefully  offended  Carmagnola.     That 
great  captain  retired  to  Venice,  and  inflamed  a  disposition 
towards  war  which  the  Florentines  and  the  duke  of  Savoy 
had  already  excited.     The  Venetians  had  previously  gained 
some  important  advantages  in  another  quarter,  by  reducing 
the  country  of  Friuli,  with  part  of  Istria,  which  had  for  many 
centuries  depended  on  the  temporal  authority  of  a  neighbor- 
ing prelate,  the  patriarch  of  Aquileia.     They  entered  into 


1  Sanuto,  Vite  di  Duchi  d!  Venczia,  \n 
Script.  Rer.  Ital.  t.  xxii.  p.  958.    Moccni- 

S's  harangue  is  very  long  in  Sanuto.  I 
Te  endeavored  to  preserre  the  sub- 
stance. But  the  calculations  are  so 
strange  and  manifestly  inexact  that  they 
deserve  little  regard.  Daru  has  given 
them  more  at  length,  Hist,  de  Venise, 
fol.  ii.  p.  205.  The  revenues  of  Venice, 
which  had  amounted  to  99G.290  ducats  in 
1428,  were  but  M5,750  in  1469,  notwith 


standing  her  acquisition.  In  the  mean- 
time, of  Brescia,  Bergamo,  Ravenna,  and 
Crema  Id.  ii.  462.  They  increased  con- 
siderably in  the  next  twenty  years.  The 
taxes,  however,  were  light  in  the  Venetian 
dominions  ;  and  Daru  conceives  the  reve- 
nues of  the  republic,  reduced  to  a  com 
price,  to  have  not  exceeded  the  value 
of  11,000,000  francs  at  the  present  day. 
p.  542 


448 


CHANGE  IN  MILITARY  SYSTEM.     Chap.  III.  Part  II. 


this  new  alliance.     No  undertaking  of  the  republic  had  been 

-^g       more  successful.     Carmagnola  led  on  their  armies, 

and  in  about  two  years  Venice  acquired  Brescia 

and  Bergamo,  and  extended  her  boundary  to  the  river  Adda, 

which  she  was  destined  pever  to  pass. 

Such  conquests  could  only  be  made  by  a  city  so  peculiar- 
^,        ,        ly  maritime  as  Venice  through  the  help  of  mer- 
themiutary    ccnary  troops.      But,   m    employing   them,   she 
system.         merely  conformed  to  a  fashion  which   states  to 
whom  it  was  less  indispensable  had  long  since  established. 
A  great  revolution  had  taken  place  in  the  system  of  military 
service  through  most  parts  of  Europe,  but  especially  in  Italy. 
During  the  twelfth  and  thirteenth   centuries,  whether  the 
Italian  cities  were  engaged  in  their  contest  with  the  em- 
perors or  in  less  arduous  and  general  hostilities  among  each 
other,  they  seem  to  have  poured  out   almost  their  whole 
population  as  an  armed  and  loosely  organized  militia.     A 
single   city,  with  its   adjacent   district,   sometimes  brought 
twenty  or  thirty  thousand  men  into  the  field.     Every  man, 
according  to  the  trade  he  practised,  or  quarter  of  the  city 
wherein  he  dwelt,  knew  his  own  banner  and  the  captain  he 
was  to  obey.^      In  battle  the  carroccio  formed  one    com- 
mon   rallying-point,  the    pivot  of  every  movement.     This 
was  a  chariot,  or  rather  wagon,  painted  with  vermilion,  and 
bearing  the  city  standard  elevated  upon  it.     That  of  Milan 
required  four  pair  of  oxen  to  drag  it  forward.^    To  defend 
this  sacred  emblem  of  his  country,  which  Muratori  compares 
to  the  ark  of  the  covenant  among  the  Jews,  was  the  constant 
object,  that,  giving  a  sort  of  concentration  and  uniformity  to 
the  army,  supplied  in  some  degree  the  want  of  more  regular 
tactics.     This    militia  was  of  course  principally  composed 
of  infantry.     At  the  famous  battle  of  the  Arbia,  in  1260, 
the  Guelf  Florentines  had  thirty  thousand  foot  and  three 
thousand  horse ; '  and  the  usual  proportion  was  five,  six,  or 
ten  to  one.    Gentlemen,  however,  were  always  mounted ;  and 
the  superiority  of  a  heavy  cavalry  must  have  been  prodig- 
iously great  over  an  undiscipUned  and  ill-armed  populace. 


1  Muratori,  Antiq.  Ital.  Diss.  26:  Deni- 
4a,  Rivoluzioni  d'  Italia,  1.  xii.  c.  4. 

3  The  carroccio  was  inyented  by  Eribert, 
*  celebrated  archbishop  of  Milan,  about 
1039.  Annali  di  Murat.;  Antiq.  Ital. 
Diss.  26.  The  carroccio  of  Milan  was 
taken  by  Frederic  II.  in  12S7,  and  sent 


to  Rome.  Parma  and  Cremona  lost  their 
carroccios  to  each  other,  and  exchanged 
them  some  years  afterwards  with  great 
exultation.  In  the  fourteenth  century 
this  custom  had  gone  into  disuse.  —  Id. 
ibid.  Denina,  1.  zli.  e.  4. 
3  Villani,  1.  vi.  c.  79. 


Italt. 


EMPLOYMENT  OF  FOREIGN  TROOPS. 


449 


In  the  thirteenth  and  following  centuries  armies  seem  to 
have  been  considered  as  formidable  nearly  in  proportion  to 
the  number  of  men-at-arms  or  lancers.  A  charge  of  cav- 
alry was  irresistible ;  battles  were  continually  won  by  inferior 
numbers,  and  vast  slaughter  was  made  among  the  fugitives.^ 

As  the  comparative  inefficiency  of  foot-soldiers  became 
evident,  a  greater  proportion  of  cavalry  was  employed,  and 
armies,  though  better  equipped  and  disciplined,  were  less 
numerous.  This  we  find  in  the  early  part  of  the  fourteenth 
century.  The  main  point  for  a  state  at  war  was  ^^  j^  ^^^^ 
to  obtain  a  sufficient  force  of  men-at-arms.  As  few  of  foreign 
Italian  cities  could  muster  a  large  body  of  cavalry  *"*°p^' 
from  their  own  population,  the  obvious  resource  was  to  hire 
mercenary  troops.  This  had  been  practised  in  some  instances 
much  earlier.  The  city  of  Genoa  took  the  count  of  Savoy 
into  pay  with  two  hundred  horse  in  1225.^  Florence  re- 
tained five  hundred  French  lances  in  1282.^  But  it  became 
much  more  general  in  the  fourteenth  century,  chiefly  after 
the  expedition  of  the  emperor  Henry  VII.  in  1310.  Many 
German  soldiers  of  fortune,  remaining  in  Italy  upon  this  oc- 
casion, engaged  in  the  service  of  MUan,  Florence,  or  some 
other  state.  The  subsequent  expeditions  of  Louis  of  Ba- 
varia in  1326,  and  of  John  king  of  Bohemia  in  1331, 
brought  a  fresh  accession  of  adventurers  from  the  same 
country.  Others  again  came  from  France,  and  some  from 
Hungary.  All  preferred  to  continue  in  the  richest  country 
and  finest  climate  of  Europe,  where  their  services  were 
anxiously  solicited  and  abundantly  repaid.  An  unfortunate 
prejudice  in  favor  of  strangers  prevailed  among  the  Itahans 
of  that  age.  They  ceded  to  them,  one  knows  not  why,  cer- 
tainly without  having  been  vanquished,  the  palm  of  military 
skill  and  valor.  The  word  Transalpine  (Oltramontani)  is 
frequently  applied  to  hired  cavalry  by  the  two  Villani  as  an 
epithet  of  excellence. 

The  experience  of  every  fresh  campaign  now  told  more 


1  Sismondi.  t.  iii.  p.  263,  &c.,  has  some 
judicious  observations  on  this  subject. 

*  Muratori,  Dissert.  26. 

'  Ammirato,  1st.  Fiorent.  p.  159.  The 
same  was  done  in  1297,  p.  200.  A  lance^ 
in  the  technical  language  of  those  age.'', 
included  the  lighter  cavalry  attached  to 
the  man-at-arms  aa  well  as  himself.  In 
France  the  full  complement  of  a  lance 
(lance  foumie)  was  five  or  six  horses ;  thus 

VOL.  I.  29 


the  1500  lances  who  composed  the  origi- 
nal companies  of  ordonnance  raised  by 
Charles  VI.  amounted  to  nine  thousand 
cavalry.  But  in  Italy  the  number  was 
smaller.  We  read  frequently  of  barbuti, 
which  are  defined  lauze  de  due  cavalli. 
Corio,  p.  437.  Lances  of  three  horses 
were  introduced  about  the  middle  of  the 
fourteenth  century. — Id.  p.  466. 


450   EMPLOYMENT  OF  FOREIGN  TROOPS.   Chap.  HI.  Pabt  H. 

and  more  against  the  ordinary  militia.    It  has  been  usual  for 
modern  writers  to  lament  the  degeneracy  of  martial  spirit 
amonc^  the  Italians  of  that  age.     But  the  contest  was  too  un- 
eaual  between  an  absolutely  invulnerable  body  of  cuirassiers 
aSd  an  infantry  of  peasants  or  citizens.     The  bravest  men 
have  little  appetite  for  receiving  wounds  and  death  without 
the  hope  of  inflictmg  any  in  return.     The  parochial  militia  of 
France  had  proved  equally  unserviceable ;  though,  as  the 
life  of  a  French  peasant  was  of  much  less  account  m  the 
eves  of  his  government  than  that  of  an  Italian  citizen,  they 
were  still  led  forward  like  sheep  to  the  slaughter  against  the 
disciplined  forces  of  Edward  IH.     The  cavalry  liad  about 
this  time  laid  aside  the  hauberk,  or  coat  of  mail,  their  ancient 
distinction  from  the  unprotected  populace;  which,  though  in- 
capable of  being  cut  through  by  the  sabre,  afforded  no  de- 
fence  against  the  pointed  sword  mtroduced  m  the  thirteenth 
century,*  nor  repelled  the  impulse  of  a  lance  or  the  crushing 
blow  of  a  battle-axe.      Plate-armor  was  substituted  m  its 
place ;  and  the  man-at-arms,  cased  in  entire  steel,  the  several 
pieces  firmly  riveted,  and  proof  against  every  stroke,  his 
charcrer  protected  on  the  face,  chest,  and  shoulders,  or,  as  it 
was  Called,  barded,  with  plates  of  steel,  fought  with  a  securi- 
ty of  success  against  enemies  inferior  perhaps  only  m  these 
adventitious  sources  of  courage  to  himself.* 

Nor  was  the  new  system  of  conducting  hostilities  less 
inconvenient  to  the  citizens  than  the  tactics  ot  a 
S  from  battle.  Instead  of  rapid  and  predatory  invasions, 
Berric«.  terminated  instantly  by  a  single  action,  and  not 
extendincr  more  than  a  few  days'  march  from  the  soldier  s 
home,  the  more  skilful  combinations  usual  in  the  fourteenth 
century  frequently  protracted  an  indecisive  contest  for  a 
whole  summer.'  As  wealth  and  civilization  made  evident 
the  advantages  of  agriculture  and  mercantile  industry,  this 
loss  of  productive  labor  could  no  longer  be  endured.  Azzo 
Visconti,  who  died  in  1339,  dispensed  with  the  personal  ser- 


1  Muratori,  ad  ann.  1228. 

3  The  earliest  plate-armor,  engraved  in 
Montfaucon's  Monumens  de  la  Monarchie 
Francaise,  t.  U.,  is  of  the  reign  of  Philip 
the  Long,  about  1315;  but  it  does  not 
appear  generally  tiU  that  of  Philip  of  Va- 
lois,  or  even  later.  Before  the  complete 
harness  of  steel  was  adopted,  plated  caps 
were  sometimes  worn  on  the  knees  and 
elbows,  and  even  greaves  on  the  legs. 


This  is  represented  in  a  statue  of  Charles 
I.  king  of  Naples,  who  died  in  1286.  Pos- 
sibly the  statue  may  not  be  quite  so 
ancient.  Montfaucon,  passim.  — Daniel, 
Hist,  de  la  Milice  Francaise,  p.  ^5. 

3  This  tedious  warfare  d  la  Ftunus  is 
called  by  VilLani  guerra  guereggiata,  1. 
viii.  c.  49 ;  at  least  I  can  annex  no  other 
meaning  to  the  expression. 


Italy. 


CITIZENS  EXCUSED  FROM  SERVICE. 


451 


vice  of  his  Milanese  subjects.     "Another  of  his  laws,"  says 
Galvaneo  Fiamraa,  "  was,  that  the  people  should  not  go  to 
war,  but  remain  at  home  for  their  own  business.     For  they 
had  hitherto  been  kept  with  much  danger  and  expense  every 
year,  and  especially  in   time  of  harvest  and  vintage,  when 
princes  are  wont  to  go  to  war,  in  besieging  cities,  and  incur- 
red numberless  losses,  and  chiefly  on  account  of  the  long 
time  that  they  were  so  detained.^    This  law  of  Azzo  Vis- 
conti, taken  separately,  might  be  ascribed  to  the  usual  policy 
of  an  absolute  government    But  we  find  a  similar  innovation 
not  long  afterwards  at  Florence.    In  the  war  carried  on  by 
that  republic  against  Giovanni  Visconti  in  1351,  the  younger 
Villani  informs  us  that  "  the  useless  and  mischievous  personal 
service  of  the  inhabitants  of  the  district  was  commuted  mto  a 
money  payment."  *    This  change  indeed  was  necessarily  ac- 
companied by  a  vast  increase  of  taxation.    The  Italian  states, 
repubUcs  as  well  as  principalities,  levied  very  heavy  contri- 
butions.     Mastino   della  Scala  had  a  revenue  of   700,000 
florins,  more,  says  John  Villani,  than  the  king  of  any  Euro- 
pean  country,  except  France,  possesses.'      Yet  this  arose 
from  only  nine  cities  of  Lombardy.     Considered  with  refer- 
ence to  economy,  almost  any  taxes  must  be  a  cheap  commuta- 
tion for  personal  service.     But  economy  may  be  regarded 
too  exclusively,  and  can  never  counterbalance  that  degrada- 
tion of  a  national  character  which  proceeds  from  intrusting 
the  public  defence  to  foreigners. 

It  could  hardly  be  expected  that  stipendiary  troops,  chiefly 
composed  of  Grermans,  would  conduct  themselves  companies 
without  insolence  and  contempt  of  the  effemmacy  Jj^f °- 
which  courted  their  services.     Indifferent  to  the 
cause  they  supported,  the  highest  pay  and  the  richest  plun- 
der were  their  constant  motives.    As  Italy  was  generally  the 
theatre  of  war  in  some  of  her  numerous  states,  a  soldier  of 
fortune,  with  his  lance  and  charger  for  an  inheritance,  passed 
from  one  service  to  another  without  regret  and  without  dis- 
credit.    But  if  peace  happened  to  be  pretty  universal,  he 
might  be  thrown  out  of  his  only  occupation,  and  reduced  to 
a  very  inferior  condition,  in  a  country  of  which  he  was  not 


1  Muratori,  Antiquit.  Ital.  Dissert.  26. 

2  Matt.  Villani,  p.  135. 

3  L.  xi.  c.  46.  I  cannot  imagine  why 
^mondi  asserts,  t.  iv.  p.  432,  that  the 
k)rds  of  cities  in  Lombardy  did  not  ven- 


ture to  augment  the  taxes  imposed  while 
they  had  been  free.  Complaints  of  heavy 
taxation  are  certainly  often  made  against 
the  Visconti  and  other  tyrants  in  the 
foorteentii  century. 


452 


COMPANIES  OF  ADVENTURERS.    Chap.  IH.  Part  II. 


Italy. 


SIR  JOHN  HAWKWOOD. 


453 


a  native.     It  naturally  occurred  to  men  of  their  feelings, 
that,  if  money  and  honor  could  only  be  had  while  they  re- 
tained their    arms,  it  was    their  own    fault   if  they  ever 
relinquished  them.     Upon  this  principle  they  first  acted  in 
1343,  when  the  republic  of  Pisa  disbanded  a  large  body  of 
German  cavalrv  which  had  been  employed  in  a  war  with 
Flprence.^     A  partisan,  whom  the  Italians   call  the   duke 
Guarnieri,  engaged  these  dissatisfied  mercenaries  to  remain 
united  under  his  command.     His  plan  was  to  levy  contribu- 
tions on  all  countries  which  he  entered  with  his  company, 
without  aiming  at  any  conquests.     No  Italian  army,  he  well 
knew,  could  be  raised  to  oppose  him;  and  he  trusted  that 
other  mercenaries  would  not  be  ready  to  fight  against  men 
who  had  devised  a  scheme  so  advantageous  to  the  profession. 
This  was  the  first  of  the  companies  of  adventure  which  con- 
tinued for  many  years  to  be  the  scourge  and  disgrace  of 
Italy.     Guamieri,  after  some  time,  withdrew  his  troops,  sati- 
ated with  plunder,  into  Germany ;  but  he  served  in  the  inva- 
sion of  Naples  by  Louis  king  of  Hungary  in  1348,  and, 
forming  a  new  company,  ravaged  the  ecclesiastical  state.     A 
still  more  formidable  band  of  disciplined  robbers  appeared 
in  1353,  under  the  command  of  Fra  Moriale,  and   after- 
wards of  Conrad  Lando.    This  was  denominated  the  Great 
Company,  and  consisted  of  several  thousand  regular  troops, 
besides  a  multitude  of  half-armed  ruffians,  who  assisted  as 
spies,  pioneers,  and  plunderers.     The  rich  cities  of  Tuscany 
and  Romagna  paid  large  sums,  that  the  great  company,  which 
was  perpetually  in  motion,  might  not  march  through  their 
territory.     Florence  alone  magnanimously  resolved  not  to 
offer  this  ignominious  tribute.     Upon  two  occasions,  once  in 
1358,  and  still  more  conspicuously  the  next  year,  she  refused 
either  to  give  a  passage  to  the  company,  or  to  redeem  herself 
by  money ;  and  in  each  instance  the  German  robbers  were 
compelled  to  retu-e.     At  this  time  they  consisted  of  five 
thousand  cuirassiers,  and  their  whole  body  was  not  less  than 
twenty  thousand  men ;  a  terrible  proof  of  the  evils  which 
an  erroneous  system  had  entailed  upon  Italy.     Nor  were 


I  Sismondi,  t.  v.  p.  380.  The  dangerous 
aspect  which  these  German  mercenaries 
might  assume  had  appeared  four  years 
before,  when  Lodrisio,  one  of  the  Visconti, 
oaving  quarrelled  with  the  lord  of  Milan, 
led  a  la^  body  of  troops  who  had  just 
been  disbanded  against  the  city.     After 


some  desperate  battles  the  mercenariei 
were  defeated  and  Lodrisio  taken,  t.  v. 
p.  278.  In  this  instance,  however,  they 
acted  for  another ;  Quamieri  was  the  flrsi 
who  taught  them  to  preserre  the  Impar- 
tiality of  general  robben. 


they  repulsed  on  this  occasion  by  the  actual  exertions  of 
Florence.  The  courage  of  that  republic  was  in  her  councils, 
not  in  her  arms ;  the  resistance  made  to  Lando's  demand  was 
a  burst  of 'national  feeling,  and  rather  against  the  advice  of 
the  leading  Florentines ;  ^  but  the  army  employed  was  en- 
tirely composed  of  mercenary  troops,  and  probably  for  the 
greater  part  of  foreigners. 

None  of  the  foreign  partizans  who  entered  into  the  service 
of  Italian  states  acquired  such  renown  in  that  ca-  sir  John 
reer  as  an  Englishman  whom  contemporary  writers  Hawkwood. 
call  Aucud  or  Agutus,  but  to  whom  we  may  restore  his  na- 
tional appellation  of  Sir  John  Hawkwood.    This  very  eminent 
man  had  served  in  the  war  of  Edward  III.,  and  obtained  his 
knighthood  from  that  sovereign,  though  originally,  if  we  may 
trust  common  fame,  bred  to  the  trade  of  a  tailor.     After  the 
peace  of   Bretigni,  France   was  ravaged  by  the  disbanded 
troops,  whose  devastations  Edward  was  accused,  perhaps  un- 
justly, of  secretly  instigating.    A  large  body  of  these,  under 
the  name  of  the  White  Company,  passed  into  the  service  of 
the  Marquis  of  Montferrat.    They  were  some  time  afterwards 
employed  by  the  Pisans  against  Florence ;  and  during  this 
latter  war  Hawkwood  appears   as  their  commander.      For 
thirty  years  he  was  continually  engaged  in  the  service  of  the 
Visconti,  of  the  pope,  or  of  the  Florentines,  to  whom  he  de- 
voted himself  for  the  latter  part  of  his  life  with  more  fidelity 
and  steadiness   than  he   had    shown  in  his  first  campaigns. 
The  republic  testified  her  gratitude  by  a  public  funeral,  and 
by  a  monument  in  the  Duomo,  which   still  perpetuates  his 

memory. 

The  name  of  Sir  John  Hawkwood  is  worthy  to  be  remem- 
bered as  that  of  the  first  distinguished  commander  ^ant  of 
who  had  appeared  in  Europe  since  the  destruction  mj^^ 
of  the  Roman  empire.     It  would  be  absurd  to  sup-  before  his 
pose  that  any  of  the  constituent  elements  of  mil-  *^°^®- 
itary  genius  which  nature  furnishes  to  energetic  characters 
were  wanting  to  the  leaders  of  a  barbarian  or  feudal  army: 
untroubled  perspicacity  in  confusion,  firm  decision,  rapid  exe- 
cution, providence  against  attack,  fertility   of  resource  and 
stratagem  —  these  are  in  quality  as  much  required  from  the 
chief  of  an  Indian  tribe  as  from  the  aecomplished  commander, 

1  Matt.  Villani,  p.  637. 


\ 


454  WANT  OF  MILITARY  SCIENCE.     Chap.  HI.  Part  II 

But  we  do  not  find  them  in  any  instance  so  consummated  by 
habitual  skUl  as  to  challenge  the  name  of  generalship.    JSo 
one  at  least  occurs  to  me,  previously  to  the  middle  ot  the 
fourteenth  century,  to  whom  history  has  uneqmvocally  as- 
signed  that  character.     It  is  very  rarely  that  we  find  even 
the  order  of  battle  specially  noticed.    The  monks,  mdeed,  our 
only  chroniclers,  were  poor  judges  of  martial  excellence ;  yet, 
as  war  is  the  main  topic  of  all  annals,  we  could  hardly  re- 
main icmorant  of  any  distinguished  skill  in  its  operations. 
This  ne<rlect  of  military  science  certainly  did  not  proceed  from 
any  predilection  for  the  arts  of  peace.    It  arose  out  of  the  gen- 
eral manners  of  society,  and  out  of  the  nature  and  composition 
of  armies  in  the  middle  ages.     The  insubordinate  spirit  of  feu- 
dal tenants,  and  the  emulous  equality  of  chivalry,  were  aUke 
hostile  to  that  gradation  of  rank,  that  punctual  observance  of 
irksome  duties,  that  prompt  obedience  to  a  supreme  command, 
throucrh  which  a  single  soul  is  infused  into  the  active  mass, 
and  the  rays  of  individual  merit  converge  to  the  head  of  the 

general.  .  , . 

In  the  fourteenth  century  we  begin  to  perceive  something 
of  a  more  scientific   character  in  mihtary  proceedings,  and 
historians  for  the  first  time  discover  that  success  does  not  en- 
tirely depend  upon  intrepidity  and  physical  prowess.    The 
victory  of  Muhldorf  over  the  Austrian  princes  in  1322,  that 
decided  a  civil  war  in  the  empire,  is  ascribed  to  the  ability  of 
the  Bavarian  commander.^     Many  distinguished  officers  were 
formed  in  the  school  of  Edward  III.     Yet  their  excellences 
were  perhaps  rather  those  of  active  partisans  than  of  expe 
rienced  generals.      Their  successes  are  still  due  rather  to 
daring  enthusiasm  than  to  wary  and  calculating  combination. 
Like  inexpert  chess-players,  they  surprise  us  by  happy  sallies 
against  rule,  or  display  their  talents  in  rescuing  themselves 
from  the  consequence  of  their  own  mistakes.     Thus  the  ad- 
mirable arrangements  of  the  Black  Prince  at  Poitiers  hardly 
redeem  the  temerity  which  placed  him  in  a  situation  where 
the  egregious  folly  of  his  adversary  alone  could  have  per- 
mitted liSn  to  triumph.     Hawkwood  therefore  appears  to  me 
the  first  real  general  of  modem  times ;  the  earliest  master, 
however  imperfect,  in  the  science  of  Turenne  and  Welling- 
ton.     Every    contemporary   Italian   historian    speaks    with 

1  Struvius,  Corpus  Hist.  German,  p.    ral,  is  called  by  a  contemporary  writai 
685.    Schwepperman,  the  Bavarian  gene-    clarua  militari  scientii  vir. 


Italy. 


SCHOOL  OF  ITALIAN  GENERALS. 


455 


admiration  of  his  skilful  tactics  in  battle,  his  stratagems  his 
wTconducted  retreats.  Praise  of  this  description,  as  I  have 
observed,  is  hardly  bestowed,  certainly  not  so  contmually,  on 

%a^vkwooT^^^       only  the  greatest  but  the  last  of  the 
forei^^n  condottieri,  or  captains  of  mercenary  bands,  school  of 
Whife  he  was  yet  living,  a  new  military  school  i^^ja^^ 
had  been  formed  in  Italy,  which  not  only  super- 
Bcded,  but  ecUpsed,  all  the  strangers.     This  important  reform 
wa^  ascribed  to  Alberic  di  Barbiano,  lord  of  some  petty  ter- 
ritories near  Bologna.     He  formed  a  comply  altogether  ot 
ItaUans  about  the  year  1379.     It  is  not  to  be  supposed  that 
natives  of  Italy  had  before  been  absolutely  excluded  from 
service,     wtlnd  sevei-al  Italians,  such  as  the  Malateste 
family,  lords  of  Rimini,  and  the  Rossi  of  P^rma,^omn^d- 
ng  the  armies  of  Florence  much  earlier      But  this  was  the 
first  trading  company,  if  I  may  borrow  the  analogy,  the  first 
regular  body  of  Italian  mercenaries,  attached  only  to  then: 
commander  without  any  consideration  of  party  like  the  G^^^ 
mans  and  English  of  Lando  and   Hawkwood.     Albercdi 
Barbiano,  though  himself  no  doubt  a  man  of  mihtary  talents, 
iVpr  nc^pally  distinguished  by  the  school  of  great  generaU 
whFch  the  cSmpanyV  St.  George  under  his  command  pro- 
duced, and  which  may  be  deduced,  by  regular  succe«^!^^>  ^ 
the  sixteenth  century.'    The  first  in  order  of  time,  and  imme- 
diate  contemporaries  of  Barbiano,  were  Jacopo  de    yerme, 
Facino  Cane,  and  Ottobon  Terzo.     Among  an  f  elhgent  and 
educated  people,  little  inclined  to  servile  imitation,  the  mdi- 
Lrv  art  made  great  progress.     The  most  eminent  condo ttien 
Sc^  divided,  in  generat  between  belUgerents,  each  of  them 
Shis  geniJs  excited  and  kept  in  tension  by  that  of  a  rival 
in  crlory.     Every  resource  of  science  as  weU  as  experience 
every  improvement  m  tactical  arrangements,  and  the  use  of 
arms  were  required  to  obtain  an  advantage  over  such  equal 
Sr     In\e  first   year  of  the  fifteenth  century  the 

Italians  brought  their  newly  acquired  superiority  to  a  test. 
The  emperor  Robert,  in  aUiance  with  Florence,  mvaded  Gian 
Galeazzo's  dominions  with  a  considerable  army.  From  ?ld 
reputtion,  which  so  frequently  survives  the  intrinsic  quahUes 
u^n  which  it  was  founded,  an  impression  appears  o  have 
b^n  excited  in  Italy  that  the  native  troops  were  sUll  unequ^ 
to  meet  the  charge  of  German  cuirassiers.    The  duke  ot 


456 


DEFENSIVE  ARMS.        Chap.  HI.  Part  IL 


Milan  gave  orders  to  his  general,  Jacopo  del  Verme,  to  avoid 
a  combat.  But  that  able  leader  was  aware  of  a  great  relative 
change  in  the  two  armies.  The  Germans  had  neglected  to 
improve  their  discipUne  ;  their  arms  were  less  easily  wielded, 
their  horses  less  obedient  to  the  bit.  A  single  skirmish  was 
enough  to  open  their  eyes  ;  they  found  themselves  decidedly 
inferior ;  and  having  engaged  in  the  war  with  the  expectation 
of  easy  success,  were  readily  disheartened.*  This  victory, 
or  rather  this  decisive  proof  that  victory  might  be  achieved, 
set  Italy  at  rest  for  almost  a  century  from  any  apprehensions 
on  the  side  of  her  ancient  masters. 

Whatever  evils  might  be  derived,  and  they  were  not  trifling, 
from  the  employment  of  foreign  or  native  mercenaries,  it  was 
impossible  to  discontinue  the  system  without  general  consent ; 
and  too  many  states  found  their  own  advantage  in  it  for  such 
an  agreement.  The  condottieri  were  indeed  all  notorious  for 
contempt  of  engagements.  Their  rapacity  was  equal  to  their 
bad  faith.  Besides  an  enormous  pay,  for  every  private  cui- 
rassier received  much  more  in  value  than  a  subaltern  officer 
at  present,  they  exacted  gratifications  for  every  success.*  But 
everything  was  endured  by  ambitious  governments  who  wanted 
their  aid.  Florence  and  Venice  were  the  two  states  which 
owed  most  to  the  companies  of  adventure.  The  one  loved 
war  without  its  perils ;  the  other  could  never  have  obtained 
an  inch  of  territory  with  a  population  of  sailors.  But  they 
were  both  almost  inexhaustibly  rich  by  commercial  industry ; 
and,  as  the  surest  paymasters,  were  best  served  by  those  they 
employed.  The  Visconti  might  perhaps  have  extended  their 
conquest  over  Lombardy  with  the  militia  of  Milan ;  but  with- 
out a  Jacopo  del  Verme  or  a  Carmagnola,  the  banner  of 
St.  Mark  would  never  have  floated  at  Verona  and  Ber- 
gamo. 

The  Italian  armies  of  the  fifteenth  century  have  been  re- 
Defensive  marked  for  one  striking  peculiarity.  War  has 
arms  of  ncvcr  been  conducted  at  so  little  personal  hazard 
that  age.       ^  ^^^  soldicr.     Combats  frequently  occur,  in  the 


1  Sismondi,  t.  Tii.  p.  4S9. 

S]^^^  doppia,  e  mese  complnto,  of 
'which  we  frequently  read,  sometimes 
granted  improvidently,  and  more  often 
demanded  unreasonably .  The  first  speaks 
for  itself ;  the  second  was  the  reckoning 
a  month's  service  as  completed  when  it 
fras  begun,  in  calculating  their  pay. — 


Matt.  Villani,  p.  62;  Sismondi,  t.  t.  p. 
412. 

Gian  Qaleazzo  Visconti  promised  con- 
stant half-pay  to  the  condottieri  whom 
he  disbanded  in  1396.  This,  perhaps,  is 
the  first  instance  of  ti&lf-pay. —  Sismondi, 
t.  Tii.  p.  879. 


It  ALT. 


DEFENSIVE  ABMS. 


457 


annals  of  that  age,  wherein  success,  though  wannly  conteste^^^ 
costs  very  few  lives  even  to  the  vanquished.^    This  innocence 
^  bloodf  which  some  historians  turn  into  ridicule,  was  no 
doubt  o^^ing  in  a  great  degree  to  the  rapacity  of  the  compa- 
nies of  adv^entureT  who,  in  expectation  of  enrichmg  them- 
selves  by  the  ransom  of  prisoners,  were  anxious  to  save 
thSr  Uves.    Much  of  the  humanity  of  modern  warfare  was 
orMy  due  to  this  motive.     But  it  was  rendered  more 
Sicable  by  the  nature  of  their  arms.     For  once,  and  for 
onTe  S  in  the  history  of  mankind,  the  art  of  defence  had 
outetn'pp^^  that  of  destruction.    In  a  charge  of  lancers  many 
Sunhorsed  by  the  shock,  and  might  be  -^ocate^  -  ^^^^^^ 
to  death  by  the  pressure  of  their  own  armor ;  but  the  lance  s 
^int  could  not  penetrate  the  breastplate,  the   sword  fell 
Cless  upon  the  helmet,  the  conqueror,  in  the  ^^\^^V^^ 
7rassion,^uld  not  assail  any  vital  part  of  a  prostrate  but 
not^xposk  enemy.     StiU  less  was  to  be  dreaded  from    he 
archers  or  cross-bowmen,  who  composed  a  large  part  of  the 
Xtry.     The  bow  indeed,  as  drawn  by  an  Eng  ish  foot- 
Serfwas  the  most  formidable  of  arms  before  the  invention 
rgunpowder.     That  ancient  weapon,  though  not  perhaps 
^mmon  among  the  Northern  nations,  nor  for  ^ejeral^^^^^^^^^^ 
ries  after  their  settlement,  was  occasionally  m  use  before  th^ 
crusades.     WiUiam  employed  archers  in  the  battle  ^f  Hast. 
incr..«    Intercourse  with  the  East,  its  natural  s^i^f^^^g  the 
tw^elfth  and  thirteenth  ages,  rendered  the  bow  better  known 
But  the  Europeans  improved  on  the  eastern  method  of  con- 


1  Instances  of  this  are  very  frequent. 
Thus  at  the  acUon  of  Zagonara,  in  liZ6, 
but  three  persons,  according  to  MMhia- 
vel,  lost  their  lives,  and  these  by  suffoca- 
tion in  the  mud.    Ist.  Fiorent.  I.  iv.    At 
that  of  Molinella,  in  1467,  he  says  that 
uo  one  was  killed.    1.  vU.    Ammirato  re- 
proves him  for  this,  as  all  the  authors  of 
the  time  represent  it  to  have  been  sangui- 
nary (t.  ii.  p.  102),  and  insinuates  that 
Machlavel  ridicules  the  inoffensive ness  of 
those  armies  more  than   they  deserve, 
schernendo,  come  egU  suol  &r,  quella 
milizia.    Certainly  some  few  battles  of 
the  fifteenth  century  were  not  only  ob- 
stinately contested,  but  attended  with 
considerable  loss.    Sismondi,  t.  x.  p.  126, 
137.  But,  in  general,  the  slaughter  must 
appear  very  trifling.    Ammirato  himself 
says  that  in  an  action  between  the  Nca- 
poUtan  and  papal  troops  in  1*86,  which 
Usted  all  day,  not  only  no  one  was  kiUed, 


but  it  is  not  recorded  that  anyone  was 
wounded.    Roscoe's  Lorenzo  de'  Medici, 
vol.  ii.  p.  37.    Guicciardini's  general  tes- 
timony to  the  character  of  these  combats 
is  unequivocal.    He  speaks  of  the  battle 
of  Fomova,  between  the  confederates  of 
Lombardy  and  the  army  of  Charles  VHI. 
returning  from  Naples  in  1495,  as  very 
wmarkable  on  account  of  the  slaughter 
which  amounted  on  the  ItaUan  side  to 
8,000  men:  perch6  fa  la  Prima,  che  da 
lunghissimo  tempo  in  qui  si  combattesse 
con  uccisione  e  con  sangue   in   Italia, 
perch6  innanzi  4  questa  monvano  pochis- 
siini  uomini  in  un  fatto  d'arme.    1.  u.  p. 

^'s  Pedites  in  fronte  locavit,  sagittis  at- 
mates  et  balistis,  item  pedites  in  ordino 
secundo  firmiores  et  loricatos,  ultimo  tur- 
mas  equitum.  Gul.  Pictaviensis  (in  Du 
Chesne),  p.  201.  Several  archers  are  rep- 
resented in  the  tapestry  of  Bayeux. 


458 


DEFENSIVE  ARMS.        Chap.  m.  Pakt  II. 


fining  its  use  to  cavalry.  Bj  employing  infantry  as  archers, 
they  gained  increased  size,  more  steady  position,  and  surer 
aim  for  the  bow.  Much,  however,  depended  on  the  strength 
and  skill  of  the  archer.  It  was  a  peculiarly  EngUsh  weapon, 
and  none  of  the  other  principal  nations  adopted  it  so  gener- 
ally or  so  successfully.  The  cross-bow,  which  brought  the 
strong  and  weak  to  a  level,  was  more  in  favor  upon  the  con- 
tinent This  instrument  is  said  by  some  writers  to  have  been 
introduced  after  the  first  crusade  in  the  reign  of  Louis  the 
Fat.^  But,  if  we  may  trust  William  of  Poitou,  it  was  em- 
ployed, as  well  as  the  long-bow,  at  the  battle  of  Hastings. 
Several  of  the  popes  prohibited  it  as  a  treacherous  weapon  ; 
and  the  restriction  was  so  far  regarded,  that,  in  the  time  of 
Philip  Augustus,  its  use  is  said  to  have  been  unknown  in 
France.^  By  degrees  it  became  more  general;  and  cross- 
bowmen  were  considered  as  a  very  necessary  part  of  a  well- 
organized  army.  But  both  the  arrow  and  the  quarrel  glanced 
away  from  plate-armor,  such  as  it  became  in  the  fifteenth 
century,  impervious  in  every  point,  except  when  the  vizor 
was  raised  from  the  face,  or  some  part  of  the  body  acciden- 
tally exposed.  The  horse  indeed  was  less  completely  pro- 
tected. 

Many  disadvantages  attended  the  security  against  wounds 
for  which  this  armor  had  been  devised.  The  enormous 
weight  exhausted  the  force  and  crippled  the  limbs.  It  ren- 
dered the  heat  of  a  southern  climate  insupportable.  In  some 
circumstances  it  increased  the  danger  of  death,  as  in  the 
passage  of  a  river  or  morass.  It  was  impossible  to  compel 
an  enemy  to  fight,  because  the  least  entrenchment  or  natural 
obstacle  could  stop  such  unwieldy  assailants.  The  troops 
might  be  kept  in  constant  alarm  at  night,  and  either  com- 
pelled to  sleep  under  arms,  or  run  the  risk  of  being  surprised 
before  they  could  rivet  their  plates  of  steel.'  Neither  the 
Italians,  however,  nor  the  Transalpines,  would  surrender  a 
mode  of  defence  which  they  ought  to  have  deemed  inglorious. 
But  in  order  to  obviate  some  of  its  military  inconveniences, 
as  well  as  to  give  a  concentration  in  attack,  which  lancers 
impetuously  charging  in  a  single  line,  according  to  the  prac- 
tice at  least  of  France  in  the  middle  ages,  did  not  preserve, 

1  Le  Grand,  Tie  priv^  des  Francais,  t.  i.  p.  849. 

«  Du  Cange,  y.  BaUsta ;  Muratori  Diss.  28,  t.  i,  p.  462  (ItaL). 

8  Siamondi,  t.  ix.  p.  158. 


Italy. 


INVENTION  OF  GUNPOWDER. 


459 


it  became  usual  for  the  cavalry  to  dismount,  and,  cuatom  of 
leaving  their  horses  at  some  distance,  to  combat  ^^^- 
on  foot  with  the  lance.     This  practice,  which  must 
have  been  singularly  embarrassing  with  the  plate-armor  ot 
the  fifteenth  century,  was  introduced  before  it  became  so  pon- 
derous.   It  is  mentioned  by  historians  of  the  twelfth  century, 
both  as  a  German  and  an  English  custom.^    We  find  it  in 
the  wars  of  Edward  III.     Hawkwood,  the  disciple  ot  that 
school,  introduced  it  into  Italy.^    And  it  was  practised  by  the 
English  in  their  second  wars  with  France,  especially  at  the 
batSes  of  Crevant  and  Verneuil.^ 

Meanwhile  a  discovery  accidentally  made,  perhaps  m  some 
remote  age  and  distant  region,  and  whose  impor-  i^ventkm  of 
tance  was  but  slowly  perceived  by  Europe,  had  e»^''P°'' 
prepared  the  way  not  only  for  a  change  in  her  military  system, 
but  for  poUtical  effects  still  more  extensive.     If  we  consider 
'Tunpowder  as  an  instrument  of  human  destruction,  incalcula- 
bly more  powerful  than  any  that  skill  had  devised  or  accident 
presented  before,  acquiring,  as  experience  shows  us,  a  more 
sanguinary  dominion  in  every  succeeding  age,  and  borrowing 
all  the  progressive  resources  of  science  and  civilizatian  foi 
the  extermination  of  mankind,  we  shall  be  appaUed  at  the  fu- 
ture prospects  of  the  species,  and  feel  perhaps  m  no  other 
instance  so  much  difficulty  in  reconciling  the  mysterious  dis- 
pensation with  the  benevolent  order  of  Providence.     As  the 
great  security  for  established  governments,  the  surest  preser- 
vation against  popular  tumult,  it  assumes  a  more  equivocal 
character,  depending  upon  the  solution  of  a  doubtful  problem, 
whether  the  sum  of  general  happiness  has  lost  more  m  the 
last  three   centuries   through  arbitrary  power,  than  it  has 
crained  through  regular  police  and  suppression  of  disorder. 
"  There  seems  little  reason  to  doubt  that  gunpowder  was  m- 
troduced  through  the  means  of  the  Saracens  into  Europe. 
Its  use  in  engines  of  war,  though  they  may  seem  to  have 
been  rather  like  our  fireworks  than  artillery,  is  mentioned  by 


1  The  emperor  Conrad's  cavalry  in  the 
second  crusade  are  said  by  William  of 
Tyre  to  have  dismounted  on  one  occasion, 
and  fought  on  foot,  de  equis  descendentes, 
ot  facti  peditea  ;  siatt  mos  est  Teutonicis 
In  summis  necessitatibus  bellica  tractare 
negotia.  1.  xvii.  c.  4.  And  the  same 
was  done  by  the  English  in  their  engage- 
ment with  the  Scotch  near  North-AUer- 
ton,  commonly  called  the  battle  of  the 


standard,  in  1138.  Twysdeu,  Decern 
Script,  p.  342.  .^     .     _, 

2  Sismondi,  t.  vi.  p.  429 ;  Azarius,  in 
Script.  Rer  Ital.  t.  xvi. ;  Matt.  Villani. 

8  Monstrelet,  t.  U.  fol.  7,  14,  76 ;  Villa- 
ret,  t.  xvii.  p.  89.  It  was  a  Burgundian 
as  well  as  English  fashion.  Entre  les 
Bourguignons,  says  Comines,  lors  es- 
toient  les  plus  honorez  ceux  que  des- 
cendoient  avec  les  archers.    I.  i.  c.  3. 


460 


INVENTION  OF  GUNPOWDER.     Chap.  IH.  Past  U. 


an  Arabic  writer  in  the  EscuriaJ  collection  about  the  year 
1249.^  It  was  known  not  long  afterwards  to  our  philosopher 
Roger  Bacon,  though  he  concealed,  in  some  degree,  the  secret 
of  its  composition.  In  the  first  part  of  the  fourteenth  century 
cannon,  or  rather  mortars,  were  invented,  and  the  applicabil- 
ity of  gunpowder  to  purposes  of  war  was  understood.  Ed- 
ward III.  employed  some  pieces  of  artillery  with  considerable 
effect  at  Crecy.*  But  its  use  was  still  not  very  frequent ;  — 
a  circumstance  which  will  surprise  us  less  when  we  consider 
the  unscientific  construction  of  artillery ;  the  slo^vness  with 
which  it  could  be  loaded ;  its  stone  balls,  of  uncertain  aim 
and  imperfect  force,  being  commonly  fired  at  a  considerable 
elevation ;  and  especially  the  diflSculty  of  removing  it  from 
place  to  place  during  an  action.  In  sieges,  and  in  naval  en- 
gagements, as,  for  example,  in  the  war  of  Chioggia,  it  was 
more  frequently  employed.*  Gradually,  however,  the  new 
artifice  of  evil  gained  ground.  The  French  made  the  princi- 
pal improvements.  They  cast  their  cannon  smaller,  placed 
them  on  lighter  carriages,  and  used  balls  of  iron.*  They  in- 
vented portable  arms  for  a  single  soldier,  which,  though  clumsy 
in  comparison  with  their  present  state,  gave  an  augury  of  a 
prodigious  revolution  in  the  military  art.   John  Duke  of  Bur- 


1  Casiri,  Bibl.  Arab.  Ilispan.  t.  ii.  p.  7, 
thus  renders  the  original  description  of 
certain  missiles  used  by  the  Moors.  Ser- 
punt,  susurrantque  scorpiones  circumli- 
gati  ac  pulTere  nitrato  incensi,  unde 
explosi  fulgurant  ac  incendunt.  Jam 
videre  erat  manganum  excussum  veluti 
nubem  per  aera  extendi  ac  tonitrus  instar 
horrendum  edere  fragorem,  ignemque 
tindequ^que  Tomens,  omnia  dirumpere, 
incendere,  in  cineres  redigere.  The  Ara- 
Ue  pASsa^  is  at  the  bottom  of  the  page ; 
and  one  would  be  glad  to  know  whether 
pulvis  nitratus  is  a  fair  translation.  But 
I  think  there  can  on  the  whole  be  no 
doubt  that  gunpowder  is  meant.  An- 
other Arabian  writer  seems  to  describe 
the  use  of  cannon  in  the  years  1312  and 
1323.  Id.  ibid.  And  the  chronicle  of 
Alphonso  XI.,  king  of  Castile,  distinctly 
mentions  them  at  the  siege  of  Algeciras 
in  1342.  But  before  this  they  were  suf- 
ficiently known  in  France.  Gunpowder 
and  cannon  are  both  mentioned  in  regis- 
ters of  accounts  under  1338  (Du  Gauge,  v. 
Bombarda),  and  in  another  document  of 
1345.  Hist,  du  Languedoc,  t.  iv.  p.  204. 
But  the  strongest  evidence  is  a  passage  of 
Petrarch,  written  before  1&44,  and  quoted 
In  Muratori,  Antich.  Ital.  Dissert.  26,  p. 


456,  where  he  speaks  of  the  art,  nuper 
rara,  nunc  communis. 

3  G.  Villani,  1.  xli.  c.  67.  Gibbon  has 
thrown  out  a  sort  of  objection  to  the  cer- 
tainty of  this  fact,  on  account  of  Frois- 
sart's  silence.  But  the  positive  testimony 
of  Villani,  who  died  within  two  years 
afterwards,  and  had  manifestly  obtained 
much  information  as  to  the  great  events 
passing  in  France,  cannot  be  rejected. 
He  ascribes  a  material  effect  to  the  cannon 
of  Edward,  colpi  delle  bombarde,  which  I 
suspect,  from  bis  strong  expressions,  had 
not  been  employed  before,  except  against 
stone  walls.  It  seemed,  he  says,  as  if  God 
thundered  con  grande  uccisione  di  gvnti, 
e  sfondamento  di  cavalli. 

3  Gattaro,  1st.  Padovana,  in  Script.  Uer. 
Ital.  t.  xvii.  p.  360.  Several  proofs  of  the 
employment  of  artillery  in  French  sieges 
during  the  reign  of  Charles  V.  occur  in 
Villaret.  See  the  word  Artillerie  in  the 
index. 

Gian  Galeazzo  had,  according  to  Corio, 
thirty-four  pieces  of  cannon,  small  and 
great,  in  the  Milanese  army,  about  1397. 

<  Quicciardini,  1.  i.  p.  75,  has  a  remark- 
able passage  on  the  superiority  of  the 
French  over  the  Italian  artillery  in  con- 
sequence of  these  improvements. 


Italy. 


SFORZA  AND  BRACCIO. 


461 


gundy,  in  1411,  had  4000  hand-cannons,  as  they  were  called, 
in  his  army.^    They  are  found,  under  different  names  and  mod- 
ifications of  form  — for  which  I  refer  the  reader  to  professed 
writers  on  tactics  -—  in  most  of  the  wars  that  historians  of  the 
fifteenth  century  record,  but  less  in  Italy  than  beyond  the  Alps. 
The  Milanese,  in  1449,  are  said  to  have  armed  their  militia 
with  20,000  muskets,  which  struck  terror  into  the  old  generals. 
But  these  muskets,  supported  on  a  rest,  and  charged  with  great 
delay,  did  less  execution  than  our  sanguinary  science  would 
require ;  and,  uncombined  with  the  admirable  invention  of  the 
bayonet,  could  not  in  any  degree  resist  a  charge  of  cavahy 
The  pike  had  a  greater  tendency  to  subvert  the  military  sys- 
tem of  the  middle  ages,  and  to  demonstrate  the  efficiency  of  dis- 
ciplined infantry.     Two  free  nations  had  ab-eady  discomfited, 
by  the  help  of  such  infantry,  those  arrogant  knights  on  whom 
the  fate  of  battles  had  depended  —  the  Bohemians,  instructed 
in  the  art  of  war  by  their  great  master,  John  Zisca ;  and  the 
Swiss,  who,  after  winning  their  independence  inch  by  inch 
from   the    house    of  Austria,  had  lately    established    their 
renown  by  a  splendid  victory  over  Charles  of  Burgundy. 
Louis  XI.  took  a  body  of  mercenaries  from  the  United  Can- 
tons into  pay.     Maximilian  had  recourse  to  the  same  assist- 
ance.*    And  though  the  importance   of  infantry  was  not 
perhaps  decidedly  established  till  the  Milanese  wars  of  Louis 
XII.  and  Francis  I.,  in  the  sixteenth  century,  yet  the  last 
years  of  the  middle  ages,  according  to  our  division,  mdicated 
the  commencement  of  that  military  revolution  in  the  general 
employment  of  pikemen  and  musketeers. 

Soon  after  the  beginning  of  the  fifteenth  century,  to  return 
from  this  digression,  two  illustrious  captains,  edu-  m^^iry  of 
cated  under  Alberic  di   Barbiano,  turned  upon  sf^.and 
themselves  the  eyes  of  Italy.    These  were  Braccio 
di  Montone,  a  noble  Perugian,  and  Sforza  Attendolo,  origi- 
nally a  peasant  in  the  village  of  Cotignuola.     Nearly  equal 
in  reputation,  unless  perhaps  Braccio  may  be  reckoned  the 
more  consummate  general,  they  were  divided  by  a  long 


1  Villaret,  t.  xiU.  p.  176,  310. 

1  Sismondi,  t.  Ix.  p.  341.  He  says  that 
It  required  a  quarter  of  an  hour  to  charge 
and  fire  a  musket.  I  must  confess  that  I 
yery  much  doubt  the  fact  of  so  many 
muskets  having  been  collected.  In  14^ 
that  arm  was  seen  for  the  first  time  ^in 
Tuscany.    Muratori,  Dissert.  26,  p.  457- 


3  See  Guicciardini's  character  of  the 
Swiss  troops,  p.  192.  The  French,  ho 
says,  had  no  native  infantry  ;  il  regno  di 
Francia  era  debolissimo  di  fonteria  pro- 
pria, the  nobility  monopolizing  all  war- 
like occupations.    Ibid. 


462 


FRANCESCO  SFORZA.  Chap.  HI.  Part  II. 


rivalry,  which  descended  to  the  next  generation,  and  involved 
all  the  distinguished  leaders  of  Italy.  The  distractions  of 
Naples,  and  the  anarchy  of  the  ecclesiastical  state,  gave  scope 
not  only  to  their  military  but  political  ambition.  Sforza  was 
invested  with  extensive  fiefs  in  the  kingdom  of  Naples,  and 
with  the  office  of  Great  CJonstable.  Braccio  aimed  at  inde- 
pendent acquisitions,  and  formed  a  sort  of  principality  around 
Perugia.  This,  however,  was  entirely  dissipated  at  his 
death.  When  Sforza  and  Braccio  were  no  more,  their  re- 
Francesco  spective  parties  were  headed  by  the  son  of  the 
Sforza.  former,  Francesco  Sforza,  and  by  Nicholas  Picci- 

nino,  who  for  more  than  twenty  years  fought,  with  few  ex- 
ceptions, under  opposite  bannei^.  Piccinino  was  constantly 
in  the  service  of  Milan.  Sforza,  whose  political  talents  fully 
equalled  his  military  skill,  never  lost  sight  of  the  splendid 
prospects  that  opened  to  his  ambition.  From  Eugenius  IV. 
he  obtained  the  March  of  Ancona,  as  a  fief  of  the  Roman 
see.  Thus  rendered  more  independent  than  the  ordinary 
condottieri,  he  mingled  as  a  sovereign  prince  in  the  politics 
of  Italy.  He  was  generally  in  alliance  with  Venice  and 
Florence,  throwing  his  weight  into  their  scale  to  preserve  the 
balance  of  power  against  Milan  and  Naples.  But  his  ulti- 
mate designs  rested  upon  Milan.  Filippo  Maria,  duke  of 
that  city,  the  last  of  his  family,  had  only  a  natural  daughter, 
whose  hand  he  sometimes  offered  and  sometimes  withheld 
from  Sforza.  Even  after  he  had  consented  to  theu'  union. 
He  acquires  ^^  suspicious  temper  was  incapable  of  admitting 
^«^^*»y  such  a  son-in-law  into  confidence,  and  he  joined  in 
a  confederacy  with  the  pope  and  king  of  Naples  to 
strip  Sforza  of  the  March.  At  the  death  of  Fihppo  Maria 
in  1 447,  that  general  had  nothing  left  but  his  glory,  and  a 
very  disputable  claim  to  the  Milanese  succession.  This,  how- 
ever, was  set  aside  by  the  citizens,  who  revived  their  republi- 
can government.  A  republic  in  that  part  of  Lombardy 
might,  with  the  help  of  Venice  and  Florence,  have  withstood 
any  domestic  or  foreign  usurpation.  But  Venice  was  hostile, 
and  Florence  indifferent.  Sforza  became  the  general  of  this 
new  state,  aware  that  such  would  be  the  probable  means  of 
becoming  its  master.  No  pohtician  of  that  age  scrupled  any 
breach  of  faith  for  his  interest.  Nothing,  says  Machiavel, 
was  thought  shameful,  but  to  fail.  Sforza,  with  his  army, 
deserted  to  the  Venetians ;  and  the  repubUc  of  Milan,  being 


Italt. 


REBELLION  OF  SICILY. 


463 


both  incapable  of  defending  itself  and  distracted  by  civil  dis- 
sensions, soon  fell  a  prey  to  his  ambition.  In  1450  he  was 
proclaimed  duke,  rather  by  nght  of  election,  or  of  conquest, 
than  in  virtue  of  his  marriage  with  Bianca,  whose  sex,  as 
well  as  illegitimacy,  seemed  to  preclude  her  from  inheriting. 

I  have  not  alluded  for  some  time  to  the  domestic  history 
of  a  kingdom  which  bore  a  considerable  part,  dur-  Affairs  (f 
ing  the  ^fourteenth  and  fifteenth  centuries,  in  the  Naples. 
general  combinations  of  Italian  policy,  not  wishing  to  inter- 
rupt the  reader's  attention  by  too  frequent  transitions.     We 
must  return  again  to  a  more  remote  age  in  order  to  take  up 
the  history  of  Naples.     Charles  of  Anjou,  after  ^  ^  ^^ 
the  deaths  of  Manfred  and  Conradin  had  left  him 
without  a  competitor,  might  be  ranked  in  the  first  class  of 
European  sovereigns.     Master  of  Provence  and  Naples,  and 
at  the  head  of  the  Guelf  faction  in  Italy,  he  had  ab-eady 
prepared  a  formidable  attiick  on  the  Greek  empire,  when  a 
memorable  revolution  in  Sicily  brought  humiliation  on  his 
latter  years.     John  of  Procida,  a  Neapohtan,  whose  patri- 
mony had  been  confiscated  for  his  adherence  to  Rebellion 
the  party  of  Manfred,  retained,  during  long  years  ^^^"^y 
of  exile,   an   implacable  resentment  against  the  charies^ 
house  of  Anjou.     From  the  dominions  of  Peter  °  ' 

III.,  king  of  Aragon,  who  had  bestowed  estates  upon  him  in 
Valencia,  he  kept  his  eye  continually  fixed  on  Naples  and 
Sicily.     The  former  held  out  no  favorable  prospects;   the 
Ghibelin  party  had  been  entirely  subdued,  and  the  principal 
barons  were  of  French  extraction  or  inclinations.     But  the 
island  was  in  a  very  different  state.     Unused  to  any  strong 
government,  it  was  now  treated  as  a  conquered  country.     A 
large  body  of  French  soldiers  garrisoned  the  fortified  to\vns, 
and  the  systematic  oppression  was  aggravated  by  those  in- 
sults upon  the  honor  of  families  which  are  most  mtolerable 
to  an  Italian  temperament.     John  of  Procida,  travelling  in 
discniise  through  the    island,   animated   the   barons  with  a 
hope  of  deliverance.     In  like  disguise  he  repaired  to  the 
pope,  Nicolas  III.,  who  was  jealous  of  the  new  Neapolitan 
dynasty,  and  obtained  his  sanction  to  the  projected  insurrec- 
tion ;  to  the  court  of  Constantinople,  from  which  he  readily 
obtained  money ;  and  to  the  king  of  Aragon,  who  employed 
that  money  in  fitting  out  an  armament,  that  hovered  upon 
the  coast  of  Africa,  under  pretext  of  attacking  the  Moors. 


464 


SICILIAN  VESPERS.        Chap.  IH.  Pakt  II. 


Italy.  WAR  BETWEEN  FRANCE  AND  ARAGON. 


465 


It  is,  however,  difficult  at  this  time  to  distinguish  the  effects 
of  preconcerted  conspiracy  from  those  of  casual  resentment 
Before  the  intrigues  so  skilfully  conducted  had  taken  effect, 
yet  afler  they  were  ripe  for  development,  an  outrage  commit- 
ted upon  a  lady  at  Palermo,  during  a  procession  on  the  vigil 
of  Easter,  provoked  the  people  to  that  terrible  massacre  of 
Sicilian  all  the  French  in  their  island  which  has  obtained 
Vespers.  the  name  of  Sicilian  Vespers.  Unpremeditated 
as  such  an  ebullition  of  popular  fury  must  appear,  it  fell  in, 
A.D.  1283.  V  *^®  happiest  coincidence,  with  the  previous  con- 
spiracy. The  king  of  Aragon's  fleet  was  at  hand ; 
the  Sicilians  soon  called  in  his  assistance  ;  he  sailed  to  Paler- 
mo, and  accepted  the  crown.  John  of  Procida  is  a  remarka- 
ble witness  to  a  truth  which  the  pride  of  governments  will 
seldom  permit  them  to  acknowledge  :  that  an  individual,  ob- 
scure and  apparently  insignificant,  may  sometimes,  by  perse- 
verance and  energy,  shake  the  foundations  of  established 
states ;  while  the  perfect  concealment  of  his  intrigues  proves 
also,  against  a  popular  maxim,  that  a  political  secret  may  be 
preserved  by  a  number  of  persons  during  a  considerable 
length  of  time.^ 

The  long  war  that  ensued  upon  this  revolution  involved  or 
War  in  interested  the  greater  part  of  civilized  Europe. 

bSr'"  ™lip  III-  of  France  adhered  to  his  uncle,  and  the 
R»nce  and  king  of  Aragon  was  compelled  to  fight  for  Sicily 
'^^°'  within  his  native  dominions.  This  indeed  was  the 
more  vulnerable  point  of  attack.  Upon  the  sea  he  was  lord 
of  the  ascendant.  His  Catalans,  the  most  intrepid  of  Med- 
iterranean sailors,  were  led  to  victory  by  a  Calabrian  refu- 
gee, Roger  di  Loria,  the  most  illustrious  and  successful 
admiral  whom  Europe  produced  till  the  age  of  Blake  and  de 
Ruyter.  In  one  of  Loria's  battles  the  eldest  son  of  the  king 
of  Naples  was  made  prisoner,  and  the  first  years  of  his  own 


1  Giannone,  though  he  has  well  de- 
scribed the  schemes  of  John  of  Procida. 


Palermo.     The   thought  of  calling  in 
Peter,  he  asserts,  did  not  occur  to  the 


yet,  as  IS  too  Often  his  custom,  or  rather    Sicilians  till  Charles  had  actually  com- 


that  of  Costanzo,  whom  he  implicitly  fol 
lows,  drops  or  slides  over  leading  facts  ; 
and  thus,  omitting  entirely,  or  misrepre 


me  need  the  siege  of  Messina.  But  this 
\i  equally  removed  from  the  truth. 
Qibbon  has  made  more  errors  than  are 


'  ,  «3  J^  ~- f..„  %..»u><u   uiKF  UU.UU    ujuio   ciivia    vuau   arv 

aentmg,  the  circumstances  of  the  Sicilian  usual  with  so  accurate  an  historian  in 

Vespers,  treats  the  whole  insurrection  as  his  account  of  this  revolution,  such  aa 

the   result  of  a  deliberate    conspiracy,  calling  Constance,  the  queen  of  Peter, 

Un  the  other  hand,  Nicolas  Specialis.  a  sitter   instead   of  daughter  of  Manfred 

conteniporary  writer,  in  the  seventh  vol-  A  good  narrative  of  the  Sicilian  Vespers 

?^%-.  .M"™tori'8  collection,  represents  may   be   found   in   Velly's   History  of 

tnebicilian  Vespers  as  proceeding  entirely  France,  t.  vi. 
firom  the  casual  outrage  in  the  streets  of 


. 


reign  were  spent  in  confinement.  But  notwithstanding  these 
advantages,  it  was  found  impracticable  for  Aragon  to  contend 
against  the  arms  of  France,  and  latterly  of  Castile,  sustained 
by  the  rolling  thunders  of  the  Vatican.  Peter  III.  had  be- 
queathed Sicily  to  his  second  son  James  ;  Alfonso,  the  eldest, 
king  of  Aragon,  could  not  fairly  be  expected  to  ruin  his  in- 
heritance for  his  brother's  cause  ;  nor  were  the  barons  of  that 
free  country  disposed  to  carry  on  a  war  without  national  ob- 
jects. He  made  peace,  accordingly,  in  1295,  and  engaged 
to  withdraw  all  his  subjects  from  the  Sicilian  service.  Upon 
his  own  death,  which  followed  very  soon,  James  succeeded  to 
the  kingdom  of  Aragon,  and  ratified  the  renunciation  of  Sic- 
ily. But  the  natives  of  that  island  had  received  too  deeply 
the  spirit  of  independence  to  be  thus  assigned  over  by  the 
letter  of  a  treaty.  After  solemnly  abjuring,  by  their  ambas- 
sadors, their  allegiance  to  the  king  of  Aragon,  they  placed  the 
crown  upon  the  head  of  his  brother  Frederic.  They  main- 
tained the  war  against  Charles  11.  of  Naples,  against  James 
of  Aragon,  their  former  king,  who  had  bound  himself  to  en- 
force their  submission,  and  even  against  the  great  Roger  di 
Loria,  who,  upon  some  discontent  with  Frederic,  deserted 
their  banner,  and  entered  into  the  Neapolitan  service.  Peace 
was  at  length  made  in  1300,  upon  condition  that  Frederic 
should  retain  during  his  life  the  kingdom,  which  was  after- 
wards to  revert  to  the  crown  of  Naples :  a  condition  not 
likely  to  be  fulfiUed. 

Upon  the  death  of  Charles  II.  king  of  Naples,  m  1305,  a 
question  arose  as  to  the  succession.  His  eldest  son,  Charles 
Martel,  had  been  called  by  maternal  inheritance  to  the  throne 
of  Hungary,  and  had  left  at  his  decease  a  son,  Carobert,  the 
reigning  sovereign  of  that  country.  According  to  the  laws 
of  representative  succession,  which  were  at  this  time  tolerably 
settled  in  private  inheritance,  the  crown  of  Naples  ought  to 
have  regularly  devolved  upon  that  prince.  But  it  Robert  king 
was  contested  by  his  uncle  Robert,  the  eldest  living  *^^  ^'^p^; 
son  of  Charles  II.,  and  the  cause  was  pleaded  by  civilians  at 
Avignon  before  Pope  Clement  V.,  the  feudal  superior  of  the 
Neapolitan  kingdom.  Reasons  of  public  utility,  rather  than 
of  legal  analogy,  seem  to  have  prevailed  in  the  decision 
which  was  made  in  favor  of  Robert.^    The  course  of  his 


1  Glannonc,  1.  xxil. ;  Summonte,  t.  ii.  p.  870. 
however,  approved  the  decision. 
VOL.  I.  80 


Some  of  the  ciyilians  of  that  age. 


466 


EGBERT  KING  OF  NAPLES.     Chap.  HI.  Part  n. 


tTALT. 


JOANNA. 


467 


reign  evinced  the  wisdom  of  this  determination.  Eobert,  a 
wise  and  active,  though  not  personally  a  martial  prince,  main- 
tained the  ascendency  of  the  Guelf  faction,  and  the  papal 
influence  connected  with  it,  against  the  formidable  combina- 
tion of  Ghibelin  usurpers  in  Lombardy,  and  the  two  empe- 
rors Henry  VII.  and  Louis  of  Bavaria.  No  male  issue 
survived  Robert,  whose  crown  descended  to  his  granddaughter 
Joanna.  She  had  been  espoused,  while  a  child,  to  her  cousin 
Andrew,  son  of  Carobert  king  of  Hungary,  who  was  educated 
with  her  in  the  court  of  Naples.  Auspiciously  contrived  as 
this  union  might  seem  to  silence  a  subsisting  claim  upon  the 
kingdom,  it  proved  eventually  the  source  of  civil  war  and 
calamity  for  a  hundred  and  fifty  years.  Andrew's  manners 
were  barbarous,  more  worthy  of  his  native  country  than  of 
that  polished  court  wherein  he  had  been  bred.  He  gave 
himself  up  to  the  society  of  Hungarians,  who  taught  him  to 
believe  that  a  matrimonial  crown  and  derivative  royalty  were 
derogatory  to  a  prince  who  claimed  by  a  paramount  hered- 

itary  right.  In  fact,  he  was  pressing  the  court  of 
*"^'  Avignon  to  permit  his  own  coronation,  which  would 

have  placed  in  a  very  hazardous  condition  the  rights  of  the 
queen,  with  whom  he  was  living  on  ill  terms,  when  one  night 
he  was  seized,  strangled,  and  thrown  out  of  a  window.     Public 

rumor,  in  the  absence  of  notorious  proof,  imputed 
Murder  of  the  guilt  of  this  mystcrious  assassination  to  Joanna. 
^'^"4^*^^*  Whether  historians  are  authorized  to  assume  her 

participation  in  it  so  confidently  as  they  have  gen- 
erally done,  may  perhaps  be  doubted ;  though  I  cannot  ven- 
ture positively  to  rescind  their  sentence.  The  circumstances 
of  Andrew's  death  were  undoubtedly  pregnant  with  strong 
suspicions.*     Louis  king  of  Hungary,  his  brother,  a  just  and 


1  The  Chronicle  of  Dominic  di  Ora- 
yina  (Script.  Rer.  Ital.  t.  xii.)  seems  to 
be  our  best  testimony  for  the  circum- 
stances connected  with  Andrew's  death ; 
and  alter  reading  his  narratiTO  more 
than  once,  I  find  myself  undecided  as  to 
this  perplexed  and  mysterious  story. 
Gravina's  opinion,  it  should  be  observed, 
is  extremely  hostile  to  the  queen. 
Nevertheless  there  are  not  wanting  pre- 
sumptions that  Charles,  first  duke  of 
Durazzo,  who  had  married  the  sister  of 
Andrew,  was  concerned  in  his  murder, 
for  which  in  &ct  he  was  afterwards  put 
to  death  by  the  king  of  Hungary.  But, 
if  the  duke  of  Duiazzo  was  guilty,  it  is 


unlikely  that  Joanna  should  be  so  too; 
because  she  was  on  very  bad  terms  with 
him,  and  indeed  the  chief  proofs  against 
her  are  founded  on  the  investigation 
which  Durazzo  himself  professed  to  in- 
stitute. Confessions  obtained  through 
torture  are  as  little  credible  in  history  as 
they  ought  to  be  in  judicature ;  even  if 
we  could  be  positively  sure,  which  is  not 
the  case  in  this  instance,  that  such  con 
fessions  were  ever  made.  However,  I  do 
not  pretend  to  acquit  Joanna,  but  merely 
to  notice  the  uncertiinty  that  rests  over 
her  story,  on  account  of  the  positiveness 
with  which  all  historians,  except  those 
of  Naples  and  the  Abb6  de  Sade,  whoM 


( 


Stem  prince,  invaded  Naples,  partly  as  an  avenger,  partly  aa 
a  conqueror.     The  queen  and  her  second  husband,  Louis  of 
Tarento,  fled  to  Provence,  where  her  acquittal,  after  a  solemn, 
if  not  an  impartial,  investigation,  was  pronounced  by  Clement 
VI.     Louis,  meanwhile,  found  it  more  difficult  to  retain  than 
to  acquire  the  kingdom  of  Naples ;  his  own  dominion  required 
his  presence ;  and  Joanna  soon  recovered  her  crown.     She 
reigned  for  thirty  years  more  without  the  attack  of  any 
enemy,  but  not  intermeddling,  like  her  progenitors,  in  the 
general  concerns  of  Italy.     Childless  by  four  husbands,  the 
succession  of  Joanna  began  to  excite  ambitious  speculations. 
Of  all  the  male  descendants  of  Charles  I.  none  remained  but 
the  king  of  Hungary,  and  Charles  duke  of  Durazzo,  who 
had  married  the  queen's  niece,  and  was  regarded  by  her  as 
the  presumptive  heir  to  the  crown.     But,  offended  by  her 
marriage  with  Otho  of  Brunswick,  he  procured  the  assistance 
of  an  Hungarian  army  to  invade  the  kingdom,  and,  getting 
the  queen  into  his  power,  took  possession  of  the  throne.     In 
this  enterprise  he  was  seconded  by  Urban  VI.,  against  whom 
Joanna  had  unfortunately  declared  in  the  great  schism  of  the 
church.     She  was  smothered  with  a  pillow,  in  prison,  by  the 
order  of  Charles.    The  name  of  Joan  of  Naples  ^  ^ 
has  suffered  by  the  lax  repetition  of  calunmies. 
Whatever  share  she  may  have  had  in  her  husband's  death, 
and  certainly  under  circumstances  of  extenuation,  her  sub- 
sequent life  was  not  open  to  any  flagrant  reproach.     The 
charge   of  dissolute   manners,   so  frequently  made,  is  not 
warranted    by   any   specific  proof    or  contemporary   testi- 
mony. 

In  the  extremity  of  Joanna's  distress  she  had  sought  assist- 
ance from  a  quarter  too  remote  to  afford  it  in  time  for  her 
relief.  She  adopted  Louis  duke  of  Anjou,  eldest  House  of 
uncle  of  the  young  king  of  France,  Charles  VI.,  as  ^°^- 
her  heir  in  the  kingdom  of  Naples  and  county  of  Provence. 
This  bequest  took  effect  without  difficulty  in  the  latter  coun- 
try. Naples  was  entirely  in  the  possession  of  Charles  of 
Durazzo.  Louis,  however,  entered  Italy  with  a  very  large 
army,  consisting  at  least  of  30,000  cavalry,  and,  according  to 
some  writers,  more  than  double  that  number.^     He  was 

▼Indication  (Vie  de  P^trarque,  t.  ii.  notes)    been  her  own  act,  as  if  she  had  ordered 
does  her  more  harm  than  good,  have    his  execution  in  open  day. 
assumed  the  murder  of  Andrew  to  have       »  Muratori ;  Summonte ;  Costanao. 


468 


LADISLAUS. 


Chap.  m.  Pabt  IL 


Italy. 


JOANNA  n. 


469 


joined  hy  many  Neapolitan  barons  attached  to  the   late 
queen.     But,  by  a  fate  not  unusual  in  so  imperfect  a  state 
of  military  science,  this  armament  produced  no  adequate 
effect,  and  mouldered  away  through  disease  and  want  of 
provisions.     Louis  himself  dying  not  long  afterwards,  the 
government  of  Charles  HI.  appeared  secure,  and  he  was 
tempted  to  accept  an  offer  of  the  crown  of  Hungary.     This 
enterprise,  equally  unjust  and  injudicious,  terminated  m  his 
assassination.     Ladislaus,  his  son,  a  chUd  ten  years  old,  eucr 
ceeded  to  the  throne  of  Naples,  under  the  guardianship  of 
his  mother  Margaret,  whose  exactions  of  money  producing 
discontent,  the  party  which  had  supported  the  late  duke  of 
Anjou  became  powerful  enough  to  call  in  his  son.     Louis  11., 
as  he  was  called,  reigned  at  Naples,  and  possessed  most  part 
of  the  kingdom,  for  several  years ;  the  young  king  Ladislaus, 
who  retained  some  of  the  northern  provinces,  fixing  his  resi- 
dence at  Gaeta.     If  Louis  had  prosecuted  the  war  with 
activity,  it  seems  probable  that  he  would  have  subdued  his 
adversary.     But  his  character  was  not  very  energetic ;  and 
Ladislaus,   as  he   advanced   to  manhood,  displaying  much 
superior  qualities,  gained  ground  by  degrees,  till  the  Ange- 
vin barons,  perceiving  the  turn  of  the  tide,  came  over  to  his 
banner,  and  he  recovered  his  whole  dominions. 

The  kingdom  of  Naples,  at  the  close  of  the  fourteenth 
century,  was  still  altogether  a  feudal  government. 
^'*^^'"'      This  had  been  introduced  by  the  first  Norman 
kings,  and  the  system  had  rather  been  strengthened  than 
impaired  under  the  Angevin  line.     The  princes  of  the  blood, 
who  were  at  one  time  numerous,  obtained  extensive  domains 
by  way  of  appanage.     The  principahty  of  Tarento  was  a 
large  portion  of  the  kingdom.^     The  rest  was  occupied  by 
some  great  famihes,  whose  strength,  as  well  as  pride,  was 
shown  in  the  number  of  men-at-arms  whom  they  could  mus- 
ter under  their  banner.     At  the  coronation  of  Louis  II.,  in 
1390,  the  Sanseverini  appeared  with  1800  cavab^  completely 
equipped.*     This  illustrious  house,  which  had  filled  all  the 
high  ofl&ces  of  state,  and  changed  kings  at  its  pleasure,  was 
crushed  by  Ladislaus,  whose  bold  and  unrelenting  spirit  well 


1  It  comprehended  the  provinces  now 
called  Terra  d'Otranto  and  Terra  di  Ban  ; 
bMides  part  of  those  adjoining.  Sum- 
monte,  Istoria  di  Napoli,  t.  iii.  p.  537. 
Onini,  prince  of  Tarento,  who  died  in 


1463,  had  4000  troops  in  arms,  and  the 
value  of  1,000,000  florins  in  movables. 
Si.smondi,  t.  x.  p.  151. 

2  Summonte,  t.  iU.  p.  517 ;  Giannon* 
1.  xxiv.  c.  4. 


I 


fitted  him  to  bruise  the  heads  of  the  aristocratic  hydra. 
After  thoroughly  establishing  his  government  at  home,  this 
ambitious  monarch  directed  his  powerful  resources  towards 
foreign  conquests.  The  ecclesiastical  territories  had  never 
been  secure  from  rebellion  or  usurpation;  but  legitimate 
sovereigns  had  hitherto  respected  the  patrimony  of  the  head 
of  the  church.  It  was  reserved  for  Ladislaus,  a  feudal  vas- 
sal of  the  Holy  See,  to  seize  upon  Rome  itself  as  his  spoil. 
For  several  years,  while  the  disordered  state  of  the  church, 
in  consequence  of  the  schism  and  the  means  taken  to  extin- 
guish it,  gave  him  an  opportunity,  the  king  of  Naples  occu- 
pied great  part  of  the  papal  territories.  He  was  disposed  to 
have  carried  his  arms  farther  north,  and  attacked  the  republic 
of  Florence,  if  not  the  states  of  Lombardy,  when  his  death 
relieved  Italy  from  the  danger  of  this  new  tyranny. 

An  elder  sister,  Joana  II.,  reigned  at  Naples  after  Ladis- 
laus.    Under  this  queen,  destitute  of  courage  and 
understanding,  and  the  slave  of  appetites  which 
her  age  rendered  doubly  disgracefiil,  the  kingdom   relapsed 
into  that  state  of  anarchy  from  which  its  late  sovereign  had 
rescued  it.     I  shall  only  refer  the  reader  to  more  enlarged 
histories  for  the  first  years  of  Joanna's  reign.     In  1421  the 
two  most  powerful  individuals  were  Sforza  Attendolo,  great 
constable,  and  Ser  Gianni  Caraccioli,  the  queen's  minion,  who 
governed  the  palace  with  unlimited  sway.     Sforza,  aware  that 
the  favorite  was  contriving  his  ruin,  and  remembering  the 
prison  in  which  he  had  lain  more  than  once  since  the  accession 
of  Joanna,  determined  to  anticipate  his  enemies  by  calling  in 
a  pretender  to  the  crown,  another  Louis  of  Anjou,  third  in 
descent  of  that  unsuccessful  dynasty.     The  Angevin  party, 
though  proscribed  and  oppressed,  was  not  extinct;  and  the 
populace  of  Naples  in  particular  had  always  been  on  that 
side.     Caraccioli's   influence   and  the    queen's   dishonorable 
weakness  rendered  the  nobility  disaffected.     Louis  III.,  there- 
fore, had  no  remote  prospect  of  success.     But  CaraccioU  was 
more  prudent  than  favorites,  selected  from  such  motives,  have 
usually  proved.     Joanna  was  old  and  childless ;  the  reversion 
to  her  dominions  was  a  valuable  object  to  any  Adoption  of 
prince  in  Europe.     None  was  so  competent  to  as-  ^J^^  °^ 
sist  her,  or  so  likely  to  be  influenced  by  the  hope  ACBurs  of 
of  succession,  as  Alfonso  king  of  Aragon  and  Sic-  ^^'^^^' 
ily.    That  island,  after  the  reign  of  its  deHverer,  Frederic  L 


470 


ALFONSO  OF  ARAGON.     Chap.  IH.  Part  U. 


had  unfortunately  devolved  upon  weak   or  infant  princes. 
One  great  family,  the  Chiaramonti,  had  possessed  itself  of 
half  Sicily ;  not  by  a  feudal  title  as  in  other  kingdoms,  but  as 
a  kind  of  counter-sovereignty,  in  opposition  to  the  crown, 
though  affecting  rather  to  bear  arms  against  the  advisers  of 
their°king3  than  against  themselves.     The  marriage  of  Maria, 
queen  of  Sicily,  with  Martin,  son  of  the  king  of  Aragon,  put 
an  end  to  the  national  independence  of  her  country.     Dying 
without  issue,  she  left  the  crown  to  her  husband.     This  was 
consonant,  perhaps,  to  the  received  law  of  some  European 
kingdoms.      But,  upon  the  death  of  Martin,  in  1409,  his 
father,  also  named  Martin,  king  of  Aragon,  took  possession  as 
heir  to  his  son,  without  any  election  by  the  Sicilian  parlia- 
ment.    The  Chiaramonti  had  been  destroyed  by  the  younger 
Martin,  and  no   party  remained  to  make  opposition.     Thus 
was  Sicily  united  to  the  crown  of  Aragon.     Alfonso,  who 
now  enjoyed  those  two  crowns,  gladly  embraced  the  proposals 
of  the  queen  of  Naples.     They  were  founded,  indeed,  on  the 
most  substantial  basis,  mutual  interest.     She  adopted  Alfonso 
as  her  son  and  successor,  while  he  bound  himself  to  employ 
his  forces  in  dehvering  a  kingdom  that  was  to  become  his 
own.     Louis  of  Anjou,  though  acknowledged  in  several  prov- 
inces, was  chiefly  to  depend  upon  the  army  of  Sforza  ;  and  an 
army  of  Italian  mercenaries  could  only  be  kept  by  means 
which  he  was  not  able  to  apply.     The  king  of  Aragon,  there- 
fore, had  far  the  better  prospects  in  the  war,  when  one  of  the 
many  revolutions  of  this  reign  defeated  his  immediate  expec- 
tations.    Whether  it  were  that  Alfonso's  noble  and  affable 
nature  afforded  a  contrast  which  Joanna  was  afraid  of  exhib- 
iting to  the  people,  or  that  he  had  really  formed  a  plan  to  an- 
ticipate his  succession  to  the  throne,  she  became  more  and 
more  distrustful  of  her  adopted  son,  till,  an  open  rupture  hav- 
its  revoca-      i^g  taken  place,  she  entered  into  a  treaty  with  her 
tion  in  hereditary  competitor,  Louis  of  Anjou,  and,  revok- 

L^u^  of  ing  the  adoption  of  Alfonso,  substituted  the  French 
Anjou.  prince  in  his  room.     The  king  of  Aragon  was  dis- 

appointed by  this  unforeseen  stroke,  which,  uniting  the  Ange- 
vin faction  with  that  of  the  reigning  family,  made  it  imprac- 
ticable for  him  to  maintain  his  ground  for  any  length  of  time 
in  the  kingdom.  Joanna  reigned  for  more  than  ten  years 
without  experiencing  any  inquietude  from  the  pacific  spirit  of 
Louis,  who,  content  with  his  reversionary  hopes,  lived  as  a 


Italy. 


ALFONSO  KING  OF  NAPLES. 


471 


sort  of  exile  in  Calabria.^  Upon  his  death,  the  queen,  who 
did  not  long  survive  him,  settled  the  kingdom  on  his  brother 
Re^ier.  The  Neapolitans  were  generally  disposed  to  exe- 
cute this  bequest.  But  Regnier  was  unluckily  at  that  time  a 
prisoner  to  the  duke  of  Burgundy;  and  though  his  wife  mam- 
tained  the  cause  with  great  spirit,  it  was  difficult  for  her,  or 
even  for  himself,  to  contend  against  the  king  of  Aragon,  who 
immediately  laid  claim  to  the  kingdom.  After  a  contest  of 
several  years,  Regnier,  having  experienced  the  treacherous 
and  selfish  abandonment  of  his  friends,  yielded  the  game  to 
his  adversary;  and  Alfonso  founded  the  Aragonese  line 
of  sovereigns  at  Naples,  deriving  pretensions  more  splendid 
than  just  from  Manfred,  from  the  house  of  Suabia,  and  from 

Roger  Guiscard.2  ,  /.    ^  j 

In  the  first  year  of  Alfonso's  Neapolitan  war  he  was  defeated 
and  taken  prisoner  by  a  fleet  of  the  Genoese,  who,  ^^^.^^ 
as  constant  enemies  of   the    Catalans  in  all  the  Wng  of 
naval  warfare  of  the  Mediterranean,  had  willingly     ^    *  ^ 
lent  their  aid  to  the  Angevin  party.     Genoa  was  at  this  time 
subject  to  Filippo  Maria  duke  of  Milan,  and  her  royal  cap- 
tive was  transmitted  to  his  court.     But  here   the  briUiant 
graces  of  Alfonso's  character  won  over  his  conqueror,  ^o 
had  no  reason  to  consider  the  war  as  his  own  concern.     The 
king  persuaded  him,  on  the  contrary,  that  a  strict  alliance  with 
an  Aragonese  dynasty  in  Naples  against  the  pretensions  of 
any  French  claimant  would  be  the  true  policy  and  best  secu- 


1  Joanna^a  great  favorite,  Caraccioli, 
fell  a  victim  Bome  time  before  his  mis- 
tress's death  to  an  intrigue  of  the  palace ; 
the  duchess  of  Sessia,  a  new  fevorite, 
having  prevailed  on  the  feeble  old  queen 
to  permit  him  to  be  assassinated.    About 
this  time  Alfonso  had  every  reason  to 
hope  for  the  renewal  of  the  settlement 
in    his    favor.    Caraccioli    had    himself 
opened  a  negotiation  with  the  king  of 
Aragon  ;  and  after  his  death  the  duchess 
of  Sessia  embarked  in  the  same  cause. 
Joan  even  revoked  secretly  the  adoption 
of  the  duke  of  Anjou.   This  circumstance 
might   appear   doubtful:    but  the  his- 
torian to  whom  I  refer  has  published 
the  act  01  revocation  Itself,  which  bears 
date  AprU  11th,  1433.    Zurita  (Annales 
de  Aragon,  t.  iv.  p.  217)  admits  that  no 
other  writer,  either  contemporary  or  sub- 
sequent, haa  mentioned  any  part  of  the 
transaction,  which  must  have  been  kept 
retj  Becret;   but   his   authority  is   so 


respectable  that  I  thought  it  worth  no- 
tice, however  uninteresting  these  remote 
Intrigues  may  appear  to  most  readers. 
Joanna  soon  changed  her  mind  again, 
and  took  no  overt  steps  in  favor  of  Al- 
fonso. 

2  According  to  a  treaty  between  Fred- 
eric III.,  king  of  Sicily,  and  Joanna  I. 
of  Naples,  in  1363,  the  former  monarch 
was  to  assume  the  title  of  king  of  Trin- 
acria,  leaving  the  original  style  to  tho 
Neapolitan  line.  But  neither  he  nor  his 
successors  In  the  island  ever  complied 
with  this  condition,  or  entitled  them- 
selves otherwise  than  kings  of  Sicily  ul- 
tra Pharum,  in  contradistinction  to  the 
other  kingdom,  which  they  denominated 
Sicily  cltra  Pharum.  Alfonso  of  Ara^n, 
when  he  united  both  these,  was  the  first 
who  took  the  title,  King  of  the  Two 
Sicilies,  which  his  successors  have  re- 
tained ever  since.  Giannone,  t.  iii.  i^ 
234. 


A 


472  QUADRUPLE  LEAGUE.     Chap.  m.  Past  II. 

rity  of  Milan.     That  city,  which  he  had  entered  as  a  prisoner, 
he  left  as  a  friend  and  ally.     From  this  time  Filippo  Ma- 
ria Visconti  and  Alfonso  were  firmly  united  in  their  Italian 
politics,  and  formed  one  weight  of  the  balance  which  the  re- 
publics of  Venice  and  Florence  kept  in  equipoise. 
S^tioT        After  the  succession  of  Sforza  to  the  duchy  of 
with  Milan,     j^ian  the  same  alliance  was  generally  preserved. 
Sforza  had  still  more  powerful  reasons  than  his  predecessor 
for  excluding  the  French  from  Italy,  his  own  title  being  con- 
tested by  the  duke  of  Orleans,  who  derived  a  claim  from  his 
mother  Valentine,  a  daughter  of  Gian   Galeazzo  Visconti. 
But  the  two  republics  were  no  longer  disposed  towards  war. 
Florence  had  spent  a  great  deal  without  any  advantage  in  her 
contest  with  Filippo  Maria ;  ^  and  the  new  duke  of  Milan  had 
been  the  constant  personal  friend  of  Cosmo  de'  Medici,  who 
altogether  influenced  that  republic.     At  Venice,  indeed,  he 
had  been  regarded  with  very  different  sentiments  ;  the  senate 
had  prolonged  their  war  against  Milan  with  redoubled  ani- 
mosity after  his  elevation,  deeming  him  a  not  less  ambitious 
and  more  formidable  neighbor  than  the  Visconti.     But  they 
were  deceived  in  the  character  of  Sforza.     Conscious  that 
he  had  reached  an  eminence  beyond  his  early  hopes,  he  had 
no  care  but  to  secure  for  his  family  the  possession  of  Milan, 
without  disturbing  the  balance  of  Lombardy.     No  one  bet- 
ter knew  than  Sforza  the  faithless  temper  and  destructive 
politics  of  the  condottieri,  whose  interest  was  placed  in  the 
oscillations  of  interminable  war,  and  whose  defection  might 
shake  the  stability  of  any  government.     Without  peace  it 
was  impossible  to  break  that  ruinous  system,  and  accustom 
states   to  rely  upon  their  natural  resources.     Venice  had 
little  reason  to  expect  ftirther  conquests  in  Lombardy ;  and 
if  her  ambition  had  inspired  the  hope  of  them,  she  was  sum- 
moned by  a  stronger  call,  that  of  self-preservation,  to  defend 
her  numerous  and  dispersed  possessions  in  the  Levant  against 
the  arms  of  Mahomet  II.    AU  Italy,  indeed,  felt  the  peril 
Quadni  le     ^^^^  impended  from  that  side ;  and  these  various 
league  of       motions  occasioucd  a  quadruple  league  in  1455, 
^^'  between  the  king  of  Naples,  the  duke  of  Milan, 

and  the  two  republics,  for  the  preservation  of  peace  in  Italy. 
One  object  of  this  alliance,  and  the  prevailing  object  with 

1  The  war  ending  with  the  peace  of    repubUc  of  Florence   8,500,000  florin*. 
Ferraxa,  in  1428,  is  said  to  haye  cost  the    Ammirato,  p.  1048. 


Italt. 


FERDINAND. 


473 


Alfonso,  was  the  implied  guarantee  of  his  succession  m  the 
kingdom  of  Naples  to  his  illegitimate  son  Ferdmand.  He 
had  no  lawful  issue  ;  and  there  seemed  no  reason  why  an  ac- 
quisition of  his  own  valor  should  pass  against  his  will  to  col- 
lateral  heirs.  The  pope,  as  feudal  superior  of  the  kingdom, 
and  the  NeapoUtan  parliament,  the  sole  competent  tribunal, 
conflrmed  the  inheritance  of  Ferdinand.^  Whatever  may  be 
thought  of  the  claims  subsisting  in  the  house  of  Anjou,  there 
can  be  no  question  that  the  reigning  family  of  Aragon  were 
lecritimately  excluded  from  the  throne  of  Naples,  though 
force  and  treachery  enabled  them  ultimately  to  obtain  it. 

Alfonso,  surnamed  the  Magnanimous,  was  by  far  the  most 
accomplished  sovereign  whom  the  fifteenth  century  chai^ter 
produced.    The  virtues  of  chivalry  were  combined  °*  • 

in  hun  with  the  patronage  of  letters,  and  with  more  than  their 
patronage,  a  real  enthusiasm  for  learning,  seldom  found  ma 
kincr,  and  especially  in  one  so  active  and  ambitious.      ihis 
devotion  to  literature  was,  among  the  Italians  of  that  age, 
almost  as  sure  a  passport  to  general  admiration  as  his  more 
chivalrous  perfection.     Magnificence  in  architecture  and  the 
pageantry  of  a  splendid  court  gave  fresh  lustre  to  his  reign. 
The  Neapolitans  perceived  with  grateful  pride  that  he  lived 
almost  entirely  among  them,  in  preference  to  his  patrimonial 
kingdom,  and  forgave  the  heavy  taxes  which  faults  nearly 
allied  to  his  virtues,  profuseness  and  ambition,  compelled  him 
to  impose.'    But  they  remarked  a  very  different  character  m 
his  son.     Ferdinand  was  as  dark  and  vindictive  as  ^.^^,1^^^^. 
his  father  was  affable  and  generous.     The  barons, 
who  had  many  opportunities  of  ascertaining  his  disposition, 
began,  immediately  upon  Alfonso's  death,  to  cabal  against  his 
succession,  turning  their  eyes  first  to  the  legitimate  branch 
of  the  family,  and,  on  finding  that  prospect  not  favorable,  to 
John,  titular  duke  of  Calabria,  son  of  Regnier  of  ^^^  ^^ 
Anjou,  who  survived  to  protest  against  the  revolu- 
tion  that  had  dethroned  him.    John  was  easily  prevailed  upon 
to  undertake  an  invasion  of  Naples.     Notwithstanding  the 
treaty  concluded  in  1455,  Florence  assisted  him  with  money, 
and  Venice  at  least  with  her  wishes ;  but  Sforza  remained 
unshaken  in  that  aUiance  with  Ferdinand  which  his  clear- 

1  Giannone,  1.  xxyi.  c.  2.  .  W^g  of  an  iUne^.   .S««  f^^.^f  f  ^. 

9  A  story  is  told,  true  or  false,  that  his  his  love  of  letters  In  TiraDoscni,       ti 

deUght  in  hearing  Quintus  Curtius  read,  p.  40.        ^  ^  ,   ,__. 
Without  any  other  medicine,  cured  the       3  Giannone,  1.  xxri. 


474 


STATE  OF  ITALY.        Chap.  HI.  Part  TL 


Italy. 


AFFAIRS  OF  GENOA. 


475 


sighted  policy  discerned  to  be  the  best  safeguard  for  his  own 
dynasty.  A  large  proportion  of  the  Neapolitan  nobility, 
including  Orsini  prince  of  Tarento,  the  most  powerful  vassal 
of  the  crown,  raised  the  banner  of  Anjou,  which  was  sus- 
tained also  by  the  youngest  Piccinino,  the  last  of  the  great 
condottieri,  under  whose  command  the  veterans  of  former 
warfare  rejoiced  to  serve.  But  John  underwent  the  fate  that 
had  always  attended  his  family  in  their  long  competition  for 
that  throne.  After  some  brilliant  successes,  his  want  of  re- 
sources, aggravated  by  the  defection  of  Genoa,  on  whose 
ancient  enmity  to  the  house  of  Aragon  he  had  relied,  was 
perceived  by  the  barons  of  his  party,  who,  accord- 
ing to  the  practice  of  their  ancestors,  returned  one 
by  one  to  the  allegiance  of  Ferdinand. 

The  peace  of  Italy  was  little  disturbed,  except  by  a  few 
domestic  revolutions,  for  several  years  after  this 
Neapolitan  war.^  Even  the  most  short-sighted 
politicians  were  sometimes  withdrawn  from  selfish 
objects  by  the  appalling  progress  of  the  Turks, 
though  there  was  not  energy  enough  in  their  coun- 


Stateof 
Italy  in  the 
latter  part 
of  the 
fifteenth 
century. 


1  The  following  distribution  of  a  tax 
of  458,000  florins,  imposed,  or  rather  pro- 
posed, in  1464,  to  defray  the  expense  of 
a  general  war  against  the  Turks,  will 
giTe  a  notion  of  the  relative  wealth  and 
resources  of  the  Italian  powers ;  but  it  is 
probable  that  the  pope  rated  himself 
above  his  fair  contingent.  He  was  to 
pay  100,000  florins ;  the  Venetians  100,- 
000;  Ferdinand  of  Naples  80,000;  the 
duke  of  Milan  70,000:  Florence  50,000; 
the  duke  of  Modena  20,000 ;  Siena  15,- 
000;  the  marquis  of  Mantua  10,000; 
Lucca  8,000 ;  the  marquis  of  Montferrat 
6,000.  Simondi,  t.  x.  p.  229.  A  similar 
assessment  occurs  (p.  307)  where  the  pro- 
portions are  not  quite  the  same. 

Perhaps  it  may  be  worth  while  to  ex- 
tract an  estimate  of  the  force  of  all 
Christian  powers,  written  about  1454, 
from  Sanuto's  Lives  of  the  Doges  of 
Venice,  p.  963.  Some  parts,  however, 
appear  very  questionable.  The  king  of 
France,  it  is  said,  can  raise  30,000  men- 
at-arms;  but  for  any  foreign  enterprise 
only  15,000.  The  king  of  England  can 
do  the  same.  These  powers  are  exactly 
equal ;  otherwise  one  of  the  two  would 
be  destroyed.  The  king  of  Scotland, 
*^ch'  h  signore  di  grandi  paesi  e  popoli 
con  grande  poverU,"  can  raise  l0,000 
men-at-arms :  the  king  of  Norway  the 
same:  the  king  of  Spain  (Castile) 
80,000:    the   king   of    Portugal    6000: 


the  duke  of  Savoy  8000:  the  duke  of 
Milan  10,000.  The  republic  of  Venice 
can  pay  from  her  revenues  10,000 :  that 
of  Florence  4000 :  the  pope  6000.  The 
emperor  and  empire  can  raise  60,000; 
the  king  of  Hungary  80,000  (not  men- 
at-arms,  certainly). 

The  king  of  France,  in  1414,  had 
2,000,000  ducats  of  revenue;  but  now 
only  half.  The  king  of  England  had 
then  as  much  ;  now  only  700,000.  The 
king  of  Spain's  revenue  also  is  reduced 
by  the  wars  from  3,000,000  to  800,000. 
The  duke  of  Burgundy  had  3,000,000: 
now  900,000.  The  duke  of  Milan  had 
sunk  from  1,000,000  to  500,000 :  Venice 
from  1,100,000,  which  she  possessed  in 
1423,  to  800,000:  Florence  from  400,000 
to  200,000. 

These  statistical  calculations,  which 
are  not  quite  accurate  as  to  Venice,  and 
probably  much  leas  so  as  to  some  other 
states,  are  chiefly  remarkable  as  they 
manifest  that  comprehensive  spirit  of 
treating  all  the  powers  of  Europe  as 
parts  of  a  common  system  which  began 
to  actuate  the  Italians  of  the  fifteenth 
century.  Of  these  enlarged  views  of 
policy  the  writings  of  .£Deas  Sylvius 
afibrd  an  eminent  instance.  Besides  the 
more  general  and  insensible  causes,  the 
increase  of  navigation  and  revival  of  lit- 
erature, this  may  be  ascribed  to  the  con- 
tinual danger  from  the  progress  of  the 


cils  to  form  any  concerted  plans  for  their  own  security.   Venice 
maintained  a  long  but  ultimately  an  unsuccessful  contest  with 
Mahomet  II.  for  her  maritime  acquisitions  in  Greece  and 
Albania ;  and  it  was  not  till  after  his  death  relieved  Italy  from 
its  immediate  terror  that  the  ambitious  republic  endeavored 
to  extend  its  territories  by  encroaching  on  the  house  of  Este. 
Nor  had  Milan  shown  much  disposition  towards  ^^  j^ 
aggrandizement.     Francesco  Sforza  had  been  suc- 
ceeded, such  is  the  condition  of  despotic  governments,  by  his 
son  Galeazzo,  a  tyrant  more  execrable  than  the  worst  of  the 
Visconti.     His  extreme  cruelties,  and  the  insolence  of  a  de- 
bauchery that  gloried  in  the   public  dishonor  of  families, 
excited  a  few  daring  spirits  to  assassinate  him.  ^^  ^^^g 
The  Milanese  profited  by  a  tyrannicide  the  perpe- 
trators of  which  they  had  not  courage  or  gratitude  to  protect. 
The  regency  of  Bonne  of  Savoy,  mother  of  the  infant  duke 
Gian  Galeazzo,  deserved  the  praise  of  wisdom  and  modera- 
tion.    But  it  was  overthrown  in  a  few  years  by  Ludovico 
Sforza,  surnamed  the  Moor,  her  husband's  brother ;  ^^  ^^ 
who,  while  he  proclaimed  his  nephew's  majority 
and  affected  to  treat  him  as  a  sovereign,  hardly  disguised  in 
his  conduct  towards  foreign  states  that  he  had  usurped  for 
himself  the  sole  direction  of  government. 

The  annals  of  one  of  the  few  surviving  republics,  that  of 
Genoa,  present  to  us,  during  the  fifteenth  as  well  ^^^ 
as  the  preceding  century,  an  unceasing  series  of  that  age, 
revolutions,  the  shortest  enumeration  of  which  would  occupy 
several  pages.     Tom  by  the  factions  of  Adorni  and  Fregosi, 
equal  and  eternal  rivals,  to  whom  the  whole  patrician  families 
of  Doria  and  Fieschi  were   content  to  become  secondary, 
sometimes  sinking  from  weariness  of  civil  tumult  into  the 
grasp  of  Milan  or  France,  and  again,  from  impatience  of 
foreign  subjection,  starting  back  from  servitude  to  anarchy, 
the  Genoa  of  those  ages  exhibits  a  smgular  contrast  to  the 
calm  and  regular  aristocracy  of  the  next  three  centuries. 
The  latest  revolution  within  the  compass  of  this  work  was 
in  1488,  when  the  duke  of  Milan  became  sovereign,  and 
Adomo  holding  the  office  of  doge  as  his  lieutenant. 

Florence,  the  most  illustrious  and  fortunate  of  Italian  re- 
ottoman  arms,  which  led  the  politicians    the  resources  and  dispositions  of  Christian 
of  that  part  of  Europe  most  exposed  to    states. 
them  into  more  extensive  views  as  to  ^ 


476 


AFFAIRS  OF  FLORENCE.    Chap.  Hi.  PaotIL 


Italy. 


RISE  OF  THE  MEDICI. 


477 


publics,  was  now  rapidly  descending  from  her  rank  among 
and  of  free  commonwealths,  though  surrounded  with  more 

Florence.       ^^^^  usual  lustre   in  the  eyes   of  Europe.     We 
must  take  up  the  story  of  that  city  from  the  revolution  of 
1382,  which  restored  the  ancient  Guelf  aristocracy,  or  party 
of  the  Albizi,  to  the  ascendency  of  which  a  popular  insurrec- 
tion had  stripped  them.     Fifty  years  elapsed  during  which 
this  party  retained  the  government  in  its  own  hands  with  few 
attempts  at  disturbance.    Their  principal  adversaries  had  been 
exiled,  according  to  the  invariable  and  perhaps  necessary  cus- 
tom of  a  republic ;  the  populace  and  inferior  artisans  were 
dispirited  by  their  ill  success.     Compared  with  the  leaders  of 
other  factions,  Maso  degl'  Albizi,  and  Nicola  di  Uzzano,  who 
succeeded  him  in  the  management  of  his  party,  were  attached 
to  a  constitutional  liberty.     Yet  so  difficult  is  it  for  any  gov- 
ernment which  does  not  rest  on  a  broad  basis  of  public  con- 
sent to  avoid  injustice,  that  they  twice  deemed  it  necessary 
to  violate  the  ancient  constitution.     In  1393,  after  a  partial 
movement  in  behalf  of  the  vanquished  faction,  they  assembled 
a  parliament,  and  established  what  was  technically  called  at 
Florence  a  Balia.^     This  was  a  temporary  delegation  of  sov- 
ereignty to  a  number,  generally  a  considerable  number,  of 
citizens,  who  during  the  period  of  their  dictatorship  named 
the  magistrates,  instead  of  drawing  them  by  lot,  and  banished 
suspected  individuals.     A  precedent  so  dangerous  was  event- 
ually fatal  to  themselves  and  to  the  freedom  of  their  country. 
Besides  this  temporary  balia,  the  regular  scrutinies  periodi- 
cally made  in  order  to  replenish  the  bags  out  of  which  the 
names  of  all  magistrates  were  drawn  by  lot,  according  to  the 
constitution  established  in  1328,  were  so  managed  as  to  ex- 
clude all  persons  disaffected  to  the  dominant  faction.     But, 
for  still  greater  security,  a  council  of  two  hundred  was  formed 
in   1411,  out  of  those  alone  who  had  enjoyed  some  of  the 
higher  offices  within  the  last  thirty  years,  the  period  of  the 
aristocratical  ascendency,  through  which  every  proposition 
was  to  pass  before  it  could  be  submitted  to  the  two  legislative 
councils.^    These  precautions  indicate  a  government  conscious 
of  public  enmity ;  and  if  the  Albizi  had  continued  to  sway 
the  republic  of  Florence,  their  jealousy  of  the  people  would 
have  suggested  still  more  innovations,  tiU  the  constitution  had 


acquh-ed,  in  legal  form  as  well  as  substance,  an  absolutely 
aristocratical  character. 

But,  while  crushing  with  deliberate  severity  their  avowed 
adversaries,  the  ruling  party  had  left  one  family  whose  pru- 
dence gave  no  reasonable  excuse  for  persecuting  wse  of  the 
them,  and  whose  popularity  as  well  as  wealth  ren- 
dered the  experiment  hazardous.     The  Medici  were  among 
the  most  considerable  of  the  new  or  plebeian  nobility.    From 
the  first  years  of  the  fourteenth  century  their  name  not  very 
unfrequently  occurs  in  the  domestic  and  military  annals  of 
Florence.^     Salvestro  de'  Medici,  who  had  been  partially  im- 
plicated in  the  democratical  revolution  that  lasted  from  1378 
to  1382,  escaped  proscription  on  the  revival  of  the  Guelf 
party,  though  some  of  his  family  were  afterwards  banished. 
Throughout  the  long  depression  of  the  popular  faction  the 
house  of  Medici  was  always  regarded  as  their  consolation 
and  their  hope.     That  house  was  now  represented  by  Gio- 
vanni,^  whose  immense  wealth,  honorably  acquired  by  com- 
mercial dealings,  which  had  already  rendered  the  name  cele- 
brated in  Europe,  was  expended  with  liberality  and  magnifi- 
cence.     Of  a  mild  temper,  and  averse  to  cabals,  Giovanni 
de'  Medici  did  not  attempt  to  set  up  a  party,  and  contented 
himself  with  repressing  some  fresh  encroachments  on  the 
popular  part  of  the  constitution  which  the  Albizi  were  dis- 
posed to  make.'    They,  in  their  turn,  freely  admitted  him  to 
that  share  in  pubUc  councils  to  which  he  was  entitled  by  his 
eminence  and  virtues ;  a  proof  that  the  spirit  of  their  admm- 
istration  was  not  ilUberally  exclusive.     But,  on  the  death  of 
Giovanni,  his  son  Cosmo  de'  Medici,  inheriting  his  father's 
riches  and  estimation,  with  more  talents  and  more  ambition, 
thought  it  time  to  avail  himself  of  the  popularity  belonging 
to  his  name.     By  extensive  connections  with  the  most  emi- 
nent men  in  Italy,  especially  with  Sforza,  he  came  to  be  con- 
sidered as  the  first  citizen  of  Florence.     The  oligarchy  were 
more  than  ever  unpopular.     Their  admmistration  since  1382 


1  Ammirato,  p.  840. 


>  lb.  p.  961. 


1  The  Medici  are  enumerated  by  Vil- 
lani  among  the  chiefs  of  the  Black  faction 
in  law,  1.  viii.  c.  71.  One  of  that  family 
was  beheaded  by  order  of  the  duke  of 
Athens  in  1343,  1.  xii.  c.  2.  It  is  sin- 
gular that  Mr.  Roscoe  should  refer  their 
first  appearance  in  history,  as  he  seems 
to  do,  to  the  siege  of  Scarperia  in  1351. 

s  Qiovanni  was  not  nearly  related  to 


SalTestro  dc'  Medici.  Their  families  are 
said  per  lungo  tratto  allontanarsi.  Am- 
mirato, p.  ^.  Neyertheless,  his  being 
drawn  gonfalonier  in  1421  created  a 
great  sensation  in  the  city,  and  prepared 
the  way  to  the  subsequent  revolution 
Ibid.  Machiavelli,  1.  iv. 
3  Machiavelli,  Istoria  Fiorent.  1.  iT. 


\ 


.   I) 


478 


RISE  OF  THE  MEDICI.      Chap.  HI.  Fakt  XL 


had  indeed  been  in  general  eminently  successful ;  the  acquisi- 
tion of  Pisa  and  of  other  Tuscan  cities  had  aggrandized  the 
republic,  while  from  the  port  of  Leghorn  her  ships  had  begun 
to  trade  with  Alexandria,  and  sometimes  to  contend  with  the 
Genoese.^  But  an  unprosperous  war  with  Lucca  diminished 
a  reputation  which  was  never  sustained  by  public  affection. 
Cosmo  and  his  friends  aggravated  the  errors  of  the  govern- 
ment, which  having  lost  its  wise  and  temperate  leader  Nicola 
di  Uzzano,  had  fallen  into  the  rasher  hands  of  Rinaldo  degl' 
Albizi.  He  incurred  the  blame  of  being  the  first  aggressor 
in  a  struggle  which  had  become  inevitable.  Cosmo  was 
arrested  by  command  of  a  gonfalonier  devoted  to 
A.i).  1483.  ^^^  Albizi,  and  condemned  to  banishment  But  the 
oligarchy  had  done  too  much  or  too  little.  The  city  was  full 
of  his  friends ;  the  honors  conferred  upon  him  in  his  exile 
attested  the  sentiments  of  Italy.  Next  year  he  was  recalled 
in  triumph  to  Florence,  and  the  Albizi  were  completely 
overthrown. 

It  is  vain  to  expect  that  a  victorious  faction  wiU  scruple 
to  retaliate  upon  its  enemies  a  still  greater  measure  of  in- 
justice than  it  experienced  at  their  hands.     The  vanquished 
have  no  rights  in  the  eyes  of  a  conqueror.     The  sword  of  re- 
turning exiles,  flushed  by  victory  and  incensed  by  suffering, 
falls  successively  upon  their  enemies,  upon  those  whom  they 
suspect  of  being  enemies,  upon  those  who  may  hereafter  be- 
come such.    The  Albizi  had  in  general  respected  the  legal 
forms  of  their  free  republic,  which  good  citizens,  and  per- 
haps themselves,  might  hope  one  day  to  see  more  effective. 
The  Medici  made  all  their  government  conducive  to  heredi- 
tary monarchy.     A  multitude  of  noble  citizens  were  driven 
from  their  country ;  some  were  even  put  to  death.     A  balia 
was  appointed  for  ten  years  to  exclude  all  the  Albizi  from 
magistracy,  and,  for  the  sake  of  this  security  to  the  ruling 
faction,  to  supersede  the  legitimate  institutions  of  the  republic. 


1  The  Florentines  sent  their  first  mer- 
*.hant-ship  to  Alexandria  in  1422,  with 
great  and  anxious  hopes.  Prayers  were 
ordered  for  the  success  of  the  republic  by 
sea,  and  an  embassy  despatched  with 
presents  to  conciliate  the  Sultan  of  Ba- 
bylon, that  is,  of  Grand  Cairo.  Ammi- 
rato,  p.  997.  Florence  had  never  before 
been  so  wealthy.  The  circulating  money 
was  reckoned  (perhaps  extravagantly)  at 
4.000,000  florins.    The  manu£eu:tares  of 


silk  and  cloth  of  gold  had  never  flourished 
so  much .  Architecture  shone  under  Bru- 
nelleschi :  literature  under  LeonardAretin 
and  Filelfo.  p.  977.  There  ia  some  truth 
in  M.  Sismondi's  remark,  that  the  Medici 
have  derived  part  of  their  glory  from  their 
predecessors  in  government,  whom  they 
subverted,  and  whom  they  have  rendered 
obscure.  But  the  Milanese  war,  breaking 
out  in  1428,  tended  a  good  deal  to  inf 
poverish  the  city. 


Italy. 


LORENZO  DE'  MEDICI. 


479 


After  the  expiration  of  this  period  the  dictatorial  power  was 
renewed  on  pretence  of  fresh  danger,  and  this  was  repeated 
Bix  times  in  twenty-one  years.*  In  1455  the  constitutional 
mode  of  drawing  magistrates  was  permitted  to  revive,  against 
the  wishes  of  some  of  the  leading  party.  They  had  good 
reason  to  be  jealous  of  a  liberty  which  was  incompatible  with 
their  usurpation.  The  gonfaloniers,  drawn  at  random  from 
among  respectable  citizens,  began  to  act  with  an  indepen- 
dence to  which  the  new  oligarchy  was  little  accustomed. 
Cosmo,  indeed,  the  acknowledged  chief  of  the  party,  perceiv- 
ing that  some  who  had  acted  in  subordination  to  him  were 
looking  forward  to  the  opportunity  of  becoming  themselves  its 
leaders,  was  not  unwilling  to  throw  upon  them  the  unpopu- 
larity attached  to  an  usurpation  by  which  he  had  maintained 
his  influence.  Without  his  apparent  participation,  though 
not  against  his  will,  the  free  constitution  was  again  suspended 
by  a  balia  appointed  for  the  nomination  of  magistrates ;  and 
the  regular  drawing  of  names  by  lot  seems  never  to  have 
been  restored.^  Cosmo  died  at  an  advanced  age  in  1464. 
His  son,  Piero  de'  Medici,  though  not  deficient  in  either  vir- 
tues or  abilities,  seemed  too  infirm  in  health  for  the  adminis- 
tration of  public  affairs.  At  least,  he  could  only  be  chosen 
by  a  sort  of  hereditary  title,  which  the  party  above  mentioned, 
some  from  patriotic,  more  from  selfish  motives,  were  reluc- 
tant to  admit.  A  strong  opposition  was  raised  to  the  family 
pretensions  of  the  Medici.  Like  all  Florentine  factions,  it 
trusted  to  violence ;  and  the  chance  of  arms  was  not  in  its 
favor.  From  this  revolution  in  1466,  when  some  of  the 
most  considerable  citizens  were  banished,  we  may  date  an 
acknowledged  supremacy  in  the  house  of  Medici,  the  chief 
of  which  nominated  the  regular  magistrates,  and  drew  to 
himself  the  whole  conduct  of  the  republic* 

The  two  sons  of  Piero,  Lorenzo  and  Julian,  especially  the 
former,  though  young  at  their  father's  death,  assumed,  by  the 
request  of  their  friends,  the  reigns  of  government,  j^ren^o 
It  was  impossible  that,  among  a  people  who  had  de'  Medici. 
so  many  recollections  to  attach  to  the  name  of  lib-  ^'"*  ^^^* 
erty,  among  so  many  citizens  whom  their  ancient  constitution 
invited  to  pubhc  trust,  the  control  of  a  single  family  should 

*  Hachiavelli,  1.  v. ;  Ammirato.  The  two  latter  are  perpetual  referencen 

*  Ammirato,  t,  ii.  p.  82-B7.  in  this  part  of  history,  where  no  other  ia 

*  Ammirato,  p.  93 ;    Roscoc's  Lorenzo  made, 
de' Medici,  ch.  2 ;  Machiavelii ;  Sismondi. 


4«0 


LORENZO  DE'  MEDICI.    Chap.  HI.  Part  II. 


excite  no  dissatisfaction ;  and  perhaps  their  want  of  any  posi- 
tive authority  heightened  the  appearance  of  usurpation  m 
their  influence.     But,  if  the  people's  wish  to  resign  their 
freedom  gives  a  title  to  accept  the  government  of  a  country, 
the  Medici  were  no  usurpers.     That  ^^ily  f  ^ver  lost  the^ 
affections  of  the  populace.     The  cry  of  Palle,  Palle  (their 
armorial  distinction),  would  at  anytime  rouse  the  Florentines 
to  defend  the  chosen  patrons  of  the  republic.     If  their  sub- 
stantial influence  could  before  be  questioned,  the  conspiracy 
of  the  Pazzi,  wherein  Julian  perished,  excited  an  enthusiasm 
for  the  surviving  brother,  that  never  ceased  during  his  Ufe. 
Nor  was  this  anything  unnatural,  or  any  severe  reproach  to 
Florence.     All  around,  in  Lombardy  and  Romagna,  the  l^ap 
of  liberty  had  long  smce  been  extinguished  in  blood.     The 
freedom  of  Siena  and  Genoa  was  dearly  purchased  by  revo- 
lutionary  proscriptions;  that  of  Venice  was  only  a  name. 
The  repubUc  which  had  preserved  longest,  and  with  greatest 
purity,  that  vestal  fire,  had  at  least  no  relative  degradation  to 
fear  in  surrendering  herself  to  Lorenzo  de'  Medici.     I  need 
not  in  this  place  expatiate  upon  what  the  name  instantly  sug- 
gests, the  patronage  of  science  and  art,  and  the  constellation 
of  scholars  and  poets,  of  architects  and  painters,  whose  re- 
flected beams  cast  their  radiance  around  his  head.    His  poht- 
ical  reputation,  though  far  less  durable,  was  in  his  own  age 
as  conspicuous  as  that  which  he  acquired  in  the  history  ot 
letters.      Equally  active   and   sagacious,  he   held  his  way 
through  the  varying  combinations  of  Italian  policy,  always 
with  credit,  and  generally  with  success.     Florence,  if  not  en- 
riched, was  upon  the  whole  aggrandized  dunng  his  adminis- 
tration, which  was  exposed  to  some  severe  storms  from  the 
unscrupulous    adversaries,  Sixtus    IV.   and    Ferdinand  ot 
Naples,  whom  he  was  compelled  to  resist.     As  a  patriot,  in- 
deed, we  never  can  bestow  upon  Lorenzo  de'  Medici  the 
meed  of  disinterested  virtue.     He  completed  that  subversion 
of  the  Florentine  republic  which  his  two  immediate  ancestors 
had  so  well  prepared.     The  two  councils,  her  regular  legisla- 
ture, he  superseded  by  a  permanent  senate  of  seventy  per- 
sons ;  ^  while  the  gonfalonier  and  priors,  become  a  mockery 

1  Ammirato    D    145.    Machiavel  says  were  now  abolished,  yet  from  M.  ^B- 

n\mTt^t this  wa7  done  ristringere  il  mondi,  t.  xi  p.  186,  ^»\«^^°'««  ^^  n    7 

fc7emi,  e  che  le  deliberazioni  important!  I  ^^^\^fJTtCttJeTsmti£knj 

ri  riducessero  in  minore  numero.     But  I  should  infer  that  they  still  lormauy 

though  it  rather  appears  from  Ammi-  BUDSisted. 
ratO'S  expressions  that  the  two  councils 


PRETENSIONS  OF  FRANCE. 


481 


iTALT. 

and  pageant  to  keep  up  the  illusion  of  liberty  were  taught 
that  in  exercising  a  legitimate  authority  wittiout  the  sanction 
of  their  prince,  a  name  now  first  heard  at  Florence  they  in- 
curred  the  risk  of  punishment  for  their  audacity.^    ^^T\tl 
total  dilapidation  of  his  commercial  wealth  was  repaired  at  he 
cost  of  tlie  state;  and  the  republic  disgracefully  screened  the 
bankruptcy  of  the  Medici  by  her  own.^     But  compared  wi  h 
the  statesmen  of  his  age,  we  can  reproach    Lorenzo  with 
no  heinous  crime.     He  had  many  enemies ;  his  descendants 
had  many  more;  but  no  unequivocal  charge  of  treachery  or 
assassination  has  been  substantiated  against  his  memory.    By 
the  side  of  Galeazzo  or  Ludovico  Storza,  of  Ferdmand  or 
his  son  Alfonso  of  Naples,  of  the  pope  Sixtus  IV.,  ^.5. 1492. 
he  shines  with  unspotted   lustre.     So  much  was 
Lorenzo  esteemed  by  his  contemporaries,  that  his  premature 
death  has  frequently  been  considered  as  the  cause  of  those 
unhappy  revolutions  that  speedily  ensued,  and  which  his  fore- 
sight would,  it  was  imagined,  have  been  able  to  prevent;  an 
opinion  which,  whether  founded  in  probability  or  otherwise, 
attests  the  common  sentiment  about  his  character. 

If  indeed  Lorenzo  de'  Medici  could  not  have  changed  the 
destinies  of  Italy,  however  premature  his  death  p^te^sions 
may  appear  if  we  consider  the  ordinary  duration  of  Fra^nce^^^ 
of  human  existence,  it  must  be  admitted  that  for 


1  Cambl,  a  gonfalonier  of  justice,  had, 
in  concert  with  the  priors,  admonished 
Bome  public  officers  for  a  breach  of  duty. 
Fu  eiudicato  questo  atto  molto  superbo, 
■ays  Ammirato,  Che  senza  particip;izione 
dl  Lorenzo  de'  Medici,  principe  del  go- 
vemo,  fosse  seguito,  che  in  Pisa  in  quel 
tempo  si  ritrovava.    p.  184.    The  gonfa- 
lonier was  fined  for  executing  his  con- 
stitutional functions.    This  was  a  down- 
riffht  confession  that  the  republic  was  at 
an  end;  and  all  it  provokes  M.  Sismondi 
to  say  is  not  too  much,  t.  xi.  p.  345. 

2  Since    the   Medici    took    on    thcm- 
Bclves  the  character  of  princes,  they  had 
forgotten  how  to  be  merchants.    But, 
Imprudently  enough,  they  had  not  dis- 
continued their  commerce,  which  was 
of  course  mismanaged  by  agents  whom 
they  did  not  overlook.    The  consequence 
ira"  the  complete  dilapidation  of   their 
Tast  fortune.    The  public  revenues  had 
been  for  some  years  applied  to  make  up 
its  deficiencies.     But  from  the  measures 
adopted  by  the  republic,  if  we  may  still 
use  that  name,  she  shouldappear  to  have 
coni^idered  herself,  rather  than  Lorenzo, 
ftg  the  debtor.    The  interest  of  the  pubUo 
VOL.  I.  3^ 


debt  was  diminished  one  half.     Many 
charitable  foundations   were  suppressed. 
The  circulating  specie  was  taken  at  one- 
fifth  below  its  nominal  value  in  payment 
of  taxes,  while  the  government  continued 
to  issue  it  at  its  former  rate.    Thus  was 
Lorenzo  reimbursed  a  part  of  his  loss  at 
the  expense  of  all  his  fellow-citizens.    Sis- 
mondi, t.  xi.  p.  347.    It  is  slightly  alluded 
to  by  Machiavel.  „  ,.  ,  r 

The  vast  expenditure  of  the  Medici  for 
the  sake  of  political  influence  would  of 
it«self  have  absorbed  all  their  profits, 
Cosmo  is  said  by  Guicciardini  to  have 
spent  400,000  ducats  in  building  churches, 
inonasteries,  and  other  public  works. 
1    i    p   91.    The  expenses  of  the  family 


between  1434  and  1471,  in  buildings, 
charities,  and  taxes  alone,  amounted  to 
663.755  florins ;  equal  in  value,  according 
to  Sismondi,  to  32,000,000  francs  at  pres- 
ent. Hist,  des  Kepubl.  t.  x.  p.  it 6. 
They  seem  to  have  advanced  moneys 
imprudently,  through  thei'-  agents,  to 
Edward  IV.,  who  was  "o^  ^he  ^£*7 
debtors.   Comines,  Mem.  de  Charles  Vni. 

I.  vii.  c.  6. 


f 


482  PRETENSIONS  OF  FRANCE    Chap.  HI.  Part  n 

his  own  welfare,  perhaps  for  his  glory,  he  had  lived  out  the 
full  measure  of  his  time.     An  age  of  new  and  uncommon 
revolutions  was  about  to  arise,  among  the  earliest  of  which 
the  temporary  downfall  of  his  family  was  to  be  reckoned. 
The  lonor-contested  succession  of  Naples  was  agam  to  mvolve 
Italv  in  war.     The  ambition  of  strangers  was  once  more  to 
desolate  her  plains.     Ferdinand  king  of  Naples  had  reigned 
for  thirty  years  after  the  discomfiture  of  his  competitor  with 
success  and  ability ;  but  with  a  degree  of  ill  faith  as  well  as 
tyranny  towards  his  subjects  that  rendered  his  government 
deservedly  odious.     His  son  Alfonso,  whose  succession  seemed 
now  near  at  hand,  was  still  more  marked  by  these  vices  than 
himself.*     Meanwhile,  the  pretensions  of  the  house  of  Anjou 
had  le-ally  descended,  after  the  death  of  old  Regnier   to 
Regnier   duke   of  Lorraine,  his   grandson  by  a  daughter ; 
whose  marriage  into  the  house  of  Lorraine  had,  however, 
60  displeased  her  father,  that  he  bequeathed  his  Neapolitan 
title,  along  with  his  real  patrimony,  the  county  of  Provence, 
to  a  count  of  Maine ;  by  whose  testament  they  became  vested 
in  the  crown  of  France.     Louis  XL,  while  he  took  posses- 
sion  of   Provence,  gave  himself  no  trouble  about  Naples 
But  Charles  VIIL,  inheriting  his  father's  ambition  without 
that  cool  sagacity  which  restrained  it  in  general  from  im- 
practicable attempts,  and  far  better  circumstanced  af  borne 
Uian  Louis  had  ever  been,  was  ripe  for  an  expedition  to 
vindicate   his   pretensions  upon  Naples,  or  even  for  more 
extensive  projects.     It  was  now   two  centuries   since  the 
kin-3  of  France  had  begun  to  aim,  by  intervals,  at  conquests 
in  Italy.     PhiUp  the  Fair  and  his  successors  were  anxious 
to  keep  up  a  connection  with  the  Guelf  party,  and  to  be 
considered  its  natural  heads,  as  the  German  emperors  were 
of  the  Ghibelins.    The  long  English  wars  changed  all  views 
of  the  court  of  France  to  self-defence.     But  m  the  fifteenth 
century  its  plans  of  aggrandizement  beyond  the  Alps  began 
to  revive.     Several  times,  as  I  have  mentioned,  the  republic 
of  Genoa  put  itself  under  the  dominion  of  France,     ine 
dukes  of  Savoy,  possessing  most  part  of  Piedmont,  and  mas- 
ters of  the  mountain-passes,  were,  by  birth,  intermarriage, 
and  habitual  poUcy,  completely  dedicated  to  the  French  m- 

1  Comines,  ^bo  speaks  safflciently  ill  cruel  que  J^?'' »«  £"*  "Ji^^^^^S 
0f  the  father,  sums  up  the  son's  character  vicieux  et  plus  infect,  ne  plua  gourmana 
9WJ  concisely :  Nul  homme  n'a  este  plus    que  lui.    i.  Til.  c.  itf. 


t 


'SI 

I 


Italy. 


UPON  NAPLES. 


483 


terests.*    In  the  former  wars  of  Ferdinand  against  the  house 
of  Anjou,  Pope  Pius  II.,  a  very  enlightened  statesman,  fore- 
saw the  danger  of   Italy  from  the  prevailing  influence  of 
France,  and  deprecated  the  introduction  of  her  armies.^     But 
at  that  time  the  central  parts  of  Lombardy  were  held  by  a 
man  equally  renowned  as  a  soldier  and  a  politician,  Francesco 
Sforza.     Conscious  that  a  claim  upon  his  own  dominions  sub- 
sisted in  the  house  of  Orleans,  he  maintiiined  a  strict  alliance 
with  the  Aragonese  dynasty  at  Naples,  as  having  a  common 
interest  against  France.     But  after  his  death  the  connection 
between  Milan  and  Naples  came  to  be  weakened.     In  the 
new  system  of  alliances  Milan  and  Florence,  sometimes  in- 
cluding Venice,  were  combined  against  Ferdinand  and  Sixtus 
IV.,  an  unprincipled  and  restless  pontiff.     Ludovico  Sforza, 
who  had  usurped  the  guai-dianship  of  his  nephew  the  duke 
of  Milan,  found,  as  that  young  man  advanced  to  maturity, 
that  one  crime  required  to  be  completed  by  another.     To 
depose  and  murder  his  ward  was,  however,  a  scheme  that 
prudence,  though  not  conscience,  bade  him  hesitate  to  exe- 
cute.    He  had  rendered  Ferdinand  of  Naples  and  Piero  de* 
Medici,  Lorenzo's  heir,  his  decided  enemies.     A  revolution 
at  Milan  would   be   the  probable  result  of  his  continuing 
in  usurpation.     In  these  circumstances  Ludovico  ^  ^  ^^ 
Sforza  excited  the  king  of  France  to  undertake 
the  conquest  of  Naples.* 

So  long  as  the  three  great  nations  of  Europe  were  unable 
to  put  forth  their  natuml  strength  through  internal  separation 
or  foreign  war,  the  Italians  had  so  little  to  dread  for  their 
independence,  that  their  policy  was  altogether  directed  to 
regulating  the  domestic  balance  of  power  among  themselves. 


iDeniaa,  Storia  dell'  Italia  Occiden- 
tale,  t.  ii.  passim.  Louis  XI.  treated 
Savoy  as  a  fief  of  France  ;  Interfering  in 
all  its  aUdirs,  and  even  taking  on  himself 
th«  regency  after  the  death  of  Philibcrt  I., 
under  pretence  of  preventing  disorders. 
p.  185.  The  marquis  of  Saluzzo,  who 
possessed  considerable  territories  in  the 
south  of  Piedmont,  had  done  homage  to 
France  ever  since  1353  (p.  40),  though 
to  the  injury  of  his  real  superior,  the 
duke  of  SaToy .  This  gave  France  another 
pretext  for  interference  in  Italy,     p.  187. 

2  Cosmo  de'  5Iedici,  in  a  conference 
with  Pius  II.  at  Florence,  having  ex- 
pressed his  surprise  that  the  pope  should 
support  Ferdinand:  Pontifex  haud  fe- 
rendum  fuisse  ait,regem  a  se  constitutum, 


armis  ejici,  nequc  id  Italiae  libertati  con 
ducere  ;  Gallos,  si  regnum  obtinuissent, 
Senas  haud  dubife  subacturos;  Fiorentinos 
adversus  lilia  nihil  acturos ;  Borsium 
Mutina  ducem  Gallis  galliorem  videri ; 
Flaminiae  regulos  ad  Francos  inclinare; 
Qenuam  Francis  8ut>esse,  et  civitatem 
Astensem ;  si  pontifex  Romanus  ali- 
quando  Francorum  amicus  assumatur, 
nihil  reliqui  in  Italia  remanere  quod  non 
transeat  in  Gallorum  nomen ;  tueri  sa 
Italiam,  dum  Ferdinandum  tucretur. 
Com  men  tar.  Pii  Secundi,  1.  iv.  p.  96. 
Spondamus,  who  led  me  to  this  passage, 
is  very  angry  ;  but  the  year  1494  proved 
Pius  II.  to  be  a  wary  statesman. 
3  Guicciardini,  1.  i. 


484 


CLAIMS  ON  NAPLES.     Chap.  IIL  Part  H. 


In  the  latter  part  of  the  fifteenth  century  a  more  enlarged 
view  of   Europe  would   have  manifested  the  necessity  of 
reconciling  petty  animosities,  and  sacrificing  petty  ambition, 
in  order  to  preserve  the  nationaUty  of  their  governments; 
not  by  attempting  to  melt  down  Lombards  and  Neapolitans, 
principalities  and  republics,  into  a  single  monarchy,  but  by 
the  more  just  and  rational  scheme  of  a  common  federation. 
The  politicians  of  Italy  were  abundantly  competent,  as  far  as 
cool  and  clear  understandings  could  render  them,  to  perceive 
the  interests  of  their  country.     But  it  is  the  will  of  Provi- 
dence that  the  highest  and  surest  wisdom,  even  in  matters 
of  policy,  should  never  be  unconnected  with  virtue.     In  re- 
lieving himself  from  an  immediate  danger,  Ludovico  Sforza 
overlooked  the  consideration  that  the  presumptive  heir  of 
the  king  of  France  claimed  by  an  ancient  title  that  princi- 
pality of  Milan  which  he  was  compassing  by  usurpation  and 
murder.     But  neither  Milan  nor  Naples  was  free  from  other 
claimants  than  France,  nor  was  she  reserved  to  enjoy  unmo- 
lested the  spoil  of  Italy.     A  louder  and  a  louder  strain  of 
warlike   dissonance  will   be   heard  from  the  banks  of  the 
Danube,  and  from  the  Mediterranean  gulf.     The  dark  and 
wily  Ferdinand,  the  rash  and  lively  Maximilian,  are  pre- 
paring to  hasten  into  the  lists ;  the  schemes  of  ambition  are 
assuming  a  more  comprehensive  aspect ;  and  the  controversy 
of  Neapolitan  succession  is  to  expand  into  the  long  rivalry 
between  the  houses  of  France  and  Austria.     But  here,  while 
Italy  is  still  untouched,  and  before  as  yet  the  first  lances  of 
France  gleam  along  the  defiles  of  the  Alps,  we  close  the 
history  of  the  Middle  Ages. 


( 


END    OF   THE   FIRST   VOLUME. 


\ 


*-*•••  .**s---  . 


H\ 


s4 


/ll     ^r^'/ 


:<^0.  1 


H1S4 

(Columbia  ^Iniucx'sttyi 
in  the  <f  ittj  of  llcxu  %w\\ 


J^ibvuvy 


GIVEN    BY 


^eoYOe  A    Cole 


VIEW 


ov 


THE   STATE   OF  EUROPE 


DT7BINO 


THE  MIDDLE  AGES. 


Bt  henry  HALLAM,  LL.D.,  F.R.A.S. 

VOSEIOV  ASSOCIATE  Or  THE  ISSTITCTE  Or  FRAKCB. 


EST  THREE  VOLUMES. 


VOLmiE  II. 


NEW    YORK: 
W.   J.   WIDDLETON,    PUBLISHER. 

1870. 


CONTENTS 


THE    SECOND  VOLUME. 


CHAPTER  IV. 


THE  HISTORY  OF  SPAIN  TO  THE  CONQUEST  OF  GRANADA. 


Cambridge :  Presswork  by  John  Wilson  and  Son. 


EUngdom  of  the  Visigoths — Conquest  of  Spain  by  the  Moors  —  Gradual 
Revival  of  the  Spanish  Nation  —  Kingdoms  of  Leon,  Aragon,  Navarre, 
and  Castile  successively  formed  —  Chartered  Towns  of  Castile  —  Mili- 
tary Orders  —  Conquest  of  Ferdinand  III.  and  Jantes  of  Aragon  — 
Causes  of  the  Delay  in  expelling  the  Moors  —  History  of  Castile  con- 
tinued—  Character  of  the  Government — Peter  the  Cruel  —  House  of 
Trastamare  —  John  II.  —  Henry  IV.  —  Constitution  of  Castile  —  Na- 
tional Assemblies  or  Cortes  —  Their  constituent  Parts — Right  of  Tax.i-- 
tion — Legislation  —  Privj'  Council  of  Castile  — Laws  Jur  the  Protection 
of  Liberty  —  Imperfections  of  the  Constitution — Arr.^on  —  its  History 
in  the  fourteenth  and  fifteenth  Centuries  —  Disputed  t-  accession — Con- 
stitution of  Aragon  —  Free  Spirit  of  its  Aristocracy  —  1  rivilege  of  Union 
— Powers  of  the  Justiza — Legal  Securities  —  Illustrations  —  Other  Con- 
stitutional Laws — Valencia  and  Catalonia — Union  of  two  Crowns  by 
the  Marriage  of  Ferdinand  and  Isabella — Conquest  of  Granada.  Page  7 

Note  to  Chapter  FV 63 


CHAPTER  V. 

HISTORY  OP  GERMANY  TO  THE  DIET  OF  WORMS  IN  1495. 

Sketch  of  German  History  under  the  Emperors  of  the  House  of  Saxony— 
House  of  Franconia — Henry  IV.  —  House  of  Suabia — Frederic  Bar- 
barossa — Fall  of  Henry  the  Lion — Frederic  H. — Extinction  of  House 
of  Suabia — Changes  in  the  Germanic  Constitution — Electors  —Terri- 
torial Sovereignty  of  the  Princes — Rodolph  of  Hapsburgh  —  State  of 
the  Empire  after  his  Time  —  Causes  of  Decline  of  Imperial  Power— 


294395 


!▼ 


CONTENTS  OF  THE  SECOND  VOLUME. 


House  of  Luxemburg-Charles  IV.-GoldenB^l-Housc  of  A^tna 
-Frederic  HL-Imperial  C.ties- Provincial  Sta  es-M^iban- 
Diet  of  Worms-Abolition  of  private  Wars -Imperial  Chamber -Auhc 
Council-Bohemia-Hungary-Switzerland i^age  o< 

CHAPTER  VL 

HISTORY  OF  THE  GREEKS  AND  SARACENS. 

Oise  of  Mohammedism-Causes  of  its  Success -Progress  of  Saracen 
^s-Greek  Empire-DecHne  of  the  KhaUfs- The  Greeks  recover 
-art  of  their  Losses-The  Turks-The  Crusades  -  Capture  of  Con- 
stantinople  by  the  Latins -its  Recovery  by  the  Greeks -The  MogiUs 
I^L  Ottomans-Danger  at  Constantinople  -  Timur  -  Capture  of 
ConstanUnople  by  Mahomet  H.-Alarm  of  Europe ^ 

CHAPTER  VH. 

HISTORY  OF  ECCLESIASTICAL  POWER  DURING  THE  MIDDLE  AGES. 

Part  I. 

Wealth  of  the  Clergy -its  Sources -Encroachments  <"»  Ec<>'"'"*i'»; 
Property -their   Jurisdiction -arbitrative-coeK.ve- their  pohtical 
^wer- Supremacy  of  the  Crown  -  Charlemagne  _Ch|mge  after  his 
Death,  and  Encroachments  of  the  Church  in  the  Nmth  Century - 
WmaV  of  the  See  of  Kome-its  early  Stage-Gregory  I-Counca 
of  Frankfort -False  Decretals  -Progress  of  ^'P?.' A»W-Eff«^ 
of  Excommunication -Lothaire- State  of  the  Church  m  the  Tenth 
Century-Marriage  of  Priests-Simony-Episcopal  EecUons-Im- 
perial  Authority  over  the  Popes  -  Disputes  concernmg  Invest,  urea - 
Gregory  VII.  and  Henry  IV.-Concordat  of  Cali=.tus - Elect.on  by 
S^-G«=n««l  System  of  Gregory  Vll.-Progress  of  Papal  Usur- 
patiL  in  the  Twelfth  Centu^'- Innocent  "I— |^^h;«a':ter  and 
Schemes 

Part  H. 

Continual  Progress  of  the  Papacy-Canon  Law -Mendicant  Orders - 
"Lpensmg  fower- Taxation  of  the  Cler^  by  the  ^o^s  "  Enc^^^^^^^^^ 
ments  on  Rights  of  Patronage  -Mandats,  Rescrv-es,  &c.  -  General  Dis- 
Xln  towards  the  See  of  Rome  in  the  Thirteenth  Century  -  Progres 
of  Ecclesiastical  Jurisdiction  -  Immimity  of  the  Clergy  »^  Cnmmal 
Cases -Restraints  imposed  upon  their  J^^^diction  -  upon  the^  Ac- 
quisition  of  Property  -  Boniface  ^HL -his  Quarrel  wUhPhihptt^^ 
Fair-its  Termination -Gradual  Decline  of  Papal  Authonty- Louis 
of  Bavaria -Secession  to  Avignon  and  Return  to  Rome  -Conduct  of 


CONTENTS  OF  THE  SECOND  VOLUME.  T 

Avignon  Popes  —  Contested  Election  of  Urban  and  Clement  produces 
the  great  Schism  —  Council  of  Pisa  —  Constance  —  Basle  —  Methods 
adopted  to  restrain  the  Papal  Usurpations  in  England,  Germany,  and 
France  —  Liberties  of  the  Galilean  Church  —  Decline  of  the  Papal  In- 
fluence in  Italy Page  193 

Notes  to  Chapter  VII 249 

CHAPTER  Vm. 

the  CONSTITUTIONAL  HISTORY  OF  ENGLAND. 

Part  I. 

The  Anglo-Saxon  Constitution — Sketch  of  Anglo-Saxon  History — Suc- 
cession to  the  Crown — Orders  of  Men  —  Thanes  and  Ceorls  —  Witen- 
agemot — Judicial  System  —  Division  into  Hundreds  —  County-Court 
—  Trial  by  Jury  —  its  Antiquity  investigated  —  Law  of  Frank-pledge  — 
its  several  Stages— Question  of  Feudal  Tenures  before  the  Conquest.  255 

Part  H. 


THE  ANGLO-NORMAN  CONSTITUTION 

The  Anglo-Norman  Constitution  —  Causes  of  the  Conquest  —  Policy  and 
Character  of  William  —  his  Tyranny  —  Introduction  of  Feudal  Services 
— Difference  between  the  Feudal  Governments  of  France  and  England 
—  Causes  of  the  great  Power  of  the  first  Norman  Kings  —  Arbitrary 
Character  of  their  Government  —  Great  Council  —  Resistance  of  the 
Barons  to  John  —  ]\Iagna  Charta  —  its  principal  Articles  —  Reign  of 
Henry  III.  —  The  Constitution  acquires  a  more  liberal  character  — 
Judicial  System  of  the  Anglo-Normans  —  Curia  Regis,  Excb*'quer,  &c. 
—  Establishment  of  the  Common  Law— its  Effect  in  fixing  the  Con- 
stitution—  Remarks  on  the  Limitation  of  Aristocratical  Privileges  in 
England 286 

Notes  to  Chapter  VIIL,  Parts  I.  and  II 332 


^\\\ 


VIEW 


OF 


THE    STATE    OF    EUROPE 


DURING  THE  MIDDLE  AGES. 


CHAPTER  IV. 


THE  HISTORY  OF  SPAIN  TO  THE  CONQUEST  OP  GRANADA. 


Kingdom  of  the  Visigoths— Conquest  of  Spsun  by  the  Moors  —  Gradual  Reyival  of 
the  Spanish  Nation  —  Kingdoms  of  Leon,  Aragon,  Navarre,  and  Castile,  succes- 
sively formed  —  Chartered  To\vns  of  Castile  — Military  Orders  —  Conquest  of  Fer- 
dinand III.  and  James  of  Aragon  —  Causes  of  the  Delay  in  expelling  the  Moors  — 
History  of  Ciistile  continued  — Character  of  the  Government  — Peter  the  Cruel  — 
House  of  Trastamarc  —  John  11.  —  Henry  IV.  —  Constitution  of  Castile  —  National 
Assemblies  or  Cortes  — their  constituent  Parts  — Right  of  Taxation— Legislation 
-Privy  Council  of  Castile  — Laws  for  the  Protection  of  Liberty  —  Imperfections 
of  the  Constitution  —  Aragon  —  its  History  in  the  fourteenth  and  fifteenth  Cen- 
turies-disputed Succession  —  Constitution  of  Aragon  —  Free  Spirit  of  its  Aris- 
tocracy—Privilege  of  Union  —  Powers  of  the  Justiza  —  Legal  Securities— Illus- 
trations —  other  Constitutional  Laws  —  Valencia  and  Catalonia  —  Union  of  two 
Crowns  by  the  Marriage  of  Ferdinand  and  Isabella  —  Conquest  of  Granada. 

The  history  of  Spain  during  the  middle  ages  ought  to 
commence  with  the  dynasty  of  the  Visigoths :  a  ^.    ^ 

Li  ^t       r*     .      1  ,,®,  Kingdom  of 

nation  among  the  first  that  assauUed  and  over-  Visigoths  in 
threw  the  Roman  Empire,  and  whose  establish-  ^p"^"' 
ment  preceded  by  nearly  half  a  century  the  invasion  of 
Clovis.  Vanquished  by  that  conqueror  in  the  battle  of 
Poitiers,  the  Gothic  monarchs  lost  their  extensive  dominions 
in  Gaul,  and  transferred  then*  residence  from  Toulouse  to 
Toledo.  But  I  will  not  detain  the  reader  by  naming  one  sov- 
ereign of  that  obscure  race.  It  may  suffice  to  mention  that 
the  Visigothic  monarchy  differed  in  several  respects  from  that 
of  the  Franks  during  the  same  period.  The  crown  was  less 
hereditary,  or  at  least  the  regular  succession  was  more  fre- 
quently disturbed.  The  prelates  had  a  still  more  command- 
ing influence  in  temporal  government.     The  distinction  of 


8 


CONQUEST  BY  THE  S.VRACENS. 


Chap.  IV 


Spaut 


LEON,  NAVAKRE,  ARAGON. 


9 


Romans  and  barbarians  was  less  marked,  the  laws  more  uni. 
form,  and  approaching  nearly  to  the  impenal  code.  The 
power  of  the  sovereign  was  perhaps  more  limited  by  an 
aristocratical  council  than  in  France,  but  it  never  yieWed 
to  the  dangerous  influence  of  mayors  of  the  palace.  CiyU 
wars  and  disputed  successions  were  very  frequent,  but  the 
integrity  of  the  kingdom  was  not  violated  by  the  custom  ot 

partition.  ,  ^    •      •     *i  ^ 

Spain,  after  remaining  for  nearly  three  centuries  m  the 
,         /    possession  of  the  Visigoths,  fell  under  the  yoke  ot 
byThr'       the  Saracens  in  712.     The  fervid  and  irresistible 
Saracens.       enthusiasm  which  distinguished  the  youthful  period 
of  Mohammedism  might  sufficiently  account  for  this  conquest, 
even  if  we  could  not  assign  additional  causes  — the  tactions 
which  divided  the  Goths,  the  resentment  of  disappomted  pre- 
tenders  to  the  throne,  the  provocations,  as  has  been  generally 
believed,  of  count  Julian,  and  the  temerity  that  risked  the 
fate  of  an  empire  on  the  chances  of  a  single  battle.      It  is 
more   surprising   that  a  remnant  of  this  ancient  monarchy 
should  not  only  have  preserved  its  national  liberty  and  name 
in  the  northern  mountains,  but  waged  for  some  centuries  a 
successful,  and  generally  an  offensive  warfare  against  the  con- 
querors, till  the  balance  was  completely  turned  in  its  tavor, 
and  the  Moors  were  compelled  to  maintain  almost  as  obstinate 
and  protracted  a  contest  for  a  small  portion  of  the  pemnsuhi. 
But  the  Arabian  monarchs  of  Cordova  found  in  their  success 
and  imagined  security  a  pretext  for  indolence;  even  m  the 
cultivation  of  science  and  contemplation  of  the  magnificent 
architecture  of  their  mosques  and  palaces  they  forgot  their 
poor  but  daring  enemies  in  the  Asturias ;  while,  according  to 
the  nature  of  despotism,  the  fruits  of  wisdom  or  bravery  m 
one  generation  were  lost  in  the  follies  and  effeminacy  of  the 
nextf    Their  kingdom  was  dismembered  by  successful  rebels 
who  formed  the  states  of  Toledo,  Huesca,  Saragosa,  and  others 
less  eminent;   and  these,  in  their  own  mutual  contests,  not 
only  relaxed   their  natural   enmity  towards   the   ChnsUan 
princes,  but  sometimes  sought  their  alliance. 

The  last  attack  which  seemed  to  endanger  the  reviving 
Kingdom  monarchy  of  Spain  was  that  of  Almanzor,  the 
of  lion         iUustrious  vizir  of  Haccham  II.,  towards  the  end 

a  CaJdonne,  Histoire  de  rAWqu*  et  de  I'Bspagne. 


of  the  tenth  century,  wherein  the  city  of  Leon,  and  even  the 
shrine  of  Compostella,  were  burned  to  the  ground.  For  some 
ages  before  this  transient  reflux,  gradual  encroachments  had 
been  made  upon  the  Saracens,  and  the  kingdom  originally 
styled  of  Oviedo,  the  seat  of  which  was  removed  to  Leon  in 
914,  had  extended  its  boundary  to  the  Douro,  and  even  to 
the  mountainous  chain  of  the  Guadarrama.  The  province  of 
Old  Castile,  thus  denominated,  as  is  generally  supposed,  from 
the  castles  erected  while  it  remained  a  march  or  frontier 
against  the  Moors,  was  governed  by  hereditary  counts,  elected 
originally  by  the  provincial  aristocracy,  and  virtually  inde- 
pendent, it  seems  probable,  of  the  kings  of  Leon,  though 
commonly  serving  them  in  war  as  brethren  of  the  same  faith 
and  nation.^ 

While  the  kings  of  Leon  were  thus  occupied  in  recovering 
the  western  provinces,  another  race  of  Christian  Kincdoms 
princes  grew  up  silently  under  the  shadow  of  the  of  Navarre 
Pyrenean  mountains.  Nothing  can  be  more  ob-  '*'°^  ■A^rago'*' 
scure  than  the  beginnings  of  those  little  states  which  were 
formed  in  Navarre  and  the  country  of  Soprarbe.  They  might 
perhaps  be  almost  contemporaneous  with  the  Moorish  con- 
quests. On  both  sides  of  the  Pyrenees  dwelt  an  aboriginal 
people,  the  last  to  undergo  the  yoke,  and  who  had  never  ac- 
quired the  language,  of  Rome.  We  know  little  of  these 
intrepid  mountaineers  in  the  dark  period  which  elapsed  under 
the  Gothic  and  Frank  dynasties,  till  we  find  them  cutting  off 
the  rear-guard  of  Charlemagne  in  Roncesvalles,  and  main- 
taining at  least  their  independence,  though  seldom,  like  the 
kings  of  Asturias,  waging  offensive  war  against  the  Saracens. 
The  town  of  Jaca,  situated  among  long  narrow  valleys  that 
intersect  the  southern  ridges  of  the  Pyrenees,  was  the  capital 
of  a  little  free  state,  which  afterwards  expanded  into  the  mon- 
archy of  Aragon.^     A  territory  rather  more  extensive  be- 


1  According  to  Roderic  of  Toledo,  one 
of  the  earliest  Spanish  historian?,  thougti 
not  older  than  the  beginning  of  the  thir- 
teenth century,  the  nobles  of  Castile,  in 
the  rcigu  of  Froila,  about  the  year  924, 
tibi  et  posteris  providcrunt,  et  duos 
niilitcs  non  de  potentioribus,  sed  de  pru- 
dentioribus  ele;;crunt,  quos  et  judices 
Etatuerunt.  ut  disf^ensiones  patritcet  que- 
relantium  causae  suo  judicio  sopircntur. 
1.  v.  c.  1.  Several  other  passages  in  the 
tame  writer  prove  that  the  counts  of 
Castile  were  nearly  independent  of  Leon, 


at  least  from  the  time  of  Ferdinand  6on- 
salvo  about  the  middle  of  the  tenth  cen- 
tury.  Ex  quo  iste  supcepit  euaj  patria 
comitatum,  cessaverunt  reges  Asturiarum 
insolescero  in  Castellam,  et  a  flumine 
risorica  nihil  amplius  vindicSrunt,  1.  v. 
c.  2.  Marina,  in  hi.4  Ensayo  Ilistorico- 
Critico.  is  disposed  to  controvert  this 
fact. 

3  The  Fueros,  or  written  laws  of  Jaca, 
were  perhaps  more  ancient  than  any  local 
customary  in  Europe.  Alfonso  III,  con- 
firms them  by  name  of  the  ancient  usas:ef 


10 


CAPTURE  OF  TOLEDO  AND  SARAGOSA.   Chap.  IV. 


Spain. 


MODE  OF  SETTLING  CONQUESTS. 


11 


ill 


I 


longed  to  Navarre,  the  kings  of  which  fixed  their  seat  at 
Pampelona.  Biscay  seems  to  have  been  divided  between 
this  kingdom  and  that  of  Leon.  The  connection  of  Aragon 
or  Soprarbe  and  Navarre  was  very  intimate,  and  they  were 
often  united  under  a  single  chief. 

At  the  beginning  of  the  eleventh  century,  Sancho  the 
Kingdom  of  Great,  king  of  Navarre  and  Aragon,  was  enabled 
Castile.  ^Q  render  his  second  son  Ferdinand  count,  or,  as 
he  assumed  the  title,  king  of  Castile.  This  effectually  dis- 
membered that  province  from  the  kingdom  of  Leon;  but 
their  union  soon  became  more  complete  than  ever,  though 
with  a  reversed  supremacy.  Bermudo  IIL,  king  of  Leon, 
fell  in  an  engagement  with  the  new  king  of  Castile,  who  had 
married  his  sister ;  and  Ferdinand,  in  her  right,  or  in  that 
of  conquest,  became  master  of  the  united  monarchy.  This 
cessation  of  hostilities  between  the  Christian  states  enabled 
them  to  direct  a  more  unremitting  energy  against  their  ancient 
enemies,  who  were  now  sensibly  we^tened  by  the  various 
causes  of  decline  to  which  I  have  already  alluded.  During 
the  eleventh  century  the  Spaniards  were  almost  always  supe- 
rior in  the  field ;  the  towns  which  they  began  by  pillaging, 
they  gradually  possessed ;  their  valor  was  heightened  by  the 
customs  of  chivalry  and  inspired  by  the  example  of  the  Cid ; 
and  before  the  end  of  this  age  Alfonso  VL  recovered  the 
Capture  of  ancicut  metropolis  of  the  monarchy,  the  city  of  To- 
Toiedo,  Iq^q     rpi^jg  ^^  ^YiQ  severest  blow  which  the  Moors 

had  endured,  and  an  unequivocal  symptom  of  that  chan<»e 
in  their  relative  strength,  which,  from  being  so  gradual,  was 
the  more  irretrievable.  Calamities  scarcely  inferior  fell  upon 
them  in  a  different  quarter.  The  kings  of  Aragon  (a  title 
belonging  originally  to  a  little  district  upon  the  river  of  that 
name)  had  been  cooped  up  almost  in  the  mountains  by  the 


of  Jaca,  They  prescribe  the  descent  of 
lands  and  movables,  as  well  as  the  elec- 
tion of  municipal  magistrates.  The  fol- 
lowing law,  which  enjoins  the  rising  in 
arms  on  a  sudden  emergency,  illustrates, 
with  a  sort  of  romantic  wildness,  the 
manners  of  a  pastoral  but  warlike  people, 
and  reminds  us  of  a  well-known  passage 
in  the  Lady  of  the  Lake.  De  appellitis 
ita  statuimus.  Cum  homines  de  villis, 
vel  qui  stant  in  montanis  cum  suis  ganatia 
[gregibus],  audierint  appellitum;  omnes 
capiant  arma,  et  dimissis  ganatis,  et  om- 
nibus aliis  suis  faziendis  [negotiis]  se- 
quantur  appellitam.  £t  si  illi  qui  fuerint 


magis  remoti,  invenerint  In  villa  magia 
proxima  appellito.  [decst  aliquid?]  omnea 
qui  nondum  fuerint  egressi  tunc  villara 
illam,  quae  tardius  secuta  est  appellitum, 
pecent  [solvant]  unam  baccam  [vaccam]; 
et  unusquisque  homo  ex  illis  qui  tardius 
secutus  est  appellitum,  et  quem  magis 
remoti  praDcesserint,  pecet  tres  solidos, 
quomodo  nobis  videbitur,  partiendos. 
Tamen  in  Jaca  et  in  aliis  Tillis,  sint 
aliqui  nominati  et  certi,  quos  elegerint 
consules,  qui  remaneant  ad  villas  custo- 
diendas  et  defendendas.  Bianco;  Com- 
mentaria,  in  Schotti  Uiapania  Illustrata. 
p.  696. 


small  Moorish  states  north  of  the  Ebro,  especially  that  of 
Huesca.  About  the  middle  of  the  eleventh  century  they 
began  to  attack  their  neighbors  with  success ;  the  Moors  lost 
one  town  after  another,  till,  in  1118,  exposed  and  weakened 
by  the  reduction  of  all  these  places,  the  city  of  Saragosa,  in 
which  a  line  of  Mohammedan  princes  had  flour-  and  Sara- 
ished  for  several  ages,  became  the  prize  of  Al-  sosa. 
fonso  I.  and  the  capital  of  his  kingdom.  The  southern  parts 
of  what  is  now  the  province  of  Aragon  were  successively 
reduced  during  the  twelfth  century;  while  all  new  Castile 
and  Estremadura  became  annexed  in  the  same  gradual  man- 
ner to  the  dominion  of  the  descendants  of  Alfonso  VL 

Although  the  feudal  system  cannot  be  said  to  have  obtained 
in  the  kingdoms  of  Leon  and  Castile,  their  pecu- 
liar  situation  gave  the  aristocracy  a  great  deal  of  settifng  the 
the  same  power  and  independence  which  resulted  ^^^  ?°"" 
in  France  and  Germany  from  that  institution.  The  ^^^ 
territory  successively  recovered  from  the  Moors,  like  waste 
lands  reclaimed,  could  have  no  proprietor  but  the  conquerors, 
and  the  prospect  of  such  acquisitions  was  a  constant  incite- 
ment to  the  nobility  of  Spain,  especially  to  those  who  had 
settled  themselves  on  the  Castilian  frontier.  Li  their  new 
conquests  they  built  towns  and  invited  Christian  settlers,  the 
Saracen  inhabitants  being  commonly  expelled  or  voluntarily 
retreating  to  the  safer  provinces  of  the  south.  Thus  Burgos 
was  settled  by  a  count  of  Castile  about  880 ;  another  fixed 
his  seat  at  Osma ;  a  third  at  Sepulveda ;  a  fourth  at  Sala- 
manca. These  cities  were  not  free  from  incessant  peril  of  a 
sudden  attack  till  the  union  of  the  two  kingdoms  under  Fer- 
dinand I.,  and  consequently  the  necessity  of  keeping  in  exer- 
cise a  numerous  and  armed  population,  gave  a  character  of 
personal  freedom  and  privilege  to  the  inferior  classes  which 
they  hardly  possessed  at  so  early  a  period  in  any  other  mon- 
archy. Villeinage  seems  never  to  have  been  established  in 
the  Hispano-Grothic  kingdoms,  Leon  and  CastUe ;  though  I 
confess  it  was  far  from  being  unknown  in  that  of  Aragon, 
which  had  formed  its  institutions  on  a  different  pattern. 
Since  nothing  makes  us  forget  the  arbitrary  distinctions  of 
rank  so  much  as  participation  in  any  common  calamity,  every 
man  who  had  escaped  the  great  shipwreck  of  liberty  and  re- 
ligion in  the  mountains  of  Asturias  was  invested  with  a  per- 
sonal dignity,  which  gave  him  value  in  his  own  eyes  and 


12 


CHARTERED  TOWNS 


Chap.  IV. 


those  of  his  country.  It  is  probably  this  sentiment  transmit- 
ted to  posterity,  and  gradually  fixing  the  national  character, 
that  has  produced  the  elevation  of  manner  remarked  by  trav- 
ellers in  the  Castilian  peasant.  But  while  these  acquisitions 
of  the  nobility  promoted  the  grand  object  of  winning  back  the 
peninsula  from  its  invaders,  they  by  no  means  invigorated  the 
government  or  tended  to  domestic  tranquilUty. 

A  more  interesting  method  of  securing  the  public  defence 
Chartered      ^^^  ^7  '^®  institution  of  chartered  towns  or  corn- 
towns  or        munities.      These  were  established  at  an  earlier 
^^muni.      period  than  in  France  and  England,  and  were,  in 
some  degree,  of  a  peculiar  description.     Instead 
of  purchasing  their  immunities,  and   almost  their  personal 
freedom,  at  the  hands  of  a  master,  the  burgesses  of  Castil- 
ian towns  were  invested  with  civil  rights  and  extensive  prop- 
erty on  the  more  liberal  condition  of  protecting  their  country. 
The  earliest  instance  of  the  erection  of  a  community  is  in 
1020,  when  Alfonso  V.  in  the  cortes  at  Leon  established  the 
privileges  of  that  city  with  a  regular  code  of  laws,  by  which 
Its  magistrates  should  be  governed.     The  citizens  of  Carrion, 
Llanes,  and   other  towns  were   incorporated  by  the  same 
prince.    Sancho  the  Great  gave  a  similar  constitution  to  Nax- 
BX&.     Sepulveda  had  its  code  of  laws  in  1076  from  Alfonso 
VI. ;  m  the  same  reign  Logrono  and  Sahagun  acquired  their 
pnvileges,  and  Salamanca  not  long  afterwards.     The  fuero, 
or  onginal  charter  of  a  Spanish  community,  was  properly  a 
compact,  by  which  the  king  or  lord  granted  a  town  and  adja- 
cent district  to  the  burgesses,  with  various  privileges,  and  es- 
pecially that  of  choosing  magistrates  and  a  common  council, 
who  were  bound  to  conform  themselves  to  the  laws  prescribed 
by  the  founder.     These  laws,  civil  as  well  as  criminal,  thou^rh 
essentially  derived  from  the  ancient  code  of  the  Visic^oths, 
which  continued  to  be  the  common  law  of  Castile  till  the°four- 
teenth  or  fifteenth  century,  varied  from  each  other  in  particu- 
lar usages,  which  had  probably  grown  up  and  been  established 
m  these  distncts  before  their  legal  confirmation.     The  terri- 
tory held  by  chartered  towns  was  frequently  very  extensive, 
far  beyond  any  comparison  with  corporations   in  our  own 
country  or  m  France  ;  including  the  estates  of  private  land- 
holders,  subject  to  the  jurisdiction  and  control  of  the  munici- 
pality as  well  as  its  inahenable  demesnes,  allotted  to  the 
mamtenance  of  the  magistrates  and  other  public  expenses. 


Sl'AIM. 


OR  COMMUNITIES. 


18 


In  every  town  the  king  appointed  a  governor  to  receive  the 
usual  tributes  and  watch  over  the  police  and  the  fortified 
places  within  the  district;  but  the  administration  of  justice 
was  exclusively  reserved  to  the  inhabitants  and  their  elected 
judges.  Even  the  executive  power  of  the  royal  officer  was 
regarded  with  jealousy ;  he  was  forbidden  to  use  violence  tow- 
ards any  one  without  legal  process ;  and,  by  the  fuero  of 
Logrono,  if  he  attempted  to  enter  forcibly  into  a  private 
house  he  might  be  killed  with  impunity.  These  democrati- 
cal  customs  were  altered  in  the  fourteenth  century  by  Al- 
fonso XL,  who  vested  the  municipal  administration  in  a  small 
number  of  jurats,  or  regidors.  A  pretext  for  this  was  found 
in  some  disorders  to  which  popular  elections  had  led ;  but  the 
real  motive,  of  course,  must  have  been  to  secure  a  greater 
influence  for  the  crown,  as  in  similar  innovations  of  some 
English  kings. 

In  recompense  for  such  liberal  concessions  the  incorporated 
towns  were  bound  to  certain  money  payments,  and  to  military 
service.  This  was  absolutely  due  from  every  inhabitant, 
without  dispensation  or  substitution,  unless  in  case  of  infirm- 
ity. The  royal  governor  and  the  magistrates,  as  in  the  sim- 
ple times  of  primitive  Rome,  raised  and  commanded  the 
militia ;  who,  in  a  service  always  short,  and  for  the  most  part 
necessary,  preserved  that  delightful  consciousness  of  freedom, 
under  the  standard  of  their  fellow  citizens  and  chosen  leaders, 
which  no  mere  soldier  can  enjoy.  Every  man  of  a  certain 
property  was  bound  to  serve  on  horseback,  and  was  exempt- 
ed in  return  from  the  payment  of  taxes.  This  produced  a 
distinction  between  the  cahalleros,  or  noble  class,  and  the 
pecheros,  or  payers  of  tribute.  But  the  distinction  appears 
to  have  been  founded  only  upon  wealth,  as  in  the  Roman 
equites,  and  not  upon  hereditary  rank,  though  it  most  likely 
prepared  the  way  for  the  latter.  The  horses  of  these  cahal- 
leros could  not  be  seized  for  debt ;  in  some  cases  they  were 
exclusively  eligible  to  magistracy ;  and  then-  honor  was  pro- 
tected by  laws  which  rendered  it  highly  penal  to  insult  or 
molest  them.  But  the  civil  rights  of  rich  and  poor  in  courts 
of  justice  were  as  equal  as  in  England.^ 

1 1  am  Indebted  for  this  account  of  Marina,  a  canon  of  the  church  of  St 

municipal  towns  in  Castile  to  a  book  Isidor,  entitled,  Ensayo  Hlstorico-Critico 

published  at  Madrid  in  1808,  iuimedi-  sobre  la  antigua  legislacion  y  principalee 

ately  after  the  reTOlutlon,  by  the  Doctor  cuerpoa  legales  de  los  reynos  de  Lyon  y 


14 


MILITARY  ORDERS. 


Chap.  IV. 


Spain. 


EXPULSION  OF  THE  MOORS. 


15 


The  progress  of  the  Christian  arms  in  Spain  may  in  part 
Military  he  ascribed  to  another  remarkable  feature  in  the 
orders.  constitution  of  that  country,  the  military  orders. 

These  had  already  been  tried  with  signal  effect  in  Palestine  ; 
and  the  similar  circumstances  of  Spain  easily  led  to  an  adop- 
tion of  the  same  policy.  In  a  very  few  years  after  the  first 
institution  of  the  Knights  Templars,  they  were  endowed  with 
great  estates,  or  rather  districts,  won  from  the  Moors,  on  con- 
dition of  defending  their  own  and  the  national  territory. 
These  lay  chiefly  in  the  parts  of  Aragon  beyond  the  Ebro, 
the  conquest  of  which  was  then  recent  and  insecure.*  So 
extraordinary  was  the  respect  for  this  order  and  that  of  St. 
John,  and  so  powerful  the  conviction  that  the  hope  of  Chris- 
tendom rested  upon  their  valor,  that  Alfonso  the  First,  king 
of  Aragon,  dying  childless,  bequeathed  to  them  his  whole 
kmgdom ;  an  example  of  liberality,  says  Mariana,  to  surprise 
future  times  and  displease  his  own.*  The  states  of  Aragon 
annulled,  as  may  be  supposed,  this  strange  testament ;  but 
the  successor  of  Alfonso  was  obliged  to  pacify  the  ambitious 
knights  by  immense  concessions  of  money  and  territory ;  stip- 
ulating even  not  to  make  peace  with  the  Moors  against  their 
will.*  In  imitation  of  these  great  military  orders  common  to 
all  Christendom,  there  arose  three  Spanish  institutions  of  a 
similar  kind,  the  orders  of  Calatrava,  Santiago,  and  Alcan- 
tara. The  first  of  these  was  estabUshed  in  1158  ;  the  second 
and  most  famous  had  its  charter  from  the  pope  in  1175, 
though  it  seems  to  have  existed  previously  ;  the  third  branch- 
ed off  from  that  of  Calatrava  at  a  subsequent  time.*  Tliese 
were  military  colleges,  having  their  walled  towns  in  different 
parts  of  Castile,  and  governed  by  an  elective  grand  master, 
whose  influence  in  the  state  was  at  least  equal  to  that  of  any 
of  the  nobility.  In  the  civil  dissensions  of  the  fourteenth 
and  fifteenth  centuries,  the  chiefs  of  these  incorporated 
knights  were  often  very  prominent. 

Rnai  union  ^^^  kingdoms  of  Lcou  and  Castile  were  un- 
of  Leon  and  wisely  divided  anew  by  Alfonso  VII.  between  his 
^^^^'         sons  Sancho  and  Ferdinand,  and  this  produced  not 

Oastilla,  especialmente  sobre  el   codigo    burgh  Review,  No.  XLITI.,  will  conToy 


de  D.  Alonso  el  Sabio,  conocido  con  el 
nombre  de  las  Siete  Partidas.  This  work 
Ib  perhaps  not  readily  to  be  procured  in 
Ki^[land:  bat  an  article  in  the  Edin- 


a  suf&clent  notion  of  its  contents. 
1  Mariana,  Hist.  Hispan.  1.  x.  o.  10. 
«  1.  X.  c.  15. 
»  1.  X.  c.  18. 
41.  xi.  0.6, 18;  I.  xU.e.8. 


only  a  separation  but  a  revival  of  the  ancient  jealousy  with 
frequent  wars  for  near  a  century.     At  length,  in  1238,  Fer- 
dinand III.,  king  of  Castile,  reunited  forever  the  two  branches 
of  the  Gothic  monarchy.     He  employed  their  joint  strength 
a^^ainst  the  Moors,  whose  dominion,  though  it  still  embraced 
the  finest  provinces  of  the  penmsula,  was  sinking  by  internal 
weakness,  and  had  never  recovered  a  tremendous  defeat  at 
Banos   di   Toloso,  a   few  miles  from  Baylen,  in  conquest  of 
1210.^     Ferdinand,  bursting  into  Andalusia,  took  ^°^^^- 
its  great  capital  the  city  of  Cordova,  not  less  en- 
nobled by  the  cultivation  of  Arabian   science,  and  by  the 
names  of  Avicenna  and  Averroes,   than  by  the   splendid 
works  of  a  rich  and  munificent  dynasty.^     In  a  few  years 
more  Seville  was  added  to  his  conquests,  and  the  Moors  lost 
their  favorite  regions  on  the  banks  of  the  Guad-  and  Vaien- 
alquivir.     James  I.  of  Aragon,  the  victories  of  *^^* 
whose   long   reign  gave    him   the    surname   of   Conqueror, 
reduced  the  city  and  kingdom  of  Valencia,  the  Balearic  isles, 
and  the  kingdom  of  Murcia ;  but  the  last  was  annexed,  ac- 
cording to  compact,  to  the  crown  of  Castile. 

It  could  hardly  have  been  expected  about  the  middle  of 
the  thirteenth  century,  when  the  splendid  conquests  Expulsion 
of  Ferdinand  and  James  had  planted  the  Chris-  of  the 
tian  banner  on  the  three  principal  Moorish  cities,  ^JJ^yed?"^ 
that  two  hundred  and  fifty  years  were  yet  to  elapse 
before  the  rescue  of  Spain  from  their  yoke  should  be  com- 
pleted.    Ambition,  religious  zeal,  national  enmity,  could  not 
be  supposed  to  pause  in  a  career  which  now  seemed  to  be  ob- 
structed by  such  moderate  difliculties ;  yet  we  find,  on  the 
contrary,  the  exertions  of  the  Spaniards  begin  from  this  time 
to  relax,  and  their  acquisitions  of  territory  to  become  more 


1  A  letter  of  Alfonso  IX.,  who  gained 
this  victory,  to  Pope  Innocent  III.,  puts 
the  loss  of  the  Moors  at  180,000  men. 
The  Arabian  historians,  though  without 
specifying  numbers,  seem  to  confirm  this 
immense  slaughter,  which  nevertheless 
it  is  difficult  to  conceive  before  the  in- 
vention of  gunpowder,  or  indeed  since. 
Cardonne,  t.  ii.  p.  827. 

s  If  we  could  rely  on  a  Moorish  author 
quoted  by  Cardonne  (t.  i.  p.  337),  the 
city  of  Cordova  contained.  I  know  not 
exactly  in  what  century,  200,000  houses, 
000  mosques,  and  900  public  baths. 
There  were  12,000  towns  and  villages  on 
Um  baalui  of  the  Quadalc^uivir.    This, 


however,  must  be  greatly  exaggerated,  as 
numerical  statements  generally  are.  The 
mines  of  gold  and  silver  were  very  pro- 
ductive. And  the  revenues  of  the  khalife 
of  Cordova  are  said  to  have  amounted  to 
130,000,000  of  French  money;  besides 
large  contributions  that,  according  to  the 
practice  of  oriental  governments,  were 
paid  in  the  fruits  of  the  earth.  Other 
proofs  of  the  extraordinary  opulence  and 
splendor  of  this  monarchy  are  dispersed 
in  Cardonne's  work,  from  which  they 
have  been  chiefly  borrowed  by  later 
writers.  The  splendid  engravings  in 
Murphy's  Moorish  Antiquities  of  Spain 
illustrate  tlii3  sut^^^* 


16 


EXPULSION  OF  THE  MOORS. 


Chap.  IV 


Spaim. 


ALFONSO  X. 


17 


ill 


slow.     One  of  the  causes,  undoubtedly,  that  produced  this 
unexpected  protraction  of  the  contest  was  the  superior  means 
of  resistance  which  the  Moors  found  in  retreating.      Their 
population,  spread  originally  over  the  whole  of  Spain,  Av^as 
now  condensed,  and,  if  I  may  so   say,  become  no  further 
compressible,  in  a  single  province.     It  had  been  mingled,  in 
the  northern  and  central  parts,  with  the  Mozarabic  Chris- 
tians, their  subjects  and  tributaries,  not  perhaps  treated  with 
much  injustice,  yet  naturally  and  irremediably  their  enemies. 
Toledo  and  Saragosa,  when  they  fell  under  a  Christian  sov- 
ereign, were  full  of  these  inferior  Christians,  whose  long  in- 
tercourse with  their  masters  has  infused  the  tones  and  dialect 
of  Arabia  into  the  language  of  Castile.*     But  in  the  twelfth 
century  the  Moors,  exasperated  by  defeat  and  jealous  of  se- 
cret disaffection,  began  to  persecute  their  Christian  subjects, 
till  they  renounced  or  fled  for  their  religion ;  so  that  in  the 
southern  provinces  scarcely   any  professoi-s  of   Christianity 
were  left  at  the  time  of  Ferdinand's  invasion.     An  equally 
severe  policy  was  adopted  on  the  other  side.    The  Moors  had 
been  permitted  to  dwell  m  Saragosa  as  the  Christians  had 
dwelt  before,  subjects,  not  slaves ;  but  on  the  capture  of  Se- 
ville they  were  entirely  expelled,  and  new  settlers  invited 
from  every  part  of  Spain.     The  strong  fortified  towns  of  An- 
dalusia, such  as  Gibraltar,  Algeciras,  Tariffa,  maintained  also 
a  more  formidable  resistance  than  had  been  experienced  in 
Castile ;  they  cost  tedious  sieges,  were  sometimes  recovered 
by  the  enemy,  and  were  always  liable  to  his  attacks.     But 
the  great  protection  of  the  Spanish  Mohammedans  was  found 
in  the  alliance  and  ready  aid  of  their  kindred  beyond  the 
Straits.     Accustomed  to  hear  of  the  African  Moors  only  as 
pirates,  we  cannot  easily  conceive  the  powerful  dynasties,  the 
warlike  chiefs,  the  vast  armies,  which  for  seven  or  eight  cen- 
turies illustrate  the  annals  of  that  people.     Their  assistance 
was  always  afforded  to  the  true  believers  in  Spain,  though 
their  ambition  was  generally  dreaded  by  those  who  stood  in 
need  of  their  valor.* 

Probably,  however,  the  kmgs  of  Granada  were  most  in- 
debted to  the  indolence  which  gradually  became  characteristic 
of  their  enemies.  By  the  cession  of  Murcia  to  Castile,  the 
kingdom  of  Aragon  shut  itself  out  from  the  possibility  of 

1  Mariana,  1.  xi.  c.  1 ;  Gibbon,  c.  51.        «  Cardonne,  t.  U.  and  til.  passfan. 


extending  those  conquests  which  had  ennobled  her  earlier 
sovereigns ;  and  their  successors,  not  less  ambitious  and  en- 
terprising, diverted  their  attention  towards  objects  beyond  the 
peninsula.  The  Castilian,  patient  and  undesponding  in  bad 
success,  loses  his  energy  as  the  pressure  becomes  less  heavy, 
and  puts  no  ordinary  evil  in  comparison  with  the  exertions 
by  which  it  must  be  removed.  The  greater  part  of  his  coun- 
try freed  by  his  arms,  he  was  content  to  leave  the  enemy  in  9 
single  province  rather  than  undergo  the  labor  of  making  his 
triumph  complete. 

If  a  similar  spirit  of  insubordination  had  not  been  found 
compatible  in  earlier  ages  with  the  aggrandizement  of  the 
Castilian  monarchy,  we  might  ascribe  its  want  of  Alfonso  x. 
splendid  successes  against  the  Moors  to  the  con-  ^'^-  ^^^• 
tinued  rebellions  which  disturbed  that  government  for  more 
than  a  century  after  the  death  of  Ferdinand  III.  His  son, 
Alfonso  X.,  might  justly  acquire  the  surname  of  Wise  for  his 
genei*al  proficiency  in  learning,  and  especially  in  astronomi- 
cal science,  if  these  attainments  deserve  praise  in  a  king  who 
was  incapable  of  preserving  his  subjects  in  their  duty.  As  a 
legislator,  Alfonso,  by  his  code  of  the  Siete  Partidas,  sacri- 
ficed the  ecclesiastical  rights  of  his  crown  to  the  usurpation 
of  Rome  ;  ^  and  his  philosophy  sunk  below  the  level  of  ordi- 
nary prudence  when  he  permitted  the  phantom  of  an  impe- 
rial crown  in  Germany  to  seduce  his  hopes  for  almost  twenty 
years.  For  the  sake  of  such  an  illusion  he  would  even  have 
withdrawn  himself  from  Castile,  if  the  states  had  not  remon- 
strated against  an  expedition  that  would  probably  have  tost 
him  the  kingdom.  In  the  latter  years  of  his  turbulent  reign 
Alfonso  had  to  contend  against  his  son.  The  right  of  repre- 
sentation was  hitherto  unknown  in  Castile,  which  had  bor- 
rowed little  from  the  customs  of  feudal  nations.  By  the 
received  law  of  succession  the  nearer  was  always  preferred 
to  the  more  remote,  the  son  to  the  grandson.  Alfonso  X. 
had  established  the  different  maxim  of  representation  by  his 
code  of  the  Siete  Partidas,  the  authority  of  which,  however, 
was  not  universally  acknowledged.  The  question  soon  came 
to  an  issue :  on  the  death  of  his  elder  son  Ferdinand,  leaving 
two  male  children,  Sancho  their  uncle  asserted  his  claim, 
founded  upon  the  ancient  CastiUan  right  of  succession ;  and 


TOL.  XI. 


1  Marina,  Ensayo  Historico-Critico,  p.  272,  &o. 
2 


18 


CIVIL  DISTURBANCES  OF  CASTILE.       Chap.  IV. 


Spain. 


PETER  THE  CRUEL. 


19 


I 


this,  chiefly  no  doubt  through  fear  of  arms,  though  it  did  not 
want  plausible  arguments,  was  ratified  by  an  assembly  of 
the  cortes,  and  secured,  notwithstanding  the  king's  reluctance, 
by  the  courage  of  Sancho.  But  the  descendants  of  Ferdi- 
nand, generally  called  the  infants  of  la  Cerda,  by  the  protec- 
tion of  France,  to  whose  royal  family  they  were  closely 
aUied,  and  of  Aragon,  always  prompt  to  interfere  in  the  dis- 
putes of  a  rival  people,  continued  to  assert  their  pretensions 
for  more  than  half  a  century,  and,  though  they  were  not  very 
successful,  did  not  fail  to  aggravate  the  troubles  of  their 
country. 

The  annals  of  Sancho  IV.  and  his  two  immediate  succes- 
sors, Ferdinand  IV.  and  Alfonso  XI.,  present  a 
Srbances       scrics  of  Unhappy  and  dishonorable  civil  dissen- 
of  Castile.      gjQi^g  ^ith  too  much  rapidity  to  be  remembered 
a.d!^1284.  '     or  even  understood.     Although  the  Castilian  no- 
Ferdinand      y^^YHy  had  uo  prctcncc  to  the  original  independence 
A.D.  1295.       of  the  French  peers,  or  to  the  liberties  of  feudal 
^D^JTsil"'    tenure,  they  assumed  the  same  privilege  of  rebel- 
ling upon  any  provocation  from  their  sovereign. 
When  such  occurred,  they  seem  to  have  been  permitted,  by 
legal  custom,  to  renounce  their  allegiance  by  a  solemn  instru- 
ment, which  exempted  them  from  the  penalties  of  treason.^ 
A  very  few  families  composed  an  oligarchy,  the  worst  and 
most  ruinous  condition  of  political  society,  alternately  the 
favorites  and  ministers  of  the  prince,  or  in  arms  against  him. 
K  unable  to  protect  themselves  in  their  walled  towns,  and  by 
the  aid  of  their  faction,  these  Christian  patriots  retired  to 
Aragon  or  Granada,  and  excited  an  hostile  power  against 
their  country,  and  perhaps  their  religion.     Nothing  is  more 
common  in  the  Castilian  history  than  instances  of  such  de- 
fection.    Mariana  remarks  coolly  of  the  family  of  Castro, 
that  they  were  much  in  the  habit  of  revolting  to  the  Moors.* 
This  house  and  that  of  Lara  were  at  one  time  the  great 
rivals  for  power ;  but  from  the  time  of  Alfonso  X.  the  former 
seems  to  have  declined,  and  the  sole  family  that  came  in 
competition  with  the  Laras  during  the  tempestuous  period 
that  followed  was  that  of  Haro,  which  possessed  the  lordship 
©f  Biscay  by  an  hereditary  title.     The  evils  of  a  weak  gov- 

1  Mariana,  1.  xiH.  c.  11.  tria  gens  per  haic  tempom  ad  Mauros 

«  Alvarus   Castrius   patrii    aliqnanto    saepe  defecisse  visa  est.    I.  xii.  c.  12.    Seo 
■ntea,  uti  moris  erat,  Tenunciat&. — Cas-    also  chapters  17  and  19. 


emment  were  aggravated  by  the  unfortunate  circumstances 
in  which  Ferdinand  IV.  and  Alfonso  XI.  ascended  the 
throne ;  both  minors,  with  a  disputed  regency,  and  the  in- 
terval too  short  to  give  ambitious  spirits  leisure  to  subside. 
There  is  indeed  some  apology  for  the  conduct  of  the  Laras 
and  Haros  in  the  character  of  their  sovereigns,  who  had  but 
one  favorite  method  of  avenging  a  dissembled  injury,  or 
anticipating  a  suspected  treason.  Sancho  IV.  assassinates 
Don  Lope  Haro  in  his  palace  at  Valladolid.  Alfonso  XI. 
invites  to  court  the  infant  Don  Juan,  his  first-cousin,  and 
commits  a  similar  violence.  Such  crimes  may  be  found  in 
the  historj'-  of  other  countries,  but  they  were  nowhere  so 
usual  as  in  Spain,  which  was  far  behind  France,  England, 
and  even  Germany,  in  civilization. 

But  whatever  violence  and  arbitrary  spirit  might  be  im- 
puted to  Sancho  and  Alfonso  was  forgotten  in  the  0*^*1. 
unexampled  tyranny  of  Peter  the  Cruel.  A  sus-  Cruei. 
picion  is  frequently  intimated  by  Mariana,  which  *"^'  ^^^' 
seems,  in  more  modem  times,  to  have  gained  some  credit,  that 
party  malevolence  has  at  least  grossly  exaggerated  the  enor- 
mities of  this  prince.^  It  is  difficult,  however,  to  believe 
tliat  a  number  of  atrocious  acts  unconnected  with  each  other, 
and  generally  notorious  enough  in  their  circumstances,  have 
been  ascribed  to  any  innocent  man.  The  history  of  his 
reign,  chiefly  derived,  it  is  admitted,  from  the  pen  of  an 
inveterate  enemy.  Lope  de  Ayala,  charges  him  with  the 
murder  of  his  wife,  Blanche  of  Bourbon,  most  of  his  broth- 
ers and  sisters,  with  Eleanor  Gusman,  their  mother,  many 
Castilian  nobles,  and  multitudes  of  the  commonalty ;  besides 
continual  outrages  of  licentiousness,  and  especially  a  pre- 
tended marriage  with  a  noble  lady  of  the  Castrian  family. 
At  length  a  rebellion  was  headed  by  his  illegitimate  brother, 

1  There  is  in  general  room  enough  for  day,  within  the  recollection  of  many  per- 

Rccpticism  as  to  the  characters  of  men  sons  living  when  he  wrote  ?    There  may 

who  are  only  known  to  us  through  their  be   a   question   whether    Richard   in. 

enemies.    History  is  full  of  calumnies,  smothered  his  nephews  in  the  Tower; 

and  of  calumnies    that   can    never  be  but  nobody  can  dispute  that  Ilenry  VIII. 

effaced.    But  I  really  see  no  ground  for  cut  off  Anna  Boleyn's  head, 

thinking  charitably  of  Peter  the  Cruel.  The  passage  from  Matteo  Villani  above 

Froissart,  part  i.  c.  230,  and  Matteo  Vil-  mentioned  is  as  follows :— Comincio  aspra- 

lani  (in    Script.  Rerum    Italic,   t.  xiv.  mente  a  se  far  ubbidire,  perche  temendo 

p  53)j  the  latter  of  whom  died  before  the  de'  suoi  baroui,  trovo  modo  di  far  in&mare 

rebellion  of  Henry  of  Trastamare,  speak  1'  uno  1'  altro,  e  prendendo  cagione,  gli 

of  him  much  in  the  same  terms  as  the  cominci6  ad  uccidere  con  le  sue  mani.   B 

Spanish   historians.     And  why  should  in  brieve  tempo  ne  fece  morire  25  e  tte 

Ayala  be  doubted,  when  he  gives  a  long  suoi  fratelli  fece  morire,  &c. 
list  of  murders  committed  in  the  face  of 


SK) 


HOUSE  OF  TRASTAMARE. 


Chap.  IV. 


Spain. 


ALVARO  DE  LUNA. 


ta 


ill 


m 


I 

I 


Henry  count  of  Trastamare,  with  the  assistance  of  Aragon 
and  Portugal.     This,  however,  would  probably  have  failed 
of  dethroning   Peter,  a  resolute  prince,  and  certainly  not 
destitute  of  many  faithful  supporters,  if  Henry  had  not  in- 
voked the  more  powerful  succor  of  Bertrand  du  Guesclin, 
and  the  companies  of  adventure,  who,  after  the  pacification 
between  France  and  England,  had  lost  the  occupation  of 
war,  and  retained  only  that  of  plunder.     With  mercenaries 
so  disciplined  it  was  in  vain  for  Peter  to  contend;    but, 
abandoning  Spain  for  a  moment,  he  had  recourse  to  a  more 
powerful  weapon  from  the  same  armory.     Edward  the  Black 
Prince,  then  resident  at  Bordeaux,  was  induced  by  the  prom- 
ise of  Biscay  to  enter  Spain  as  the  ally  of  Castile ;  and  at 
A  D  1367      *^®  S^^^^  ^a*^^®  ^^  Navarette  he  continued  lord  of 
the  ascendant  over  those  who  had  so  often  already 
been  foiled  by  his  prowess.     Du  Guesclin  was  made  prisoner ; 
Henry  fled  to  Aragon,  and   Peter  remounted  the  throne. 
But  a  second  revolution  was  at  hand:  the  Black  Prince, 
whom  he  had  ungratefully  offended,  withdrew  into  Guienne ; 
and  he  lost  his  kingdom  and  life  in  a  second  short  contest 
with  his  brother. 

A  more   fortunate   period  began  with  the  accession  of 
Henry.     His  own  reign  was  hardly  disturbed  by 

House  or  •'  iiii«  ti,t 

Trastamare.  any  rebellion ;  and  though  his  successors,  John  1. 
S^IYsS:  and  Henry  HI.,  were  not  altogether  so  unmolested, 
John  i._  especially  the  latter,  who  ascended  the  throne  in 
Hen^^iii.  his  minority,  yet  the  troubles  of  their  time  were 
A.D.1390.  gijgjj^  in  comparison  with  those  formerly  excited 
by  the  houses  of  Lara  and  Haro,  both  of  which  were  now 
happily  extinct.  Though  Henry  II/s  illegitimacy  left  him 
no  title  but  popular  choice,  his  queen  was  sole  representative 
of  the  Cerdas,  the  offspring,  as  has  been  mentioned  above, 
of  Sancho  IV/s  elder  brother,  and,  by  the  extinction  of  the 
younger  branch,  unquestioned  heiress  of  the  royal  line. 
Some  years  afterwards,  by  the  marriage  of  Henry  III.  with 
Catherine,  daughter  of  John  of  Gaunt  and  Constance,  an 
illegitimate  child  of  Peter  the  Cruel,  her  pretensions,  such 
as  they  were,  became  merged  in  the  crown. 

No  kingdom  could  be  worse  prepared  to  meet  the  disorders 
john.n.  of  a  minority  than  Castile,  and  in  none  did  the 
A.D.  i406.  circumstances  so  frequently  recur.  John  II.  was 
but  fourteen  months  old  at  his  accession;  and  but  for  the 


disinterestedness  of  his  uncle  Ferdinand,  the  nobihty  would 
have  been  inclined  to  avert  the  danger  by  placing  that  prince 
upon  the  throne.  In  this  instance,  however,  Castile  suffered 
less  from  faction  during  the  infancy  of  her  sovereign  than  in 
his  maturity.  The  queen  dowager,  at  first  jointly  with  Fer- 
dinand, and  solely  after  his  accession  to  the  crown  of  Aragon, 
administered  the  government  with  credit.  Fifty  years  had 
elapsed  at  her  death  in  1418  since  the  elevation  of  the  house 
of  Trastamare,  who  had  entitled  themselves  to  public  affec- 
tion by  conforming  themselves  more  strictly  than  their  pred- 
ecessors to  the  constitutional  laws  of  Castile,  which  were 
never  so  well  established  as  during  this  period.  In  external 
affairs  their  reigns  were  not  what  is  considered  as  glorious. 
They  were  generally  at  peace  with  Aragon  and 
Granada ;  but  one  memorable  defeat  by  the  Portu- 
guese at  Aljubarrota  disgraces  the  annals  of  John  I.,  whose 
cause  was  as  unjust  as  his  arms  were  unsuccessful.  This 
comparatively  golden  period  ceases  at  the  majority  of  John 
II.  His  reign  was  filled  up  by  a  series  of  conspiracies  and 
civil  wars,  headed  by  his  cousins  John  and  Henry,  the  infants 
of  Aragon,  who  enjoyed  very  extensive  territories  in  Castile, 
by  the  testament  of  their  father  Ferdinand.  Their  brother 
the  king  of  Ai*agon  frequently  lent  the  assistance  of  his  arms. 
John  himself,  the  elder  of  these  two  princes,  by  marriage 
with  the  heiress  of  the  kingdom  of  Navarre,  stood  in  a  double 
relation  to  Castile,  as  a  neighboring  sovereign,  and  as  a  mem- 
ber of  the  native  oligarchy.  These  conspiracies  ^ 
were  all  ostensibly  directed  against  the  favorite  of  faii  of  ai- 
John  II.,  Alvaro  de  Luna,  who  retained  for  five-  Ju^® 
and-thirty  years  an  absolute  control  over  his  fee- 
ble master.  The  adverse  faction  naturally  ascribed  to  this 
powerful  minister  every  criminal  intention  and  all  public 
mischiefs.  He  was  certainly  not  more  scrupulous  than  the 
generality  of  statesmen,  and  appears  to  have  been  rapacious 
in  accumulating  wealth.  But  there  was  an  energy  and 
courage  about  Alvaro  de  Luna  which  distinguishes  him  from 
the  cowardly  sycophants  who  usually  rise  by  the  favor  of 
weak  princes;  and  Castile  probably  would  not  have  been 
happier  under  the  administration  of  his  enemies.  His  fate 
is  among  the  memorable  lessons  of  history.  After  a  life  of 
troubles  endured  for  the  sake  of  this  favorite,  sometimes  a 
fi^^itive,  sometimes  a  prisoner,  his  son  heading  rebellions 


HENRY  IV. 


Chap.  IV. 


Spain. 


HENRY  TV. 


Hi 
if 


against  him,  John  II.  suddenly  yielded  to  an  intrigue  of  the 
palace,  and  adopted  sentiments  of  dislike  towards  the  man  he 
had  so  long  loved.     No  substantial  charge  appears  to  have 
been  brought  against  Alvaro  de  Luna,  except  that  general 
malversation  which  it  was  too  late  for  the  king  to  object  to 
him.     The   real  cause  of  John's  change  of  affection  was, 
most  probably,  the  insupportable  restraint  which  the  weak 
are  apt  to  find  in  that  spell  of  a  commanding  understand- 
ing  which  they  dare  not  break ;  the  torment  of  Uving  subject 
to  the  ascendant  of  an  inferior,  which  has  produced  so  many 
examples  of  fickleness  in  sovereigns.     That  of  John  II.  is 
not  the  least  conspicuous.     Alvaro  de  Luna  was  brought  to 
a  summary  trial  and  beheaded ;  his  estates  were  confiscated. 
He  met  his  death  with  the  intrepidity  of  Strafford,  to  whom 
he  seems  to  have  borne  some  resemblance  in  character. 
John  II.  did  not  long  survive  his  minister,  dying  in  1454, 
after  a  reign  that  may  be  considered  as  inglorious, 
Heniyiv.      ^j^j^p^red  with  any  except  that  of  his  successor. 
If  the  father  was  not  respected,  the  son  fell  completely  into 
contempt.     He  had  been  governed  by  Pacheco,  marquis  of 
Villena,  as  impUcitly  as  John  by  Alvaro  de  Luna.      This 
influence  lasted  for  some  time  afterwards.     But  the  king  in- 
chning  to  transfer  his  confidence  to  the  queen  Joanna  of 
Portugal,  and  to  one  Bertrand  de  Cueva,  upon  whom  com- 
mon  fame  had  fixed  as  her  paramour,  a  powerful  confederacy 
of  disaffected  nobles  was  formed  against  the  royal  authority. 
In  what  degree  Henry  IV.'s  government  had  been  improvi- 
dent or  oppressive  towards  the  people,  it  is  hard  to  deter- 
mine.    The  chiefs  of  that  rebelUon,  Carillo  archbishop  of 
Toledo,  the  admiral  of  Castile,  a  veteran  leader  of  faction, 
and  the  marquis  of  Villena,  so  lately  the  king's  favorite,  were 
undoubtedly  actuated  only  by  selfish  ambition  and  revenge. 
They  deposed  Henry  m  an  assembly  of  their  fac- 
A.D.  1465.       ^.^^  ^^  ^^j^  ^j^j^  ^  g^j.^  qI-  theatrical  pageantry 

which  has  often  been  described.  But  modern  historians, 
struck  by  the  appearance  of  judicial  solemnity  in  this  pro- 
ceeding, are  sometimes  apt  to  speak  of  it  as  a  national  act ; 
while,  on  the  contrary,  it  seems  to  have  been  reprobated  by 
the  majority  of  the  Castilians  as  an  audacious  outrage  upon 
a  sovereign  who,  with  many  defects,  had  not  been  guilty  of 
any  excessive  tyranny.  The  confederates  set  up  Alfonso, 
the  king's  brother,  and  a  civil  war  of  some  duration  ensued, 


in  which  they  had  the  support  of  Aragon.  The  queen  of 
Castile  had  at  this  time  borne  a  daughter,  whom  the  enemies 
of  Henry  IV.,  and  indeed  no  small  part  of  his  adherents, 
were  determined  to  treat  as  spurious.  Accordingly,  after  the 
death  of  Alfonso,  his  sister  Isabel  was  considered  as  heiress 
of  the  kingdom.  She  might  have  aspired,  with  the  assist- 
ance of  the  confederates,  to  its  immediate  possession ;  but, 
avoiding  the  odium  of  a  contest  with  her  brother,  Isabel 
agreed  to  a  treaty,  by  which  the  succession  was  absolutely 
settled  upon  her.  This  arrangement  was  not  long  ^  j^  j^qq 
afterwards  followed  by  the  union  of  that  princess 
with  Ferdinand,  son  of  the  king  of  Aragon.  This  marriage 
was  by  no  means  acceptable  to  a  part  of  the  Castilian  oli- 
garchy, who  had  preferred  a  connection  with  Portugal.  And 
as  Henry  had  never  lost  sight  of  the  interests  of  one  whom 
he  considered,  or  pretended  to  consider,  as  his  daughter,  he 
took  the  first  opportunity  of  revoking  his  forced  disposition 
of  the  crown  and  restoring  the  direct  line  of  succession  in 
favor  of  the  princess  Joanna.  Upon  his  death,  in  1474,  the 
right  was  to  be  decided  by  arms.  Joanna  had  on  her  side 
the  common  presumptions  of  law,  the  testamentary  disposi- 
tion of  the  late  king,  the  support  of  Alfonso  king  of  Portu- 
gal, to  whom  she  was  betrothed,  and  of  several  considerable 
leaders  among  the  nobility,  as  the  young  marquis  of  Villena, 
the  family  of  Mendoza,  and  the  archbishop  of  Toledo,  who, 
charging  Ferdinand  with  ingratitude,  had  quitted  a  party 
which  he  had  above  all  men  contributed  to  strengthen.  For 
Isabella  were  the  general  belief  of  Joanna's  illegitimacy,  the 
assistance  of  Aragon,  the  adherence  of  a  majority  both  among 
the  nobles  and  people,  and,  more  than  all,  the  reputation  of 
ability  which  both  she  and  her  husband  had  deservedly  ac- 
quired. The  scale  was  however  pretty  equally  balanced,  till 
the  king  of  Portugal  having  been  defeated  at  Toro  in  1476, 
Joanna's  party  discovered  their  inability  to  prosecute  the  war 
by  themselves,  and  successively  made  their  submission  to 
Ferdinand  and  Isabella. 

The  Castilians   always  considered  themselves  cp^g^t^. 
as  subiect  to  a  legal  and  limited  monarchy.     For  tion  of 
several  ages  the  crown  was  elective,  as  in  most  succession 
nations  of  German  origin,  within  the  limits  of  one  of  the 
royal  family.^     In  general,  of  course,  the  public 

1  Defuncto  in  pace  principe,  primates    cessorum  regni  concilio  communi  con- 
totius  regni  uni  cum  sacerdotibua  bug-    stituant.     Concil.   Toletan.  IV.  c.  76, 


24 


NATIONAL  COUNCILS. 


CH.1P.  rv 


choice  fell  upon  the  nearest  heir ;  and  it  became  a  prevailing 
usage  to  elect  a  son  during  the  lifetime  of  his  father,  till  about 
the  eleventh  century  a  right  of  hereditary  succession  was 
clearly  established.  But  the  form  of  recognizing  the  heir 
apparent's  title  in  an  assembly  of  the  cortes  has  subsisted 
until  our  own  time.^ 

In  the  original  Gothic  monarchy  of  Spain,  civil  as  well  as 
ecclesiastical  affiiirs  were  decided  in  national  councils,  the 
National  acts  of  many  of  which  are  still  extant,  and  have 
councils.  been  published  in  ecclesiastical  collections.  To 
these  assemblies  the  dukes  and  other  provincial  governors, 
and  in  general  the  principal  individuals  of  the  realm,  were 
summoned  along  with  spiritual  persons.  This  double  aris- 
tocracy of  church  and  state  continued  to  form  the  great  coun- 
cil of  advice  and  consent  in  the  first  ages  of  the  new  king- 
doms of  Leon  and  Castile.  The  prelates  and  nobility,  or 
rather  some  of  the  more  distinguished  nobility,  appear  to 
have  concurred  in  all  general  measures  of  legislation,  as  we 
infer  from  the  preamble  of  their  statutes.  It  would  be  against 
analogy,  as  well  as  without  evidence,  to  suppose  that  any  rep- 
resentation of  the  commons  had  been  formed  in  the  earlier 
period  of  the  monarchy.  In  the  preamble  of  laws  passed  in 
1020,  and  at  several  subsequent  times  during  that  and  the 
ensuing  century,  we  find  only  the  bishops  and  magnats  re- 
Admission  ^^^^^  ^^  present.  According  to  the  General  Chron- 
of  depuS?3  icle  of  Spain,  deputies  from  the  Castilian  towns 
from  towns  formed  a  part  of  cortes  in  1169,  a  date  not  to  be 
rejected  as  incompatible  with  their  absence  in  1178.  How- 
ever, in  1188,  the  first  year  of  the  reign  of  Alfonso  IX., 
they  are  expressly  mentioned ;  and  from  that  era  were  con- 
stant and  necessary  parts  of  those  general  assemblies.*  It 
has  been  seen  already  that  the  corporate  towns  or  districts  of 


apud  Marina,  Teoria  de  las  Cortes,  t.  ii. 
p.  2.  This  important  work,  by  the  author 
of  the  Ensayo  Historico-Critico,  quoted 
above,  contains  an  ample  digest  of  the 
parliamentary  law  of  Castile,  drawn  from 
original  and,"  in  a  great  degree,  unpub- 
lished records.  I  hare  been  favored 
with  the  use  of  a  copy,  from  which  I  am 
the  more  disposed  to  make  extracts,  as 
the  book  is  likely,  through  its  liberal 
principles,  to  become  almost  as  scarce  in 
Spain  as  in  England.  Marina's  former 
work  (the  Ensayo  Hist.-Grit.)  furnishes 
a  aeries  of  testimonies  (c.  66)  to  the 
•laetiTe  character  of  the  mon&rchY  from 


Pelayo  downwards  to  the  twelfth  cen. 
tury. 

i  Teoria  de  las  Cortes,  t.  ii.  p.  7. 

2  Ensayo  Hist.-Crit.  p.  77 ;  Teoria  d« 
las  Cortes,  t.  I.  p.  66.  Marina  seems 
to  hare  somewhat  changed  his  opinion 
since  the  publication  of  the  former  work, 
where  he  inclines  to  assert  that  the  com- 
mons were  ftom  the  earliest  times  ad- 
mitted into  the  legislature.  In  1188, 
the  first  year  of  the  reign  of  Alfonso  IX., 
we  find  positive  mention  of  la  inuche- 
dumbre  de  las  clbdades  b  embiados  Am 
(Uida  cibdat. 


Spaui. 


NATIONAL  COUNCILS. 


25 


Castile  had  early  acquired  considerable  importance,  arising 
less  from  commercial  wealth,  to  which  the  towns  of  other 
kingdoms  were  indebted  for  their  liberties,  than  from  their 
utiUty  in  keeping  up  a  military  organization  among  the  peo- 
ple. To  this  they  probably  owe  their  early  reception  into 
the  cortes  as  integrant  portions  of  the  legislature,  since  we 
do  not  read  that  taxes  were  frequently  demanded,  till  the 
extravagance  of  later  kings,  and  their  alienation  of  the 
domain,  compelled   them  to  have  recourse  to  the  naUonal 

representatives. 

Every  chief  town  of  a  concejo  or  corporation  ought  per- 
haps, by  the  constitution  of  Castile,  to  have  received  its  regu- 
lar writ  for  the  election  of  deputies  to  cortes.^      But  there 
does  not  appear  to  have  been,  in  the  best  times,  any  uniform 
practice  in  this  respect.     At  the  cortes  of  Burgos,  in  1315, 
we  find  one  hundred  and  ninety-two   representatives  from 
more  than  ninety  towns;  at  those  of  Madrid,  in  1391,  one 
hundred  and  twenty-six  were  sent  from  fifty  towns ;  and  the 
latter  list  contains  names  of  several  places  which  do  not  ap- 
pear in  the  former.^   No  deputies  were  present  from  the  king- 
dom of  Leon  in  the  cortes  of  Alcala  in  1348,  where,  among 
many  important  enactments,  the  code  of  the  Siete  Partidas  first 
obtained  a  legislative  recognition.^     We  find,  in  short,  a  good 
deal  more  irregularity  than  during  the  same  period  in  Eng- 
land, where  the  number  of  electing  boroughs  varied  pretty 
considerably  at  every  parliament.     Yet  the  cortes  of  Castile 
did  not  cease  to  be  a  numerous  body  and  a  fair  representa- 
tion of  the  people  till  the  reign  of  John  II.    The  first  princes 
of  the  house  of  Trastamare  had  acted  in  all  points  with  the 
advice  of  their  cortes.     But  John  II.,  and  still  more  his  son 
Henry  IV.,  being  conscious  of  their  own  unpopularity,  did 
not  venture  to  meet  a  full  assembly  of  the  nation.     Their 
writs  were  directed  only  to  certain  towns  — an  abuse  for 
which  the  looseness  of   preceding  usage  had  given  a  pre- 
tence.*    It  must  be  owned  that  the  people  bore  it  in  general 
very  patiently.     Many  of  the  corporate  towns,  impoverished 

1  Teoria  de  las  Cortes,  p.  139.  ♦  Sepades  (says  John  II.  in  1442)  que 

« Id.  p.  148.    Geddes  gives  a  Ust  of  en  el  ayuntamiento  que  yo  fice  en  la 

one  hundred  and  twenty-seven  deputies  noble  villa  de  Valladohd  .  .  .  .  los  pro- 

froin  forty-tiKht  towns  to  the  cortes  at  curadores  de  ciertas  cibdades  6  villas  de 

Bladrid  in  1390.  —  Miscellaneous  Tracts,  mis  reynos  que  por  mi  mandado  fueron 

JoTiii.  llamados.     This  language  is  repeated  aa 

•  Id.  p.  154.  *o  subsequent  meetings,    p.  156. 


26 


NATIONAL  COUNCILS. 


Chap.  IV. 


by  civil  warfare  and  other  causes,  were  glad  to  sa^  e  the  cost 
of  defraying  their  deputies'  expenses.  Thus,  by  the  year 
1480,  only  seventeen  cities  had  retained  privilege  of  repre- 
sentation. A  vote  was  afterwards  added  for  Granada,  and 
three  more  in  later  times  for  Palencia,  and  the  provinces  of 
Estremadura  and  Galicia.^  It  might  have  been  easy  perhaps 
to  redress  this  grievance  while  the  exclusion  was  yet  fresh 
and  recent.  But  the  privileged  towns,  with  a  mean  and 
preposterous  selfishness,  although  their  zeal  for  liberty  was  at 
its  height,  could  not  endure  the  only  means  of  effectually 
securing  it,  by  a  restoration  of  elective  franchises  to  their 
fellow-citizens.  The  cortes  of  1506  assert,  with  one  of  those 
bold  falsifications  upon  which  a  popular  body  sometimes  ven- 
tures, that  "  it  is  established  by  some  laws,  and  by  imme- 
morial usage,  that  eighteen  cities  of  these  kingdoms  have  the 
right  of  sending  deputies  to  cortes,  and  no  more ; "  remon- 
strating against  the  attempts  made  by  some  other  towns  to 
obtain  the  same  privilege,  which  they  request  may  not  be 
conceded.     This  remonstrance  is  repeated  in  1512.^ 

From  the  reign  of  Alfonso  XI.,  who  restrained  the  gov- 
ernment of  corporations  to  an  oligarchy  of  magistrates,  the 
right  of  electing  members  of  cortes  was  confined  to  the  ruling 
body,  the  bailiffs  or  regidores,  whose  number  seldom  exceeded 
twenty-four,  and  whose  succession  was  kept  up  by  close  elec- 
tion among  themselves.*  The  people  therefore  had  no  direct 
share  in  the  choice  of  representatives.  Experience  proved, 
as  several  instances  in  these  pages  will  show,  that  even  upon 
this  narrow  basis  the  deputies  of  Castile  were  not  deficient 
in  zeal  for  their  country  and  its  liberties.  But  it  must  be 
confessed  that  a  small  body  of  electors  is  always  liable  to  cor- 
rupt influence  and  to  intimidation.  John  II.  and  Henry  IV. 
often  invaded  the  freedom  of  election ;  the  latter  even  named 
some  of  the  deputies.*  Several  energetic  remonstrances  were 
made  in  cortes  against  this  flagrant  grievance.  Laws  were 
enacted  and  other  precautions  devised  to  secure  the  due  re- 


1  The  cities  which  retained  their  rep- 
resentation in  cortes  were  Burgos,  To- 
ledo (there  was  a  constant  dispute  for 
precedence  between  these  two),  Leon, 
Granada,  Cordova,  Murcia,  Jaen,  Zamora, 
Toro,  Soria,  Valladolid,  Salamanca,  Se- 
govia, Avila,  Madrid,  Guadalaxara,  and 
Cuenca.  The  representatives  of  these 
were  supposed  to  vote  not  only  for  their 
Immediate  constituents,  but   for  other 


adjacent  towns.  Thus  Toro  voted  for  Pa- 
lencia and  the  kingdom  of  Galicia,  before 
they  obtained  separate  votes;  Salamanca 
for  most  of  Estremadura  ;  Guadalaxara 
for  Sigucnza  and  four  hundred  other 
towns.    Teoria  de  las  Cortes,  p.  160,  2^ 

2  Idem,  p.  161. 

sjdem,  p.  86.197. 

*  Idem,  p.  199. 


Sfaxh. 


CONSTITUTION  OF  CORTES. 


27 


turn  of  deputies.  In  the  sixteenth  century  the  evil,  of  course, 
was  aggravated.  Charles  and  Philip  corrupted  the  members 
by  bribery.*  Even  in  1573  the  cortes  are  bold  enough  to 
complain  that  creatures  of  government  were  sent  thither, 
"  who  are  always  held  for  suspected  by  the  other  deputies, 
and  cause  disagreement  among  them."^ 

There  seems  to  be  a  considerable  obscurity  about  the  con 
stitution  of  the  cortes,  so  far  as  relates  to  the  two  gp.^j^jj 
higher  estates,  the  spiritual  and  temporal  nobility,  and  tempo- 
It  is  admitted  that  down  to  the  latter  part  of  the  l^^Sti^^^ 
thirteenthcentury,  and  especially  before  the  intro- 
duction of  representatives  from  the  commons,  they  were  sum- 
moned in  considerable  numbers.     But  the  writer  to  whom  I 
must  almost  exclusively  refer  for  the  constitutional  history 
of  Castile  contends  that  from  the  reign  of  Sancho  IV.  they 
took  much  less  share  and  retained  much  less  influence  in  the 
deliberation  of  cortes.*    There  is  a  remarkable  protest  of  the 
archbishop  of  Toledo,  in  1295,  against  the  acts  done  in  cortes, 
because  neither  he  nor  the  other  prelates  had  been  admitted 
to  their  discussions,  nor  given  any  consent  to  their  resolutions, 
although  such  consent  was  falsely  recited  in  the  laws  enacted 
therein.*    This  protestation  is  at  least  a  testimony  to  the  con- 
stitutional rights  of  the  prelacy,  which  indeed  all  the  early 
history  of  Castile,  as  well  as  the  analogy  of  other  govern- 
ments, conspires   to   demonstrate.     In   the   fourteenth  and 
fifteenth  centuries,  however,  they  were  more  v.:\d  more  ex- 
cluded.    None  of  the  prelates  were  summoned  to  the  cortes 
of  1299  and  1301 ;  none  either  of  the  prelate?  or  nobles  to 
those  of  1370  and  1373,  of  1480  and  1505.    In  all  the  latter 
cases,  indeed,  such  members  of  both  orders  as  happened  to 
be  present  in  the  court  attended  the  cortes  —  a  fact  which 
seems  to  be  established  by  the  language  of  the  statutes. 


1  Teoria  de  las  Cortes,  p.  213. 

«p.  202. 

»  p.  67. 

4  Protestamos  que  desde  aqui  venimos 
uon  fuemos  llamados  &.  consejo,  ni  i.  los 
tratados  soore  los  fechos  del  reyno,  ni 
sobre  las  otras  cosas  que  hi  fueren  trac- 
tadas  et  fechas,  et  sennaladamente  sobre 
los  fechos  de  los  consejos  de  las  her- 
mandades  et  de  las  peticiones  que  fueron 
fechas  de  su  parte,  et  sobre  los  otorga- 
mentos  que  les  ficieron.  et  sobre  los  pre- 
Tilegios  que  por  esta  nazon  les  fueron 
otorgados;  mas  ante  fuemos  ende  apar- 


tados  et  estrannados  et  secados  expresa. 
mente  nos  et  los  otros  perlados  et  ricoc 
homes  et  los  fijosdalgo;  et  non  fue  h| 
cosa  fecha  con  nuestro  consejo.  Otrosi 
protestamos  por  razon  de  aquello  que 
dice  en  los  previlegios  que  les  otorgaron, 
que  fueren  los  perlados  llamados,  et  que 
eran  otorgados  de  consentimiento  et  de 
voluntad  dellos,  que  non  fuemos  hi  pre- 
sentes  ni  llamados  nin  fue  fecho  con 
nuestra  voluntad,  nin  consentiemos,  nin 
consentimos  en  ellos,  &c.  p.  72. 
6  Teoria  de  las  Cortes,  p.  74. 


28 


CONSTITUTION  OF  CORTES. 


Chap.  IV. 


Other  instances  of  a  similar  kind  may  be  adduced.  Never- 
theless, the  more  usual  expression  in  the  preamble  of  laws 
reciting  those  summoned  to  and  present  at  the  cortes,  though 
subject  to  considerable  variation,  seems  to  imply  that  all  the 
three  estates  were,  at  least  nominally  and  according  to  legiti- 
mate forms,  constituent  members  of  the  national  assembly. 
And  a  chronicle  mentions,  under  the  year  1406,  the  nobility 
and  clergy  as  deliberating  separately,  and  with  some  differ- 
ence of  judgment,  from  the  deputies  of  the  commons.^  A 
theory,  indeed,  which  should  exclude  the  great  territorial  ar- 
istocracy from  their  place  in  cortes,  would  expose  the  dignity 
and  legislative  rights  of  that  body  to  unfavorable  inferences. 
But  it  is  manifest  that  the  king  exercised  very  freely  a  pre- 
rogative of  calling  or  omitting  persons  of  both  the  higher 
orders  at  his  discretion.  The  bishops  were  numerous,  and 
many  of  their  sees  not  rich ;  while  the  same  objections  of 
inconvenience  applied  perhaps  to  the  ricoshombres,  but  far 
more  forcibly  to  the  lower  nobility,  the  hijosdalgo  or  caballe- 
ros.  Castile  never  adopted  the  institution  of  deputies  from 
this  order,  as  in  the  States  General  of  France  and  some  other 
countries,  much  less  that  liberal  system  of  landed  representa- 
tion, which  forms  one  of  the  most  admirable  peculiaiities  in 


1 1.  ii.  p.  234.  Marina  is  influenced  by 
a  prt'judice  in  Ikvor  of  the  abortive 
Spanish  constitution  of  1812,  which  ex- 
cludeil  the  temporal  and  spiritual  aristoc- 
racy from  a  place  in  the  legislature,  to 
imagine  a  similar  form  of  government  in 
ancient  times.  But  his  own  work  fur- 
nishes abundant  reasons,  if  I  am  not 
mist:iken,  to  modify  this  opinion  very 
essentially.  A  few  out  of  many  instances 
may  be  adduced  from  the  enacting  words 
of  statutes,  which  we  consider  in  England 
as  good  evidences  to  establish  a  constitu- 
tional theory.  Sepades  que  yo  hube 
mio  acuerdo  e  mio  conswyo  con  mios  her- 
manos  e  los  arzobispos,  e  Ioa  obispos,  e 
eon  los  licos  homes  de  Castella,  c  de 
Leon,  6  con  homes  buenoa  de  las  villas  de 
Castella,  e  de  Leon,  (jue  fueron  conmigo 
en  Valladolit,  sobrc  muchas  cosas,  &c. 
Alfonso  X.  in  1258.)  Mandamos  enviar 
llama  por  cartas  del  rci  e  nuestras  &.  los 
infantes  e  perlados  e  ricos  homes  e  in- 
&nzone8  e  caballeros  e  homes  buenos  de 
las  cibdadcs  e  de  las  villas  de  los  reynos 
de  Castilia  et  de  Toledo  e  de  Leon  i  de 
las  Estramaduras,  e  de  Qallicia  e  de  las 
Asturias  e  del  Andalusia.  (Writ  of  sum- 
mons to  cortes  of  Burgos  in  1315.)  Con 
acuerdo  de  los  perlados  6  de  los  ricos 
homes  6  procuradores  de  las  cibdadcs  6 


villas  6  logares  de  los  nuestros  reynos. 
(Ordinances  of  Toro  in  1371.)  Estanho 
hi  con  el  el  infante  Don  Ferrando,  &c.,  e 
otros  perlados  6  condes  c  nco^  homes  6 
otros  caballeros  6  escudcros,  e  los  procu- 
radores de  las  cibdades  e  villas  6  logares 
de  BUS  reynos.  (Cortes  of  1391.)  Los 
tres  estados  que  debcn  venir  &  las  cortes 
6  ayuntamientossegunt  sc  debe  facer  e  es 
de  buena  costunibre  antigua.  (Cortes 
of  1393.)  This  last  passage  is  apparently 
conclusive  to  prove  that  three  estates, 
the  superior  clergy,  the  nobility,  and  the 
commons,  were  essential  members  of  the 
Jjogislature  in  Castile,  as  they  were  in 
France  and  England ;  and  one  is  aston- 
ished to  read  in  Marina  that  no  faltaron 
&  ninguna  de  las  fonnalidades  de  derccho 
los  monarcas  que  no  tuvieron  por  opor- 
tuno  Uamar  4  cortes  para  .sfuiejantes  actos 
ni  al  clero  ni  &  la  noblez.a  ni  4  las  per- 
sonas  singulares  do  uno  y  otro  estado. 
t.  i.  p.  69.  That  great  citizen,  Jevellanos, 
appears  to  have  had  much  wiser  notions 
of  the  ancient  government  of  his  country, 
as  well  as  of  the  sort  of  reformation 
which  she  wanted :  as  we  may  infer  from 
passages  in  his  Memoria  &  bus  compatri- 
otas,  Coruna,  1811,  quoted  by  Marina  fo? 
the  purpose  of  censure. 


SFAcr. 


RIGHT  OF  TAXATION. 


29 


our  own  constitution.  It  will  be  seen  hereafter  that  spiritual 
and  even  temporal  peers  were  summoned  by  our  kings  with 
much  irregularity ;  and  the  disordered  state  of  Castile  through 
almost  every  reign  was  likely  to  prevent  the  estabUshment  of 
any  fixed  usage  in  this  and  most  other  points. 

The  primary  and  most  essential  characteristic  of  a  limited 
monarchy  is  that  money  can  only  be  levied  upon  Right  of 
the  people  through  the  consent  of  their  represent-  ta^t»o»i' 
atives.  This  principle  was  thoroughly  established  in  Castile ; 
and  the  statutes  which  enforce  it,  the  remonstrances  which 
protest  against  its  violation,  bear  a  lively  analogy  to  corre- 
sponding circumstances  in  the  history  of  our  constitution. 
The  lands  of  the  nobility  and  clergy  were,  I  believe,  always 
exempted  from  direct  taxation  —  an  immunity  which  perhaps 
rendered  the  attendance  of  the  members  of  those  estates  in 
the  cortes  less  regular.  The  corporate  districts  or  concejos, 
which,  as  I  have  observed  already,  differed  from  the  com- 
munities of  France  and  England  by  possessing  a  large  extent 
of  territory  subordinate  to  the  principal  town,  were  bound  by 
their  charter  to  a  stipulated  annual  payment,  the  price  of  their 
franchises,  called  moneda  forera.^  Beyond  this  sum  nothing 
could  be  demanded  without  the  consent  of  the  cortes.  Al- 
fonso VIII.,  in  1177,  applied  for  a  subsidy  towards  carrying 
on  the  siege  of  Cuenca.  Demands  of  money  do  not  however 
seem  to  have  been  very  usual  before  the  prodigal  reign  of 
Alfonso  X.  That  prince  and  his  immediate  successors  were 
not  much  inclined  to  respect  the  rights  of  their  subjects ;  but 
they  encountered  a  steady  and  insuperable  resistance.  Fer- 
dinand IV.,  in  1307,  promises  to  raise  no  money  beyond  his 
legal  and  customary  dues.  A  more  explicit  law  was  enacted 
by  Alfonso  XI.  in  1328,  who  bound  himself  not  to  exact  from 
his  people,  or  cause  them  to  pay  any  tax,  either  partial  or  gen- 
eral, not  hitherto  established  by  law,  without  the  previous 
grant  of  all  the  deputies  convened  to  the  cortes.^  This  aboli- 
tion of  illegal  impositions  was  several  times  confirmed  by  the 
same  prince.     The  cortes,  in  1393,  having  made  a  grant  to 


t  Marina,  Ensayo  Hist.-Grit.  cap.  158; 
Teoria  de  las  Cortes,  t.  ii.  p.  387.  Tills 
\a  expressed  in  one  of  their  fueros,  or 
charters  :  Liberi  et  ingenui  semper  ma- 
neatis,  reddendo  mihi  et  succcssoribus 
meis  in  unoquoque  anno  in  die  Pente- 
•ostes  de  unaquaque  domo  12  denarios ; 


et,  mihi  cum  boni  voluntate  vestrSL  fece- 
ritis,  nullum  servitium  faciatis. 

2  De  los  con  echar  nin  mandar  pagar 
pecho  desaforado  ninguno,  especial  nin 
general,  en  toda  mi  tierra,  sin  ser  llama- 
dos  primeramente  4  cortes  6  otorgado  por 
todos  los  procuradores  que  hi  venleren 
p.  288. 


do 


EIGHT  OF  TAXATION. 


Chap.  IV 


Spain. 


POWER  OF  THE  CORTES. 


31 


I 


I 


Henry  HI.,  annexed  this  condition,  that  "since  they  had 
granted  him  enough  for  his  present  necessities,  and  even  to 
lay  up  a  part  for  a  future  exigency,  he  should  swear  before 
one  of  the  archbishops  not  to  take  or  demand  any  money, 
service,  or  loan,  or  anything  else,  of  the  citiess  and  towns,  nor 
of  individuals  belonging  to  them,  on  any  pretence  of  necessity, 
until  the  three  estates  of  the  kingdom  should  first  be  duly 
summoned  and  assembled  in  cortes  according  to  ancient  usage. 
And  if  any  such  letters  requiring  money  have  been  written, 
that  they  shall  be  obeyed  and  not  complied  with."  ^     His  son, 
John  II.,  having  violated  this  constitutional  privilege  on  the 
allegation  of  a  pressing  necessity,  the  cortes,  in  1420,  pre- 
sented a  long  remonstrance,  couched  in  very  respectful  but 
equally  firm  language,  wherein  they  assert  "  the  good  custom, 
founded  in  reason  and  in  justice,  that  the  cities  and  towns  of 
your  kingdoms  shall  not  be  compelled  to  pay  taxes  or  requi- 
sitions, or  other  new  tribute,  unless  your  highness  order  it  by 
advice  and  with  the  grant  of  the  said  cities  and  towns,  and  of 
their  deputies  for  them."     And  they  express  their  apprehen- 
sion lest  this  right  should  be  infringed,  because,  as  they  say, 
"  there  remains  no  other  privilege  or  liberty  which  can  be 
profitable  to  subjects  if  this  be  shaken."  =»     The  king  gave 
them  as  full  satisfaction  as  they  desired  that  his  encroach- 
ment should  not  be  drawn  into  precedent.    Some  fresh  abuses 
during  the  unfortunate  reign  of  Henry  IV.  produced  another 
declaration  in  equally  explicit  language,  forming  part  of  the 
sentence  awarded  by  the  arbitrators  to  whom  the  differences 
between  the  king  and  his  people  had  been  referred  at  Medina 
del  Campo  in  1465.*     The  catholic  kings,  as  they  are  emi 
nently  called,  Ferdinand  and  Isabella,  never  violated  this 


1  Obedecidas  6  non  cumplidas.  This 
expression  occurs  frequently  in  pro- 
Tisions  made  against  illegal  acts  of  the 
crown;  and  is  characteristic  of  the  singu- 
lar respect  with  which  the  Spaniards 
always  thought  it  right  to  treat  their 
BOTeniign,  while  they  were  resisting  the 
abuses  of  his  authority. 

3  La  buena  costumbre  6  possession 
fundada  en  razon  e  en  justicia  que  las 
cibdades  e  villas  de  vuestros  reinos  tenian 
de  no  ser  mandado  cogcr  monedas  c  pe- 
didos  nin  otro  tributo  nuevo  alguno  en 
los  vuestros  reinos  sin  quo  la  vuestra  se- 
Boria  lo  faga  6  ordene  de  consejo  6  con 
otorgamiento  de  las  cibdades  e  villas  de 
los  Tuestros  reinos  e  de  sus  procuradores 
•n  in  nombie  ....  no  queda  otro 


prcTilegio  ni  libertad  de  que  los  subditos 
puedan  gozarni  aprovechar  quebrantado 
el  sobre  dicho.   t.  iii.  p.  30. 

3  Declaramos  6  ordenamos,  que  el 
dicho  senor  rei  nin  los  otros  reyes  que 
despues  del  fueren  non  echan  nin  repar- 
ian nin  pidan  pedidosnln  monedas  en  sus 
reynos,  salvo  per  gran  necessidad,  e  sey- 
endo  primero  accordado  con  los  perlados 
e  grandes  de  sus  reynos,  e  con  los  otros 
que  &  la  sazon  residierin  en  su  consejo,  6 
seyendo  para  ello  Uamados  los  procura- 
dores de  las  cibdades  c  villas  de  sus  rey- 
nos, que  para  las  tales  cosas  se  suelen  6 
acostumbran  llamar,  6  seyendo  per  lot 
dichos  procuradores  otoi^ado  el  dicho 
pedimento  6  monedas.  t.  ii.  p.  881. 


part  of  the  constitution ;  nor  did  even  Charles  I.,  although 
sometimes  refused  money  by  the  cortes,  attempt  to  exact  it 
without  their  consent.^  In  the  Recopilacion,  or  code  of  Cas- 
tilian  law  published  by  Philip  II.,  we  read  a  positive  declara- 
tion against  arbitrary  imposition  of  taxes,  which  remained 
unaltered  on  the  face  of  the  statute-book  till  the  present  age.^ 
The  law  was  indeed  frequently  broken  by  Philip  II. ;  but 
the  cortes,  who  retained  throughout  the  sixteenth  century  a 
degree  of  steadiness  and  courage  truly  admirable  when  we 
consider  their  political  weakness,  did  not  cease  to  remonstrate 
with  that  suspicious  tyrant,  and  recorded  their  unavailing 
appeal  to  the  law  of  Alfonso  XI.,  "  so  ancient  and  just,  and 
which  so  long  time  has  been  used  and  observed."  * 

The  free  assent  of  the  people  by  their  representatives  to 
grants  of  money  was  by  no  means  a  mere  matter  of  co^t^oi  of 
form.  It  was  connected  with  other  essential  rights  cortes  over 
indispensable  to  its  effectual  exercise ;  those  of  ex-  ^^p^'^'^^*^*^- 
amining  public  accounts  and  checking  the  expenditure.  The 
cortes,  in  the  best  times  at  least,  were  careful  to  grant  no 
money  until  they  were  assured  that  what  had  been  already 
levied  on  their  constituents  had  been  properly  employed.* 
They  refused  a  subsidy  in  1390  because  they  had  already 
given  so  much,  and,  "  not  knowing  how  so  great  a  sum  had 
been  expended,  it  would  be  a  great  dishonor  and  mischief  to 
promise  any  more."  In  1406  they  stood  out  a  long  time,  and 
at  length  gave  only  half  of  what  was  demanded.^  Charles  I. 
attempted  to  obtain  money  in  1527  from  the  nobility  as  well 
as  commons.  But  the  former  protested  that  "  their  obligation 
was  to  follow  the  king  in  war,  wherefore  to  contribute  money 


>  Marina  has  published  two  letters 
from  Charles  to  the  city  of  Toledo,  in 
l&42and  1548,  requesting  them  to  instruct 
their  deputies  to  consent  to  a  further 
grant  of  money,  which  they  had  refused 
to  do  without  leave  of  their  constituents, 
t.  iU.  p.  180, 187. 

2 1.  ii.  p.  393. 

■»  En  las  cortes  do  ano  de  70  y  en  las 
de  76  pedimos  k  v.  m.  fuesc  servide  de  no 
poncr  nuevos  impuestos,  rentas,  pechos, 
ni  derechos  ni  otros  tributos  particulares 
ni  generalcs  sin  junta  del  reyno  en  cortes, 
como  cstl  dispuesto  por  lei  del  senor  rei 
Don  Alonso,  y  se  signified  i  v.  m.  el  dano 
grande  que  con  las  nuevas  rentas  habia 
reflcibido  el  reino,  supUcando  &  v.  m. 
ftiese  servido  de  mandarle  aliviar  y  des- 
eargar,  y  que  en  lo  de  adelantc  se  les 
hiciesse  merced  de  guardar  las  dichas 


leyes  reales,  y  que  no  se  impusiessen 
nucvas  rentas  sin  su  asisteucia ;  pues 
podria  v.  m.  estar  satisfecbo  de  que  el 
reino  sirve  en  las  cosas  necessarias  con 
toda  lealtad  y  hasta  ahora  no  se  ha  pro- 
veido  lo  susodicho ;  y  el  reino  por  la 
obligacion  que  tiene  &.  pedir  &  v.  m. 
guarde  la  dicha  lei,  y  que  no  solamoute 
han  cessado  las  neccssidades  de  los  sub- 
ditos y  naturales  do  v.  ra.  pero  antes 
crecen  de  cada  dia  :  vuelve  &  suplicar  i. 
\.  m.  sea  servido  concederle  lo  susodicho, 
y  que  las  nuevas  rentas  pechos  y  dere- 
chos se  quiten,  y  que  de  aqui  adelante 
se  guarde  la  dicha  lei  del  senor  rei  Don 
Alonso,  como  tan  antigua  y  justa  y^  que 
tanto  tiempo  se  uso  y  guardo.  p.  ^5 
This  petition  was  in  1579. 

4  Marina,  t.  ii.  p.  404, 406. 

Sp.  409. 


■ 


32 


POWER  OF  THE  CORTES. 


Chap.  IV 


was  totally  against  their  privilege,  and  for  that  reason  they 
could  not  acquiesce  in  his  majesty's  request."  ^  The  commons 
also  refused  on  this  occasion.  In  1538,  on  a  similar  proposi- 
tion,  the  superior  and  lower  nobility  (los  grandes  y  caballeros) 
"  begged  with  all  humility  that  they  might  never  hear  any 
more  of  that  matter."  ^ 

The   contributions  granted  by  cortes  were  assessed  and 
collected  by  respectable  individuals  (hombres  buenos)  of  the 
several  towns  and  villages.'     This  repartition^  as  the  French 
call  it,  of  direct  taxes  is  a  matter  of  the  highest  importance  in 
those  countries  where  they  are  imposed  by  means  of  a  gross 
assessment  on  a  district.     The  produce  was  paid  to  the  royal 
council.     It  could  not  be  applied  to  any  other  purpose  than 
that  to  which  the  tax  had  been  appropriated.     Thus  the  cortes 
of  Segovia,  in  1407,  granted  a  subsidy  for  the  war  against 
Granada,  on  condition  "  that  it  should  not  be  laid  out  on  any 
other  service  except  this  war ; "  which  they  requested  the 
queen  and  Ferdinand,  both  regents  in  John  II.'s  minority,  to 
confirm  by  oath.     Part,  however,  of  the  money  remaining 
unexpended,  Ferdinand  wished  to  apply  it  to  his  own  object 
of  procuring  the  crown  of  Aragon  ;  but  the  queen  first  obtained 
not  only  a  release  from  her  oath  by  the  pope,  but  the  consent 
of  the  cortes.     They  continued  to  insist  upon  this  appropria- 
tion, though  inefrectuall> ,  under  the  reign  of  Charles  I.* 

The  cortes  did  not  consider  it  beyond  the  line  of  their  duty, 
notwithstanding  the  respectful  manner  in  which  they  always 
addressed  the  sovereign,  to  remonstrate  against  profuse  ex- 
penditure even  in  his  own  household.  They  told  Alfonso  X. 
in  1258,  in  the  homely  style  of  that  age,  that  they  thought  it 
fitting  that  the  king  and  his  wife  should  eat  at  the  rate  of  a 
hundred  and  fifty  maravedis  a  day,  and  no  more  ;  and  that  the 
king  should  order  his  attendants  to  eat  more  moderately  than 
they  did.^  They  remonstrated  more  forcibly  against  the  pro- 
digality of  John  II.  Even  in  1559  they  spoke  with  an  un- 
daunted Castilian  spirit  to  Philip  II. :  —  "  Sir,  the  expenses  of 
your  royal  establishment  and  household  are  much  increased  ; 
and  we  conceive  it  would  much  redound  to  the  good  of  these 
kingdoms  that  your  majesty  should  direct  them  to  be  lowered, 


1  Pero  que  contribulr  &  la  guerra  con 
eiertas  sumaa  era  totalmente  opuesto  & 
sus  previlegios,  6  asi  que  no  podrian 
acomodarse  4  lo  que  s.  m.  deseaba. — 
p.  411. 


3  Marina,  t.  ii.  p.  411. 

3  Marina,  t.  U.  p.  8d8. 

4  p.  412. 
s  p.  417. 


SPAnv. 


THEIR  FORMS. 


33 


both  as  a  relief  to  your  wants,  and  that  all  the  great  men  and 
other  subjects  of  your  majesty  may  take  example  therefrom  to 
restrain  the  great  disorder  and  excess  they  commit  in  that 
respect."  ^ 

The  forms  of  a  Castilian  cortes  were  analogous  to  those  of 
an  English  parliament  in  the  fourteenth  century.  Forms  of 
They  were  summoned  by  a  writ  almost  exactly  co-  *^®  cortes. 
incident  in  expression  with  that  in  use  among  us.^    The  ses- 
gion  was  opened  by  a  speech  from  the  chancellor  or  other 
chief  oflScer  of  the  court.     The  deputies  were  invited  to  con 
sider  certain  special  business,  and  commonly  to  grant  money. 
After  the  principal  affairs  were  despatched  they  conferred  to 
gether,  and,  having  examined  the  instructions  of  their  re- 
Bpective  constituents,  drew  up  a  schedule  of  petitions.     These 
were  duly  answered  one  by  one ;  and  from  the  petition  and 
answer,  if  favorable,  laws  were  afterwards  drawn  up  where 
the  matter  required  a  new  law,  or  promises  of  redress  were 
given  if  the  petition  related  to  an  abuse  or  grievance.     In 
file  struggling  condition  of  Spanish  liberty  under  Charles  I., 
the  crown  began  to  neglect  answering  the  petitions  of  cortes, 
or  to  use  unsatisfactory  generalities  of  expression.     This  gave 
rise  to  many  remonstrances.     The  deputies  insisted  in  1523 
on  having  answers  before  they  granted  money.   They  repeat- 
ed the  same  contention  in  1525,  and  obtained  a  general  law 
inserted  in  the  Recopilacion  enacting  that  the  king  should 
answer  all  their  petitions  before  he  dissolved  the  assembly.* 
This,  however,  was  disregarded  as  before  ;  but  the  cortes, 
whose  intrepid  honesty  under  Philip  II.  so  often  attracts  our 
admiration,  continued  as  late  as  1586  to  appeal  to  the  written 
statute  and  lament  its  violation.* 

According  to  the  ancient  fundamental  constitution  of  Castile, 
the  king  did  not  legislate  for  his  subjects  without  j^ig^t  of 
their  consent     The  code  of  the  Visigoths,  called  cortes  in 
in  Spain  the  Fuero  Jusgo,  was  enacted  in  public  ^°^ 
councils,  as  were  also  the  laws  of  the  early  kings  of  Leon, 
which  appears  by  the  reciting  words  of  their  preambles.'  This 

1  Senhor,  los   gastos  de  vuestro  real    desorden  y  excesses  que  hacen  en  laf 
estado  y  mesa  son  muy  crescidos,  y  en-    cosas  sobredichas.    p.  437. 
'     ■  »  Marina,  t.  i.  p.  175 ;  t.  iu.  p.  103. 

«  t.  i.  p.  278. 
« p.  301. 
6  p.  288-304. 

»  t.  ii.  p.  202.    The  acts  ot  tne  corte» 
leros  y  otrus  subditos  de  r.  m.  en  la  gran    of  Leon  in  1020  run  thus :  Omnes  poa 
VOL.  II.  9 


tendemos  que  convernia  mucho  al  bien 
le  estos  rcinos  que  y.  m.  los  maudasse 
moderar,  asi  para  algun  remedio  de  bus 
necessidades,  como  para  que  de  y.  m.  to- 
mcn  egemplo  totos  los  grandes  y  cabal- 


u 


LE(5ISLATIVE  RIGHT 


Chap.  IV. 


Spain. 


OF  THE  CORTES. 


35 


1 


consent  was  originally  given  only  by  the  higher  estates,  who 
might  be  considered,  in  a  large  sense,  as  representing  the  na- 
tion,  though  not  chosen  by  it ;  but  from  the  end  of  the  twelfth 
century  by  the  elected  deputies  of  the  commons  in  cortes. 
The  laws  of  Alfonso  X.  in  1258,  those  of  the  same  prince  in 
1274,  and  many  others  in  subsequent  times,  are  declared  to 
be  made  with  the  consent  (con  acuerdo)  of  the  several  orders 
of  the  kingdom.     More  commonly,  indeed,  the  preamble  of 
Castilian  statutes  only  recites  their  advice  (consejo)  ;  but  I 
do  not  know  that  any  stress  is  to  be  laid  on  this  circumstance. 
The  laws  of  the  Siete  Partidas,  compiled  by  Alfonso  X.,  did 
not  obtain  any  direct  sanction  till  the  famous  cortes  of  Alcala, 
m  1348,  when  they  were  confirmed  along  with  several  others, 
forming  altogether  the  basis  of  the  statute-law   of  Spain. 
Whether  they  were  in  fact  received  before  that  time  has  been 
a  matter  controverted  among  Spanish  antiquaries,  and  upon 
the  question  of  their  legal  validity  at  the  time  of  their  pi-o- 
mulgation  depends  an  important  point  in  Castilian  history,  the 
disputed  right  of  succession  between  Sancho  IV.  and  the  in- 
fants of  la  Cerda ;  the  former  claiming  under  the  ancient 
customary  law,  the  latter  under  the  new  dispositions  of  the 
Siete  Partidas.     If  the  king  could  not  legally  change  the  es- 
tabUshed  laws  without  consent  of  his  cortes,  as  seems  most 
probable,  the  right  of  representative  succession  did  not  exist 
in  favor  of  his  grandchildren,  and  Sancho  IV.  cannot  be  con- 
sidered as  an  usurper.  ^     ^ 

It  appears,  upon  the  whole,  to  have  been  a  constitutional 
principle,  that  laws  could  neither  be  made  nor  annulled  ex- 
cept in  cortes.  In  1506  this  is  claimed  by  the  deputies  as  an 
established  right.^  John  I.  had  long  before  admitted  that 
what  was  done  by  cortes  and  general  assemblies  could  not  be 
undone  by  letters  missive,  but  by  such  cortes  and  assemblies 
alone.'     For  the  kmgs  of  Castile  had  adopted  the  English 


tifices  et  abbates  et  optimates  regni  His- 
panise  jussu  jpsius  regis  talia  dccreta  de- 
crevimus  quae  finniter  teneantur  futuris 
temporibus.  So  those  of  Salamanca,  in 
1178:  Ego  rex  Fernandus  inter  csetara 
quae  cum  epiacopis  et  abbatibus  regnl 
nostri  et  quamplurimis  aliis  religiosis, 
•cxim  comitibus  terrarum  et  principibus 
et  rectoribus  provinciarum,  toto  posse 
tenenda  statuimus  apud  Salamancam. 

1  Engayo  Uist.-Crit.  p.  858;  Teoria  de 
las  Cortes,  t.  ii.  p.  77.  Marina  seems  to 
'hATe  changed  his  opinion  between  the 


publication  of  these  two  works,  in  the 
former  of  which  he  contends  for  the  pre- 
vious authority  of  the  Siete  Partidas,  and 
in  &Tor  of  the  infants  of  la  Cerda. 

2  Los  reyes  establlcieron  que  cuando 
hubiesen  de  hacer  leyes,  para  que  fuesen 
provechosaa  4  sus  reynos  y  cada  provin- 
cias  fuesen  proveidas,  se  llamascn  cortes 
y  procuradores  que  entendiesen  en  ellas, 
y  por  esto  se  establecio  lei  que  no  se 
hiciesen  nl  renovasen  leyes  sino  en  cortes 
Teoria  de  las  Cortes,  t.  ii.  p.  218. 

*Lo  que  m  ftoho  por  cortes  i  por 


practice  of  dispensing  with  statutes  by  a  non  obstante  clause 
in  their  grants.  But  the  cortes  remonstrated  more  steadily 
against  this  abuse  than  our  own  parliament,  who  suffered  it  to 
remain  in  a  certain  degree  till  the  Revolution.  It  was  sever- 
al times  enacted  upon  their  petition,  especially  by  an  explicit 
statute  of  Henry  II.,  that  grants  and  letters-patent  dispensing 
with  statutes  should  not  be  obeyed.^  Nevertheless,  John  II., 
trusting  to  force  or  the  servility  of  the  judges,  had  the  assur- 
ance to  dispense  explicitly  with  this  very  law.^  The  cortes  of 
Valladolid,  in  1442,  obtained  fresh  promises  and  enactments 
against  such  an  abuse.  Philip  I.  and  Charles  I.  began  to 
legislate  without  asking  the  consent  of  cortes  ;  this  grew  much 
worse  under  Philip  II.,  and  reached  its  height  under  his  suc- 
cessors, who  entirely  abolished  all  constitutional  privileges.' 
In  1555  we  find  a  petition  that  laws  made  in  cortes  should  be 
revoked  nowhere  else.  The  reply  was  such  as  became  that 
age :  "  To  this  we  answer,  that  we  shall  do  what  best  suits 
our  government."  But  even  in  1619,  and  still  afterwards, 
the  patriot  representatives  of  Castile  continued  to  lift  an  un- 
availing voice  against  illegal  ordinances,  though  in  the  form 
of  very  humble  petition ;  perhaps  the  latest  testimonies  to  the 
expiring  liberties  of  their  country.*  The  denial  of  exclusive 
legislative  authority  to  the  crown  must,  however,  be  under- 
stood to  admit  the  legality  of  particular  ordinances  designed 
to  strengthen  the  king's  executive  government.^  These,  no 
doubt,  like  the  royal  proclamations  in  England,  extended 
sometimes  very  far,  and  subjected  the  people  to  a  sort  of  ar- 
bitrary coercion  much  beyond  what  our  enlightened  notions  of 
freedom  would  consider  as  reconcilable  to  it.  But  in  the 
middle  ages  such  temporary  commands  and  prohibitions  were 
not  reckoned  strictly  legislative,  and  passed,  perhaps  rightly, 
for  inevitable  consequences  of  a  scanty  code  and  short  sessions 
of  the  national  council. 

The  kings  were  obliged  to  swear  to  the  observance  of  laws 
enacted  in  cortes,  besides  their  general  coronation  oath  to 
keep  the  laws  and  preserve  the  liberties  of  their  people.  Of 
this  we  find  several  instances  fh)m  the  middle  of  the  thir- 


ayuntamientos  que  non  se  pueda  dls&cer 
por  las  talcs  cartas,  salvo  por  ayunta- 
mientos  6  cortes.  Teoria  de  las  Cortes, 
t.  U.  p.  215. 

1  p.  215. 

9  p.  216 ;  t.  iU.  p.  40. 

» t.  U.  p.  218. 


4  Ha  suplicado  el  reino  &  T.  m.  no  se 
promulguen  nueras  leyes,  ni  en  todo  ni 
en  parte  las  antiguas  se  alteren,  siu  qae 
sea  por  cortes  .  .  .  .  y  por  ser  de  tanta 
importancia  Tuelre  el  reino  &  suplicarlo 
humilmente  &  T.  m.    p.  220. 

6  p.  207. 


RIGHTS  OF  THE  CORTES. 


Chap.  IV. 


Spain. 


COUNCH.  OF  CASTmK 


87 


m  ti* 


teenth  century,  and  the  practice  continued  till  the  time  of 
John  II.,  who,  in  1433,  on  being  requested  to  swear  to  the 
laws  then  enacted,  answered  that  he  intended  to  maintain 
them,  and  consequently  no  oath  was  necessary ;  an  evasion 
in  which  the  cortes  seem  unaccountably  to  have  acquiesced.* 
The  guardians  of  Alfonso  XI.  not  only  swore  to  observe  all 
that  had  been  agreed  on  at  Burgos  in  1315,  but  consented  that, 
if  any  one  of  them  did  not  keep  his  oath,  the  people  should 
no  longer  be  obliged  to  regard  or  obey  him  as  regent.^ 

It  was  customary  to  assemble  the  cortes  of  Castile  for 
many  purposes  besides  those  of  granting  money 
of  the' ^       and  concurring  in  legislation.     They  were  sum- 
oortes.  moned  in  every  reign  to  acknowledge  and  confirm 

the  succession  of  the  heir  apparent ;  and  upon  his  accession 
to  swear  allegiance.'    These  acts  were,  however,  little  more 
than  formal,  and  accordingly  have  been  preserved  for  the 
sake  of  parade  after  all  the  real  dignity  of  the  cortes  was 
annihilated.     In  the  fourteenth  and  fifteenth  centuries  they 
claimed  and  exercised  very  ample  powers.     They  assumed 
the  right,  when  questions  of  regency  occurred,  to  limit  the 
prerogative,  as  well  as  to  designate  the  persons  who  were  to 
use  it.^     And  the   frequent  minorities   of   Castilian   kings, 
which  were  unfavorable  enough  to  tranquillity  and  subordina- 
tion, served  to  confirm  these  parliamentary  privileges.     The 
cortes  were  usually  consulted  upon  all  material  business.     A 
law  of  Alfonso  XI.  in  1328,  printed  in  the  Recopilacion  or 
code  published  by  Philip  II.,  declares,  "  Since  in  the  arduous 
affairs  of  our  kingdom  the  counsel  of  our  natural  subjects  is 
necessary,  especially  of  the  deputies  from  our  cities  and  towns, 
therefore  we  ordain  and  command  that  on  such  great  occa- 
sions the  cortes  shall  be  assembled,  and  counsel  shall  be  taken 
of  the  three  estates  of  our  kingdoms,  as  the  kings  our  fore- 
fathers have  been  used  to  do."  ^     A  cortes  of  John  II.,  in 
1419,  claimed  this  right  of  being  consulted  in  all  matters  of 
importance,  with  a  warm  remonstrance  against  the  alleged 
violation  of  so  wholesome  a  law  by  the  reigning  prince ;  who 
answered,  that  in  weighty  matters  he  had  acted,  and  would 
continue  to  act,  in  conformity  to  it.*    What  should  be  intend- 
ed by  great  and  weighty  affairs  might  be  not  at  all  agreed 


upon  by  the  two  parties ;  to  each  of  whose  interpretations 
these  words  gave  pretty  full  scope.  However,  the  current 
usage  of  the  monarchy  certainly  permitted  much  authority 
in  public  deliberations  to  the  cortes.  Among  other  instances, 
which  indeed  will  continually  be  found  in  the  common  civil 
histories,  the  cortes  of  Ocana,  in  1469,  remonstrate  with  Hen- 
ry IV.  for  allying  himself  with  England  rather  than  France, 
and  give,  as  the  first  reason  of  complaint,  that,  "  according  to 
the  laws  of  your  kingdom,  when  the  kings  have  anything  of 
great  importance  in  hand,  they  ought  not  to  undertake  it 
without  advice  and  knowledge  of  the  chi^f  towns  and  cities 
of  your  kingdom."  *  This  privilege  of  general  interference 
was  asserted,  like  other  ancient  rights,  under  Charles,  whom 
they  strongly  urged,  in  1548,  not  to  permit  his  son  Philip  to 
depart  out  of  the  realm.^  It  is  hardly  necessary  to  observe, 
that,  in  such  times,  they  had  little  chance  of  being  regarded. 

The  kings  of  Leon  and  Castile  acted,  during  the  interval 
of  the  cortes,  by  the  advice  of  a  smaller  council,  councu  of 
answering,  as  it  seems,  almost  exactly  to  the  Castue. 
king's  ordinary  council  in  England.  In  early  ages,  before  the 
introduction  of  the  commons,  it  is  sometimes  difficult  to  dis- 
tinguish this  body  from  the  general  council  of  the  nation; 
being  composed,  in  fact,  of  the  same  class  of  persons,  though 
in  smaller  numbers.  A  similar  difficulty  applies  to  the  Eng- 
lish history.  The  nature  of  their  proceedings  seems  best  to 
ascertain  the  distinction.  All  executive  acts,  including  those 
ordinances  which  may  appear  rather  of  a  legislative  nature, 
all  grants  and  charters,  are  declared  to  be  with  the  assent 
of  the  court  (curia),  or  of  the  magnats  of  the  palace,  or  of 
the  chiefs  or  nobles.'  This  privy  council  was  an  essential 
part  of  all  European  monarchies  ;  and,  though  the  sovereign 
might  be  considered  as  free  to  call  in  the  advice  of  whomso- 
ever he  pleased,  yet,  in  fact,  the  princes  of  the  blood  and 
most  powerful  nobility  had  anciently  a  constitutional  right  to 
be  members  of  such  a  council,  so  that  it  formed  a  very  mate- 
rial check  upon  his  personal  authority. 

The  council  underwent  several  changes  in  progress  of  time, 
which  it  is  not  necessary  to  enumerate.    It  was  justly  deemed 


1  Teoria  de  las  Cortes,  t 
tt.  iU.p.62. 
*i.i.p.83;t.U.p.ai. 


p.  306> 


4  p.  280. 

*  t.  i.  p.  81. 

•  p.  81. 


1  Porque,  segunt  leyes  de  nucstros 
reynos,  cuaado  los  reyes  ban  de  facer 
alguna  cosa  de  gran  importancia,  non  lo 
deben  facer  sin  consejo  e  sabiduria  de  las 
cibdades  e  villas  principales  de  vuestros 
roynoB.    Teoria  de  las  Cortes,  t.  ii.  p.  241 . 


2  t.  Hi.  p.  183. 

3  Cum  assensu  magnatum  palatii :  Cum 
coDsilio  curiae  mese :  Cum  consilio  et  bene- 
placito  omnium  principummeorum,  nuUo 
contradicente  nee  reclamente.  Teoria  de 
las  Cortes,  t.  ill.  p.  325. 


88 


ADMINISTRATION  OF  JUSTICE. 


Chap.  IV. 


Spaiit. 


ACTIONS  OF  CASTILIAN  KINGS. 


ill  «* 


an  important  member  of  the  constitution,  and  the  cortea 
showed  a  laudable  anxiety  to  procure  its  composition  in  such 
a  manner  as  to  form  a  guarantee  for  the  due  execution  of 
laws  after  their  own  dissolution.  Several  times,  especially  in 
minorities,  they  even  named  its  members  or  a  part  of  them ; 
and  in  the  reigns  of  Henry  III.  and  John  II.  they  obtained 
the  privilege  of  adding  a  permanent  deputation,  consisting 
of  four  persons  elected  out  of  their  own  body,  annexed  as  it 
were  to  the  council,  who  were  to  continue  at  the  court  dur- 
ing the  interval  of  cortes  and  watch  over  the  due  observance 
of  the  laws.i  This  deputation  continued  as  an  empty  formal- 
ity in  the  sixteenth  century.  In  the  council  the  king  was 
bound  to  sit  personally  three  days  in  the  week.  Their  busi- 
ness, which  included  the  whole  executive  government,  was 
distributed  with  considerable  accuracy  into  what  might  be 
despatched  by  the  council  alone,  under  their  own  seals  and 
signatures,  and  what  required  the  royal  seal.'  The  consent 
of  this  body  was  necessary  for  almost  every  act  of  the  crown : 
for  pensions  or  grants  of  money,  ecclesiastical  and  political 
pi-omotions,  and  for  charters  of  pardon,  the  easy  concession 
of  which  was  a  great  encouragement  to  the  homicides  so 
usual  in  those  ages,  and  was  restrained  by  some  of  our  own 
laws.*  But  the  council  did  not  exercise  any  judicial  authori- 
ty, if  we  may  believe  the  well-informed  author  from  whom  I 
have  learned  these  particulars;  unlike  in  this  to  the  ordi- 
nary council  of  the  kings  of  England.  It  was  not  until  the 
days  of  Ferdinand  and  Isabella  that  this,  among  other  inno- 
vations, was  introduced.* 

Civil  and  criminal  justice  was  administered,  in  the  first 
Adminia-  instance,  by  the  alcaldes,  or  municipal  judges  of 
toitioQof  towns;  elected  within  themselves,  originally,  by 
the  community  at  large,  but,  in  subsequent  times, 
by  the  governing  body.  In  other  places  a  lord  possessed  the 
right  of  jurisdiction  by  grant  from  the  crown,  not,  what  we 
find  in  countries  where  the  feudal  system  was  more  thorough- 
ly estabhshed,  as  incident  to  his  own  territorial  superiority 
The  kings,  however,  began  in  the  thirteenth  century  to  ap- 
point judges  of  their  own,  called  corregidores,  a  name  which 
seems  to  express  concurrent  jurisdiction  with  the  regidores, 
or  ordinary  magistrates.*    The  cortes  frequently  remonstrat- 


ed against  this  encroachment  Alfonso  XI.  consented  to 
withdraw  his  judges  from  all  corporations  by  which  he  had 
not  been  requested  to  appoint  them.^  Some  attempts  to  in- 
terfere with  the  municipal  authorities  of  Toledo  produced 
serious  disturbances  under  Henry  III.  and  John  II.'  Even 
where  the  king  appointed  magistrates  at  a  city's  request,  he 
was  bound  to  select  them  from  among  the  citizens.'  From 
this  immediate  jurisdiction  an  appeal  lay  to  the  adelantado 
or  governor  of  the  province,  and  from  thence  to  the  tribunal 
of  royal  alcaldes.*  The  latter,  however,  could  not  take  cog- 
nizance of  any  cause  depending  before  the  ordinary  judges ; 
a  contrast  to  the  practice  of  Aragon,  where  the  justiciary's 
right  of  evocation  (juris  firma)  was  considered  as  a  principal 
ssdeguard  of  public  liberty .*  As  a  court  of  appeal,  the  royal 
alcaldes  had  the  supreme  jurisdiction.  The  king  could  only 
cause  their  sentence  to  be  revised,  but  neither  alter  nor  re- 
voke it®  They  have  continued  to  the  present  day  as  a  criminal 
tribunal ;  but  civil  appeals  were  transferred  by  the  ordinances 
of  Toro  in  1371  to  a  new  court,  styled  the  king's  audience, 
which,  though  deprived  under  Ferdinand  and  his  successors 
of  part  of  its  jurisdiction,  still  remains  one  of  the  principal 
judicatures  in  Castile.' 

No  people  in  a  half-civilized  state  of  society  have  a  full 
practical  security  against  particular  acts  of  arbi- 
trary  power.     They  were  more  common  perhaps  actions  of 
in  Castile  than  in  any  other  European  monarchy  ^f^^jj^* 
which  professed  to  be  free.    Laws  indeed  were  not 
wanting  to  protect  men's  lives  and  liberties,  as  well  as  their 
properties.     Ferdinand  IV.,  in   1299,  agreed  to  a  petition 
that  "justice  shall  be  executed  impartially  according  to  law 
and  right ;  and  that  no  one  shall  be  put  to  death  or  imprison- 
ed, or  deprived  of  his  possessions,  without  trial,  and  that  this 
be  better  observed  than  heretofore."  ®     He  renewed  the  same 
law  in  1307.      Nevertheless,  the  most  remarkable  circum- 
stance of  this  monarch's  history  was  a  violation  of  so  sacred 


Hllii 


» Teoria  de  las  Cortea,  t.  ii.  p.  346. 

■p.  854. 

«  p.  860,  862, 372. 


4 1.  il.  p.  375,  379. 

&  Alfonso  X.  flays,  Nini^un  ome  sea  otado 
jaigar  pleytos,  se  no  fuere  alcalde  pueato 


pol  cl  rey.  Id.  fol.  27.  This  seems  an 
encroachineDt  on  the  municipal  mag- 
istrates. 

I  Teoria  de  las  Cortes,  t.  ii.  p.  251. 

s  p.  255.  Mariana,  L  xx.  c.  13. 

sp.  255. 

«p.  266. 

6  p.  260. 

«  p.  287,  304. 

7  Teoria  de  las  Cortes,  t.  U.  p.  292-302. 
The  use  of  the  present  tense,  in  this  and 


many  other  pass^es,  will  not  confuse 
the  attentive  reader. 

•  Que  mandate  facer  la  justicia  en 
aquellos  que  la  merecen  comunalmente 
con  fuero  e  con  derecho  6  los  homes  que 
non  sean  muertos  nin  presos  nin  tornados 
lo  que  ban  sin  ser  oidos  por  derecho  6 
por  fuero  de  aquel  loear  do  acaesciere, 
6  que  sea  guardado  mcyor  que  se  guar)|6 
fasta  aqui.  Marina,  Ensayo  Hist.-Crit^eQ^ 
p.  148 


40 


CONFEDERACIES  OF  NOBILITT. 


Chaf.  17. 


and  apparantly  so  well-established  a  law.  Two  gentlemen  hav- 
ing been  accused  of  murder,  Ferdinand,  without  waiting  for 
any  process,  ordered  them  to  instant  execution.  They  sum- 
moned him  with  their  last  words  to  appear  before  the  tribunal 
of  Grod  in  thirty  days ;  and  his  death  within  the  time,  which 
has  given  him  the  surname  of  the  Summoned,  might,  we  may 
hope,  deter  succeeding  sovereigns  from  iniquity  so  flagrant. 
But  from  the  practice  of  causing  their  enemies  to  be  assas- 
sinated, neither  law  nor  conscience  could  withhold  them. 
Alfonso  XI.  was  more  than  once  guilty  of  this  crime.  Yet 
he  too  passed  an  ordinance  in  1325  that  no  warrant  should 
issue  for  putting  any  one  to  death,  or  seizing  his  property, 
till  he  should  be  duly  tried  by  course  of  law.  Henry  11. 
repeats  the  same  law  in  very  explicit  language.^  But  the 
civil  history  of  Spain  displays  several  violations  of  it.  An 
extraordinary  prerogative  of  committing  murder  appears  to 
have  been  admitted  in  early  times  by  several  nations  who  did 
not  acknowledge  unlimited  power  in  their  sovereign.^  Before 
any  regular  police  was  established,  a  powerful  criminal  might 
have  been  secure  from  all  punishment,  but  for  a  notion,  as 
barbarous  as  any  which  it  served  to  counteract,  that  he  could 
be  lawfully  killed  by  the  personal  mandate  of  the  king.  And 
the  frequent  attendance  of  sovereigns  in  their  courts  of  ju- 
dicature might  lead  men  not  accustomed  to  consider  the 
indispensable  necessity  of  legal  forms  to  confound  an  act  of 
assassination  with  the  execution  of  justice. 

Though  it  is  very  improbable  that  the  nobility  were  not 
Confed*-  Considered  as  essential  members  of  the  cortes,  they 
vaciiaofthe  Certainly  attended  in  smaller  numbers  than  we 
nobiutj.  should  expect  to  find  from  the  great  legislative  and 
deliberative  authority  of  that  assembly.  This  arose  chiefly 
from  the  lawless  spirit  of  that  martial  aristocracy  which  plac- 
ed less  confidence  in  the  constitutional  methods  of  resisting 
arbitrary  encroachment  than  in  its  own  armed  combinations.'' 
Such  confederacies  to  obtain  redress  of  grievances  by  force, 
of  which  there  were  five  or  six  remarkable  instances,  were 
called  Hermandad  (brotherhood  or  union),  and,  though  not 

1  Que  non  mandemos  matar  nin  pren>  *  Si  quia  hominem  per  jussiouem  regis 

der  nin  lisiar  ntn  despechar  nin  tomar  &  vel  ducis  sui  Occident,   non  requiratur 

alguno  ninguna  cosa  de  lo  suyo,  sin  ser  ei,  nee  sit  fiUdosus,  quia  jussio  domiiii  sui 

»ut6  llamado  6  oido  e  vencido  per  fuero  fuit,etnonpotuitcontradicereju8sionem. 

6  por  derecho,  por  querella  nin  por  que-  Leges  Bajuvariorum,  tit.  ii.  in    fialus. 

rellas  que  &  nos  fuesen  dadas,  segunt  que  Capitularibus. 

esto  esti  ordenado  por  el  rei  don  Alonso  s  Teoria  de  laa  Cortea,  t.  ii.  p.  466. 
nuestro  padre.    Teoria  de  las  Cortea,  t.  ii. 
p.  287. 


Sfain. 


CONFEDERACIES  OF  NOBILITY. 


41 


60   explicitly    sanctioned   as    they  were  by  the   celebrated 
Privilege  of  Union    in    Aragon,   found   countenance    in   a 
law  of  Alfonso  X.,  which  cannot  be  deemed  so  much  to  have 
voluntarily  emanated  from  that  prince  as  to  be  a  record  of 
original  rights  possessed  by  the    Castilian  nobility.     "The 
duty  of  subjects  towards  their  king,"  he  says,  "  enjoins  them 
not  to  permit  him  knowingly  to  endanger  his  salvation,  nor 
to  incur  dishonor  and  inconvenience  in  his  person  or  family, 
nor  to  produce  mischief  to  his  kingdom.     And  this  may  be 
fulfilled  in  two  ways  :  one  by  good  advice,  showing  him  the 
reason  wherefore  he  ought  not  to  act  thus;   the  other  by 
deeds,  seeking  means  to  prevent  his  going  on  to  his  own 
ruin,  and  putting  a  stop  to  those  who  give  him  ill  counsel : 
forasmuch  as  his  errors  are  of  worse  consequence  than  those 
of  other  men,  it  is  the  bounden  duty  of  subjects  to  prevent 
his  committing  them.^     To  this  law  the  insurgents  appealed 
in  their  coalition  against  Alvaro  de  Luna ;  and  indeed  we 
must  confess  that,  however  just  and  admirable  the  principles 
which  it  breathes,  so  general  a  license  of  rebellion  was  not 
likely  to  preserve  the  tranquillity  of  a  kingdom.     The  depu- 
ties of  towns  in  a  cortes  of  1445  petitioned  the  king   to 
declare  that  no  construction  should  be  put  on  this  law  incon- 
sistent with  the  obedience  of  subjects  towards  their  sove- 
reign :  a  request  to  which  of  course  he  willingly  acceded. 

Castile,  it  will  be  apparent,  bore  a  closer  analogy  to  Eng- 
land in  its  form  of  civil  polity  than  France  or  even  Aragon. 
But  the  frequent  disorders  of  its  government  and  a  barbar- 
ous state  of  manners  rendered  violations  of  law  much  more 
continual  and  flagrant  than  they  were  in  England  under  the 
Plantagenet  dynasty.     And  besides  these  practical  mischiefs, 
there  were  two  essential  defects  in  the  constitution  of  Castile, 
through  which   perhaps   it   was    ultimately  subverted.      It 
wanted  those  two  brilliants  in  the  coronet  of  British  liberty, 
the  representation  of   freeholders  among  the  commons,  and 
trial  by  jury.     The  cortes  of  Castile  became  a  congress  of 
deputies  from  a  few  cities,  public-spirited  indeed  and  intrepid, 
as  we  find  them  in  bad  times,  to  an  eminent  degree,  but  too 
much  limited  in  number,  and  too  unconnected  with  the  terri- 
torial aristocracy,  to  maintain  a   just  balance  against  the 
crown.    Yet,  with  every  disadvantage,  that  country  possessed 
a  liberal  form  of  government,  and  was  animated  with  a  noble 
spirit  for  its  defence.     Spain,  in  her  late  memorable  though 

1  Ensayo  Hiat.-Critico,  p.  312. 


42 


AFFAIRS  OF  ABAGON. 


Chap.  IV. 


Sfaik. 


DISPUTED  SUCCESSION. 


43 


short  resuscitation,  might  well  have  gone  back  to  her  ancient 
institutions,  and  perfected  a  scheme  of  policy  which  the  great 
example  of  England  would  have  shown  to  be  well  adapted  lo 
the  security  of  freedom.  What  she  did,  or  rather  attempted, 
instead,  I  need  not  recall.  May  her  next  effort  be  more 
wisely  planned,  and  more  happily  terminated !  ^ 

Though  the  kingdom  of  Aragon  was  very  inferior  in  ex- 
Affairs  of       tent  to  that  of  Castile,  yet  the  advantages  of  a 

^°°-  better  form  of  government  and  wiser  sovereigns, 
with  those  of  industry  and  commerce  along  a  line  of  sea- 
coast,  rendered  it  almost  equal  in  importance.  Castile  rarely 
intermeddled  in  the  civil  dissensions  of  Aragon  ;  the  kings  of 
Aragon  frequently  carried  their  arms  into  the  heart  of  Castile. 
During  the  sanguinary  outrages  of  Peter  the  Cruel,  and  the 
stormy  revolutions  which  ended  in  establishing  the  house  of 
Trastamare,  Aragon  was  not  indeed  at  peace,  nor  altogether 
well  governed;  but  her  political  consequence  rose  fn  the 
eyes  of  Europe  through  the  long  reign  of  the  ambitious  and 
wily  Peter  IV.,  whose  sagacity  and  good  fortune  redeemed, 
according  to  the  common  notions  of  mankind,  the  iniquity 
with  which  he  stripped  his  relation  the  king  of  Majorca  of 
the  Balearic  islands,  and  the  constant  perfidiousness  of  his 
character.  I  have  mentioned  in  another  place  the  Sicilian 
war,  prosecuted  with  so  much  eagerness  for  many  years  by 
Peter  III.  and  his  son  Alfonso  III.  After  this  object  was 
relinquished  James  II.  undertook  an  enterprise  less  splendid, 
but  not  much  less  difficult :  the  conquest  of  Sardinia.  That 
island,  long  accustomed  to  independence,  cost  an  incredible 
expense  of  blood  and  treasure  to  the  kings  of  Aragon  dur- 
ing the  whole  fourteenth  century.  It  was  not  fully  "subdued 
till  the  commencement  of  the  next,  under  the  reign  of  Martin. 

At  the  death  of  Martin  king  of  Aragon,  in  1410,  a  mem- 
Disputed  orable  question  arose  as  to  the  right  of  succession, 
successba  Though  Petronilla,  daughter  of  Ramiro  II.,  had 
death  of  reigned  in  her  own  right  from  1137  to  1172,  an 
^^^"^'  opinion  seems  to  have  gained  ground  from  the 
thirteenth  century  that  females  could  not  inherit  the  crown 
of  Aragon.  Peter  IV.  had  excited  a  civil  war  by  attempting 
to  settle  the  succession  upon  his  daughter,  to  the  exclusion 
of  his  next  brother.  The  birth  of  a  son  about  the  same  time 
suspended  the  ultimate  decision  of  this  question  ;  but  it  was 
tacitly  understood  that  what  is  called  the  Salic  law  ought  to 

1  The  first  edition  of  this  work  was  published  in  1818. 


prevail.^     Accordingly,  on  the  death  of  John  I.  in  1395,  his 
two  daughters  were  set  aside  in  favor  of  his  brother  Martin, 
though  not  without  opposition  on  the  part  of  the  elder,  whose 
husband,  the  count  of  Foix,  invaded  tlie  kingdom,  and  de- 
sisted from  his  pretension  only  through  want  of  force.     Mar- 
tin's son,  the  king  of  Sicily,  dying  in  his  father's  lifetime,  the 
nation  was  anxious  that  the  king  should  fix  upon  his  successor, 
and  would  probably  have  acquiesced  in  his  choice.     But  his 
dissolution  occurring  more  rapidly  than  was  expected,  the 
throne  remained  absolutely  vacant.     The  count  of  Urgel  had 
obtained  a  grant  of  the  lieutenancy,  which  was  the  right  of 
the  heir  apparent.     This  nobleman  possessed  an  extensive 
territory  in  Catalonia,  bordering  on  the  Pyrenees.     He  was 
grandson  of  James,  next  brother  to  Peter  IV.,  and,  according 
to  our  rules  of  inheritance,  certainly  stood  in  the  first  place. 
The  other  claimants  were  the  duke  of  Gandia,  grandson  of 
James  II.,  who,  tliough  descended  from  a  more  distant  ances- 
tor, set  up  a  claim  founded  on  proximity  to  the  royal  stock, 
which  in  some  countries  was  preferred  to  a  representative 
title ;  the  duke  of  Calabria,  son  of  Violante,  younger  daughter 
of  John  I.  (the  countess  of  Foix  being  childless) ;  Frederic 
count  of  Luna,  a  natural  son  of  the  younger  Martin  king  of 
Sicily,  legitimated  by  the  pope,  but  with  a  reservation  ex- 
cluding him  from  royal  succession;  and  finall}',  Ferdinand, 
infant  of  Castile,  son  of  the  late  king's  sister.^    The  count  of 

1  Zurita,  t.  ii.  f.  188.  It  was  pretended  that  women  were  excluded  from  the 
crown  in  England  as  well  as  France :  and  this  analogy  seems  to  hive  had  some  in- 
fluence in  determining  the  Arngonese  to  adopt  a  Salic  law. 

5  The  subjoined  pedigree  will  show  more  clearly  the  respective  titles  of  the  com- 
petitors :— 

James  II.  died  1327. 
I 


Alfoxso  IV.  d.  1336. 
I 

Potee  rv.  d.  1337. 


D.  of  Gandia. 


1 


Eleanor  Q.  of  Castile.     John  I.  d.  1395.      Martin, 


I 


Henry  m.    Ferdinand. 
K.  of  CastUe. 


d.  1410. 


Martin 


James        D.  of  Gandia. 
C.  of  Urgel. 

I 
Peter 

C.  of  Urgel. 
C.  of  Urgel. 


I 


I 


I      K.  of  Sicily,  1409. 
I  Joanna  Violante  I 

John  n.       Countess    Q.  of  Naples.  | 

K.  of  Castile,    of  Foix.  I  Frederic 

I  C.  of  Luna. 

Louis  D.  of 
Calabria. 


44 


DISPUTED  SUCCESSION. 


CnAP.  IV. 


Urgel  was  favored  in  general  by  the  Catalans,  and  he  seemed 
to  have  a  powerful  support  in  Antonio  de  Luna,  a  baron  of 
Ai-agon,  so  rich  that  he  might  go  through  his  own  estate  from 
France  to  Castile.  But  this  apparent  superiority  frustrated 
his  hopes.  The  justiciary  and  other  leading  Aragonese  were 
determined  not  to  suffer  this  great  constitutional  question  to 
be  decided  by  an  appeal  to  force,  which  might  sweep  away 
their  liberties  in  the  struggle.  Urgel,  confident  of  his  right, 
and  surrounded  by  men  of  ruined  fortunes,  was  unwilHng  to 
submit  his  pretensions  to  a  civil  tribunal.  His  adherent, 
Antonio  de  Luna,  committed  an  extraordinary  outrage,  the 
assassination  of  the  archbishop  of  Saragosa,  which  alienated 
the  minds  of  good  citizens  from  his  cause.  On  the  other 
hand,  neither  the  duke  of  Gandia,  who  was  very  old,^  nor  the 
count  of  Luna,  seemed  fit  to  succeed.  The  party  of  Ferdi- 
nand, therefore,  gained  ground  by  degrees.  It  was  determined 
however,  to  render  a  legal  sentence.  The  cortes  of  each 
nation  agreed  upon  the  nomination  of  nine  persons,  three 
Aragonese,  three  Catalans,  and  three  Valencians,  who  were 
to  discuss  the  pretensions  of  the  several  competitors,  and  by 
a  plurality  of  six  votes  to  adjudge  the  crown.  Nothing  could 
be  more  solemn,  more  peaceful,  nor,  in  appearance,  more 
equitable  than  the  proceedings  of  this  tribunal.  They  sum- 
moned the  claimants  before  them,  and  heard  them  by  counsel. 
One  of  these,  Frederic  of  Luna,  being  ill  defended,  the  court 
took  charge  of  his  interests,  and  named  other  advocates  to 
maintain  them.  A  month  was  passed  in  hearing  arguments ; 
a  second  was  allotted  to  considering  them ;  and  at  the  expira- 
tion of  the  prescribed  time  it  was  announced  to  the  people, 
by  the  mouth  of  St  Vincent  Ferrier,  that  Ferdinand  of  Cas- 
tile had  ascended  the  throne.^ 


1  This  duke  of  Qandla  died  daring  the 
interregnum.  Ilia  8on,  thoug^h  not  so 
objectiouable  on  the  score  of  age,  seemed 
to  have  a  worse  claim  ;  yet  he  became  a 
competitor. 

2  Biancae  Commentaria,  in  Schotti  His- 
pania  Illustrata,  t.  ii.  Zurita,  t.  iii.  f. 
1-74.  Vincent  Ferrier  was  the  most  dis- 
tinguished churchman  of  his  time  in 
Spain.  His  influence,  as  one  of  the  nine 
judges,  Ih  said  to  have  been  very  instru- 
mental in  procuring  the  crown  for  Ferdi- 
nand. Five  others  voted  the  8;imc  way  ; 
one  for  the  count  of  Urgel ;  one  doubt- 
fully between  the  count  of  Urgel  and 
Uuke  of  Qandia ;  the  ninth  declined  to 


vote.  Zurita,  t.  iii.  f.  71.  It  is  curious 
enough  that  John  Iving  of  Castile  was  al- 
together disregarded  ;  though  his  claim 
was  at  least  as  plausible  as  that  of  his 
uncle  Ferdinand.  Indeed,  upon  the  prin- 
ciples of  inheritance  to  which  we  are  ac- 
customed, Louis  dulce  of  Calabiia  had  a 
prior  right  to  Ferdinand,  admitting  the 
rule  which  it  was  necessary  for  both  of 
them  to  establish  ;  namely,  that  a  right  of 
succession  might  be  transmitted  through 
females,  whicli  females  could  not  person- 
ally enjoy.  This,  as  is  well  known,  had 
been  advanced  in  the  preceding  age  by 
Edward  III.  as  the  foundation  of  hjm 
claim  to  the  crown  of  France. 


Spaik. 


KINGS  OF  ARAGON. 


45 


In  this  decision  it  is  impossible  not  to  suspect  that  the 
judges  were  swayed  rather  by  politic  considera-  Decision  in 
tions  than  a  strict  sense  of  hereditary  right.     It  re^r^^u^ 
was,  therefore,  by  no  means  universally  popular,  of  Castiie. 
especially  in  Catalonia,  of  which  principality  the  a.d.  1412. 
count  of  Urgel  was  a  native ;  and  perhaps  the  great  rebellion 
of  the  Catalans  fifty  years  afterwards  may  be  traced  to  the 
disaffection  which  this  breach,  as  they  thought,  of  the  lawful 
succession  had  excited.    Ferdinand  however  was  well  received 
in  Aragon.     The  cortes  generously  recommended  the  count 
of  Urgel  to  his  favor,  on  account  of  the  great  expenses  he  had 
incurred  in  prosecuting  his  claim.     But  Urgel  did  not  wait 
the  effect  of  this  recommendation.     Unwisely  attempting  a 
rebellion  with  very  inadequate  means,  he  lost  his  estates,  and 
was  thrown  for  life  into  prison.     Ferdinand's  successor  was 
his  son,  Alfonso  V.,  more  distinguished  in  the  his-  Alfonso  v. 
tory  of  Italy  than  of  Spain.     For  all  the  latter  ^-^i^io.* 
years  of  his  life  he  never  quitted  the  kingdom  that  he  had 
acquired  by  his  arms ;  and,  enchanted  by  the  delicious  air  of 
Naples,  intrusted  the  government  of  his  patrimonial  territories 
to  the  care  of  a  brother  and  an  heir.     John  II.,  johnii. 
upon  whom  they  devolved  by  the  death  of  Alfonso  ^•^-  ^*^- 
without  legitimate  progeny,  had  been  engaged  during  his  youth 
in  the  turbulent  revolutions  of  Castile,  as  the  head  of  a  strong 
party  that  opposed  the  domination  of  Alvaro  de  Luna.     By 
marriage  with  the  heiress  of  Navarre  he  was  entitled,  accord- 
ing to  the  usage  of  those  times,  to  assume  the  title  of  king, 
and  administration  of  government,  during  her  life.     But  his 
ambitious  retention  of  power  still  longer  produced  events 
which  are  the  chief  stain  on  his  memory.    Ciiarles 
prince  of  Viana  was,  by  the  constitution  of  Na- ^'"^ 
varre,  entitled  to  succeed  his  mother.     She  had  requested 
him  in  her  testament  not  to  assume  the  government  without 
his  father's   consent.     That  consent  was  always 
withheld.     The  prince  raised  what  we  ought  not  ^•^*  ^^' 
to  call  a  rebellion ;  but  was  made  prisoner,  and  remained  for 
some  time  in  captivity.    John's  ill  disposition  towards  his  son 
was  exasperated  by  a  step-mother,  who  scarcely  disguised  her 
intention  of  placing  her  own  child  on  the  throne  of  Aragon 
at  the  expense  of  the  eldest-born.     After  a  life  of  perpetual 
oppression,  chiefly  passed  in  exile  or  captivity,  the  prince  of 
Viana  died  in  Catalonia,  at  a  moment  when  that  province 


u 


CONSTITUTION  OF  ARAGON. 


Chap.  IV. 


Spain. 


CONSTITUTION  OF  ARAGON. 


47 


A.D.  1461. 


was  in  open  insurrection  upon  his  account.  Though  it  hardly 
seems  that  the  Catalans  had  any  more  general  pro- 
vocations, they  persevered  for  more  than  ten  yeara 
with  inveterate  obstinacy  in  their  rebellion,  offering  the 
sovereignty  first  to  a  prince  of  Portugal,  and  afterwards  to 
Regnier  duke  of  Anjou,  who  was  destined  to  pass  his  life  in 
unsuccessful  competition  for  kingdoms.  The  king  of  Aragon 
behaved  with  great  clemency  towards  these  insurgents  on 
their  final  submission. 

It  is  consonant  to  the  principle  of  this  work  to  pass  lightly 
over  the  common  details  of  history,  in  order  to  fix  the  reader's 
Constitu-  attention  more  fully  on  subjects  of  philosophical  in- 
tion  of  quiry.     Perhaps  in  no  European  monarchy  except 

"*°°'  our  own  was  the  form  of  government  more  inter- 
esting than  in  Aragon,  as  a  fortunate  temperament  of  law 
and  justice  with  the  royal  authority.  So  far  as  anything 
Originally  a  ^^  ^^  prouounccd  of  its  earlier  period  before  tho 
sort  of  regal    capture  of    Saragosa  in  1118,  it  was  a  kind  of 

aristocracy.  i        •   x  i  Vi  ■,  /» 

regal  aristocracy,  where  a  small  number  of  power- 
ful barons  elected  their  sovereign  on  every  vacancy,  though,' 
as  usual  in  other  countries,  out  of  one  family ;  and  considered 
him  as  little  more  than  the  chief  of  their  confederacy.* 
Priviie  s  These  were  the  ricoshombres  or  barons,  the  first 
of  the  ricos-  Order  of  the  state.  Among  these  the  kings  of 
hombresor     Aragon,  in   subsequent   times,  as  they  extended 

their  dominions,  shared  the  conquered  territory  in 
grants  of  honors  on  a  feudal  tenure.^  For  this  system  was 
fully  established  in  the  kingdom  of  Aragon.  A  ricohombre, 
as  we  read  in  Vitahs  bishop  of  Huesca,  about  the  middle  of 
the  thirteenth  century,*  must  hold  of  the  king  an  honor  or 
barony  capable  of  supporting  more  than  three  knights ;  and 


1  Alfonso  in.  complained  that  his  bar- 
ons wanted  to  bring  back  old  times, 
quando  ha  via  en  el  reyno  tantos  reyes 
como  ricos  hotubres.  Biancae  Commen- 
taria,  p.  787.  The  form  of  election  sup- 
posed to  have  been  used  by  these  bold 
barons  is  well  known.  "We,  who  are 
as  good  as  you,  choose  you  for  our  king 
and  lord,  provided  that  you  observe  our 
laws  and  privileges ;  and  if  not,  not." 
But  I  do  not  much  believe  the  authen- 
ticity of  this  form  of  words.  See  Rob- 
ertson's Charles  V.  vol.  i.  note  31.  It 
is,  however,  sufficiently  agreeable  to  the 
fpirit  of  the  old  government. 

*  Lob  ricoB  hombres,  por  log  feudos  que 


tenian  del  rey,  eran  obligados  de  seguir 
al  rey,  si  yva  en  persona  &  la  guerra,  y 
residir  en  ella  tres  meses  en  cadaun  ano. 
Zurita,  t.  i.  fol.  43.  (Saragc-ia,  1610.)  A 
fief  was  usually  called  in  Aragon  an 
honor,  que  en  Castilla  llamavau  tierra,  y 
en  el  principado  de  Cataluna  fcudo.  fol. 
46. 

3  I  do  not  know  whether  this  work  of 
Vitalis  has  been  printed  ;  but  there  are 
large  extracts  from  it  in  Blancas's  history, 
and  also  in  Du  Cange,  under  the  words 
Infancia,  Mesnadarius,  &c.  Several  illus- 
trations of  these  military  tenures  may  b« 
found  in  the  Fueroa  de  Aragon,  especial- 
ly lib.  7. 


this  he  was  bound  to  distribute  among  his  vassals  in  military 
fiefs.  Once  in  the  year  he  might  be  summoned  with  his  feu- 
dataries  to  serve  the  sovereign  for  two  months  (Zurita  says 
three)  ;  and  he  was  to  attend  the  royal  court,  or  general 
assembly,  as  a  counsellor,  whenever  called  upon,  assisting  in 
its  judicial  as  well  as  deliberative  business.  In  the  to°wns 
and  villages  of  his  barony  he  might  appoint  bailiffs  to  ad- 
minister justice  and  receive  penalties;  but  the  higher  crimi- 
nal jurisdiction  seems  to  have  been  reserved  to  the  crown. 
According  to  Vitahs,  the  king  could  divest  these  ricoshombres 
of  their  honors  at  pleasure,  after  which  they  fel)  into  the 
class  of  mesnadaries,  or  mere  tenants  in  chief.  But  if  this 
were  constitutional  in  the  reign  of  James  I.,  which  Blancas 
denies,  it  was  not  long  permitted  by  that  high-spirited  aris- 
tocracy. By  the  General  Privilege  or  Charter  of  Peter  III. 
it  is  declared  that  no  barony  can  be  taken  away  without  a 
just  cause  and  legal  sentence  of  the  justiciary  and  council 
of  barons.i  And  the  same  protection  was  extended  to  the 
vassals  of  the  ricoshombres. 

Below  these  superior  nobles  were  the  mesnadaries,  cor- 
responding to  our  mere  tenants  in  chief,  holding  Lower 
estates  not  baronial  immediately  from  the  crown ;  ^o^iiity- 
and  the  military  vassals  of  the  high  nobility,  the  knights  and 
infanzones;  a  word  which  may  be  rendered  by  gentlemen. 
These  had  considerable  privileges  in  that  aristocratic  govern- 
ment; they  were  exempted  from  all  taxes,  they  could  only 
be  tried  by  the  royal  judges  for  any  crime;  and  offences 
committed  against  them  were  punished  with  addi-  bu    ssea 
tional  severity.^     The  ignoble  classes  were,  as  in  an"d^'^ 
other  countries,  the  burgesses  of  towns,  and  the  p*^^''^- 
villeins  or  peasantry.     The  peasantry  seem  to  have  been 
subject  to  territorial  servitude,  as  in  France  and  England. 
Vitalis  says  that  some  villeins  were  originally  so  unprotected 
that,  as  he  expresses  it,  they  might  be  divided  into  pieces  by 
sword  among  the  sons  of  their  masters,  till  they  were  pro, 
voked  to  an  insurrection,  which  ended  in  establishing  certain 
stipulations,  whence  they  obtained  the  denomination  of  villeina 
de  parada,  or  of  convention.* 

Though  from  the  twelfth  century  the  principle  Liberties 
of  hereditary  succession  to  the  throne  superseded,  Aragonese 
m  Aragon  as  well  as   Castile,  the  original   right  kingdom. 

1  Biancas  Comm.  p.  730.  t  p.  732.  t  Bianca  Conun.  p.  729. 


48 


PRIVILEGES  OF  ARAGON. 


Chap.  IV. 


Spain. 


REVOLT  AGAINST  PETER  IV. 


49 


of  choosing  a  sovereign  within  the  royal  family,  it  was 
still  founded  upon  one  more  sacred  and  fundamental,  that 
of  compact.  No  king  of  Aragon  was  entitled  to  assume 
that  name  until  he  had  taken  a  coronation  oath,  administered 
by  the  justiciary  at  Saragosa,  to  observe  the  laws  and  liber- 
ties of  the  realm.*  Alfonso  III.,  in  1285,  being  in  France 
at  the  time  of  his  father's  death,  named  himself  king  in  ad- 
dressing tlie  states,  who  immediately  remonstrated  on  this 
premature  assumption  of  his  title,  and  obtained  an  apology.' 
Thus,  too,  Martin,  having  been  called  to  the  crown  of  Ara- 
gon by  the  cortes  in  1395,  was  specially  required  not  to 
exercise  any  authority  before  his  coronation.' 

Blancas  quotes  a  noble  passage  from  the  acts  of  cortes  in 
1451.  "  We  have  always  heard  of  old  time,  and  it  is  found 
by  experience,  that,  seeing  the  great  barrenness  of  this  land, 
and  the  poverty  of  the  realm,  if  it  were  not  for  the  liberties 
thereof,  the  folk  would  go  hence  to  live  and  abide  in  other 
realms  and  lands  more  fruitful."  *  This  high  spirit  of  free- 
dom had  long  animated  the  Aragonese.  After  several  con- 
tests with  the  crown  in  the  reign  of  James  I.,  not  to  go  back 
to  earlier  times,  they  compelled  Peter  TIL  in  1283 
to  grant  a  law,  called  the  General  Privilege,  the 
Magna  Charta  of  Aragon,  and  perhaps  a  more 
full  and  satisfactory  basis  of  civil  liberty  than  our  own.  It 
contains  a  series  of  provisions  against  arbitrary  tallages, 
spoliations  of  property,  secret  process  after  the  manner 
of  the  Inquisition  in  criminal  charges,  sentences  of  the 
justiciary  without  assent  of  the  cortes,  appointment  of 
foreigners  or  Jews  to  judicial  offices ;  trials  of  accused  per- 
sons in  places  beyond  the  kingdom,  the  use  of  torture. 


General 
Privilege 
of  1283. 


I  Zurits,  Anales  de  Aragon,  t.  i.  fol.  104, 
t.  iii.  fol.  76. 

a  Biancae  Comm.  p.  661.  They  ac- 
knowledged, at  the  same  time,  that  he 
was  their  natural  lord,  and  entitled  to 
reign  as  lawful  heir  to  his  father  —  so 
oddly  were  the  hereditary  and  elective 
title!)  jumbled  together.  Zurita,  t.  i. 
fol.  303. 

3  Zurita,  t.  ii.  fol.  424. 

*  Siempre  havemos  oydo  derir  antiga- 
ment,  e  se  troba  por  esperiencia,  que  at- 
tendida  la  grand  sterilidad  de  aquesta 
tierra,  6  pobreza  de  aqueste  regno,  si 
non  fues  por  las  libertades  de  aquel,  se 
yrian  &  bivir,  y  habitar  las  gentes  &  otros 
r«gnos,  €  tierras  mas  frutieras.    p.  571. 


Aragon  was,  in  fact,  a  poor  country, 
barren  and  ill-peopled.  The  kings  were 
forced  to  go  to  Catalonia  for  money,  and 
indeed  were  little  able  to  maintain  ex- 
pensive contests.  The  wars  of  Peter  IV. 
in  Sardinia,  and  of  Alfonso  V.  with 
Genoa  and  Naples,  impoverished  their 
people.  A  hearth-tax  having  been  im- 
posed in  1404,  it  was  found  that  there 
were  42,683  houses  in  Amgon,  which, 
according  to  most  calculations,  will  give 
less  than  300,000  inhabitants.  In  1429, 
a  similar  tax  being  laid  on,  it  is  said  that 
the  number  of  houses  was  diminished  in 
consequence  of  war.  Zurita,  t.  iii.  fol.  189. 
It  contains  at  present  between  600|00U 
and  700,000  iuhsbitantfi. 


except  in  charges  of  falsifying  the  coin,  and  the  bribery 
of  judges.  These  are  claimed  as  the  ancient  liberties  of 
their  country.  "Absolute  power  (mero  imperio  e  mixto), 
it  is  declared,  never  was  the  constitution  of  Aragon,  nor 
of  Valencia,  nor  yet  of  Ribagorja,  nor  shall  there  be  in 
time  to  come  any  innovation  made ;  but  only  the  law,  custom, 
and  privilege  which  has  been  anciently  used  in  the  aforesaid 
kingdoms.^ 

The   concessions   extorted   by  our  ancestors  from  John, 
Henry  III.,  and  Edward  I.,  were  secured  by  the  Privilege 
only  guarantee  those  times  could  affi)rd,  the  deter-  ^^  Union- 
mination  of  the  barons  to  enforce  them  by  armed  confedera 
cies.     These,  however,  were  formed  according  to  emergencies, 
and,  except  in  the  famous  commission  of  twenty-five  con 
servators  of  Magna  Charta,  in  the  last  year  of  John,  were 
certainly  unwarranted  by  law.     But  the  Aragonese  estab- 
lished a  positive  right  of  maintaining  their  liberties  by  arms. 
This  was  contained  in  the  Privilege  of  Union  granted  by 
Alfonso  III.  in  1287,  after  a  violent  conflict  with  his  subjects ; 
but  which  was  afterwards  so  completely  abolished,  and  even 
eradicated  from  the  records  of  the  kingdom,  that  its  precise 
words  have  never  been  recovered.-    According  to  Zurita, 
it  consisted  of  two  articles :    first,  that  in  the  case  of  the 
king's  proceeding  forcibly  against  any  member  of  the  union 
without  previous  sentence  of  the  justiciary,  the  rest  should 
be  absolved  from  their  allegiance ;  secondly,  that  he  should 
hold  cortes  every  year  in  Saragosa.*  During  the  two  subsequent 
reigns  of  James  II.  and  Alfonso  IV.  little  pretence  seems  to 
have  been  given  for  the  exercise  of  this  right.     But  dissen- 
sions breaking  out  under    Peter   IV.  in    1347,    rather  on 
account  of  his  attempt  to  settle  the  crown  upon  his  daughtei 
than  of  any  specific  public  grievances,  the  nobles  had  recours 
to  the  Union,  that  last  voice,  says  Blancas,  of  an  j^g^oj^. 
almost  expiring  state,  full  of  weight  and  dignity,  against 
to  chastise  the  presumption  of  kings.*     They  as- ^®'^' ^' 


»  Fueros  de  Aragon,  fol.  9 :  Zurita,  t.  i. 
fol.  265. 

2  Blancas  says  that  he  had  discovered 
a  copy  of  the  Privilege  of  Union  in  the 
archives  o€  the  see  of  Tarragona,  and 
would  gladly  have  published  it,  but  for 
his  deference  to  the  wisdom  of  former 
ages,  which  had  studiously  endeavored 
to  destroy  all  rpcoUectiou  of  that  dan- 
i^rous  law.    p.  662. 

VOL.  II.  4 


»  Zurita,  t.  i.  fol.  322. 

*  Priscam  illam  Unionis,  quasi  mo 
rientis  reipublicae  extremam  vocem,  auc 
toritiitis  et  gravitatis  plenam,  regum  in- 
solentiae  apertum  vindicem  excitarunt, 
summ^  ac  singulari  bonorum  omnium 
consensione.  p.  669.  It  is  remarkable 
that  such  strong  language  should  have 
been  tolerated  under  Philip  II 


I 
i  ■ 


50 


PRIVILEGE  OF  UNION  ABOLISHED.        Chap.  IV. 


sembled  at  Saragosa,  and  used  a  remarkable  seal  for  all  tlieir 
public  instruments,  an  engraving  from  which  may  be  seen 
in  the  historian  I  have  just  quoted.  It  represents  the  king 
sitting  on  his  throne,  with  the  confederates  kneeling  in  a 
suppliant  attitude  around,  to  denote  their  loyalty  and  unwil- 
lingness to  offend.  But  in  the  background  tents  and  lines  of 
spears  are  discovered,  as  a  hint  of  their  ability  and  resolution 
to  defend  themselves.  The  legend  is  Sigillum  Unionis  Ara- 
gonum.  This  respectful  demeanor  towards  a  sovereign 
against  whom  they  were  waging  war  reminds  us  of  the 
language  held  out  by  our  Long  Parliament  before  the  Pres- 
byterian party  was  overthrown.  And  although  it  has  been 
lightly  censured  as  inconsistent  and  hypocritical,  this  tone  is 
the  safest  that  men  can  adopt,  who,  deeming  themselves 
under  the  necessity  of  withstanding  the  reigning  monarch, 
are  anxious  to  avoid  a  change  of  dynasty,  or  subversion  of 
their  constitution.  These  confederates  were  defeated  by  the 
king  at  Epila  in  1348.^  But  his  prudence  and  the  remaining 
strength  of  his  opponents  inducing  him  to  pursue  a  moderate 
course,  there  ensued  a  more  legitimate  and  permanent  balance 
of  the  constitution  from  this  victory  of  the  royalists.  The 
Privilege  Privilege  of  Union  was  abrogated,  Peter  himself 
cutting  to  pieces  with  his  sword  the  original  instm- 
ment.  But  in  return  many  excellent  laws  for  the 
security  of  the  subject  were  enacted ;  ^  and  their 
preservation  was  intrusted  to  the  greatest  officer 
of  the  kingdom,  the  justiciary,  whose  authority  and  pre- 
eminence may  in  a  great  degree  be  dated  from  this  period.' 
That  watchfulness  over  public  liberty,  which  originally  be- 
longed to  the  aristocracy  of  ricoshombres,  always  apt  to 
thwart  the  crown  or  to  oppress  the  people,  and  which  was 
afterwards  maintained  by  the  dangerous  Privilege  of  Union, 
became  the  duty  of  a  civil  magistrate,  accustomed  to  legal 
rules  and  responsible  for  his  actions,  whose  office  and  fimc- 


of  Union 

abolished. 

Other 

provisions 

instituted 


1  Zurita  observes!  that  the  battle  of 
Epila  was  the  last  fought  in  defence  of 
public  liberty,  for  which  it  was  held  law- 
ful of  old  to  take  up  arms,  and  resist  the 
king,  by  virtue  of  the  Privilegesof  Union. 
For  the  authority  of  the  justiciary  being 
afterwards  established,  the  former  con- 
tentions and  wars  came  to  an  end  ;  means 
being  found  to  put  the  weak  on  a  level 
with  the  powerful,  in  which  consists  the 
peace  and  traoquilUtj  of  all  states ;  and 


from  thence  the  name  of  Union  was,  by 
common  consent,  pro<^:ribod.  t.  ii.  fol. 
226.  Blancas  also  remarks  that  nothing 
could  have  turned  out  more  advantageous 
to  the  Aragonese  than  their  ill  fortune  at 
Epila. 

'  Fueros  de  Aragon.  De  Us,  quae  Do- 
minus  rex.    fol.  14,  et  alibi  passim. 

3  Bianc.  Comm.  p.  671,  811 ;  Zurit*. 
t.  ii  fol.  229.  ' 


Spain. 


OFFICE  OF  JUSTICIARY. 


5' 


tions  are   the   most   pleasing  feature   in   the  constitutional 
history  of  Aragon. 

The  justiza  or  justiciary  of  Aragon  has  been  treated  by 
some  writers  as  a  sort  of  anomalous  magistrate,  office  of 
created  originally  as  an  intermediate  power  be- J'^"<^^^''y- 
tween  the  king  and  people,  to  watch  over  the  exercise  of 
royal  authority.  But  I  do  not  perceive  that  his  functions 
were,  in  any  essential  respect,  different  from  those  of  the  chief 
justice  of  England,  divided,  from  the  time  of  Edward  I., 
among  the  judges  of  the  King's  Bench.  We  should  under- 
value our  own  constitution  by  supposing  that  there  did  not 
reside  in  that  court  as  perfect  an  authority  to  redress  the  sub- 
ject's injuries  as  was  possessed  by  the  Aragonese  magistrate. 
In  the  practical  exercise,  indeed,  of  this  power,  there  was  an 
abundant  difference.  Our  English  judges,  more  timid  and 
pliant,  left  to  the  remonstrances  of  parliament  that  redress  of 
grievances  which  very  frequently  lay  within  the  sphere  of 
their  jurisdiction.  There  is,  I  believe,  no  recorded  instance 
of  a  habeas  corpus  granted  in  any  case  of  illegal  imprison- 
ment by  the  crown  or  its  officers  during  the  continuance  of 
the  Plantagenet  dynasty.  We  shall  speedily  take  notice  of  a 
very  diffisrent  conduct  in  Aragon. 

The  office  of  justiciary,  whatever  conjectural  antiquity 
some  have  assigned  to  it,  is  not  to  be  traced  beyond  the  cap- 
ture of  Saragosa  in  1118,  when  the  series  of  magistrates 
commences.^  But  for  a  great  length  of  time  they  do  not  ap- 
pear to  have  been  particulai'ly  important ;  the  judicial  author- 
ity residing  in  the  council  of  ricoshombres,  whose  suffrages 
the  justiciary  collected,  in  order  to  pronounce  their  sentence 
rather  than  his  own.  A  passage  in  Vitalis  bishop  of  Huesca, 
whom  I  have  already  mentioned,  shows  this  to  have  been  the 
practice  during  the  reign  of  James  I.^  Gradually,  as  notions 
of  liberty  became  more  definite,  and  laws  more  numerous,  the 
reverence  paid  to  their  permanent  interpreter  grew  stronger, 
and  there  was  fortunately  a  succession  of  prudent  and  just 
men  in  that  high  office,  through  whom  it  acquired  dignity  and 
stable  influence.     Soon  after  the  accession  of  James  II.,  on 


1  Biancse  Comment,  p.  638. 

*  Id.  p.  772.  Zurita  indeed  refers  the 
justiciary's  preeminence  to  an  earlier 
date,  namely,  the  reign  of  Peter  IT.,  who 
took  away  a  great  part  of  the  local  juris- 
dictioDS  of  the  ricoshombres.  t.  i.  fol.  102. 
But  if  I  do  not  misunderstand  the  mean- 


ing of  Vitalis,  his  testimony  seems  to  be 
beyond  dispute.  By  the  General  Privi- 
lege of  1283,  the  justiciary  was  to  advise 
with  the  ricoshombres,  in  all  cases  where 
the  king  was  a  party  against  any  of  his 
subjects.  Zurita,  f.  281.  See  also  f. 
180. 


52 


PROCESSES  OF 


Chap.  IV. 


Spain. 


JURISFIRMA  AND  MANIFESTATION. 


6£ 


,  "■( 


some  dissensions  arising  between  the  king  and  his  barons,  he 
called  in  the  justiciary  as  a  mediator  whose  sentence,  says 
Blancas,  all  obeyed.^  At  a  subsequent  time  in  the  same 
reign  the  military  orders,  pretending  that  some  of  their  privi- 
leges were  violated,  raised  a  confederacy  or  union  against  the 
king.  James  offered  to  refer  the  dispute  to  the  justiciary, 
Ximenes  Salanova,  a  man  of  eminent  legal  knowledge.  The 
knights  resisted  his  jurisdiction,  alleging  the  question  to  be  of 
spiritual  cognizance.  He  decided  it,  however,  against  them 
in  full  cortes  at  Saragosa,  annulled  their  league,  and  sen- 
tenced the  leaders  to  punishment.^  It  was  adjudged  also  that 
no  appeal  could  lie  to  the  spiritual  court  from  a  sentence  of 
the  justiciary  passed  with  assent  of  the  cortes.  James  II.  is 
said  to  have  frequently  sued  his  subjects  in  the  justiciary's 
court,  to  show  his  regard  for  legal  measures ;  and  during  the 
reign  of  this  good  prince  its  authority  became  more  established.' 
Yet  it  was  not  perhaps  looked  upon  as  fully  equal  to  maintain 
public  liberty  against  the  crown,  till  in  the  cortes  of  1348, 
after  the  Privilege  of  Union  was  forever  abolished,  such  laws 
were  enacted,  and  such  authority  given  to  the  justiciary,  as 
proved  eventually  a  more  adequate  barrier  against  oppression 
than  any  other  country  could  boast.  All  the  royal  as  well 
as  territorial  judges  were  bound  to  apply  for  his  opinion  in 
case  of  legal  dilRculties  arising  in  their  courts,  which  he  was 
to  certify  within  eight  days.  By  subsequent  statutes  of  the 
same  reign  it  was  made  penal  for  any  one  to  obtain  letters 
from  the  king,  impeding  the  execution  of  the  justiza's  process, 
and  they  were  declared  null.  Inferior  courts  were  forbid- 
den to  proceed  in  any  business  after  his  prohibition."*  Many 
other  laws  might  be  cited,  corroborating  the  authority  of  this 
great  magistrate ;  but  there  are  two  parts  of  his  remedial  ju- 
risdiction which  deserve  special  notice. 
Processes  of  Thcsc  are  the  processes  of  jurisfirma,  or  firma  del 
and  maJ?*  dcrccho,  and  of  manifestation.  The  former  bears 
festation.       some  analogy  to  the  writs  of  pone  and  certiorari 


1  Zurita,  p.  663. 

azurita,  t.  i.  f.  403;  t.  a.  f.  34 ;  Bian. 
p.  666.  The  assent  of  the  cortes  seems 
to  render  this  in  the  nature  of  a  legis- 
lative, rather  than  a  judicial  proceeding ; 
but  it  is  difficult  to  pronounce  anything 
about  a  transaction  so  remote  in  time, 
and  in  a  foreign  country,  the  native  his- 
torians writing  rather  concisely. 

Bianc.  p.  663.    James  acquired  the 


surname  of  Just,  el  Justiciero,  by  his  fair 
dealings  towards  his  subjects.  Zurita, 
t.  ii.  fol.  82.  El  Justiciero  properly  de- 
notes  his  exercise  of  civil  and  criminal 
justice. 

<  Fuerofl  de  Aragon :    Quod  in  dubiis 
noncrassis.  (a.d.  1348.)  Quod  impetrans 
(1372),  &c.  Zurita,  t.  U.  fol.  229.   Bianc 
p.  671  and  811. 


in  England,  through  which  the  Court  of  King's  Bench  exer- 
cises its  right  of  withdrawing  a  suit  from  the  jurisdiction 
of  inferior  tribunals.  But  the  Aragonese  jurisfirma  was  of 
more  extensive  operation.  Its  object  was  not  only  to  bring 
a  cause  commenced  in  an  inferior  court  before  the  jus- 
ticiary, but  to  prevent  or  inhibit  any  process  from  issuing 
against  the  person  who  applied  for  its  benefit,  or  any  mo- 
lestation from  being  offered  to  him ;  so  that,  as  Blancas  ex- 
presses it,  when  we  have  entered  into  a  recognizance  (firme 
et  graviter  asseveremus)  before  the  justiciary  of  Aragon  to 
abide  the  decision  of  law,  our  fortunes  shall  be  protected, 
by  the  interposition  of  his  prohibition,  from  the  intolerable 
iniquity  of  the  royal  judges.^  The  process  termed  manifesta- 
tion afforded  as  ample  security  for  personal  liberty  as  that  of 
jurisfirma  did  for  property.  "To  manifest  any  one,"  says 
the  writer  so  often  quoted,  "  is  to  wrest  him  from  the  hands 
of  the  royal  officers,  that  he  may  not  suffer  any  illegal  vio- 
lence ;  not  that  he  is  at  liberty  by  this  process,  because  the 
merits  of  his  case  are  still  to  be  inquired  into ;  but  because  he 
is  now  detained  publicly,  instead  of  being  as  it  were  con- 
cealed, and  the  charge  against  him  is  investigated,  not  sud- 
denly or  with  passion,  but  in  calmness  and  according  to  law, 
therefore  this  is  called  manifestation."  ^    The  power  of  this 


*  p.  751.    Fueros  de  Aragon,  f.  137. 

3  Est  apud  nos  manifestare,  reum 
Bubito  sumere.  atque  e  regiis  nianibus 
extorquere,  ne  qua  ipsi  contra  jus  vis  in- 
feratur.  Non  quod  tunc  reus  judicio 
liberetur  ;  nihilominus  tamen,  ut  loqui- 
murj  de  meritis  causie  ad  plenum  cog< 
noscitur.  Sed  quod  deinceps  manifesto 
teneatur.  quasi  antca  celatus  extiti.sset ; 
nccessoque  deinde  sit  de  ipsius  culpi, 
nou  iiiipL'tu  ct  cum  furore,  scd  sedatis 
prorsus  animis,  et  juxta  constitutas  leges 
judieari.  Ex  eo  autem,  quod  hujusmodi 
judicium  manifesto  deprehensum,  omni- 
bus jam  patere  debeat.  Manifestationis 
sibi  nomcn  arripuit.    p.' 675. 

Ipsius  ManifestaMonis  potestas  tam 
solida  est  ct  rcpcntina,  ut  homini  jam 
coUum  in  laqueum  inserenti  subvoniat. 
lUius  enim  prasidio,  damnatus,  dum  per 
leges  licet,  (^uasi  experiendi  juris  gratia, 
de  manibus  judicum  confestim  extor- 
quetur,  et  in  carcerem  ducitur  ad  id  aedi- 
flcatum,  ibiJcmque  asservatur  tamdiu, 
quamdiu  jurene,  an  injuria,  quid  in  ei 
causd  factum  fuerit,  judicatur.  Prop- 
tcrca  career  hie  vulgari  lingu2k,  la  carcel 
de  los  raiinifestados  nuncupatur.    p.  751. 

Fueros  do  Aragon.  fol.  60.    De  Mani- 


festationibus  personarum.  Independently 
of  this  right  of  manifestation  by  writ  of 
the  justiciary,  there  are  several  statutes 
in  the  Fueros  against  illegal  detention,  or 
unnecessary  severity  towards  prisoners, 
(De  Custodia  reorum,  f.  163)  No  judge 
could  proceed  secretly  in  a  criminal  pro- 
cess ;  an  indispensable  safeguard  to  pub- 
lic liberty,  and  one  of  the  most  salutary, 
as  well  as  most  ancient,  provisions  in  our 
own  constitution.  (De  judiciis.)  Tor- 
ture was  abolished,  except  in  cases  of 
coining  fiilse  money,  and  then  only  in 
respect  of  vagabonds.  (General  Privi- 
lege of  1283.) 

Zurita  has  explained  the  two  processes 
of  jurisfirma  and  manifestation  so  per- 
spicuously, that,  us  the  subject  is  very 
interesting,and  rather  out  of  the  common 
way,  I  shall  both  quote  and  translate  the 
passage.  Con  firmar  de  derecho,  que  es 
dar  caution  i.  estar  4  justicia,  se  conseden 
litcras  inliibitorias  por  el  justicia  de 
Aragon,  para  que  no  puedan  sur  presos, 
ni  privados,  ni  despojados  de  su  posses- 
sion, hasta  que  judicialmente  se  conozca, 
y  declare  sob  re  la  pretension,  y  justicia  de 
las  partes,  y  parezca  por  processo  legitimo, 
que  se  deve  revocar  la  tal   inhibition. 


54 


PROCESSES  OF 


Chap.  IV. 


SrAisf. 


JURISFIRMA  AND  MANIFESTATION. 


55 


writ  (if  I  may  apply  our  term)  was  such,  as  he  elsewhere  as- 
serts, that  it  would  rescue  a  man  whose  neck  was  in  the  hal- 
ter. A  particular  prison  was  allotted  to  those  detained  for 
trial  under  this  process. 

Several  proofs  that  such  admirable  provisions  did  not  re- 
instanccs  "^^"*  ^  ^^^^  letter  in  the  law  of  Aragon  appear 
of  their  in  the  two  historians,  Blancas  and  Zurita,  whose 
application.  ^^q^Iq  attachment  to  liberties,  of  which  they  had 
eitlier  witnessed  or  might  foretell  the  extinction,  continually 
displays  itself.  I  cannot  help  illustrating  this  subject  by  twG 
remarkable  instances.  The  heir  apparent  of  the  kingdom  of 
Aragon  had  a  constitutional  right  to  the  lieutenancy  or  re- 
gency during  the  sovereign's  absence  from  the  realm.  Tho 
title  and  office  indeed  were  permanent,  though  the  functions 
must  of  course  have  been  superseded  during  the  personal  ex- 
ercise of  royal  authority.  But  as  neither  Catalonia  nor  Va- 
lencia, which  often  demanded  the  king's  presence,  were  con- 
sidered as  parts  of  the  kingdom,  there  were  pretty  frequent 
occasions  for  this  anticipated  reign  of  the  eldest  prince. 
Such  a  regulation  was  not  likely  to  diminish  the  mutual  and 
almost  inevitable  jealousies  between  kings  and  their  heirs 
apparent,  which  have  so  often  disturbed  the  tranquillity  of  a 
court  and  a  nation.  Peter  IV.  removed  his  eldest  son,  after- 
wards John  I.,  from  the  lieutenancy  of  the  kingdom.     The 


Estafu^  la  suprema  y  principal  autoriJad 
del  Justicia  de  Aragond  esde  quo  esto 
magistrado  tuvo  origen,  y  lo  que  llama 
manifestation ;  porque  assi  como  la  firma 
de  derecho  por  privilegio  general  del 
reyno  impide,  que  no  puede  ninguno  ser 
preso,  6  agraviado  contra  razon  y  jus- 
ticia, de  la  niisma  manera  la  rnanifeata- 
cion,  que  ea  otro  privilegio,  y  reniedia 
muy  principal,  tiene  fuerca,  quaudo  al- 
guno  es  preso  sin  preceder  processo  le- 
gitimo,  6  quando  lo  prendcn  de  hecho  sin 
orden  de  justici!! ;  y  en  estos  casos  solo 
el  Justicia  de  Aragon,  quando  so  tiene 
rccurso  al  el,  se  iuterpone,  manifestando 
11  preso,  que  es  tomarlo  1  su  mano,  de 
poder  de  qualquiera  juez,  aunque  sea  cl 
mas  supremo ;  y  es  obligado  el  Justicia 
de  Aragon,  y  sus  lugartenientes  de  pro- 
Teer  la  manifestacion  en  cl  misnio  in- 
stante,  que  lea  es  pedida  sin  preceder 
informacion ;  y  basta  que  se  pida  por 
qualquiere  persona  que  se  diga  procura- 
dor  del  que  quiere  que  lo  teng:in  por 
manifesto,  t.  ii.  fol,  386.  "Upon  a 
flrma  de  derecho,  which  is  to  give  se- 
lurity  for  abiding  the  decision  of  the  law, 
the  Justiciary  of  Aragon  issues  letters 


inhibiting  all  persons  to  arrest  the  party, 
or  deprive  him  of  his  possession,  until 
the  matter  shall  be  judicially  inquired 
into,  and  it  shall  appear  that  such  inhi* 
bition  ought  to  be  revoked.  This  pro- 
cess and  that  which  is  called  manifesta- 
tion have  been  the  chief  powers  of  the 
justiciary,  ever  since  the  coninicncement 
of  that  magistracy.  And  as  the  firma  de 
derecho  by  the  general  privilege  of  the 
realm  secures  every  man  from  being  ar- 
rested or  molested  against  reason  and 
justice,  so  the  manifestation,  which  is 
another  principal  and  remedial  right 
takes  place  when  any  one  is  actually  ar- 
rested without  lawful  process ;  and  in 
such  cases  only  the  JusMc-iary  of  Aragon, 
when  recourse  is  had  t»  hint,  interposes 
by  manifesting  the  person  arrested,  tliat 
is,  by  taking  him  into  his  own  hands,  out 
of  the  power  of  any  judge,  however  high 
in  authority  ;  and  this  manifestation  the 
justiciary,  or  his  deputies  in  his  absence, 
are  bound  to  issue  at  the  same  instimt  it 
is  demanded,  without  further  inquiry; 
and  it  may  be  demanded  by  any  one  as 
attorney  of  tho  party  requiring  to  be 
manifested." 


prince  entered  into  a  firma  del  derecho  before  tlie  justiciary, 
Dominic  de  Cerda,  who,  pronouncing  in  his  fovor,  enjoined 
the  king  to  replace  his  son  in  the  lieutenancy  as  tlie  undoubt- 
ed right  of  the  eldest  born.  Peter  obeyed,  not  only  in  fact, 
to  which,  as  Blancas  observes,  the  law  compelled  him,  but 
with  apparent  cheerfulness.*  There  are  indeed  no  private 
persons  who  have  so  strong  an  interest  in  maintaining  a  free 
constitution  and  the  civil  liberties  of  their  countrymen  as  the 
members  of  royal  families,  since  none  are  so  much  exposed, 
hi  absolute  governments,  to  the  resentment  and  suspicion  of 
a  reigning  monarch. 

John  I.,  who  had  experienced  the  protection  of  law  in  his 
weakness,  had  afterwards  occasion  to  find  it  interposed  against 
his  power.  This  king  had  sent  some  citizens  of  Saragosa  to 
prison  without  form  of  law.  They  applied  to  Juan  de  Cerda, 
the  justiciary,  for  a  manifestotion.  He  issued  his  writ  ac- 
cordingly ;  nor,  says  Blancas,  could  he  do  otherwise  without 
being  subject  to  a  heavy  fine.  The  king,  pretending  that  the 
justiciary  was  partial,  named  one  of  his  own  judges,  the 
vice-chancellor,  as  coadjutor.  This  raised  a  constitutional 
question,  whether,  on  suspicion  of  partiality,  a  coadjutor  to 
the  justiciary  could  be  appomted.  The  king  sent  a  private 
order  to  the  justiciary  not  to  proceed  to  sentence  upon  this 
interlocutory  point  until  he  should  receive  instructions  in  the 
council,  to  which  he  was  directed  to  repair.  But  he  instantly 
pronounced  sentence  in  favor  of  his  exclusive  jurisdiction 
without  a  coadjutor.  He  then  repaired  to  the  palace.  Here 
the  vice-chancellor,  in  a  long  harangue,  enjoined  him  to  sus- 
pend sentence  till  he  had  heard  the  decision  of  the  council. 
Juan  de  Cerda  answered  that,  the  case  being  clear,  he  had 
ah-eady  pronounced  upon  it.  This  produced  some  expres- 
sions of  anger  from  the  king,  who  began  to  enter  into  an  ar- 
gument on  the  merits  of  the  question.  But  the  justiciary 
answered  that,  with  all  deference  to  his  majesty,  he  was  bound 
to  defend  his  conduct  before  the  cortes,  and  not  elsewhere. 
On  a  subsequent  day  the  king,  having  drawn  the  justiciary  to 
his  country  palace  on  pretence  of  hunting,  renewed  the  con- 
versation with  the  assistance  of  his  ally  the  vice-chancellor ; 
but  no  impression  was  made  on  the  venerable  magistrate, 
whom  John  at  length,  though  much  pressed  by  his  advisers 
to  violent  courses,  dismissed  with  civihty.     The  king  was 

1  Zurita,  ubi  supra.    Blancas,  p.  673. 


i 


56 


BESPONSmiLITY  OF  JUSTICURY. 


Chap.  IV 


probably  misled  throughout  this  transaction,  which  I  have 
thought  fit  to  draw  from  obscurity,  not  only  in  order  to  il- 
lustrate the  privilege  of  manifestation,  but  as  exhibiting  an 
instance  of  judicial  firmness  and  integrity,  to  which,  in  the 
fourteenth  century,  no  country  perhaps  in  Europe  could  offer 
a  parallel.^ 

Before  the  cortes  of  1348  it  seems  as  if  the  justiciary 
Office  of  might  have  been  displaced  at  the  king's  pleasure. 
justiciary  From  that  time  he  held  his  station  for  life.  But 
in  order  to  evade  this  law,  the  king  sometimes  ex- 
acted a  promise  to  resign  upon  request.  Ximenes  Cerdan, 
the  justiciary  in  1420,  having  refused  to  fulfil  this  engage- 
ment, Alfonso  V.  gave  notice  to  all  his  subjects  not  to  obey 
him,  and,  notwithstanding  the  alarm  which  this  encroachment 
created,  eventually  succeeded  in  compelling  him  to  quit  his 
office.  In  1439  Alfonso  insisted  with  still  greater  severity 
upon  the  execution  of  a  promise  to  resign  made  by  another 
justiciary,  detaining  him  in  prison  until  his  death.  But  the 
cortes  of  1442  proposed  a  law,  to  which  the  king  reluctantly 
acceded,  that  the  justiciary  should  not  be  compellable  to  re- 
sign his  office  on  account  of  any  previous  engagement  he 
might  have  made.^ 

But  lest  these  high  powers,  imparted  for  the  prevention 
Responsi-  ^^  abuscs,  should  themselves  be  abused,  the  justi- 
biiity  of  this  clary  was  responsible,  in  case  of  an  unjust  sen- 
magistrate.     ^^^^^^  ^^  ^j^g  ^^^^^^  ^^  ^^^  .j^j^^^^  inflicted ; »  and 

was  also  subjected,  by  a  statute  of  1390,  to  a  court  of  inqui- 
ry, composed  of  four  persons  chosen  by  the  king  out  of  eight 
named  by  the  cortes  ;  whose  office  appears  to  have  been  that 
of  examining  and  reporting  to  the  four  estates  in  cortes,  by 
whom  he  was  ultimately  to  be  acquitted  or  condemned.  This 
superintendence  of  the  cortes,  however,  being  thouglit  dilato- 
•ry  and  inconvenient,  a  court  of  seventeen  per-sons  was  ap- 
pointed in  1461  to  hear  complaints  against  the  justiciary. 
Some  alterations  were  afterwards  made  in  this  tribunal.* 
The  justiciary  was  always  a  knight,  chosen  from  the  second 


^  1  Biancse  Commentar.  ubi  supra.  Zu- 
rita  relates  the  story,  but  not  so  fully. 

2  Fueros  de  Aragon,  fol.  22;  Zurita,  t. 
jii.  fol.  140,  255,  272 :  Blanc.  Comment. 
p.  701. 

s  Fueros  de  Aragon,  fol.  25. 

*  Blancas ;  Zurita,  t.  iil.  fol.  321 ;  t.  iv. 
f.  103.  These  regulations  were  very  ac- 
ceptable to  the  nation.    In  fact,  the  jus- 


tiza  of  Aragon  had  possessed  mnch  more 
unlimited  powers  than  ought  to  V>e  in- 
trusted to  any  single  magistrate.  The 
Court  of  King's  Beach  in  England,  be- 
sides its  consisting  of  four  coordinate 
judges,  is  checked  by  the  appellant  juris- 
dictions of  the  Exchequer  Chamber  and 
House  of  Lords,  and  still  more  impor- 
tantly by  the  rights  of  juries. 


Spain. 


RIGHTS  OF  LEGISLATION,  ETC. 


57 


order  of  nobility,  the  barons  not  being  liable  to  personal  pun- 
ishment.    He  administered  the  coronation  oath  to  the  king 
and  in  the  cortes  of  Aragon  the  justiciary  acted  as  a  sort  of 
royal  commissioner,  opening  or  proroguing  the  assembly  by 
the  king's  direction. 

No  laws  could  be  enacted  or  repealed,  nor  any  tax  impos- 
ed, without  the  consent  of  the  estates  duly  assem-  ^jsj^^^^f^ 
bled.*     Even  as  early  as  the  reign  of  Peter  II.,  in  S 
1205,  that  prince  having  attempted  to  impose  a  taxation. 
general  tallage,  the  nobility  and  commons  united  for  the  pres- 
ervation of  their  franchises;  and  the   tax  was  afterwards 
granted  in  part  by  the  cortes.^    It  may  easily  be  supposed 
that  the  Aragonese  were  not  behind  other  nations  in  statutes 
to  secure  these  privileges,  which  upon  the  whole  appear  to 
have  been  more    respected   than  in  any  other  monarchy.* 
The  general  privilege  of  1283  formed  a  sort  of  groundwork 
for  this  legislation,  like  the  Great  Charter  in  England.     By 
a  clause  in  this  law,  cortes  were  to  be  held  every  year  at 
Saragosa.     But  under  James  II.  their  time  of  meeting  was 
reduced  to  once  in  two  years,  and  the  place  was  left  to  the 
king's  discretion.*     Nor  were  the  cortes  of  Aragon  less  vigi- 
lanrthan  those  of  Castile  in  claiming  a  right  to  be  consulted 
in  all  important  deliberations  of  the  executive  power,  or  in 
remonstrating  against  abuses  of  government,  or  in  superin- 
tending the  proper  expenditure  of  public  money .^    A  vari- 


1  Majores  nostri,  quae  de  omnibus 
statuenda  cssent,  nolucrunt  jubori,  veta- 
rivo  posse,  nisi  vocatis,  descriptisquo 
ordinibus,  ac  cunctis  corum  adhibitis 
suffnigiis.  re  ipsa  cognita  et  promulgatl. 
UuJe  perpetuum  illud  nobis  comparatum 
est  jus,  ut  communes  et  publicaj  leges 
ncque  toUi,  nequc  rogari  possint,  nisi 
prius  universus  populus  una  voce  comltiis 
institutis  s^xium  el  do  re  liberum  suEfra- 
gium  ferat;  idque  postca  ipsius  jregis 
asscusu  coraprobetur.    Biancae,  p.  761. 

2  Zurita,  t.  i.  fol.  92. 

3  Fueros  do  Aragon :  Quod  sissae  in 
Aragonii  removeantur.  (a.d.  1372.)  De 
prohibitione  sissivrum.  (1398.)  De  con- 
ger vationo  patrimonii.  (1461.)  I  have 
only  remarked  two  instances  of  arbitrary 
taxation  in  Zurita's  history,  which  is 
singularly  full  of  information ;  one,  in 
1343,  when  Peter  IV.  collected  money 
from  various  cities,  though  not  without 
opposition ;  and  the  other  a  remonstrance 
of  the  cortes  in  1383  against  heavy  taxes ; 
and  it  is  not  clear  that  this  refers  to 
general  unauthorized  taxation.    Zurita, 


t.  ii.  f.  168  and  3S2.  Blancas  mentiora 
that  Alfonso  V.  set  a  tallage  upon  his 
towns  for  the  marriage  of  his  natural 
daughters,  which  he  might  have  done 
had  they  been  legitimate;  but  they  ap- 
pealed to  the  justiciary's  tribunal,  and 
the  king  receded  from  his  demand,  p.  701. 

Some  instances  of  tyrannical  conduct 
in  violation  of  the  constitutional  laws 
occur,  as  will  naturally  be  supposed,  in 
the  annals  of  Zurita.  The  execution  of 
Bernard  Cabrera  under  Peter  IV.,  t.  ii. 
f.  336,  and  the  severities  inflicted  on 
queen  Forcia  by  her  son-in-law  John  I., 
f.  391,  are  perhaps  as  remarkable  as  any. 

4  Zurita,  t.  i .  f.  426.  In  general  the 
session  lasted  from  four  to  six  months. 
One  assembly  was  prorogued  from  time 
to  time,  and  continued  six  years,  from 
i446  to  1452,  which  was  complained  of  as 
a  violation  of  the  law  for  their  biennial 
renewal,   t.  iv.  f.  6. 

6  The  Sicilian  war  of  Peter  III.  waa 
very  unpopular,  because  it  had  been  un- 
dertaken without  consent  of  the  barons, 
contrary  to  the  practice  of  the  kingdom  • 


I-. 


i! 


58 


CORTES  OF  ARAGON. 


Chap,  iv. 


ety  of  provisions,  intended  to  secure  these  parliamentary 
privileges  and  the  civil  liberties  of  the  subject,  will  be  found 
dispersed  in  the  collection  of  Aragonese  laws,^  which 
may  be  favorably  compared  with  those  of  our  own  statute- 
book. 

Four  estates,  or,  as  they  were  called,  arms  (brazos),  form- 
cortesof       cd  the  cortcs  of  Aragon  —  the  prelates  and  com- 
^son.        manders  of  military  orders,  who  passed  for  eccle- 
siastics ;  2  the  barons  or  ricoshombres ;  the  equestrian  order 
or  infanzones,  and  the  deputies  of  royal  towns.'    The  two 
former  had  a  right  of  appearing  by  proxy.     There  was  no 
representation  of  the  infanzones,  or  lower  nobility.     But  it 
must  be  remembered  that  they  were  not  numerous,  nor  was 
the  kingdom  large.     Thirty-five  are  reckoned  by  Zurita  as 
present  in  the  cortcs  of  1395,  and  thirty-tln-ee  in  those  of 
1412 ;  and  as  upon  both  occ4isions  an  oath  of  fealty  to  a  new 
monarch  was  to  be  taken,  I  presume  that  nearly  all  the  no- 
bility of  the  kingdom  were  present.*    The  ricoshombres  do 
not  seem  to  have  exceeded  twelve  or  fourteen  in  number. 
The  ecclesiastical  estate  was  not  much,  if  at  all,  more  numer- 
ous.   A  few  principal  towns  alone  sent  deputies  to  the  cortes; 
but  their  representation  was  very  full;    eight  or  ten,  and 
sometimes  more,  sat  for  Saragosa,  and  no  town  appears  to 
have  had  less  than  four  representatives.    During  the  interval 
of  the  cortes  a  permanent  commission,  varying  a  good  deal 
as  to  numbers,  but  chosen  out  of  the  four  estates,^vas  era- 
powered  to  sit  with  very  considerable  authority,  receiving 


porque  ningun  nogocio  arduo  empren- 
dian,  sin  acuerdo  y  consejo  de  sus  ricos- 
hombres. Zurita,  t.  i.  lol.  264.  The 
cortcs,  he  tells  us,  were  usually  divided 
into  two  parties,  whi^s  and  tories  ;  estava 
ordinariamente  dividida  en  dos  partas.  la 
una  que  pensava  procurar  el  beneficio 
del  reyno,  y  la  otra  que  el  servicio  del 
rey.    t.  iii.  fol.  321. 

1  Fueros  y  observanoias  del  reyno  de 
Aragon.  2  vols,  in  fol.  Saragosa,  1G67. 
The  most  important  of  these  are  collected 
by  Blancas,  p.  750. 

2  It  is  said  by  some  writers  that  tlie 
ecclesiastical  arm  was  not  added  to  the 
cortes  of  Aragon  till  about  the  vear  1300. 
But  I  do  not  find  mention  in'Zurita  of 
any  such  constitutional  change  at  that 
time  ;  and  the  prelates,  as  we  might  ex- 
pect from  the  analogy  of  other  countries, 
appear  as  members  of  the  national  coun- 
cil long  before.  Queen  Petronilla,  in  1142, 


summoned  d  lo8  perlados,  ricoshombres, 
y  cavalleros,  y  procuradores  de  las  ciu- 
dades  y  villas,  que  lo  juntisscn  4  cortea 
generales  en  la  ciudad  de  Iluesoa.  Zurita, 
t.  i.  fol.  71.  So  in  the  cortcs  of  1275,  and 
on  other  occasions. 

3  Popular    representation   \raa    more 
ancient  in  Aragon   than   in  any  other 
monarchy.    The  deputies    of  towns  ap 
pear  in  the  cortes  of  1133,  as  Kohcrtson 
has  remarked   from   Zurita.      Uist,   of 
Charles  V.  note  32.     And  this  cannot 
■well  be  called  in  question,  or  treated  as 
an    anomaly;   for  we  find    them   men- 
tioned in  1142  (the  passage  cited  in  the 
last  note),  and  again  in  1164,  when  Zu- 
rita ^enumerates  many  of  their  names, 
fol.  74.    The  institution  of  consejos,  or 
corporate    districts    under   a    presiding 
town,  prevailed  in  Aragon  as  it  did  in 
Castile. 

*  Zurita,  t.  ii.  f.  490 ;  t.  iii.  f.  76. 


Spain. 


VALENCIA  AND  CATALONIA. 


59 


and  managing  the  public  revenue,  and  protecting  the  justi- 
ciary in  his  functions.^ 

The  kingdom  of  Valencia,  and  principality  of  Catalonia, 
havinnj  been  annexed  to  Aragon,  the  one  by  con-  ^ 

^     j.\  .1  u  .      °      '  T  •'  1        ,  Government 

quest,  the  other  by  marriage,  were  always  kept  of  Valencia 
distinct  from  it  in  their  laws  and  government.  JJJj^^***^" 
Each  had  its  cortes,  composed  of  three  estates,  for 
the  division  of  the  nobility  into  two  orders  did  not  exist  in 
either  country.  The  Catalans  were  tenacious  of  their  an- 
cient u.-ages,  and  averse  to  incorporation  with  any  other 
people  of  Spain.  Their  national  character  was  high-spirited 
and  independent ;  in  no  part  of  the  peninsula  did  the  terri- 
torial aristocracy  retain,  or  at  least  pretend  to,  such  extensive 
privileges,*^  and  the  citizens  were  justly  proud  of  wealth  ac- 
quired by  industry,  and  of  renown  achieved  by  valor.  At 
the  accession  of  Ferdinand  I.,  which  they  had  not  much  de- 
sired, the  Catalans  obliged  him  to  swear  three  times  succes- 
sively to  maintain  their  liberties,  before  they  would  take  the 
reciprocal  oath  of  allegiance.'  For  Valencia  it  seems  to  have 
been  a  politic  design  of  James  the  Conqueror  to  establish  a 
constitution  nearly  analogous  to  that  of  Aragon,  but  with 
such  limitations  as  he  should  impose,  taking  care  that  the 
nobles  of  the  two  kingdoms  should  not  acquire  strength  by 
union.  In  the  reigns  of  Peter  III.  and  Alfon:  o  III.,  one  of 
the  principal  objects  contended  for  by  the  barons  of  Ai'agon 
was  the  establishment  of  their  own  laws  in  Valencia; 
to  which  the  kings  never  acceded.^  They  p.Tmitted,  how- 
ever, the  possessions  of  the  natives  of  Aragon  in  the  latter 
kingdom  to  be  governed  by  the  law  of  Ai;igon.*^  These 
three  states,  Aragon,  Valencia,  and  Catalonia,  vrere  perpetu- 
ally united  by  a  law  of  Alfonso  III. ;  and  every  king  on  his 
accession  was  bound  to  swear  that  he  would  never  separate 
them.^  Sometimes  general  cortes  of  the  kingdoms  and  prin- 
cipality were  convened ;  but  the  members  did  not,  even  in 
this  case,  sit  together,  and  were  no  otherwise  united  than  as 
they  met  in  the  same  city.' 

1  Biancae,  p.  762  ;  Zurita,  t.  iii.  f.  76,    originally  a  justiciary  in  the  kingdom  of 
f.  182  et  alibi. 

2  Zurita,  t.  ii.  f.  360.  The  villenage  of 
the  peasantry  in  some  parts  of  Cata- 
lonia was  very  severe,  even  near  the  end 
of  the  fifteenth  century,    t.  iv.  f.  327. 

3  Zurita,  t.  iii.  f.  81. 
*  Id.  t.  i.  f.  281,  310,  333.    There  was 


Valencia,  f.  281 ;  but  this,  I  believe,  did 
not  long  continue. 

5  Zurita,  t.  ii.  f.  433. 

6  t.  ii.  f.  91. 

1  Bianca*.  Comment,  p.  760;  Zurita 
t.  iu.  fol.  239. 


60 


UNION  OF  CASTILE  AND  ARAGON.        Chap.  IV. 


!l 


ii 


I  do  not  mean  to  represent  the  actual  condition  of  society 
state  of  in  Aragon  as  equally  excellent  with  the  constitu- 
poUce.  tional  laws.     Relatively  to  other  monarcliies,  as 

I  have  already  observed,  there  seem  to  have  been  fewer  ex- 
cesses of  the  royixl  prerogative  in  that  kingdom.  But  the 
licentious  habits  of  a  feudal  aristocracy  prevailed  very  long. 
We  find  in  history  instances  of  private  war  between  the 
great  families,  so  as  to  disturb  the  peace  of  ^he  whole  nation, 
even  near  the  close  of  the  fifteenth  century.*  The  right  of 
avenging  injuries  by  arms,  and  the  ceremony  of  diffidation, 
or  solemn  defiance  of  an  enemy,  are  preserved  by  the 
laws.  We  even  meet  with  the  ancient  barbarous  usajje  of 
paymg  a  composition  to  the  kindred  of  a  murdered  man.' 
The  citizens  of  Saragosa  were  sometimes  turbulent,  and  a 
refractory  nobleman  sometimes  defied  the  ministers  of  jus- 
tice. But  owing  to  tlie  remarkable  copiousness  of  the  prin- 
cipal Aragonese  historian,  we  find  more  frequent  details  of 
this  nature  than  in  the  scantier  annals  of  some  countries. 
The  internal  condition  of  society  was  certainly  far  from 
peaceable  in  other  parts  of  Europe. 

By  the  marriage  of  Ferdinand  with  Isabella,  and  by  the 
Union  of  death  of  John  II.,  in  1479,  the  two  ancient  and 
Castile  and  rival  kingdoms  of  Castile  and  Ara^ron  were  for- 
ever  consolidated  in  the  monarchy  of  Spain. 
There  had  been  some  ditficulty  in  adjusting  the  respective 
rights  of  the  husband  and  wife  over  Castile.  In  the  middle 
ages  it  was  customary  for  the  more  powerful  sex  to  exercise 
all  the  rights  which  it  derived  from  the  weaker,  as  much  in 
sovereignties  as  in  private  possessions.  But  the  Castilians 
were  determined  to  maintain  the  positive  and  distinct  pre- 
rogjitives  of  their  queen,  to  which  they  attached  the  indepen- 
dence of  their  nation.  A  compromise  therefore  was  con- 
cluded, by  which,  though,  according  to  our  notions,  Ferdinand 
obtained  more  than  a  due  share,  he  might  consider  himself 
as  more  strictly  limited  than  his  father  had  been  in  Navarre. 
The  names  of  both  were  to  appear  jointly  in  their  style  and 
upon  the  coin,  the  king's  taking  the  precedence  in  respect  of 
his  sex.  But  in  the  royal  scutcheon  the  arms  of  Castile 
were  preferred  on  account  of  the  kingdom's  dignity.  Isabella 
had  the  appointment  to  all  civil  offices  in  Castile ;  the  nom- 


1  Zurita,  t.  iT.  fol.  189 


*  Fueros  de  Aragon,  f.  1660^  &o. 


•  1  >i 


Spain. 


CONQUEST  OF  GRANADA. 


61 


ination  to  spiritual  benefices  ran  in  the  name  of  both.  The 
government  was  to  be  conducted  by  the  two  conjointly  when 
they  were  together,  or  by  either  singly  in  the  province  where 
one  or  other  might  happen  to  reside.*  This  partition  was 
well  preserved  throughout  the  life  of  Isabel  without  mutual 
encroachments  or  jealousies.  So  rare  an  unanimity  between 
persons  thus  circumstanced  must  be  attributed  to  the  superior 
qualities  of  that  princess,  who,  while  she  maintained  a  con- 
stant good  understanding  with  a  very  ambitious  husband, 
never  relaxed  in  the  exercise  of  her  paternal  authority  over 
the  kingdoms  of  her  ancestors. 

Ferdinand  and  Isabella  had  no  sooner  quenched  the  flames 
of  civil  discord  in  Castile  than  they  determined  to  conquest  of 
give  an  unequivocal  proof  to  Europe  of  the  vigor  ^^^anada. 
which  the  Spanish  monarchy  was  to  display  under  their  gov- 
ernment. For  many  years  an  armistice  with  the  Moors  of 
Granada  had  been  uninterrupted.  Neither  John  11.  nor 
Henry  IV.  had  been  at  leisure  to  think  of  aggressive  hostili- 
ties ;  and  the  Moors  themselves,  a  prey,  like  their  Christian 
enemies,  to  civil  war  and  the  feuds  of  their  royal  family,  were 
content  with  the  unmolested  enjoyment  of  the  finest  province 
in  the  peninsula.  If  we  may  trust  historians,  the  sovereigns 
of  Granada  were  generally  usurpers  and  tyrants.  Bat  I 
know  not  how  to  account  for  that  vast  populousness,  that 
grandeur  and  magnificence,  which  distinguished  the  Monam- 
medan  kingdom  of  Spain,  without  ascribing  some  measure  of 
wisdom  and  beneficence  to  their  governments.  These  youth- 
em  provinces  have  dwindled  in  later  times  ;  and  in  fact  Spain 
itself  is  chiefly  interesting  to  many  travellers  for  the  monu- 
ments which  a  foreign  and  odious  race  of  conquerors  have  left 
behind  them.  Granada  was,  however,  disturbed  by  a  series 
of  revolutions  about  the  time  of  Ferdinand's  accession,  which 
naturally  encouraged  his  designs.  The  Moors,  contrary  to 
what  might  have  been  expected  from  their  relative  strength, 
were  the  aggressors  by  attacking  a  town  in  Andalusia.^  Pred- 
atory inroads  of  this  nature  had  hitherto  been  only  retaliated 
by  the  Christians.  But  Ferdinand  was  conscious  that  his 
resources  extended  to  the  conquest  of  Granada,  the  consum- 
mation of  a  struggle  protracted  through  nearly  eight  centuries. 
Even  in  the  last  stage  of  the  Moorish  dominion,  exposed  on 


1  Zurita,  t.  ir.  fol.  224 ;  Mariana,  1.  xzir.  e.  5. 


s  Zurita,  t.  iy,  fol.  814. 


i 


62 


CONQUEST  OF  GRANADA. 


Cbaf.  IV. 


'1! 


every  side  to  invasion,  enfeebled  by  civil  dissension  that  led 
one  party  to  abet  the  common  enemy,  Granada  was  not  sub- 
dued without  ten  years  of  sanguinary  and  unremitting  contest. 
Fertile  beyond  all  the  rest  of  Spain,  that  kingdom  contained 
seventy  walled  towns ;  and  the  capital  is  said,  almost  two  cen- 
turies before,  to  have  been  peopled  by  200,000  inhabitants.^ 
Its  resistance  to  such  a  force  as  that  of  Ferdinand  is  perhaps 
the  best  justification  of  the  apparent  negligence  of  earlier 
monarchs.  But  Granada  was  ultimately  to  undergo  the  yoke. 
The  city  surrendered  on  the  2nd  of  January  1492 — an  event 
glorious  not  only  to  Spain  but  to  Christendom  —  and  which, 
in  the  political  combat  of  the  two  religions,  seemed  almost 
to  counterbalance  the  loss  of  Constantinople.  It  raised 
the  name  of  Ferdinand  and  of  the  new  monarchy  which 
he  governed  to  high  estimation  throughout  Europe.  Spain 
appeared  an  equal  competitor  with  France  in  the  lists  of 
ambition.  These  great  kingdoms  had  for  some  time  felt  the 
jealousy  natural  to  emulous  neighbors.  The  house  of  Aragon 
loudly  complained  of  the  treacherous  policy  of  Louis  XI. 
He  had  fomented  the  troubles  of  Castile,  and  given,  not  indeed 
an  effectual  aid,  but  all  promises  of  suppoii,  to  the  princess 
Joanna,  the  competitor  of  Isabel.  Rousillon,  a  province  be- 
longing to  Aragon,  had  been  pledged  to  France  by  John  11. 
for  a  sum  of  money.  It  would  be  tedious  to  relate  the  sub- 
sequent events,  or  to  discuss  their  respective  claims  to  its 
possession.^  At  the  accession  of  Ferdinand,  Louis  XI.  still 
held  Rousillon,  and  showed  little  intention  to  resign  it.  But 
Charles  VIIL,  eager  to  smooth  every  impediment  to  his 
Italian  expedition,  restored  the  province  to  Ferdinand  in 
1493.  Whether  by  such  a  sacrifice  he  was  able  to  lull  the 
king  of  Aragon  into  acquiescence,  while  he  dethroned  his 
relation  at  Naples,  and  alarmed  for  a  moment  all  Italy  with 
the  apprehension  of  French  dominion,  it  is  not  within  the 
limits  of  the  present  work  to  inquire. 

1  Zurita,  t.  iv.  fol.  814.  ia  the  most  impartial  French  writer  I 

2  For  these  transactions  see  Gamier,    have  ever  read,  in  matters  where  his  own 
nist.  de  France,  or  Gaillard,  Rivalit6  do    country  is  concerned. 

France  et  d'Espagne,  t.  iii.    The  latter 


Notes  to  Chat.  IV.        COUNT  JULTA.N. 


63 


NOTE  TO  CHAPTER  IV. 


Note.     Page  2. 


The  story  of  Cava,  daughter  of  count  Julian,  whose  se- 
duction by  Koderic,  the  last  Gothic  king,  impelled  her  father 
to  invite  the  Moors  into  Spain,  enters  largely  into  the  cycle 
of  Castilian  romance  and  into  the  grave  narratives  of  every 
historian.  It  cannot,  however,  be  traced  in  extant  writings 
higher  than  the  eleventli  century,  when  it  appears  in  the 
Chronicle  of  the  Monk  of  Silos.  There  are  Spanish  histori- 
ans of  the  eightli  and  ninth  centuries  ;  in  the  former,  Isidore 
bishop  of  Beja  (Paeensis),  who  wrote  a  clironicle  of  Spain ; 
in  the  latter,  Paulus  Diaconus  of  Merida,  Sebastian  of  Sala- 
manca, and  an  anonymous  chronicler.  It  does  not  appear, 
however,  that  these  dwell  much  on  Roderic's  reign.  (See 
Masdeu,  Historia  Critica  de  Espaiia,  vol.  xiii.  p.  882.)  The 
most  critical  investigators  of  history,  therefore,  have  treated 
the  story  as  too  apocryphal  to  be  stated  as  a  fact.  A  sensible 
writer  in  the  History  of  Spain  and  Portugal,  published  by 
the  Society  for  the  Diffusion  of  Useful  Knowledge,  has  de 
fended  its  probability,  quoting  a  passage  from  Ferreras,  a 
Spanish  writer  of  the  eighteenth  century,  whose  authority 
stands  high,  and  who  argues  in  favor  of  the  tradition  from 
the  brevity  of  the  old  chroniclers  who  relate  the  fall  of  Spain, 
and  from  the  want  of  likelihood  that  Julian,  who  had  hitherto 
defended  his  country  witli  great  valor,  would  have  invited  the 
Saracens,  except  through  some  strong  motives.  This,  if  we 
are  satisfied  as  to  the  last  fact,  appears  plausible ;  but  another 
hypothesis  has  been  suggested,  and  is  even  mentioned  by 
one  of  the  early  writers,  that  Julian,  being  of  Roman  descent, 
was  ill-affected  to  the  Gothic  dynasty,  who  had  never  attached 
to  themselves  the  native  inhabitants.  This  I  cannot  but 
reckon  the  less  likely  explanation  of  the  two.  Roderic,  who 
became  archbishop  of  Toledo  in  1208,  and  our  earliest  au- 


t 


04 


COUNT  JULIAN 


nOTE  TO 


thority  after  the  monk  of  Silos,  calls  Julian  "  vir  nobilis  de 
nobili  Gotliorum  prosapia  ortus,  illustris  in  officio  Palatino, 
in  armis  exercitatu.<,"  &c.  (See  Schottiis,  Hispania  Illustrata, 
ii.  63.)  Few,  however,  of  those  who  deny  the  truth  of  the 
story  as  it  relates  to  Cava  admit  the  defection  of  count  Julian 
to  the  Moors,  and  his  existence  has  been  doubted.  The  two 
parts  of  the  story  cohere  together,  and  we  have  no  better 
evidence  for  one  than  for  the  other. 

Southey,  in  his  notes  to  the  poem  of  Roderic,  says,  "  The 
best  Spanish  historians  and  antiquaries  are  persuaded  that 
there  is  no  cause  for  disbelieving  the  uniform  and  concurrent 
tradition  of  both  Moors  and  Christians."  But  this  is  on  the 
usual  assumption,  that  those  are  the  best  who  agree  best  with 
ourselves.  Southey  took  generally  the  credulous  side,  and 
his  critical  judgment  is  of  no  superlative  value.  Masdeu,  in 
learning  and  laboriousness  the  first  Spanish  antiquary,  calls 
the  story  of  Julian's  daughter  "  a  ridiculous  tale,  framed  in 
the  age  of  romance,  w^hen  histories  were  thrust  aside  (arrin- 
conadas)  and  any  love-tale  was  preferred  to  the  most  serious 
truth."  (Hist.  Crit.  de  Espana,  vol.  x.  p.  223.)  And  when, 
in  another  passage  (vol.  xii.  p.  C),  he  recounts  the  story  at 
large,  he  says  that  the  silence  of  all  writers  before  the  monk 
of  Silos  "  should  be  sufficient  in  my  opinion  to  expel  from  our 
history  a  romance  so  destitute  of  foundation,  which  the  Ara- 
bian romancers  doubtless  invented  for  their  ballads.** 

A  modem  writer  of  extensive  learning  says,  *'  This  fable, 
which  has  found  its  way  into  most  of  the  sober  histories  of 
Spain,  was  first  introduced  by  the  monk  of  Silos,  a  chronicler 
of  the  eleventh  century.  There  can  be  no  doubt  that  he  bor- 
rowed it  from  the  Arabs,  but  it  seems  hard  to  believe  that  it 
was  altogether  a  tale  of  their  invention.  There  are  facts  in  it 
which  an  Ai*ab  could  not  have  invented,  unless  lie  drew  them 
from  Christian  sources ;  and,  as  I  shall  show  hereafter,  the 
Arabs  knew  and  consulted  the  writings  of  the  Christians.** 
(Gayangos,  History  of  the  Mohammedan  Dynasties  of  Spain, 
vol.  i.  p.  513.)  It  does  not  appear  to  be  a  conclusion  from 
this  passage  that  the  story  is  a  fable.  For  if  a  chronicler  of 
the  eleventh  century  borrowed  it  from  the  Arabs,  and  they 
again  from  Christian  sources,  we  get  over  a  good  deal  of  the 
chasm  of  time.  But  if  writers  antecedent  to  the  monk  of 
Silos  have  related  the  Arabian  invasion  and  the  fall  of  Rod- 
eric without  alluding  to  so  important  a  pomt  as  the  treachery 


)V 


1  7 


Chap.  IV. 


COUNT  JULIAN. 


65 


of  a  great  Gothic  noble,  it  seems  difficult  to  resist  the  infer- 
ence from  their  silence. 

Gayangos  investigates  in  a  learned  note  (vol.  i.  p.  537)  the 
following  points :  —  By  whom  and  when  was  the  name  of 
Ilyan,  the  Arabic  form  of  Julian,  first  introduced  into  Spanish 
history  ?  Did  such  a  man  ever  exist  ?  What  were  his  coun- 
try and  religion  ?  Was  he  an  independent  prince,  or  a  tribu- 
tary to  the  Gothic  monarchs  ?  What  part  did  he  take  in  the 
conquest  of  Spain  by  the  Arabs  ? 

The  account  of  Julian  in  the  Chronicon  Silense  appears  to 
Gayangos  indisputably  borrowed  from  some  Arabian  author- 
ity; and  this  he  proves  by  several  writers  from  the  ninth 
century  downwards,  "  all  of  whom  mention,  more  or  less  ex- 
plicitly, the  existence  of  a  man  living  in  Africa,  and  named 
Ryan,  who  helped  the  Arabs  to  make  a  conquest  of  Spain ;  to 
which  I  ought  to  add  that  the  rape  of  Ilyan*s  daughter,  and 
the  circumstances  attending  it,  may  also  be  read  in  detail  in 
the  Mohammedan  authors  who  preceded  the  monk  of  Silos.** 
The  result  of  this  learned  Avriter's  investigation  is,  that  Ryan 
really  existed,  that  he  w^as  a  Christian  chief,  settled,  not  in 
Spain,  but  on  the  African  coast,  and  that  he  betrayed,  not  his 
country  (except  indeed  as  he  was  probably  of  Spanish  de- 
scent), but  the  interests  of  his  religion,  by  assisting  the  Sara- 
cens to  subjugate  the  Gothic  kingdom.^ 

The  story  of  Cava  is  not  absolutely  overthrown  by  this 
hypothesis,  though  it  certainly  may  be  the  invention  of  some 
Chi'istian  or  Arabian  romancer.  It  is  perfectly  true  that  of 
itself  it  contains  no  apparent  improbability.  Injuries  have 
been  thus  inflicted  by  kings,  and  thus  resented  by  subjects. 
But  for  this  very  reason  it  was  likely  to  be  invented ;  and  the 
unwillingness  with  which  many  seem  to  surrender  so  romantic 
a  tale  attests  the  probability  of  its  obtaining  currency  in  an 
uncritical  period.  We  must  reject  it  as  false  or  not,  according 
as  we  lay  stress  on  the  negative  argument  from  the  silence  of 
very  early  writers  (an  argument,  strong  even  as  it  is,  and 
which  would  be  insuperable  if  they  were  less  brief  and  im- 

1  The  Arabian  writer  whom  Gayangos  residence  of  Julian  on  that  Bide  of  the 

translates,  one  of  lato  date,  speaks  of  straits  would  not  be  incompatible  with 

Ilyan  as  governor  of  Ceuta,  but  tells  the  his  being  truly  a  Spaniard.      Ilyan  is 

story  of  Cava  in  the  usual  manner.    The  evidently  not  an  European  form  of  the 

Ooths  may  very  probably  have  possessed  name, 
some  of  the  African  coast ;  so  that  the 
VOL.  u.                             6 


66 


COUNT  JULIAN. 


Note  to  Chap.  IV. 


GSBMANT. 


SEPARATION  FROM  FRANCE. 


67 


perfect)  and  on  the  presumptions  adduced  by  Gajangos  that 
Julian  was  not  a  noble  Spaniard ;  but  we  cannot  receive  this 
celebrated  legend  at  any  rate  with  more  than  a  very  sceptical 
assent,  not  sufficient  to  warrant  us  in  placing  it  among  the 
authentic  facts  of  history. 


CHAPTER  V. 

HISTORY   OP   GERMANY  TO   THE   DIET   OF    WORMS  IN  1495. 

Sketch  of  German  History  under  the  Emperors  of  the  House  of  Saxony  —  House 
of  Franconia  — Henry  IV.  — House  of  Suabia  — Frederic  Barharossa  —  Fall  of 
Henry  the  Lion  —  Frederic  II.  —  Extinction  of  House  of  Suabia  —  Changes  in 
the  Germanic  Constitution  — Electors  — Territorial  Sovereignty  of  the  Princes 

—  Rodolph  of  Hapsburg  —  State  of  the  Empire  after  his  Time  — Causes  of 
Decliuc  of  Imp<Tial  Power  — House  of  Luxemburg  —  Charles  IV.  —  Golden 
Bull  — House  of  Austria  —  Frederic  III.  —  Imperial  Cities- Provincial  States 

—  Maximilian  — Diet  of  Worms  —  Abolition  of  Private  Wars  —  Imperial  Chamber 

—  Aulic  Council  —  Bohemia  —  Hungary  —  Switzerland. 

After  the  deposition  of  Charles  the  Fat  in  888,  which 
finally  severed  the  connection  between  France  and  Germany,* 
Arnulf,  an  illegitimate  descendant  of  Charlemagne,  obtained 
the  throne  of  the  latter  country,  in  which  he  was  separation 
succeeded  by  his  son  Louis.^  But  upon  the  der.th  of  Germany 
of  this  prince  in  911,  the  German  branch  of  tl;at  """  ^^^ 
dynasty  became  extinct.  There  remained  indeed  Charles 
the  Simple,  acknowledged  as  king  in  some  parts  of  France, 
but  rejected  in  others,  and  possessing  no  personal  claims  to 
respect.  The  Germans  therefore  wisely  determined  to  choose 
a  sovereign  from  among  themselves.  They  weio  at  this  time 
divided  into  five  nations,  each  under  its  own  duko,and  distin- 
guished by  difference  of  laws,  as  well  as  of  origin  ;  the  Franks, 
whose  territory,  comprising  Franconia  and  the  modem  Pala- 
tinate, was  considered  as  the  cradle  of  the  empire,  and  who 
seem  to  have  arrogated  some  superiority  over  the  rest,  the 
Suabians,  the  Bavarians,  the  Saxons,  under  which  name  the 


1  There  can  be  no  question  about  this 
In  a  general  sense.  But  several  German 
writers  of  the  time  assert  that  both 
Eudes  and  Charles  the  Simple,  rival 
kings  of  France,  acknowledged  the  feudal 
superiority  of  Arnulf.  Charles,  says  Re- 
gino,  regnum  quod  usurpaverit  ex  manu 
ejus  pcrcepit.  Struvius,  Corpus  Hist. 
German,  p.  202,  203.  This  acknowledg- 
ment of  sovereignty  in  Arnulf  king  of 
Germany,  who  did  not  even  pretend  to 
be  emperor,  by  both  the  claimants  of 
the  throne  of  France,  for  such  it  virtually 
was,  though  they  do  not  appear  to  have 
rendered  homage,  cannot  affect  the  in- 


dependence of  the  crown  in  that  age, 
which  had  been  established  by  the  treaty 
of  Verdun  in  843,  but  proves  the  weak- 
ness of  the  competitors,  and  their  want 
of  patriotism.  In  Eudes  it  is  more  re- 
markable than  in  Charles  the  Simple,  a 
man  of  feeble  character,  and  a  Carlovin- 
gian  by  birth. 

2  The  German  princes  had  some  hesita- 
tion about  the  choice  of  Louis,  but  their 
partiality  to  the  Carlovingian  line  pre- 
vailed. Struvius,  p.  208:  quia  reges 
Francorum  semper  ex  uno  genere  pro- 
cedebaut,  says  an  archbishop  Hatto,  la 
writing  to  the  pope. 


>t 


6S 


HOUSE  OF  SAXONY. 


Chap.  V. 


Saxony. 

Henry  the 
Fowler. 

A.D.919. 

Otho  I. 
A.D.  936. 
Otho  II. 
A.p.  973. 
Otho  III. 
A.D.  983. 


inhabitants  of  Lower  Saxony  alone  and  Westphalia  were  in- 
eluded,  and  the  Lorrainers,  who  occupied  the  left  bank  of  the 
Election  of  Rhine  as  far  as  its  termination.  The  choice  of 
Conrad?  °  these  nations  in  their  general  assembly  fell  upon 
A.D.  911.  Conrad,  duke  of  Fi-anconia,  according  to  some 
writers,  or  at  least  a  man  of  high  rank,  and  descended  through 
females  from  Charlemagne.* 

Conrad  dying  without  male  issue,  the  crown  of  Germany 
House  of  was  bestowed  upon  Henry  the  Fowler,  duke  of 
Saxony,  ancestor  of  the  three  Othos,  who  followed 
him  in  direct  succession.  To  Henry,  and  to  the 
first  Otho,  Germany  was  more  indebted  than  to 
any  sovereign  since  Charlemagne.  The  conquest 
of  Italy,  and  recovery  of  the  imperial  title,  are  in- 
deed the  most  brilliant  trophies  of  Otho  the  Great ; 

but  he  conferred  far  more  unequivocal  benefits 

upon  his  own  country  by  completing  what  his  father  had 
begun,  her  liberation  from  the  inroads  of  the  Hungarians. 
Two  marches,  that  of  Misnia,  erected  by  Henry  the  Fowler, 
and  that  of  Austria,  by  Otho,  were  added  to  the  Germanic 
territories  by  their  victories.^ 

A  lineal  succession  of  four  descents  without  the  least 
opposition  seems  to  show  that  the  Germans  were  disposed 
to  consider  tlieir  monarchy  as  fixed  in  the  Saxon  family. 
Otho  II.  and  HI.  had  been  chosen  each  in  his  father's  life- 
time, and  during  legal  infancy.  The  formality  of  election 
subsisted  at  that  time  in  every  European  kingdom ;  and  the 
imperfect  rights  of  birth  required  a  ratification  by  public 
assent.  If  at  least  France  and  England  were  hereditary 
monarchies  in  the  tenth  century,  the  same  may  surely  be 
said  of  Germany ;  since  we  find  the  lineal  succession  fully 
as  well  observed  in  the  last  as  in  the  former.  But  upon  the 
early  and  unexpected  decease  of  Otho  III.,  a  momentary  op- 
Henry  ii.  position  was  offered  to  Henry  duke  of  Bavaria,  a 
A.D.  1002.       collateral  branch  of  the  reigning  family.     He  ob- 


1  Schmidt,  Hist,  dcs  AUemands,  t.  ii. 
p.  288.  Struvius,  Corpus  Ilistoriae  Ger- 
manicae,  p.  210.  The  former  of  these 
■writers  does  not  consider  Conrad  as  duke 
of  Franconia. 

2  Many  towns  in  Germany,  especially 
on  the  Saxon  frontier,  were  built  by 
Henry  I.,  who  is  said  to  have  compelled 
every  ninth  man  to  take  up  his  residence 
La  them.    This  had  a  remarkable  ten- 


dency to  promote  the  improvement  of 
that  territory,  and,  combined  with  the 
discovery  of  the  Kf>ld  and  silver  mine? 
of  Goslar  under  Otho  I.,  rendered  it  the 
richest  and  most  important  part  of 
the  empire.  Struvius,  p.  225  and  251. 
Schmidt,  t.  ii.  p.  322.  Putter,  Historical 
Development  of  the  German  Constitu- 
tion, vol.  i.  p.  115. 


ii 


Germany. 


HOUSE  OF  FRANCONIA. 


69 


tained  the  crown,  however,  by  what  contemporary  historians 
call  an  hereditary  title,*  and  it  was  not  until  his  death  in 
1024  that  the  house  of  Saxony  was  deemed  to  be  extin- 
guished. 

No  person  had  now  any  pretensions  that  could  interfere 
with  the  unbiassed  suffrages  of  the  nation ;  and  ^^^^^  ^^ 
accordingly  a  general   assembly  was   determined  Franconia. 
by  merit  to  elect  Conrad,  surnamed  the  Salic,  a  cq^^^  n 
nobleman  of  Franconia.^    From  this  prince  sprang  a.d.  1024. 
three  successive  emperors,  Henry  III.,  IV.,  and  j^.d"Yo39.  ' 
V.     Perhaps  the  imperial  prerogatives  over  that  f^^^J^^ 
insubordinate  confederacy  never  reached  so  high  a  Henry  v.' 
point  as  in  the  reign  of  Henry  III.,  the  second  em-  ^•®-  '^^^' 
peror  of  the  house  of  Franconia.     It  had  been,  as  was  natural, 
the  object  of  all  his  predecessors,  not  only  to  render  their 
throne  hereditary,  which,  in  effect,  the  nation  was  willing  to 
concede,  but  to  surround  it  with  authority  sufficient  to  control 
the   leading  vassals.      These  were  the  dukes  of  the  four 
nations  of  Germany,  Saxony,  Bavaria,  Suabia,  and  Franco- 
nia, and  tlie  three  archbishops  of  the  Rhenish  cities,  Mentz, 
Treves,  and  Cologne.     Originally,  as  has  been  more  fully 
shown  in  another  place,  duchies,  like  counties,  were  temporary 
governments,  bestowed  at  the  pleasure  of  the  crown.     From 
this  first  stage  they  advanced  to  hereditary  offices,  and  finally 
to  patrimonial  fiefs.     But  their  progress  was  much  slower  in 
Germany  than  in  France.     Under  the  Saxon  line  of  empe- 
rors, it  appears  probable  that,  although  it  was  usual,  and 
consonant  to  the  prevailing  notions  of  equity,  to  confer  a 
duchy  upon  the  nearest  heir,  yet  no  positive  rule  enforced 
this  upon  the  emperor,  and  some  instances  of  a  contrary 
proceeding  occurred.'*     But,  if  the  royal  prerogative  in  this 
respect  stood  higher  than  in  France,  there  was  a  counter- 
vailing principle  that  prohibited  the  emperor  from  uniting  a 
fief  to  his  domain,  or  even  retaining  one  which  he  had  pos- 
sessed before  his  accession.     Thus  Otho  the  Great  granted 


1  A  maximi  multitudino  vox  una  re- 
spondit ;  llenricum,  Christi  adjutorio,  et 
jure  hsereditario,  reg:naturum.  Ditmar 
apud  Struvium,  p.  273.  See  other  pas- 
sugcs  quoted  in  the  same  place.  Schmidt, 
t.  ii.  p.  410. 

2  Conrad  was  descended  from  a  daugh- 
ter of  Otho  the  Great,  and  also  from 
Conrad  I.  IHs  first-cousin  was  duke  of 
Vranconia.    Struvius  j  Schmidt  i  PfcfTel. 


8  Schmidt,  t.  ii.  p.  393,  403.  Struvius, 
p.  214,  supposes  the  hereditary  rights  of 
dukes  to  have  commenced  under  Conrad 
I. ;  but  Schmidt  is  perhaps  a  better  au- 
thority ;  and  Struvius  afterwards  men- 
tions the  refusal  of  Otho  I.  to  grant  the 
duchy  of  Bavaria  to  the  sons  of  the  last 
duke,  which,  however,  excited  a  rebel- 
Uon.  p.  235. 


I 


70 


HOUSE  OF  FRANCONIA. 


Chap.  V. 


GERMAirr. 


HOUSE  OF  FRANCONIA. 


71 


away  his  duchy  of  Saxony,  and  Henry  IT.  that  of  Bavaria. 
Otho  the  Great  endeavored  to  counteract  the  effects  of  this 
custom  by  conferring  the  duchies  that  fell  into  his  hands 
upon  members  of  his  own  family.  This  policy,  though  appar- 
ently well  conceived,  proved  of  no  advantage  to  Otho,  his 
son  and  brother  having  mixed  in  several  rebellions  against 
him.  It  was  revived,  however,  by  Conrad  11.  and  Henry 
in.  The  latter  was  invested  by  his  father  with  the  two 
duchies  of  Suabia  and  Bavaria.  Upon  his  own  accession 
he  retained  the  former  for  six  years,  and  even  the  latter  for 
a  short  time.  The  duchy  of  Franconia,  which  became  va- 
cant, he  did  not  regrant,  but  endeavored  to  set  a  precedent 
of  uniting  fiefs  to  the  domain.  At  another  time,  after  sen- 
tence of  forfeiture  against  the  duke  of  Bavaria,  he  bestowed 
that  great  province  on  his  wife,  the  empress  Agnes.^  He 
put  an  end  altogether  to  the  form  of  populai*  concurrence, 
which  had  been  usual  when  the  investiture  of  a  duchy  was 
conferred ;  and  even  deposed  dukes  by  the  sentence  of  a  few 
princes,  without  the  consent  of  the  diet.*  J£  we  combine 
with  these  proofs  of  authority  in  the  domestic  administration 
of  Henry  III.  his  almost  unlimited  control  over  papal  elec- 
tions, or  rather  the  right  of  nomination  that  he  acquired,  we 
must  consider  him  as  the  most  absolute  monarch  in  the 
annals  of  Germany. 

These  ambitious  measures  of  Henry  III.  prepared  fifty 
Unfortunate  7^^^^  ^^  Calamity  for  his  son.  It  is  easy  to  per- 
reignof  ceive  that  the  misfortunes  of  Henry  IV.  were 
Henry  IV.  pnniarily  occasioned  by  the  jealousy  with  which 
repeated  violations  of  their  constitutional  u.^ages  had  inspired 
the  nobility.'  The  mere  circumstance  of  Henry  IV.'s  mi- 
nority, under  the  guardianship  of  a  woman,  was  enough  to 
dissipate  whatever  power  his  father  had  acquired.  Hanno, 
archbishop  of  Mentz,  carried  the  young  king  away  by  force? 
from  his  mother,  and  governed  Germany  in  his  name ;  till 
another  archbishop,  Adalbert  of  Bremen,  obtained  greater 
influence  over  him.  Through  the  neglect  of  his  education, 
Henry  grew  up  with  a  character  not  well  fitted  to  retrieve 
the  mischief  of  so  unprotected  a  minority;  brave  indeed, 


well-natured,  and  affable,  but  dissolute  beyond  measure,  and 
addicted  to  low  and  debauched  company.  He  was  ^  ^  ^^-g 
soon  involved  in  a  desperate  war  with  the  Saxons, 
a  nation  valuing  itself  on  its  populousness  and  riches,  jealous 
of  the  house  of  Franconia,  who  wore  a  crown  that  had 
belonged  to  their  own  dukes,  and  indignant  at  Henry's  con- 
duct in  erecting  fortresses  throughout  their  country. 

In  the  progress  of  this  war  many  of  the  chief  princes 
evinced  an  unwillingness  to  support  the  emperor.^  Not- 
withstanding this,  it  would  probably  have  terminated,  as 
other  vebellions  had  done,  with  no  permanent  loss  to  either 
party.  But  in  the  middle  of  this  contest  another  far  more 
memorable  broke  out  with  the  Roman  see,  concerning  eccle- 
siastical investitures.  The  motives  of  this  famous  quarrel 
will  be  explained  in  a  different  chapter  of  the  present  work. 
Its  effect  in  Germany  was  ruinous  to  Henry.  A  ^  j,  jq-^ 
sentence,  not  only  of  excommunication,  but  of 
deposition,  which  Gregory  VII.  pronounced  against  him, 
gave  a  pretence  to  all  his  enemies,  secret  as  well  as  avowed, 
to  withdraw  their  allegiance.*  At  the  head  of  these  was 
Rodolph  duke  of  Suabia,  whom  an  assembly  of  revolted 
princes  raised  to  the  throne.  We  may  perceive,  in  the  con- 
ditions of  Rodolph's  election,  a  symptom  of  the  real  principle 
that  animated  the  German  aristocracy  against  Henry  IV.  It 
was  agreed  that  the  kingdom  should  no  longer  be  hereditary, 
not  conferred  on  the  son  of  a  reigning  monarch,  unless  his 
merit  should  challenge  the  popular  approbation.'  The  pope 
strongly  encouraged  this  plan  of  rendering  the  empire  elec- 
tive, by  which  he  hoped  either  eventually  to  secure  the 
nomination  of  its  chief  for  the  Holy  See,  or  at  least,  by 
Rowing  the  seed  of  civil  dissensions  in  Germany,  to  render 


1  Schmidt,  t.  iii.  p.  25, 87. 

*  Id.  p.  207. 

*  In  the  very  first  year  of  Henry's 
xdgn,  \Thile  he  was  but  six  years  old,  the 
princes  of  Saxony  are  said  by  Lajubert 


ct  AschafTenburg  to  hare  formed  a  con- 
spixacy  to  depose  him,  out  of  resentment 
for  the  injuries  they  had  sustained  from 
his  father.  StruTius,  p.  306.  St.  Marc, 
t.  m.  p.  248. 


1  StruTius.    Schmidt. 

3  A  party  had  been  already  formed, 
who  were  meditating  to  depose  Henry. 
Ilis  excommunication  came  just  in  time 
to  confirm  their  resolutions.  It  appears 
clearly,  upon  a  little  consideration  of 
Henry  IV.'s  reign,  that  the  ecclesiastical 
quarrel  was  only  secondary  in  the  eyes 
of  Germany.  The  contest  against  him 
was  a  struggle  of  the  aristocracy,  jealous 
of  the  imperial  prcrof^tivcs  which  Con- 
rad II.  and  Henry  III.  had  strained  to 
the  utmost.  Those  who  were  in  rebellion 
against  Henry  were  not  pleased  with 
Gregory  VII.  Bruno,  author  of  a  histo- 
ry of  tiie  Saxon  war,  a  furious  inyective, 


manifests  j^rcat  dissatisfaction  with  the 
court  of  Rome,  which  he  reproaches  with 
dissimulation  and  venality. 

8  Hoc  ctiam  ibi  consensu  communi 
comprobatum,  Romani  pontificis  auc- 
toritate  est  corroboratum,  ut  regia  po- 
testas  nulli  per  hacreditatem,  sicut  an  tea 
tail  consuetudo,  cederet,  sed  Alius  regis, 
etiamsi  valde  dignus  esset,  per  electionem 
spontaneam,  non  per  successionis  lineam, 
rex  proveniret :  si  vero  non  esset  dignua 
regis  filius,  yel  si  noUet  eum  populus, 
quem  regem  facero  vellet,  haberet  in 
potestate  populus.  Bruno  de  Bello  Sax- 
ouicO;  apud  Struyium,  p.  827. 


r  f  ' 


72 


ELECTION  OF  LOTHAIRE. 


Chap.  V. 


Gebmant. 


HOUSE  OF  SUABIA. 


73 


Italy  more  independent.  Henry  IV.,  however,  displayed 
greater  abilities  in  his  adversity  than  his  early  conduct  had 
promised.  In  the  last  of  several  decisive  battles,  Rodolph, 
though  victorious,  was  mortally  wounded ;  and  no 
^'^'  '  '  one  cared  to  take  up  a  gauntlet  which  was  to  be  won 
with  so  much  trouble  and  uncertainty.  The  Germans  were 
sufficiently  disposed  to  submit ;  but  Rome  persevered  in  her 
unrelenting  hatred.  At  the  close  of  Henry's  long  reign  she 
excited  against  him  his  eldest  son,  and,  after  more  than  thirty 
years  of  hostility,  had  the  satisfaction  of  wearing  him  down 
with  misfortune,  and  casting  out  his  body,  as  excommunicated, 
from  its  sepulchre. 

In  the  reign  of  his  son  Henry  V.  there  is  no  event  worthy 
Extinction  of  ^f  much  attention,  except  the  termination  of  the 
the  house  of  great  contcst  about  investitures.     At  his  death  in 
Franconia.     ^^25    the   male   line  of  the   Franconian  emper- 
ors was  at  an  end.     Frederic  duke  of  Suabia,  grandson  by 
his  mother  of  Henry  IV.,  had  inherited  their  pat- 
A.D.1125.       i-imonial   estates,  and  seemed  to  represent   their 
dynasty.     But  both  the  last  emperors  had  so  many  enemies, 
and  a  disposition  to  render  the  crown  elective  prevailed  so 
Election  of     strougly  among  the  leading  princes,  that  Lothaire 
Lothaire.       ^ukc  of  Saxony  was  elevated  to  the  throne,  though 
rather  in  a  tumultuous  and  irregular  manner.*    Lothaire,  who 
had  been  engaged  in  a  revolt  against  Henry  V.,  and  the  chief 
of  a  nation  that  bore  an  inveterate  hatred  to  the  house  of 
Franconia,  was  the  natural  enemy  of  the  new  family  that 
derived  its  importance  and  pretensions  from  that  stock.     It 
was  the  object  of  his  reign,  accordingly,  to  oppress  the  two 
brothers,  Frederic  and   Conrad,  of  the   Hohenstauffcn   or 
Suabian  family.     By  this  means  he  expected  to  secure  the 
succession  of  the  empire  for  his   son-in-law.     Henry,  sur- 
named  the  Proud,  who  married  Lothaire's  only  child,  was 
fourth  in  descent  from  Welf,  son  of  Azon  marquis  of  Este, 
by  Cunegonda,  heiress  of  a  distinguished  family,  the  Welfs 
of  Altorf  in  Suabia.     Her  son  was  invested  with  the  duchy 


I  See  an  account  of  Lothaire's  election 
by  a  contemporary  writer  in  Struvius, 
p.  357.  See  also  proofs  of  the  dissatis- 
faction of  the  aristocracy  at  the  Franco- 
nian gOTernment.  Schmidt,  t.  iii.  p. 
328.  It  was  evidently  their  determination 
to  render  the  empire  truly  elective  (Id. 
2t.  335) :  and  perhaps  we  may  date  that 


fundamental  principle  of  the  Germanic 
constitution  from  the  accession  of  Lo- 
thaire. Previously  to  that  era,  birth 
seems  to  have  given  not  only  a  fair  title 
to  preference,  but  a  sort  of  inclioate 
right,  as  in  France,  Spain,  and  England. 
Lothair«  signed  a  capitulation  at  his  ac> 
cession. 


of  Bavaria  in  1071.  His  descendant,  Henry  the  Proud, 
represented  also,  through  his  mother,  the  ancient  dukes  of 
Saxony,  surnamed  Billung,  from  whom  he  derived  the  duchy 
of  Luneburg.  The  wife  of  Lothaire  transmitted  to  her 
daughter  the  patrimony  of  Henry  the  Fowler,  consisting  of 
Hanover  and  Brunswic.  Besides  this  gi-eat  dowry,  Lothaire 
bestowed  upon  his  son-in-law  the  duchy  of  Saxony  in  addi- 
tion to  that  of  Bavaria.^ 

This  amazing  preponderance,  however,  tended  to  ahenate 
the  princes  of  Germany  from  Lothaire's  views  in  favor  of 
Henry ;  and  the  latter  does  not  seem  to  have  possessed  abili- 
ties adequate  to  his  emment  station.     On  the  death  of  Lo- 
thaire in  1138  the  partisans  of  the  house  of  Suabia  made  a 
hasty  and  irregular  election  of  Conrad,  in  which  the  Saxon 
faction  found  itself  obliged  to  acquiesce.^    The  new  emperor 
availed  himself  of  the  jealousy  which  Henry  the  House  of 
Proud's  aggrandizement  had  excited.     Under  pre-  g^^^^-iu. 
tence  that  two  duchies  could  not  legally  be  held  by        ^^^ 
the  same  person,  Henry  was  summoned  to  resign  ^•^• 
one  of  them ;  and  on  his  refusal,  the  diet  pronounced  that  he 
had  incurred  a  forfeiture  of  both.     Henry  made  but  little 
resistance,  and  before  his  death,  which  happened  soon  after- 
wards, saw  himself  stripped  of  all  his  hereditary  as  well  as 
acquired    possessions.      Upon    this    occasion   the  q^..^.^  ^^ 
famous  names  of  Guelf  and  Ghibelin  were  first  g^e^f^^^^^ 
heard,  which  were  destined  to  keep  alive  the  flame     ^  «  '^-  ^ 
of  civil  dissension  in  far  distant   countries,  and  after  theii- 
meaning  had  been  forgotten.    The  Guelfs,  or  Welfs,  were,  as 
I  have  °said,  the  ancestors  of  Henry,  and  the  name  has  be- 
come a  sort  of  patronymic  in  his  family.    The  word  Ghibelin 
is  derived  from  Wibelung,  a  town  in  Franconia,  whence  the 
emperors  of  that  line  are  said  to  have  sprung.     The  house 
of  Suabia  were  considered  in  Germany  as  representing  that 
of  Franconia ;  as  the  Guelfs  may,  without  much  impropriety, 
be  deemed  to  represent  the  Saxon  line.^ 

Though  Conrad  III.  left  a  son,  the  choice  of  the  electors 
fell,  at  his  own  request,  upon  his  nephew  Frederic  Frederic 
Barbarossa.*    The  most  conspicuous  events  of  this  Barbarossa. 
great  emperor's  life  belong  to  the  history  of  Italy.     At  home 

1  Pfeffel,    Abrdgo    Chronologique    de  2  Schmidt. 

I'Histoire  d'AUemagne,  t.  i.  p.  269.    (Pa-  3  Struvius,  p  370  and  378. 

ris,  1777.)    Gibbon's  Antiquities  of  the  *  Struvius. 
House  of  Brunswic 


74 


HOUSE  OF  SUABU. 


Chap.  V. 


'  y 


he  was  feared  and  respected ;  the  imperial  prerogatives  stood 
as  high  during  his  reign  as,  after  their  previous  dechne,  it 
was  possible  for  a  single  man  to  carry  them.^  But  the  only 
circumstance  which  appears  memorable  enough  for  the  pres- 
Faii  of  ent  sketch  is  the  second  fall  of  the  Guelfs.   Henry 

Henry  the  the  Liou,  SOU  of  Henry  the  Proud,  had  been  re- 
stored  by  Conrad  HI.  to  his  father's  duchy  of 
^•^*  '^-  Saxony,  resigning  his  claim  to  that  of  Bavaria 
which  had  been  conferred  on  the  margrave  of  Austria.  Tiiia 
renunciation,  wliich  indeed  was  only  made  in  his  name  during 
childhood,  did  not  prevent  him  from  urging  the  emperor 
Frederic  to  restore  the  whole  of  his  birthright ;  and  Fred- 
eric, his  first-cousin,  whose  life  he  had  saved  in  a  sedition  at 
Rome,  was  induced  to  comply  with  tliis  request  in  115G.  Far 
from  evincing  that  political  jealousy  which  some  writers  im- 
pute to  him,  the  emperor  seems  to  have  carried  his  generosity 
beyond  the  limits  of  prudence.  For  many  years  their  union 
was  apparently  cordial.  But,  whether  it  was  that  Henry  took 
umbrage  at  part  of  Frederic's  conduct,2or  that  mere  ambition 
rendered  him  ungrateful,  he  certainly  abandoned  his  sover- 
eign in  a  moment  of  distress,  refusing  to  give  any  assistance 
in  that  expedition  into  Lombardy  which  ended  in  the  unsuc- 
cessful battle  of  Legnano.  Frederic  could  not  forgive  this 
injury,  and,  taking  advantage  of  complamts,  which°Henry*s 
power  and  haughtiness  had  produced,  summoned  him  to  an- 
swer charges  in  a  general  diet.  The  duke  refused  to  appear, 
and,  being  adjudged  contumacious,  a  sentence  of  confiscation, 
similar  to  that  which  ruined  his  father,  fell  upon  his  head ; 
and  the  vast  imperial  fiefs  that  he  possessed  were  shared 
among  some  potent  enemies.'  He  made  an  ineffectual  resist- 
ance ;  like  his  father,  he  appears  to  have  owed  more  to  for- 
tune than  to  nature ;  and  after  three  years'  exile,  was  obliged 
to  remain  content  with  the  restoration  of  his  alodial  estates 
in  Saxony.  These,  fifty  years  afterwards,  were  converted 
into  imperial  fiefs,  and  became  the  two  duchies  of  the  house 


1  Pfeffel,  p.  &tl. 

*  Frederic  had  obtained  the  succession 
of  Wolf  marquis  of  Tuscany,  uncle  of 
Henry  the  Lion,  who  probablv  considered 
himself  as  entitled  to  expect  it.  Schmidt, 
p.  427. 

3  Putter,  in  his  Historical  Development 
of  the  Constitution  of  the  German  Em- 
pire, is  inclined  to  consider  Henry  the 
Lion  as  sacrificed  to  the  emperor's  jeal- 


ousy of  the  Quelfs,  and  a.s  illesallv  pro 
scribed  by  the  diet.   But  the  provocations 
he  had  given   Frederic  are  undeniable; 
and,  without  pretending  to  decide  on  a 
question  of  Oerman  history,  I  do  not  see 
that  there  was  any  precipitancy  or  mani 
fest  breach  of  justice  in  the  course  of 
proceedings  against  him.    Schmidt,  Pfef 
fel,  and  Struvius  do  not  represent  the 
condemnation  of  Henry  as  ucjust. 


Gebmant. 


E[OUSE  OF  SUABIA. 


75 


of  Bnmswic,  the  lineal  representatives  of  Henry  the  Lion 
and  inheritors  of  the  name  of  Guelf.^ 

Notwithstanding  the  prevailing  spirit  of  the  German 
oligarchy,  Frederic  Barbarossa  had  found  no  difiiculty  in 
procuring  the  election  of  his  son  Henry,  even  during  infancy, 
as  his  successor.^  The  fall  of  Henry  the  Lion  Henry  vi. 
liad  greatly  weakened  the  ducal  authority  in  ^•^'  ^^^^ 
Saxony  and  Bavaria ;  the  princes  who  acquired  that  title, 
especially  in  the  former  country,  finding  that  the  secular  and 
spiritual  nobility  of  the  first  class  had  taken  the  opportunity 
to  raise  themselves  into  an  immediate  dependence  upon  the 
empire.  Henry  VL  came,  therefore,  to  the  crown  with  con- 
siderable advantages  in  respect  of  prerogative;  and  these 
inspired  him  with  the  bold  scheme  of  declaring  the  empire 
hereditary.  One  is  more  surprised  to  find  that  he  had  no 
contemptible  prospect  of  success  in  this  attempt:  fifty-two 
princes,  and  even  what  appears  hardly  credible,  the  See  of 
Rome,  under  Clement  III.,  having  been  induced  to  concur  in 
it.  But  the  Saxons  made  so  vigorous  an  opposition,  that 
Henry  did  not  think  it  advisable  to  persevere.'  He  procured, 
however,  the  election  of  his  son  Frederic,  an  infant  only  two 
years  old.  But,  the  emperor  dying  almost  immediately,  a 
powerful  body  of  princes,  supported  by  Pope  Innocent  IH., 
were  desirous  to  withdraw  their  consent.  Philip  pj^jj.  ^^^ 
duke  of  Suabia,  the  late  king's  brother,  unable  to  otho  iv. 
secure  his  nephew's  succession,  brought  about  his  ^'^'  ^^^^' 
own  election  by  one  party,  while  another  chose  Otho  of 
Brunswic,  younger  son  of  Henry  the  Lion.  This  double 
election  renewed  the  rivalry  between  the  Guelfs  and  Ghibe- 
Uns,  and  threw  Germany  into  confusion  for  several  years. 
Philip,  whose  pretensions  appear  to  be  the  more  legitimate 
of  the  two,  gained  ground  upon  his  adversary,  notwithstand- 
ing the  opposition  of  the  pope,  till  he  was  assassinated  in 
consequence  of  a  private  resentment.  Otho  IV.  reaped  the 
benefit  of  a  crime  in  which  he  did  not  participate,  and  became 
for  some  years  undisputed  sovereign.  But,  having  ofiended 
the  pope  by  not  entirely  abandoning  his  imperial  j^os 
rights  over  Italy,  he  had,  in  the  latter  part  of  his  ^*  * 
reign,  to  contend  against  Frederic,  son  of  Henry  VI.,  who, 

1  Putter,  p.  220.  tem,  distinct£l  proximorum  successione. 

'  StruTius,  p.  418.  transiret,  et  sic  in  ipso  terminus  esset 

3  StruTius,  p.  424.    ImpetraTit  a  sub-  electionis,  principiumque  successivse  d4g» 

ditis,  ut  cessante  pristine  Palatinorum  nitatis.    Geryas.  Tilburiens.  ibidem. 

electione.  imperium  in  ipsius  posterita- 


76 


RICHARD  OF  CORNWALL. 


Chap.  V. 


having  grown  up  to  manhood,  came  mto  Germany  as  heir  of 
the  house  of  Suabia,  and,  what  was  not  very  usual  in  his  own 
history,  or  that  of  his  family,  the  favored  candidate  of  the 
Holy  See.  Otho  IV.  had  been  almost  entirely  deserted  except 
by  his  natural  subjects,  when  his  death,  in  1218,  removed 
every  difficulty,  and  left  Frederic  II.  in  the  peaceable  posses- 
sion of  Germany. 

The  eventful  life  of  Frederic  II.  was  chiefly  passed  in 
Italy.  To  preserve  his  hereditary  dominions,  and 
^  ^^^^  '  chastise  the  Lombard  cities,  were  the  leading  ob- 
jects of  his  political  and  military  career.  He  paid  therefore 
but  little  attention  to  Germany,  from  which  it  was  in  vain 
for  any  emperor  to  expect  effectual  assistance  towards  objects 
of  his  own.  Careless  of  prerogatives  which  it  seemed  hardly 
worth  an  effort  to  preserve,  he  sanctioned  the  independence 
of  the  princes,  which  may  be  properly  dated  from  his  reign. 
In  return,  they  readily  elected  his  son  Henry  king  of  the 
Romans ;  and  on  his  being  implicated  in  a  rebellion,  deposed 
him  with  equal  readiness,  and  substituted  his  brother  Conrad 
at  the  emperor's  request.^  But  in  the  latter  part  of  Fred- 
eric's reign  the  deadly  hatred  of  Rome  penetrated  beyond 
Conse-  ^^^  Alps.    After  his  solemn  deposition  in  the  coun- 

quencesof     cil  of  Lvous,  he  was  incapable,  in  ecclesiastical 

the  council  r»    i     i  t  .1        •  •   1  ^  t  x 

of  Lyons.  eycs,  01  holdmg  the  imperial  sceptre.  Innocent 
▲  »  1245  ^^*  ^<^^"^>  however,  some  difficulty  in  setting  up  a 
rival  emperor.  Henry  landgrave  of  Thuringia 
A.D.  1248.  niade  an  indifferent  figure  in  this  character.  Upon 
his  death,  William  count  of  Holland  was  chosen  by  the  party 
adverse  to  Frederic  and  his  son  Conrad ;  and  after  the  em- 
peror's death  he  had  some  success  against  the  latter.  It  is 
hard  indeed  to  say  that  any  one  was  actually  sovereign  for 
twenty-two  years  that  followed  the  death  of  Frederic  II.: 
Grand  in-  ^  pcHod  of  coutcsted  title  and  universal  anarchy, 
terregjum.  which  is  usually  denominated  the  grand  interreg- 
num. On  the  decease  of  William  of  Holland,  in 
AD.  1272.  1256,  a  schism  among  the  electors  produced  the 
Richard  of  doublc  choicc  of  Richard  earl  of  Cornwall,  and 
Cornwall.  Alfouso  X.  king  of  CastUe.  It  seems  not  easy  to 
determine  which  of  these  candidates  had  a  legal  majority  of 
votes ;  ^  but  the  subsequent  recognition  of  almost  all  Germany, 

1  StruTius,  p.  457.  of  Treves,  having  got  posseasion  of  the 

*  The  election  ought  legally  to  have    town,  shut  out  the  archbUhops  of  Mcntz 

b^en  made  at  Frankfort.    But  the  elector    and  Cologne  and  the  count  palatine,  on 


Gekmany. 


GERMANIC  CONSTITUTION. 


77 


and  a  sort  of  possession  evidenced  by  public  acts,  which  have 
been  held  valid,  as  well  as  the  general  consent  of  contem- 
poraries, may  justify  us  in  adding  Richard  to  the  imperial 
list.  The  choice  indeed  was  ridiculous,  as  he  possessed  no 
talents  which  could  compensate  for  his  want  of  power ;  but 
the  electors  attained  their  objects ;  to  perpetuate  a  state  of 
confusion  by  which  their  own  independence  was  consolidated, 
and  to  plunder  without  scruple  a  man,  like  Didius  at  Rome, 
rich  and  foolish  enough  to  purchase  the  first  place  upon 
earth. 

That  place  indeed  was  now  become  a  mockery  of  great- 
ness.   For  more  than  two  centuries,  notwithstand- 
ing the  temporary  influence  of  Frederic  Barbarossa  Germanic  * 
and    his    son,  tlie   imperial   authority  had  been  constitu- 
in  a  state  of  gradual  decay.     From  the  time  of 
Frederic  II.  it  had  bordered  uj^on  absolute  insignificance; 
and  the  more  prudent  German  princes  were  slow  to  canvass 
for  a  dignity  so  little  accompanied  by  respect.     The  changes 
wrought  in  the  Germanic  constitution  during  the  period  of 
the  Suabian  emperors  chiefly  consist  in  the  establishment  of 
an  oligarchy  of  electors,  and  of  the  territorial  sovereignty  of 
the  princes. 

1.  At  the  extinction  of  the  Franconian  line  by  the  death 
of  Henry  V.  it  was  determined  by  the  German 
nobility  to  make  their  empire  practically  elective, 
admitting  no  right,  or  even  natural  pretension,  in  the  eldest 
son  of  a  reigning  sovereign.  Their  choice  upon  former  oc- 
casions had  been  made  by  free  and  general  suffrage.  But  it 
may  be  presumed  that  each  nation  voted  unanimously,  and 
according  to  the  disposition  of  its  duke.  It  is  probable,  too, 
that  the  leaders,  after  discussing  in  previous  deliberations  the 
merits  of  the  several  candidates,  submitted  their  own  resolu- 
tions to  the  assembly,  which  would  generally  concur  in  them 
without  hesitation.     At  the  election  of  Lothaire,  in  1124,  we 


pretence  of  apprehending  violence.  They 
met  under  the  walls,  and  there  elected 
Richard.  Afterwards  Alfonso  was  chosen 
by  the  votes  of  Treves,  Saxony,  and 
Brandenburg.  Historians  differ  about 
the  vote  of  Ottocar  king  of  Bohemia, 
which  would  turn  the  scale.  Some  time 
after  the  election  it  is  certain  that  he 
was  on  the  side  of  Richard.  Perhaps  we 
may  collect  from  the  opposite  statements 
in  Struviufl,  p.  504,  that  the  proxies  of 


Ottocar  had  voted  for  Alfonso,  and  that 
he  did  not  think  fit  to  recognize  their 
act. 

There  can  be  no  doubt  that  Richard 
was  de  facto  sovereign  of  Germany  ;  and 
it  is  singular  that  Struvius  should  assert 
the  contrary,  on  the  authority  of  an  in- 
strument of  Rodolph.  which  expressly 
designates  him  king,  per  quondam 
Richardum  regem  illustrem.  Struv.  p. 
602. 


78 


GERMANIC  CONSTITUTION. 


Chap.  V, 


(xEKM  UNT. 


GER]SIANIC  CONSTITUTION. 


79 


find  an  evident  instance  of  this  previous  choice,  or,  as  it  was 
called,  prcetaxation,  from  which  the  electoral  college  of  Ger- 
many has  been  derived.  The  princes,  it  is  said,  trusted  the 
choice  of  an  emperor  to  ten  persons,  in  whose  judgment  they 
promised  to  acquiesce.^  This  precedent  was,  in  all  likeli- 
hood, followed  at  all  subsequent  elections.  The  proofs  indeed 
are  not  perfectly  clear.  But  in  the  famous  privilege  of 
Austria,  granted  by  Frederic  I.  in  1156,  he  bestows  a  rank 
upon  the  newly-created  duke  of  that  country,  immediately 
after  the  electing  princes  (post  principes  electores);  ^  a  strong 
presumption  that  the  right  of  pretaxation  was  not  only  estab- 
lished, but  limited  to  a  few  definite  persons.  In  a  letter  of 
Innocent  III.,  concerning  the  double  election  of  Philip  and 
Otho  in  1198,  he  asserts  the  latter  to  have  had  a  majority  in 
his  favor  of  those  to  whom  the  right  of  election  chiefly  be- 
longs (ad  quos  principaliter  spectat  electio).'  And  a  law  of 
Otho  in  1208,  if  it  be  genuine,  appears  to  fix  the  exclusive 
privilege  of  the  seven  electors.*  Nevertheless,  so  obscure  is 
this  important  part  of  the  Germanic  system,  that  we  find 
four  ecclesiastical  and  two  secular  princes  concurring  with 
the  regular  electors  in  the  act,  as  reported  by  a  contemporary 
writer,  that  creates  Conrad,  son  of  Frederic  II.,  king  of  the 
Romans.*  This,  however,  may  have  been  an  irregular  de- 
viation from  the  principle  already  established.  But  it  is 
admitted  that  all  the  princes  retained,  at  least  during  the 
twelfth  century,  their  consenting  suffrage ;  like  the  laity  in 
an  episcopal  election,  whose  approbation  continued  to  be 
necessary  long  after  the  real  power  of  choice  had  been 
withdrawn  from  them.® 

It  is  not  easy  to  account  for  aU  the  circumstances  that 
gave  to  seven  spiritual  and  temporal  princes  this  distinguish- 
ed preeminence.  The  three  archbishops,  Mentz,  Treves,  and 
Cologne,  were  always  indeed  at  the  head  of  the  German 
church.  But  the  secular  electors  should  naturally  have  been 
the  dukes  of  four  nations :  Saxony,  Franconia,  Suabia,  and 
Bavaria.     We  find,  however,  only  the  first  of  these  in  the 


iStruvius,  p.  357.  Schmidt,  t.  iU. 
p.  331.  * 

2  Schmidt,  t.  iu.  p.  390. 

3  Pfeffel,  p.  360. 

*  Schmidt,  t.  iv.  p.  80. 

6  This  is  not  mentioned  in  Struvius,  or 
the  other  Germin  writers.  But  Denina 
/Bivoluzioni  d'lialia,  1.  ix.  c.  9)  quotes 


the  style  of  the  act  of  election  from  the 
Chronicle  of  Francis  Pippin. 

0  This  is  manifest  by  the  various  pas- 
sages relating  to  the  elections  of  PhiHp 
and  otho,  quoted  by  Struvius,  p.  4^ 
430.  See,  too,  Pfeffel,  ubi  supra.  Schmidt, 
t.  iv.  p.  79. 


undisputed  exercise  of  a  vote.  It  seems  probable  that,  when 
the  electoral  princes  came  to  be  distinguished  from  the  rest, 
their  privilege  was  considered  as  peculiarly  connected  with 
the  discharge  of  one  of  the  great  offices  in  the  imperial 
court  These  were  attached,  as  early  as  the  diet  of  Mentz 
in  1184,  to  the  four  electors,  who  ever  afterwards  possessed 
them :  the  duke  of  Saxony  having  then  officiated  as  arch- 
marshal,  the  count  palatine  of  the  Rhine  as  arch-steward, 
the  king  of  Bohemia  as  arch-cupbearer,  and  the  margrave 
of  Brandenburg  as  arch-chamberlain  of  the  empire.^  But 
it  still  continues  a  problem  why  the  three  latter  offices,  with 
the  electoral  capacity  as  their  incident,  should  not  rather  have 
been  granted  to  the  dukes  of  Franconia,  Suabia,  and  Bavaria. 
I  have  seen  no  adequate  explanation  of  this  circumstance ; 
which  may  perhaps  lead  us  to  presume  that  the  right  of  pre- 
election was  not  quite  so  soon  confined  to  the  precise  number 
of  seven  princes.  The  final  extinction  of  two  great  original 
duchies,  Franconia  and  Suabia,  in  the  thirteenth  century, 
left  the  electoral  rights  of  the  count  palatine  and  the  mar- 
grave of  Brandenburg  beyond  dispute.  But  the  dukes  of 
Bavaria  continued  to  claim  a  vote  in  opposition  to  the  kings 
of  Bohemia.  At  the  election  of  Rodolpli  in  1272  the  two 
brothers  of  the  house  of  Wittelsbach  voted  separately,  as 
count  palatine  and  duke  of  Lower  Bavaria.  Ottocar  was  ex- 
cluded upon  this  occasion;  and  it  was  not  till  1290  that  the 
suffrage  of  Bohemia  was  fully  recognized.  The  Palatine 
and  Bavarian  branches,  however,  continued  to  enjoy  their 
family  vote  conjointly,  by  a  determination  of  Rodolph  ;  upon 
which  Louis  of  Bavaria  slightly  innovated,  by  rendering  the 
suffrage  alternate.  But  the  Golden  Bull  of  Charles  IV.  put 
an  end  to  all  doubts  on  the  rights  of  electoral  houses,  and  ab- 
solutely excluded  Bavaria  from  voting.  The  limitation  to 
seven  electors,  first  perhaps  fixed  by  accident,  came  to  be  in- 
vested with  a  sort  of  mysterious  importance,  and  certainly 
was  considered,  until  times  comparatively  recent,  as  a  funda- 
mental law  of  the  empire.^ 

2.  It  might  appear  natural  to  expect  that  an  oligarchy  of 
seven  persons,  who  had  thus  excluded  their  equals  Princes  and 
from  all  share  in  the  election  of  a  sovereign,  would  ferio""**  ^" 
assume  still  greater  authority,  and  trespass  fur-  ^^^^y* 


uo- 


»  Schmidt,  t.  iv.  p.  78. 

« Ibid.  p.  78, 668  j  Putter,  p.  274;  Pfeffel,  p.  435, 665 ;  Struvius,  p.  5U. 


80 


GERMANIC  CONSTITUTION. 


Chap.  V. 


Germany. 


RODOLPH  OF  HAPSBURG. 


81 


i 


ther  upon  the  less  powerful  vassals  of  the  empire.     But 
while  the  electors  were  establishing  their  peculiar  privilege, 
the  class  immediately  inferior  raised  itself  by  important  acqui- 
sitions of  power.     The  German  dukes,  even  after  they  be- 
came hereditary,  did  not  succeed  in  compelling  the  chief  nobil- 
ity within  their  limits  to  hold  their  lands  in  fief  so  completely 
as  the  peers  of  France  had  done.     The  nobles  of  Suabia  re- 
fused to  follow  their  duke  into  the  field  against  the  emperor 
Conrad  11.^     Of  this  aristocracy  the  superior  class  were  de- 
nommated  princes ;  an  appellation  which,  after  the  eleventh 
century,  distinguished  them  from  the  untitled  nobility,  most  of 
whom  were  their  vassals.     They  were  constituent  parts  of  all 
diets ;  and  though  gradually  deprived  of  their  original  partici- 
pation in  electing  an  emperor,  possessed,  in  all  other  respects, 
the  same  rights  as  the  dukes  or  electors.     Some  of  them  were 
fully  equal  to  the  electors  in  birth  as  well  as  extent  of  domin- 
ions ;  such  as  the  princely  houses  of  Austria,  Hesse,  Brunswic, 
and  Misnia.     By  the  division  of  Henry  the  Lion's  vast  terri- 
tories,^  and  by  the  absolute  extinction  of  the  Suabian  family 
in  the  following  century,  a  great  many  princes  acquired  ad- 
ditional weight.     Of  the  ancient  duchies,  only  Saxony  and 
Bavaria  remained ;  the  former  of  which  especially  was  so  dis- 
membered, that  it  was  vain  to  attempt  any  renewal  of  the 
ducal  jurisdiction.     That  of  the  emperor,  formeriy  exercised 
by  the  counts  palatine,  went  almost  equally  into  disuse  during 
the  contest  between  Philip  and  Otho  IV.     The  princes  ac- 
cordingly had  acted  with  sovereign  independence  within  their 
own  fiefs  before  the  reign  of  Frederic  II. ;  but  the  legal  rec- 
ognition of  their  immunities  was  reserved  for  two  edicts  ot 
that  emperor ;  one,  in  1220,  relating  to  ecclesiastical,  and  the 
other,  in  1232,  to  secular  princes.     By  these  he  engaged  nei- 
ther to  levy  the  customary  imperial  dues,  nor  to  permit  the 
jurisdiction  of  the  palatine  judges,  within  the  limits  of  a  state 
of  the  empire ;  ^  concessions  that  amounted  to  little  less  than 
an  abdication  of  his  own  sovereignty.     From  this  epoch  the 
territorial  independence  of  the  states  may  be  dated. 

A  class  of  titled  nobility,  inferior  to  the  princes,  w^ere  the 
counts  of  the  empire,  who  seem  to  have  been  separated  from 
the  former  in  the  twelfth  century,  and  to  have  lost  at  the  same 

1  Pfeffel,  p.  209.  quite  a  new  fece  to  Germany,  in  Pfeffel, 

2  See  the  arrangements  made  in  conse-    p.  234;  also  p.  437. 

quence  of  Uenry's  forfeiture,  wliich  gave       3  pfeffel,  p.  384;  Putter,  p.  233. 


time  their  right  of  voting  in  the  diets.^  In  some  parts  of 
Grermany,  chiefly  in  Franconia  and  upon  the  Rhine,  there 
always  existed  a  very  numerous  body  of  lower  nobility ;  unti- 
tled at  least  till  modern  times,  but  subject  to  no  superior  ex- 
cept the  emperor.  These  are  supposed  to  have  become  im- 
mediate, after  the  destruction  of  the  house  of  Suabia,  within 
whose  duchies  they  had  been  comprehended.^ 

A  short  interval  elapsed  after  the  death  of  Richard  of  Corn- 
wall before  the  electors  could  be  induced,  by  the  ^^  ^^.^^  ^^ 
deplorable  state  of  confusion  into  which  Germany  Rodoiph  of 
had  fallen,  to  fill  the  imperial  throne.     Their  choice  ^^^^^{l 
was  however  the  best  that  could  have  been  made. 
It  fell  upon  Rodoiph  count  of  Hapsburg,  a  prince  of  very  an- 
cient family,  and  of  considerable  possessions  as  well  in  Switz- 
erland as  upon  each  bank  of  the  Upper  Rhine,  but  not  suffi- 
ciently powerful  to  alarm  the  electoral  oligarchy.  Rodoiph  was 
brave,  active,  and  just ;  but  his  characteristic  quality  appears 
to  have  been  good  sense,  and  judgment  of  the  circumstances 
in  which  he  was  placed.     Of  this  he  gave  a  signal  proof  in 
relinquishing  the  favorite  project  of  so  many  preceding  em- 
perors, and  leaving  Italy  altogether  to  itself.      At  home  he 
manifested  a  vigilant  spirit  in  administering  justice,  and  is 
said  to  have  destroyed  seventy  strongholds  of  noble  robbers  in 
Thuringia  and  other  parts,  bringing  many  of  the  criminals  to 
capital  punishment.^     But  he  wisely  avoided  giving  offence  to 
the  more  powerful  princes ;  and  during  his  reign  there  were 
hardly  any  rebellions  in  Grermany. 

It  was  a  very  reasonable  object  of  every  emperor  to  ag- 
grandize his  family  by  investing  his  near  kindred  investment 
with  vacant  fiefs ;  but  no  one  was  so  fortunate  in  ^jbLrt^with 
his  opportunities  as  Rodoiph.     At  his  accession,  duchy  of 
Austria,  Styria,  and  Carniola  were  in  the  hands  of  ^^^''■"*' 
Ottocar  king  of  Bohemia.     These  extensive  and  fertile  coun- 
tries had  been  formed  into  a  march  or  margraviate,  after  the 
victories  of  Otho  the  Great  over  the  Hungarians.     Frederic 
Barbarossa  erected  them  into  a  duchy,  with  many  distinguish 
ed  privileges,  especially  that  of  female  succession,  hithert 


1  In  ttie  instruments  relating  to  the 
election  of  Otho  IV.  the  princes  sign 
their  names,  Ego  N.  elegi  et  subscripsi. 
But  the  counts  only  as  follows :  Ego  N. 
eonwnsi  et  subscripsi.    Pfefiel,  p.  360. 


VOL.  n. 


6 


«  PfeCfel,  p.  455;  Putter,  p.  254;  Stru 
vius.  p.  511. 

3  Struvius,  p.    530.     Coxe's  Hist,  of 
House  of  Austria,  p.  57.    This  valuable 
work  contains  a  full  and  interesting  a* 
count  of  Kodolph's  reign. 


82 


THE  EMPIRE  AFTER  RODOLPH. 


Chap.  V 


Gebmant. 


CUSTOM  OF  PARTITION. 


83 


unknown  in  the  feudal  principalities  of  Germany.*     Upon 
the  extinction  of  the  house  of  Bamberg,  which  had  enjoyed 
this  duchy,  it  was  granted  by  Frederic  II.  to  a  cousin  of  liis 
own  name ;  after  wliose  death  a  disputed  succession  gave  rise 
to  several  changes,  and  ultimately  enabled  Ottocar  to  gain 
possession  of  the  country.      Against  this  king  of  Bohemia 
Kodolph  waged  two  successful  wars,  and  recovered 
A.D.  1283.       ^j^^  Austrian  provinces,  which,  as  vacant  fiefs,  he 
conferred,  with  the  consent  of  the  diet,  upon  his  son  Albert.^ 
Notwithstanding    the  merit  and    popularity  of  Rodolph, 
the  electors  refused  to  choose  his  son  king  of  the 
fm^rf after    Romaus  in  his  lifetime ;  and,  after  his  death,  de- 
Rodoiph.       termined  to  avoid  the  appearance  of  hereditary 
succession,  put  Adolphus  of  Nassau  upon  the  throne.     There 
Adoiphus.      is  very  little  to  attract  notice  in  the  domestic  history 
of  the  empire  during  the  next  two  centuries.  ^  From 
Adolphus  to  Sigismund  every  emperor  had  either  to 
struffffle  against  a  competitor  claiming  the  majority 
of  votes  at  his  election,  or  against  a  combination 
of  the   electors  to  dethrone   him.     The  imperial 
authority    became    more   and  more   ineffective  ; 
yet  it  was  frequently  made  a  subject  of  reproach 
against   the  emperors  that  they   did   not    main- 
tain a  sovereignty  to  which  no  one  was  disposed  to 
submit. 

It  may  appear  surprising  that  the  Germanic  confederacy 
under  the  nominal  supremacy  of  an  emperor  should  have 
been  preserved  in  circumstances  apparently  so  calculated  to 
dissolve  it.  But,  besides  the  natural  effect  of  prejudice  and  a 
famous  name,  there  were  sufficient  reasons  to  induce  the  elec- 
tors to  preserve  a  form  of  government  in  which  they  bore  so 


A.D.  1292. 
Albert  I. 
A.D.  1298. 
Henry  VII. 
A.D.  1308. 
Louis  IV. 
A.D.  1314. 
Charles  IV. 
A.D.  1347. 
Wenceslaua 
A.D.  1378. 
Robert. 
A.D.  1400. 
Eigismund. 
A.D.  1414. 


I  The  privileges  of  Austria  were  granted 
to  the  margrave  Henry  in  1156.  by  way 
of  indemnity  for  his  restitution  of  Bava- 
ria to  Henry  the  Lion.  The  territory 
between  the  Inn  and  the  Ems  was  sepa- 
rated from  the  latter  province,  and  an- 
nexed to  Austria  at  this  time.  The 
dukes  of  Austria  are  declared  equal  in 
rank  to  the  palatine  archdukes  (archi- 
ducibus  palatinis).  This  expression  gave 
a  hint  to  the  duke  Rodolph  IV.  to  as- 
sume the  title  of  archduke  of  Austria. 
Schmidt,  t.  iii.  p.  390.  Frederic  11.  even 
created  the  duke  of  Austria  king :  a  very 
curious  fact  thongh  neither  he  nor  his 
fucceasors  ever  assumed  the  title.    Stru- 


Tins,  p.  463.  The  instrument  runs  aa 
follows:  Ducatus  Austriao  et  Styrioe, 
cum  pertinentiis  et  tcrnnnis  suis  quot 
hactenus  habuit,  ad  nomcn  et  honorem 
regium  transferente.^,  te  hactenus  duca- 
tuum  praedictorum  ducem,  de  potestatis 
nostra  plenitudine  et  magniflcentia 
speciali  promovcmus  in  regem,  per  liber- 
tates  et  jura  priedictum  rcgnum  tuum 
praseutis  epigrammatis  auctoritate  do- 
nantes,  quw  regiam  deceant  dijniitatem; 
ut  tamen  ex  honore  quem  tibi  libenter 
addimus,  nihil  honoris  ct  juris  nostri 
diaderaatis  aut  imperii  subtrahatur. 
•i  Struvius,  f.B2o;  Schmidt ;  Coxe. 


decided  a  sway.  Accident  had  in  a  considerable  degree  re- 
stricted the  electoral  suffrages  to  seven  princes.  Without 
the  college  there  were  houses  more  substantially  powerful 
than  any  within  it.  The  duchy  of  Saxony  had  been  subdi- 
vided by  repeated  partitions  among  children,  till  the  electoral 
right  was  vested  in  a  prince  who  possessed  only  the  small 
territory  of  Wittenberg.  The  great  families  of  Austria,  Ba- 
varia, and  Luxemburg,  though  not  electoral,  were  the  real 
heads  of  the  German  body ;  and  though  the  two  former  lost 
much  of  their  influence  for  a  time  through  the  pernicious 
custom  of  partition,  the  empire  seldom  looked  for  its  head  to 
any  other  house  than  one  of  these  three. 

While  the  duchies  and  counties  of  Germany  retained  their 
original  character  of  offices  or  governments,  they  custom  of 
were  of  course,  even  though  considered  as  hered-  partition. 
itary,  not  subject  to  partition  among  children.  When  they 
acquired  the  nature  of  fiefs,  it  was  still  consonant  to  the  prin- 
ciples of  a  feudal  tenure  that  the  eldest  son  should  inherit 
according  to  the  law  of  primogeniture  ;  an  inferior  provision 
or  appanage,  at  most,  being  reserved  for  the  younger  children. 
The  law  of  England  favored  the  eldest  exclusively ;  that  of 
France  gave  him  great  advantages.  But  in  Germany  a  dif- 
ferent rule  began  to  prevail  about  the  thirteenth  century.* 
An  equal  partition  of  the  inheritance,  without  the  least  regard 
to  priority  of  birth,  was  the  general  law  of  its  principalities. 
Sometimes  this  was  effected  by  undivided  possession,  or  ten- 
ancy in  common,  the  brothers  residing  together,  and  reigning 
jointly.  This  tended  to  preserve  the  integrity  of  dominion ; 
but  as  it  was  frequently  incommodious,  a  more  usual  practice 
was  to  divide  the  territory.  From  such  partitions  are  derived 
those  numerous  independent  principalities  of  the  same  house, 
many  of  which  still  subsist  in  Germany.  In  1589  there  were 
eight  reigning  princes  of  the  Palatine  family;  and  fourteen, 
in  1675,  of  that  of  Saxony.^  Originally  these  partitions  were 
in  general  absolute  and  without  reversion  ;  but,  as  their  effect 
in  weakening  families  became  evident,  a  practice  was  intro- 
duced of  making  compacts  of  reciprocal  succession,  by  which 
a  fief  was  prevented  from  escheating  to  the  empire,  until  all 

1  Schmidt,  t.  ir.  p.  66.  Pfeffel,  p.  289,  Tided   into   two   branches,  Baden   and 

maintains  that  partitions  were  not  intro-  Hochbcrg,  in  1190,  with  rights  of  matual 

duced  till  the  latter  end  of  the  thirteenth  reversion. 

century.    This  may  be  true  as  a  general  >  Pfeffel,  p.  289;  Patter,  p.  189 
rule  i  but  I  find  the  house  of  Baden  di- 


B4 


HOUSE  OF  LUXEMBUKG. 


Chap.  V. 


the  male  posterity  of  the  first  feudatory  should  be  extinct. 
Thus,  while  the  German  empire  survived,  all  the  princes  of 
Hesse  or  of  Saxony  had  reciprocal  contingencies  of  succes- 
sion, or  what  our  lawyers  call  cross-remainders,  to  each  other's 
dominions.     A  different  system  was  gradually  adopted.     By 
the  Golden  Bull  of  Charles  IV.  the  electoral  territory,  that 
is,  the  particular  district  to  which  the  electoral  suffrage  was 
inseparably  attached,  became  incapable  of  partition,  and  was 
to  descend  to  the  eldest  son.     In  the  fifteenth  century  the 
present  house  of  Brandenburg  set  the  first  example  of  estab- 
lishing primogeniture  by  law;  the  principalities  of  Anspach 
and  Bayreuth  were  dismembered  from  it  for  the  benefit  of 
younger  branches ;  but  it  was  declared  that  all  the  other  do- 
minions of  the  family  should  for  the  future  belong  exclusively 
to  the  reigning  elector.     This  politic  measure  was  adopted  in 
several  other  families;  but,  even  in  the  sixteenth  century, 
the  prejudice  was  not  removed,  and  some  German  princes 
denounced  curses  on  their  posterity,  if  they  should  introduce 
the  impious  custom  of  primogeniture.^    Notwithstanding  these 
subdivisions,  and  the  most  remarkable  of  those  which  I  have 
mentioned  are  of  a  date  rather  subsequent  to  the  middle  ages, 
the  antagonist  principle  of  consolidation  by  various  means  of 
acquisition  was  so  actively  at  work   that  several   princely 
houses,  especially  those  of  Hohenzollem  or  Brandenburg,  of 
Hesse,  Wu'temburg,  and  the  Palatinate,  derive  their  impor- 
tance from  the  same  era,  the  fourteenth  and  fifteenth  centuries, 
in  which  the  prejudice  against  primogeniture  was  the  strong- 
est.    And  thus  it  will  often  be  found  in  private  patrimonies ; 
the  tendency  to  consolidation  of  property  works  more  rapidly 
than  that  to  its  disintegration  by  a  law  of  gavelkind. 

Weakened  by  these  subdivisions,  the  principalities  of  Ger- 
many in  the  fourteenth  and  fifteenth  centuries  shrink  to  a 
more  and  more  diminutive  size  in  the  scale  of  nations.  But 
House  of  one  family,  the  most  illustrious  of  the  former  age, 
Luxemburg,  ^^s  less  exposcd  to  this  enfeebling  system.  Henry 
VII.  count  of  Luxemburg,  a  man  of  much  more  personal 
merit  than  hereditary  importance,  was  elevated  to  the  empire 
in  1308.  Most  part  of  his  short  reign  he  passed  in  Italy ; 
but  he  had  a  fortunate  opportunity  of  obtaining  the  crown  of 
Bohemia  for  his  son.    John  king  of  Bohemia  dUd  not  himself 


1  Pfeffel,  p.  280. 


Germany. 


GOLDEN  BULL. 


85 


wear  the  imperial  crown ;  but  three  of  his  descendants  pos- 
sessed it,  with  less  interruption  than  could  have  been  expected. 
His  son  Charles  IV.  succeeded  Louis  of  Bavaria  in  1347; 
not  indeed  without  opposition,  for  a  double  election  and  a  civil 
war  were  matters  of  course  in  Germany.     Charles  IV.  has 
been  treated  with  more  derision  by  his  contemporaries,  and 
consequently  by  later  writers,  than  almost  any  prince  in  his- 
tory ;  yet  he  was  remarkably  successful  in  the  only  objects 
that  he  seriously  pursued.     Deficient  in  personal  courage, 
insensible  of  humiliation,  bending  without  shame  to  the  pope, 
to  the  Italians,  to  the  electors,  so  poor  and  so  little  reverenced 
as  to  be  arrested  by  a  butcher  at  Worms  for  want  of  paying 
his  demand,  Charles  IV.  affords  a  proof  that  a  certain  dex- 
terity and  cold-blooded  perseverance  may  occasionally  supply, 
in  a  sovereign,  the  want  of  more  respectable  qualities.     He 
has  been  reproached  with  neglecting  the  empire.     But  he 
never  designed  to  trouble  himself  about  the  empire,  except 
for  his  private  ends.     He  did  not  neglect  the  kingdom  of 
Bohemia,  to  which  he  ahnost  seemed  to  render  Germany  a 
province.     Bohemia  had  been  long  considered  as  a  fief  of 
the  empire,  and  indeed  could  pretend  to  an  electoral  vote  by 
no  other  title.     Charles,  however,  gave  the  states  by  law  the 
right  of  choosing  a  king,  on  the  extinction  of  the  royal  family, 
which  seems  derogatory  to  the  imperial  prerogative.^    It  was 
much  more  material  that,  upon  acquiring  Brandenburg,  partly 
by  conquest,  and  partly  by  a  compact  of  succession  in  1373, 
he  not  only  invested  his  sons  with  it,  which  was  conformable 
to  usage,  but  tried  to  annex  that  electorate  forever  to  the 
kingdom  of  Bohemia.*     He  constantly  resided  at  Prague, 
where  he  founded  a  celebrated  university,  and  embellished 
the  city  with  buildings.     This  kingdom,  augmented  also  dur- 
ing his  reign  by  the  acquisition  of  Silesia,  he  bequeathed  to 
his  son  Wenceslaus,  for  whom,  by  pliancy  towards  the  elec- 
tors and  the  court  of  Rome,  he  had  procured,  against  all 
recent  example,  the  imperial  succession.^ 

The  reign  of  Charles  IV.  is  distinguished  in  the  constitu- 
tional history  of  the  empire  by  his  Golden  Bull ;  Golden  BuIL 
an  instrument  which  finally  ascertained  the  pre-  ^•^-  ^3^- 
rogatives  of  the  electoral  college.     The  Golden  Bull  ter- 
minated  the   disputes  which  had  arisen   between   different 

1  StruTius,  p.  641. 

«  Pfeffel,  p.  675;  Schmidt,  t.  iy.  p.  695 

*  Struvius,  p.  637. 


86 


DEPOSITION  OF  WENCESLAUS. 


Chap.  V. 


members  of  the  same  house  as  to  their  right  of  suffrage, 
which  was  declared  inherent  in  certain  definite  territories. 
The  number  was  absolutely  restrained  to  seven.     The  place 
of  lec-al  imperial  elections  was  fixed  at  Frankfort ;  of  coro- 
nations,  at  Aix-la-Chapelle ;  and  the  latter  ceremony  was  to 
be  performed  by  the  archbishop  of  Cologne.     These  regula- 
tions, though  consonant  to  ancient  usage,  had  not  always  been 
observed,  and  their  neglect  had  sometimes  excited  questions 
as  to  the  validity  of  elections.     The  dignity  of  elector  was 
enhanced  by  the  Golden  Bull  as  highly  as  an  imperial  edict 
could  carry  it ;  they  were  declared  equal  to  kings,  and  con- 
spiracy  against  their  persons  incurred  the  penalty  oi  high 
treason.!     Many  other  privileges  are  granted  to  render  them 
more  completely  sovereign  within  their  dominions.     It  seems 
extraordinary  that  Charles  should  have  voluntarily  elevated 
an  oligarchy,  from  whose  pretensions  his  predecessors  liad 
frequently  suffered  injury.     But  he  had  more  to  apprehend 
from  the  two  great  families  of  Bavaria  and  Austria,  whom 
he  relatively  depressed  by  giving  such  a  preponderance  to 
the  seven  electors,  than  from  any  members  of  the  college. 
By  his  compact  with  Brandenburg  he  had  a  fair  prospect  of 
addintr  a  second  vote  to  his  own ;  and  there  was  more  room 
for  int^ri-'ue  and  management,  which  Charles  always  preferred 
to  arms,  with  a  small  number,  than  with  the  whole  body  of 

princes.  ,    ,      j  r  • 

The  next  reign,  nevertheless,  evinced  the  danger  ot  in- 
-.  ...  vesting  the  electors  with  such  preponderating 
J?wencel  authority.  Wenceslaus,  a  supine  and  voluptuous 
^'^'  man,    less    respected,    and    more     negligent    of 

Germany,  if  possible,  than  his  father,  was  regularly  deposed 
by  a  majority  of  the  electoral  college  in  1400.  This  right, 
if  it  is  to  be  considered  as  a  right,  they  had  already  used 
against  Adolphus  of  Nassau  in  1298,  and  against  Louis  ot 
Bavaria  in  1346.  They  chose  Robert  count  palatine  instead 
of  Wenceslaus ;  and  though  the  latter  did  not  cease  to  have 
some  adherents,  Robert  has  generally  been  counted  among 
the  lawful  emperors.2     Upon  his  death  the  empire  returned 

1  Pfi»ff»i     «     KAR.     PnktPT    t>     271-  *  Many    of  the    cities   besides    some 

SchS  t  iv  D^     The  Golden  Buli  prinfcs,  continued  to  recn„nize  Wences- 

^ot  only  fixeci  ?hrPalatrne  rote,  In  ab-  laus  throughout  the  life  of  Kobcrt ;  and 

?olute  exclusfon  of  Bayaria,  but'settled  the  latter  was  ^^JJ""/,^  considered  as^n 

a  controversy  of  long  standing  between  usurper  by  foreign  "^^^^f '  *'j^*^'' '^- 

the  two  branches  of  the  house  of  Saxony,  bassadors  were  ^f"f  d  admlttanw  at  the 

Wittenberg  and  Lauenburg,  in  fovor  of  councU  of  Pisa.    StruTlus,  p.  b«i. 
the  former. 


Germ  ANT. 


HOUSE  OF  AUSTRIA. 


87 


to  the  house  of  Luxemburg;  Wenceslaus  himself  waiving 
his  rights  in  favor  of  his  brother  Sigismund  of  Hungary.^ 

Tlie  house  of  Austria  had  hitherto  given  but  two  emperors 
to   Germany,  Rodolph  its  founder,  and  his   son  House  of 
Albert,  whom  a  successful  rebellion  elevated  in  Austria. 
the  place  of  Adolphus.     Upon  the  death  of  Henry  of  Lux- 
emburg,  in   1313,   Frederic,   son   of  Albert,  disputed    the 
election  of  Louis  duke  of  Bavaria,  alleging  a  majority  of 
genuine  votes.     This   produced   a  civil  war,  in  which  the 
Austrian  party  were  entirely  worsted.     Though  they  ad- 
vanced no  pretensions  to  the  imperial  dignity  during  the  rest 
of  the  fourteenth  century,  the  princes  of  that  line  added  to 
their   possessions    Carinthia,  Istria,  and  the  Tyrol.     As  a 
counterbalance  to  these  acquisitions,  they  lost  a  great  part  of 
their  ancient  inheritance  by  unsuccessful  wars  with  the  Swiss. 
According  to  the  custom  of  partition,  so  injurious  to  princely 
houses,  their  dominions  were  divided  among  three  branches : 
one  reigning  in  Austria,  a  second  in  Styria  and  Albert  n. 
the  adjacent  provinces,  a  thh'd  in  the  Tyrol  and  ^•''-  ^'^' 
Alsace.     This  had  in  a  considerable   degree   eclipsed   the 
glory  of  the  house  of  Hapsburg.     But  it  was  now  its  destiny 
to  revive,  and  to  enter  upon  a  career  of  prosperity  which  has 
never  since  been  permanently  interrupted.     Albert  duke  of 
Austria,  who  had  married  Sigismund's  only  daughter,  the 
queen  of  Hungary  and  Bohemia,  was  raised  to  the  imperial 
throne  upon  the  death  of  his  father-in-law  in  1437.     He  died 
in  two  years,  leaving  his  wife  pregnant  with  a  son,  Ladislaus 
Posthumus,  who  afterwards  reigned  in  the  two  kingdoms  just 
mentioned ;  and  the  choice  of  the  electors  fell  upon  Frederic 
duke   of   Styria,  second-cousin  of   the  last   emperor,  from 
whose  posterity  it  never  departed,  except  in  a  single  instance, 
upon  the  extinction  of  his  male  line  in  1740. 

Frederic  III.  reigned  fifty-three  years,  a  longer  period 
than  any  of  his  predecessors ;  and  his  personal  ^^^.^^  ^^ 
character  was   more   insignificant.      With  better  Frederic  m. 
fortune  than  could  be  expected,  considering  both  1493 
these  circumstances,  he  escaped  any  overt  attempt 

1  This  election  of  Sigismund  was  not  was  not  crowned  at  Frankfort,  has  never 

uncontested:  Josse, or. Todocus, margrave  been    reckoned    among    the    emperors, 

of  Moravia,  having  be<'n  chosen,  as  far  though    modem  critics  agree  that    his 

•8  appears,  by  a  legal  majority.    Howev-  title  was  legitimate.     Struvius,  p.  684; 

er,  his  death  within  three  months  re-  Pfeffel,  p.  612. 
uoved   the  difficulty;   and  Josse,  who 


88 


FREDERIC  in. 


Chap.  V. 


to  depose  him,  though  such  a  project  was  sometimes  in  agi- 
tation. He  reigned  during  an  interesting  age,  full  of 
remarkable  events,  and  big  with  others  of  more  leading 
importance.  The  destruction  of  the  Greek  empire,  and 
appearance  of  the  victorious  crescent  upon  the  Danube,  gave 
an  unhappy  distinction  to  the  earlier  years  of  his  reign,  and 
displayed  his  mean  and  pusillanimous  character  in  circum- 
stances which  demanded  a  hero.  At  a  later  season  he  \ya3 
di-awn  into  contentions  with  France  and  Burgundy,  which 
ultimately  produced  a  new  and  more  general  combination 
of  European  politics.  Frederic,  always  poor,  and  scarcely 
able  to  protect  himself  in  Austria  from  the  seditions  of  his 
subjects,  or  the  inroads  of  the  king  of  Hungary,  was  yet 
another  founder  of  his  family,  and  letl  their  fortunes  incom- 
parably more  prosperous  than  at  his  accession.^  The  mar- 
riage of  his  son  Maximilian  with  the  heiress  of  Burgundy 
began  that  aggrandizement  of  the  house  of  Austria  which 
Frederic  seems  to  have  anticipated.'^     The  electors,  who  had 


iRanke  has  drawn  the  character  of 
Frederic    III.  more    fayorably^  on    the 
whole,  than  preceding    histonans,  and 
with  a  discrimination  which  enables  us 
to  account  better  for  his  success  in  the 
objects  which  he  had  at  heart.     "  From 
his  youth  he  had  been  inured  to  trouble 
and  adversity.   When  compelled  to  yield, 
he  never  gave  up  a  point,  and  always 
gained  the  mastery  in  the  end.      The 
maintenance  of  his  prerc^tivcs  was  the 
governing  principle  of  all  his  actions,  the 
more    because  they  acquired    an  ideal 
value  from  their  connection  with  the  im- 
perial dignity.    It  cost  him  a  long  and 
severe  struggle  to  allow  his  son  to  be 
crowned  king  of  the  Romans  ;  he  wished 
to  take  the  supreme  authority  undivided 
with  him  to  the  grave :  in  no  case  would 
he  grant  Maximilian    any  independent 
share  in  the  administration  of  govern- 
ment ;  but  kept  him,  even  after  he  was 
king,  still  as  '  son  of  the  house ' ;  nor 
woiUd  he  ever  give  him  anything  but 
the  countship  of  Cilli ;  '  for  the  rest  he 
would  have  time  enough.'    His  frugality 
bordered  on  avarice,  his  slowness  on  in- 
ertness, his  stubbornness  on  the  most 
determined    selfishness;    yet    all    these 
faults  are  removed  from  vulgarity  by 
high  qualities.  He  had  at  bottom  a  sober 
depth  of  judgment,  a  sedate  and  inflex- 
ible honor ;  the  aged  prince,  even  when 
a  fugitive  imploring  succor,  had  a  per- 
sonal bearing  which  never  allowed  the 
majesty  of  the  empire  to  sink."    Hist. 
Reformation  (Translation),  vol.  11.  p.  108. 


A  character  of  such  obstinate  passive 
resistance  was  well  fitted  for  his  station 
in  that  age;  spite  of  his  poverty  and 
weakness,  he  was  hereditary  sovereign 
of  extensive  and  fertile  territories ;  he 
was  not  loved,  feared,  or  respected,  but 
he  was  necessary  ;  he  was  a  German,  and 
therefore  not  to  be  exchanged  for  a  king 
of  Hungary  or  Bohemia  ;  he  was,  not  as 
Frederic  of  Austria,  but  as  elected  em- 
peror, the  sole  hope  for  a  more  settled 
rule,  for  public  peace,  for  the  mainte- 
nance of  a  confederacy  so  ill  held  togeth- 
er by  any  other  tie.  Hence  he  succeeded 
in  what  seemed  so  diflficult  —  in  pro- 
curing the  election  of  Maximilian  as 
king  of  the  Romans :  and  interested  the 
German  diet  in  maintaining  the  Burgun- 
dian  inheritance,  the  western  provinces  of 
the  Netherlands,  which  the  latter's  mar- 
riage brought  into  the  house  of  Austria. 

2  The  famous  device  of  Austria,  A.  E. 
I.  0.  U.,  was  first  used  by  Frederic  III., 
who  adopted  it  on  his  plate,  books,  and 
buildings.  These  initials  stand  for, 
Austrise  Est  Imperare  Orbi  Universo  ; 
or,  in  German,  Alles  Erdreich  1st  Oster- 
reich  Unterthan :  a  bold  assumption  for 
a  man  who  was  not  safe  in  an  inch  of 
his  dominions.  Struvius,  p.  722.  Ho 
confirmed  the  archiducal  title  of  his 
family,  which  might  seem  implied  in  the 
original  grant  of  Frederic  I.;  and  be- 
stowed other  high  privileges  above  all 
princes  of  the  empire.  These  are  enu. 
merated  in  Coxe's  House  of  Austria, 
vol.  1.  p.  263. 


Germ  ANT. 


FREE  IMPERIAL  CITIES. 


89 


lost  a  good  deal  of  their  former  spirit,  and  were  grown 
sensible  of  the  necessity  of  choosing  a  powerful  sovereign, 
made  no  opposition  to  Maximilian's  becoming  king  of  the 
Romans  in  his  father's  lifetime.  The  Austrian  provinces 
were  reunited  either  under  Frederic,  or  in  the  first  years  of 
Maximilian;  so  that,  at  the  close  of  that  period  which  we 
denominate  the  Middle  Ages,  the  German  empire,  sustained 
by  the  patrimonial  dominions  of  its  chief,  became  again  con- 
siderable in  the  scale  of  nations,  and  capable  of  preserving 
a  balance  between  the  ambitious  monarchies  of  France  and 
Spain. 

The  period  between  Rodolph  and  Frederic  III.  is  distin- 
guished by  no  circumstance  so  interesting  as  the  prosperous 
state  of  the  free  imperial  cities,  which  had  attained  their 
maturity  about  the  commencement  of  that  interval,  progress  of 
We  find  the  cities  of  Germany,  in  the  tenth  cen-  free  impe- 
tury,  divided  into  such  as  depended  immediately  ^^  *^'  ^^' 
upon   the   empire,  which  were   usually  governed  by  their 
bishop  as  imperial  vicar,  and  such  as  were  included  in  the 
territories  of  the  dukes  and  counts.^     Some  of  the  former, 
lying  principally  upon  the  Rhine  and  in  Franconia,  acquired 
a  certain  degree  of  importance  before  the  expiration  of  the 
eleventh  century.     Worms  and  Cologne  manifested  a  zealous 
attachment  to  Henry  IV.,  whom  they  supported  in  despite  of 
their  bishops.^     His  son  Henry  V.  granted  privileges  of  en- 
franchisement to  the  inferior  townsmen  or  artisans,  who  had 
hitherto  been  distinguished  from  the  upper  class  of  freemen, 
and  particularly  relieved  them  from  oppressive  usages,  which 
either  gave  the  whole  of  their  movable  goods  to  the  lord 
upon  their  decease,  or  at  least  enabled  him  to  seize  the  best 
chattel  as  his  heriot.*     He  took  away  the  temporal  authority 
of  the  bishop,  at  least  in  several  instances,  and  restored  the 
cities  to  a  more  immediate  dependence  upon  the  empire. 
The  citizens  were  classed  in  companies,  according  to  their 
several  occupations ;  an  institution  which  was  speedily  adopted 
in  other  commercial  countries.     It  does  not  appear  that  any 
German  city  had  obtained,  under  this  emperor,  those  privi- 
leges of  choosing  its  own  magistrates,  which  were  conceded 

1  Pfeffel,  p.  187.    The  Othos  adopted  to  the  lay  aristocracy.    Putter,  p.  136; 

the  same  policy  in  Germany  which  they  Struvius,  p.  252. 

had  introduced  in  Italy,  conferring  the  -  Schmidt,  t.  iii.  p.  239. 

temporal  government  of  cities  upon  the  3  Schmidt,  p.  242  ;  Pfeffel,  p.  293 ;  Du- 

faishops ;  probably  as  a  counterbalance  mont,  Corps  Diplomatique,  t.  i.  p.  64. 


90 


FREE  IMPERIAL  CITIES. 


Chap.  V. 


Germany. 


LEAGUES  OF  THE  CITIES. 


91 


about  the  same  time,  in  a  few  instances,  to  those  of  France.* 
Gradually,  however,  they  began  to  elect  councils  of  citizens, 
as  a  sort  of  senate  and  magistracy.  This  innovation  might 
perhaps  take  place  as  early  as  the  reign  of  Frederic  I. ;  ^  at 
least  it  was  fully  established  in  that  of  his  gi*andson.  They 
were  at  first  only  assistants  to  the  imperial  or  episcopal 
bailiff,  who  probably  continued  to  administer  criminal  justice. 
But  in  the  thirteenth  century  the  citizens,  grown  richer  and 
stronger,  either  purchased  the  jurisdiction,  or  usurped  it 
through  the  lord's  neglect,  or  drove  out  the  bailiff  by  force.^ 
The  great  revolution  in  Franconia  and  Suabia  occasioned  by 
the  fall  of  the  Hohenstauffen  family  completed  the  victory 
of  the  cities.  Those  which  had  depended  upon  mediate  lords 
became  immediately  connected  with  the  empire;  and  with 
the  empire  in  its  state  of  feebleness,  when  an  occasional 
present  of  money  would  easily  induce  its  chief  to  acquiesce 
in  any  claims  of  immunity  which  the  citizens  might  prefer. 

It  was  a  natural  consequence  of  the  importance  which  the 
free  citizens  had  reached,  and  of  their  immediacy,  that  they 
were  admitted  to  a  place  in  the  diets,  or  general  meetings 
of  the  confederacy.  They  were  tacitly  acknowledged  to  be 
equally  sovereign  with  the  electors  and  princes.  No  proof 
exists  of  any  law  by  which  they  were  adopted  into  the  diet. 
We  find  it  said  that  Rodolph  of  Hapsburg,  in  1291,  renewed 
his  oath  with  the  princes,  lords,  and  cities.  Under  the  em- 
peror Henry  VII.  there  is  unequivocal  mention  of  the  three 
orders  composing  the  diet;  electors,  princes,  and  deputies 
from  cities.*  And  in  1344  they  appear  as  a  third  distinct 
college  in  the  diet  of  Frankfort.^ 

The  inhabitants  of  these  free  cities  always  preserved  their 
respect  for  the  emperor,  and  gave  him  much  less  vexation 
than  his  other  subjects.  He  was  indeed  their  natural  friend. 
But  the  nobility  and  prelates  were  their  natuml  enemies; 
and  the  western  parts  of  Germany  were  the  scenes  of  irrec- 
oncilable "warfare  between  the  possessors  of  fortified  castles 


1  Schmidt,  p.  245. 

2  In  the  charter  granted  by  Frederic  I. 
to  Spire  in  1182,  confirming  and  enlarg- 
ing that  of  Henry  V.,  though  no  express 
mention  is  made  of  any  municipal  juris- 
diction, yet  it  seems  implied  in  the  fol- 
lowing words :  Causam  in  civitate  jam 
lite  contestatam  non  episcopus  aut  alia 
potestas  extra  civitatem  detcrminari 
compellet.    Dumont,  p.  108. 


3  Schmidt,  t.  ir.  p.  96;    Pfeffel,  p.  441. 

4  Mansit    ibi   rex  sex    hebdom  adibua 
cum  principibus  electoribus  ct  aliis  prin- 
cipibus  et  eivitatum  rtuntiis,  do  suo  tran 
situ  et  de  prsostandis  scrvitiis  in  It&liam 
disponendo.  Auctor  apud  Schmidt,  t.  ri 
p.  31. 

6  Pfeffel,  p.  5&2. 


and  the  inhabitants  of  fortified  cities.     Each  party  was  fre- 
quently  the  aggressor.      The  nobles  were  too  often  mere 
robbers,  who  lived  upon  the  plunder  of  travellers.     But  the 
citizens  were  almost  equally  inattentive  to  the  rights  of  others. 
It  was  their  policy  to  offer  the  privileges  of  burghership  to 
all  strangers.     The  peasantry  of  feudal  lords,  fiying  to  a 
neighboring  town,  found   an   asylum   constantly  open.      A 
multitude  of  aliens,  thus  seeking  as  it  were  sanctuary,  dwelt 
in  the  suburbs  or  liberties,  between  the  city  walls  and  the 
palisades  which  bounded  the  territory.     Hence  they  were 
called  Pfahlburger,  or  burgesses  of  the  palisades ;  and  this 
encroachment  on  the  rights  of  the  nobility  ^vas  positively, 
but  vainly,  prohibited  by  several  imperial  edicts,  especially 
the  Golden  Bull.      Another  class  were  the  Ausburger,  or 
outburghers,  who  had  been  admitted  to  privileges  of  citizen- 
ship, though  resident  at  a  distance,  and  pretended  in  conse- 
quence to  be  exempted  from  all  dues  to  theu-  original  feudal 
superiors.     If  a  lord  resisted  so  unreasonable  a  claim,  he 
incurred  the  danger  of  bringing  down  upon  himself  the  ven- 
geance of  the  citizens.     These  outburghers  ;ire  in  general 
classed  under  the  general  name  of  Pfalilbiirger  by  contem- 
porary writers.^ 

As  the  towns  were  conscious  of  the  hatred  which  the 
nobility  bore  towards  them,  it  was  their  inter«ist  Leagues  of 
to  make   a  common   cause,  and  render  mutuaP^^  *=^*'^; 
assistance.     From  this  necessity  of  maintaining,  by  united 
exertions,   then-   general  liberty,  the  Germa.i  cities  never 
suffered  the  petty  jealousies,  which  might  i.o  doubt  exist 
among  them,  to  ripen  into  such  deadly  feuds  as  sullied  the 
glory ,°and  ultimately  destroyed  the  freedom,  of  Lombardy. 
They  withstood  the  bishops  and  barons  by  confederacies  of 
their  own,  framed  expressly  to  secure  then-  commerce  against 
rapine,  or  unjust  exactions  of  toll.     More  than  sixty  cities, 
with  three  ecclesiastical  electors  at  their  head,  formed  the 
league  of  the  Rhine,  in  1255,  to  repel  the  inferior  nobility, 
who,  having  now  become  immediate,  abused  that  independence 
by  perpetual  robberies.*    The  Hanseatic  Union  owes  its  ori- 
gin to  no  other  cause,  and  may  be  traced  perhaps  to  rather  a 
higher  date.     About  the  year  1370  a  league  was  formed, 

1  Schmidt,  t.  iT.  p.  98;  t.  ri.  p.  76;       «  Struvius,  p.   498;   Schmidt,   t.   it. 
Pfeffel.    p.   402;    Du   Cange,  Gloss,  v.    p.  101;  Pfeffel,  p.  4H>. 
PfehlbUrger.    Faubourg  is  derived  from 
this  word. 


92 


PROVINCIAL  STATES. 


Chap.  V. 


which,  though  it  did  not  continue  so  long,  seems  to  have 
produced  more  striking  effects  in  Germany.  The  cities  of 
Suabia  and  the  Rhine  united  themselves  in  a  strict  con- 
federacy against  the  princes,  and  especially  the  families  of 
Wirtemburg  and  Bavaria.  It  is  said  that  the  emperor 
Wenceslaus  secretly  abetted  their  projects.  The  recent 
successes  of  the  Swiss,  who  had  now  almost  established  their 
republic,  inspired  their  neighbors  in  the  empire  with  expec- 
tations which  the  event  did  not  realize ;  for  they  were  de- 
feated in  this  war,  and  ultimately  compelled  to  relinquish 
their  league.  Counter-associations  were  formed  by  the  no- 
bles, styled  Society  of  St.  George,  St.  Wilham,  the  Lion,  or 
the  Panther.^ 

The  spirit  of  political  liberty  was  not  confined  to  the  free 
Provincial  immediate  cities.  In  all  the  German  principalities 
states  of  the  a  form  of  limited  monarchy  prevailed,  reflecting, 
*™^"'®*  on  a  reduced  scale,  the  general  constitution  of  the 
empire.  As  the  emperors  shared  their  legislative  sovereignty 
with  the  diet,  so  all  the  princes  who  belonged  to  that  assem- 
bly had  their  own  provincial  states,  composed  of  their  feudal 
vassals  and  of  their  mediate  towns  within  their  territory.  No 
tax  could  be  imposed  without  consent  of  the  states ;  and,  in 
some  countries,  the  prince  was  obliged  to  account  for  the 
proper  disposition  of  the  money  granted.  In  all  matters  of 
importance  affecting  the  principality,  and  especially  in  cases 
of  partition,  it  was  necessary  to  consult  them;  and  they 
sometimes  decided  between  competitors  in  a  disputed  succes- 
sion, though  this  indeed  more  strictly  belonged  to  the  emperor. 
The  provincial  states  concurred  with  the  prince  in  making 
laws,  except  such  as  were  enacted  by  the  general  diet.  The 
city  of  Wurtzburg,  in  the  fourteenth  century,  tells  its  bishop 
that,  if  a  lord  would  make  any  new  ordinance,  the  custom  is 
that  he  must  consult  the  citizens,  who  have  always  opposed 
his  innovating  upon  the  ancient  laws  without  their  consent.* 

The  ancient  imperial  domain,  or  possessions  which  be- 
Aiienation  lo^^ged  to  the  chief  of  the  empire  as  such,  had 
oftheim-  Originally  been  very  extensive.  Besides  large 
^2?/*^  estates  in  every  province,  the  territory  upon  each 
bank  of  the  Rhine,  afterwards  occupied  by  the 
counts   palatine   and   ecclesiastical   electors,  was,   until  the 

1  Struviua,  p.  649 ;  Pfeffel,  p.  586 ;  Schmidt,  t.  r.  p.  10 ;  t.  ri.  p.  78.  Putter,  p.  29a 

2  Schmidt,  t.  Ti.  p.  8.    Putter,  p.  236. 


Germany. 


DIET  OF  WORMS 


93 


thirteenth  century,  an  exclusive  property  of  the  emperor. 
This  imperial  domain  was  deemed  so  adequate  to  the  sup- 
port of  his  dignity  that  it  was  usual,  if  not  obligatory,  for 
him  to  grant  away  his  patrimonial  domains  upon  his  election. 
But  the  necessities  of  Frederic  II.,  and  the  long  confusion 
that  ensued  upon  his  death,  caused  the  domain  to  be  almost 
entirely  dissipated.  Rodolph  made  some  efforts  to  retrieve 
it,  but  too  late ;  and  the  poor  remains  of  what  had  belonged 
to  Charlemagne  and  Otho  were  alienated  by  Charles  IV.* 
This  produced  a  necessary  change  in  that  part  of  the  con- 
stitution which  deprived  an  emperor  of  hereditary  possessions, 
I*^^  was,  however,  some  time  before  it  took  place.  Even 
Albert  I.  conferred  the  duchy  of  Austria  upon  his  son,  when 
he  was  chosen  emperor.^  Louis  of  Bavaria  was  the  first 
who  retained  his  hereditary  dominions,  and  made  them  his 
residence.*  Charles  IV.  and  Wenceslaus  lived  almost  wholly 
in  Bohemia,  Sigismund  chiefly  in  Hungary,  Frederic  HI.  in 
Austria.  This  residence  in  their  hereditary  countries,  while 
it  seemed  rather  to  lower  the  imperial  dignity,  and  to  lessen 
their  connection  with  the  general  confederacy,  gave  them 
intrinsic  power  and  influence.  If  the  emperors  of  the  houses 
of  Luxemburg  and  Austria  were  not  like  the  Conrads  and 
Frederics,  they  were  at  least  very  superior  in  importance  to 
the  Williams  and  Adolphuses  of  the  thirteenth  century. 

The  accession  of  Maximilian  nearly  coincides  with  the 
expedition  of  Charles  VIII.  against  Naples ;  and  Accession  of 
I   should  here  close  the  German  history  of  the  Maximilian. 
middle  age,  were  it  not  for  the  great  epoch  which  worms. 
is  made  by  the  diet  of  Worms  in  1495.     This  ^•^-  ^^^^• 
assembly  is  celebrated  for  the  establishment  of  a  perpetual 
public  peace,  and  of  a  paramount  court  of  justice,  the  Im- 
perial Chamber. 

The   same   causes   which  produced  continual    hostilities 
among   the   French  nobility  were   not  likely  to  „ , . ,.  ^ 

X      1  /»  11  "^i        -r^  •'   ,,     Establish- 

operate  less  powerfully  on  the  Germans,  equally  ment  of 
warlike   with   their   neighbors,   and    rather    less  p''^"*' P®*''** 
civilized.      But  while   the   imperial   government   was   still 
vigorous,  they  were  kept  under  some  restraint.     We  find 
Henry  HI.,  the  most  powerful  of  the  Franconian  emperors, 


»  Pfeffel,  p.  680. 
9  Id.  p.  494.    Struyius,  p.  646. 
«  Struviua,  p.  611.    In  the  capitulation 
of  Robert  it  was  expressly  provided  that 


he  should  retain  any  escheated  fief  for 
the  domain,  instead  of  granting  it  away  ; 
so  completely  was  the  public  policy  of 
the  empire  reversed.  Schmidt,  t.  r.  p.  41 


u 


PUBUC  PEACE. 


Chap.  V. 


forbidding  all  private  defiances,  and  establishing  solemnly  a 
general  peace.*     After  his  time  the  natural  tendency  of  man- 
ners overpowered  all  attempts  to  coerce  it,  and  private  war 
raged  without  limits  in  the  empire.     Frederic  I.  endeavored 
to° repress  it  by  a  regulation  which  admitted  its  legality. 
Tiiis  was  the  law  of  defiance  (jus  difiidationis),  which  required 
a  solemn  declai-ation  of  war,  and  three  days'  notice,  before 
the  commencement  of  hostile  measures.     All  persons  contra- 
vening this  provision  were  deemed  robbers  and  not  legiti- 
mate "enemies.*     Frederic  11.  carried  the  restraint  further, 
and  hmited  the  right  of  self-redress  to  cases  where  justice 
could  not  be  obtamed.     Unfortunately  there  was,  in  later 
times,  no   sufficient  provision  for  rendering  justice.     The 
German   empire   indeed  had  now  assumed   so   peculiar   a 
character,  and  the  mass  of  states  which  composed  it  were 
in  so  many  respects  sovereign  within  their  own  territories, 
that  wars,  unless  in  themselves  unjust,  could  not  be  made  a 
subject  of  reproach  against  them,  nor  considered,  strictly 
speaking,  as  private.     It  was  certainly  most  desirable  to  put 
an  end  to  them  by  common  agreement,  and  by  the  only 
means  that  could  render  war  unnecessary,  the  establishment 
of  a  supreme  jurisdiction.     War  indeed,  legally  undertaken, 
was  not  the  only  nor  the  severest  grievance.     A  very  large 
proportion  of  the  rural  nobility  lived  by  robbery.*     Their 
castles,  as  the  ruins  still  bear  witness,  were  erected  upon 
inaccessible  liills,  and  in  defiles  that  command  the  public 
road.     An  archbishop  of  Cologne  having  built  a  fortress  of 
this  kind,  the  governor  inquired  how  he  was  to  maintain 
himself,  no  revenue  having  been  assigned  for  that  purpose : 
the  prelate  only  desired  him  to  remark  that  the  castle  was 
situated  near  the  junction  of  four  roads.*     As  commerce  in- 
creased, and  the  example  of  French  and  Italian  civilization 
rendered  the  Germans  more  sensible  to  their  own  rudeness, 
the    preservation  of   public  peace   was  loudly   demanded. 
Every  diet  under  Frederic  HI.  professed  to  occupy  itself 
with  the  two  great  objects  of  domestic  reformation,  peace 


1  Pfeffel,  p.  212. 

2  Schmidt,  t.  W.  p.  108,  et  infra ;  Pfeffel, 
p.  340;  Putter,  p.  205. 

'■i  Qennani  atque  Alemanni,  quibus 
census  patrimonii  ad  victum  suppetit,  et 
h03  qui  procul  urbibus,  aut  qui  castellis 
et  oppidulis  domioantur,  quorum  mag- 
na pars  latrocinio  dedituTj  noblles  cen- 


sent.   Pet.  de  Andlo.  apud  Schmidt,  t.  ▼ 

p.  490. 

*  Quern  cum  offlciatus  suub  interro- 
gans, de  quo  castrum  deberet  retinere, 
cum  annuls  careret  reditibus,  dicitur 
respondisse ;  Quatuor  Ti»  sunt  trans 
castrum  situatse.  Auctorapud  Schmidt, 
p.  492. 


Gebmant. 


IMPERIAL  CHAMBER. 


95 


and  law.  Temporary  cessations,  during  which  all  private 
hostility  was  illegal,  were  sometimes  enacted;  and,  if  ob- 
served, which  may  well  be  doubted,  might  contribute  to 
accustom  men  to  habits  of  greater  tranquillity.  The  leagues 
of  the  cities  were  probably  more  efficacious  checks  upon  the 
disturbers  of  order.  In  148G  a  ten  years'  peace  was  pro- 
claimed, and  before  the  expiration  of  this  period  the  per- 
petual abolition  of  the  right  of  defiance  was  happily  accom- 
plished in  the  diet  of  Worms.^ 

These  wars,  incessantly  waged  by  the  states  of  Germany, 
seldom  ended  in  conquest.  Very  few  princely  houses  of  the 
middle  ages  were  aggrandized  by  such  means.  That  small 
and  independent  nobility,  the  counts  and  knights  of  the  em- 
pire whom  the  revolutions  of  our  own  age  have  annihilated, 
stood  through  the  storms  of  centuries  with  little  diminution 
of  their  numbers.  An  incursion  into  the  enemy's  territory,  a 
pitched  battle,  a  siege,  a  treaty,  are  the  general  circumstances 
of  the  minor  wars  of  the  middle  ages,  as  far  as  they  appear 
in  history.  Before  the  invention  of  artillery,  a  strongly  forti- 
fied castle  or  walled  city,  was  hardly  reduced  except  by 
famine,  which  a  besieging  army,  wasting  improvidently  its 
means  of  subsistence,  was  full  as  likely  to  feel.  That  in- 
vention altered  the  condition  of  society,  and  introduced  an 
inequality  of  forces,  that  rendered  war  more  inevitably  ruin- 
ous to  the  inferior  party.  Its  first  and  most  beneficial  efiect 
was  to  bring  the  plundering  class  of  the  nobility  into  control ; 
their  castles  were  more  easily  taken,  and  it  became  their  in- 
terest to  deserve  the  protection  of  law.  A  few  of  these  con- 
tinued to  follow  their  old  profession  after  the  diet  of  Worms ; 
but  they  were  soon  overpowered  by  the  more  efficient  police 
established  under  Maximilian. 

The  next  object  of  the  diet  was  to  provide  an  effectual 
remedy  for  private  wrongs  which  might  supersede  imperial 
all  pretence  for  taking  up  arms.  The  administra-  ^^°'^^' 
tion  of  justice  had  always  been  a  high  prerogative  as  well  as 
bounden  duty  of  the  emperors.  It  was  exercised  originally 
by  themselves  in  person,  or  by  the  count  palatine,  the  judge 
who  always  attended  their  court.  In  the  provinces  of  Ger- 
many the  dukes  were  intrusted  with  this  duty ;  but,  in  order 
to  control  their  influence,  Otho  the  Great  appointed  provin- 
cial counts  palatine,  whose  jurisdiction  was  in  some  respects 

1  Scnmidt,  t.  iv.  p  116;  t.  ▼.  p.  838,  871 ;  t.  tL  p.  34 ;  Putter,  p.  292,  848. 


I 


96 


IMPERIAL  CHAMBER. 


Chap.  V. 


exclusive  of  that  still  possessed  by  the  dukes.  As  the  latter 
became  more  independent  of  the  empire,  the  provincial 
counts  palatine  lost  the  importance  of  their  office,  though 
their  name  may  be  traced  to  the  twelfth  and  thirteenth 
centuries.^  The  ordinary  administration  of  justice  by  the 
emperors  went  into  disuse;  in  cases  where  states  of  the 
empire  were  concerned,  it  appertained  to  the  diet,  or  to  a 
special  court  of  princes.  The  first  attempt  to  reestablish  an 
imperial  tribunal  was  made  by  Frederic  II.  in  a  diet  held  at 
Mentz  in  1235.  A  judge  of  the  court  was  appointed  to  sit 
daily,  with  certain  assessors,  half  nobles,  half  lawyers,  and 
with  jurisdiction  over  all  causes  where  princes  of  the  empire 
were  not  concerned.^  Rodolph  of  Hapsburg  endeavored  to 
give  efficacy  to  this  judicature ;  but  after  his  reign  it  under- 
went the  fate  of  all  those  parts  of  the  Germanic  constitution 
which  maintained  tlie  prerogatives  of  the  emperors.  Sigis- 
mund  endeavored  to  revive  this  tribunal ;  but  as  he  did  not 
render  it  permanent,  nor  fix  the  place  of  its  sittings,  it  pro- 
duced little  other  good  than  as  it  excited  an  earnest  anxiety 
for  a  regular  system.  This  system,  delayed  throughout  the 
reign  of  Frederic  III.,  was  reserved  for  the  first  diet  of 
his  son.* 

The  Imperial  Chamber,  such  was  the  name  of  the  new 
tribunal,  consisted,  at  its  original  institution,  of  a  chief  judge, 
who  was  to  be  chosen  among  the  princes  or  counts,  and  of 
sixteen  assessors,  partly  of  noble  or  equestrian  rank,  partly 
professors  of  law.  They  were  named  by  the  emperor  with 
the  approbation  of  the  diet.  Tlie  functions  of  the  Imperial 
Chamber  were  chiefly  the  two  following.  They  exercised 
an  appellant  jurisdiction  over  causes  that  had  been  decided 
by  the  tribunals  established  in  states  of  the  empire.  Buf 
their  jurisdiction  in  private  causes  was  merely  appellant 
According  to  the  original  law  of  Germany,  no  man  could  be 
sued  except  in  the  nation  or  province  to  which  he  belonged. 
The  early  emperors  travelled  from  one  part  of  their  domin- 
ions to  another,  in  order  to  render  justice  consistently  with 
this  fundamental  privilege.  When  the  Luxemburg  emperors 
fixed  their  residence  in  Bohemia,  the  jurisdiction  of  the  im 
perial  court  in  the  first  instance  would  have  ceased  of  itself 

1  Pfeffel,  p.  180. 

2  Idem,  p.  386 ;  Schmidt,  t.  it.  p.  66. 
>  Pfeffel,  t.  U.  p.  06. 


Germany. 


ESTABLISHMENT  OF  CIRCLES. 


97 


by  the  operation  of  this  ancient  rule.  It  was  not,  however 
strictly  complied  with ;  and  it  is  said  that  the  emperors  had 
a  concurrent  jurisdiction  with  the  provincial  tribunals  even 
in  private  causes.  They  divested  themselves,  nevertheless, 
of  this  right  by  granting  privileges  de  non  evocando  ;  so  that 
no  subject  of  a  state  which  enjoyed  such  a  privilege  could  be 
summoned  into  the  imperial  court.  All  the  electors  possess- 
ed this  exemption  by  the  terms  of  the  Golden  Bull ;  and  it 
was  specially  granted  to  the  burgraves  of  Nuremberg,  and 
Bome  other  princes.  This  matter  was  finally  settled  at  the 
diet  of  Worms ;  and  the  Imperial  Chamber  was  positively 
restricted  from  taking  cognizance  of  any  causes  in  the  first 
instance,  even  where  a  state  of  the  empire  was  one  of  the 
parties.  It  was  enacted,  to  obviate  the  denial  of  justice  that 
appeared  likely  to  result  from  the  regulation  in  the  latter 
case,  that  every  elector  and  prince  should  establish  a  tribunal 
in  his  own  dominions,  where  suits  against  himself  might  be 
entertained.^ 

The  second  part  of  the  chamber's  jurisdiction  related  to 
disputes  between  two  states  of  the  empire.  But  these  two 
could  only  come  before  it  by  way  of  appeal.  During  the 
period  of  anarchy  which  preceded  the  establishment  of  its 
jurisdiction,  a  custom  was  introduced,  in  order  to  prevent  the 
constant  recurrence  of  hostilities,  of  referring  the  quarrels  of 
states  to  certain  arbitrators,  called  Austregues,  chosen  among 
states  of  the  same  rank.  This  conventional  reference  be- 
came so  popular  that  the  princes  would  not  consent  to  aban- 
don it  on  the  institution  of  the  Imperial  Chamber ;  but,  on 
the  contrary,  it  was  changed  into  an  invariable  and  universal 
law,  that  all  disputes  between  different  states  must,  in  the 
first  instance,  be  submitted  to  the  arbitration  of  Aus- 
tregues.* 

Tlie  sentences  of  the  chamber  would  have  been  very  idly 
pronounced,  if  means  had  not  been  devised  to  carry  Establish- 
them  into  execution.     In  earlier  times  the  want  of  ment  of  * 
coercive  process  had  been  more  felt  than  that  of  ""'^®'' 
actual  jurisdiction.     For  a  few  years  after  the  establishment 
of  the  chamber  this  deficiency  was  not  supplied.     But  in 
1501  an  institution,  originally  planned   under  Wenceslaus, 
and  attempted  by  Albert  II.,  was  carried  into  effect.     The 


>  Schmidt,  t.  T.  p.  373 ;  Patter,  p.  372. 
TOL.  IX.  7 


«  Putter,  p.  861 ;  PfeSel.  p.  452. 


9S 


AUUC  COUNCIL. 


Chaf.  V 


empire,  with  the  exception  of  the  electorates  and  the  Austrian 
dominions,  was  divided  into  six  circles  ;  each  of  which  had  its 
council  of  states,  its  director  whose  province  it  was  to  convoke 
them,  and  its  military  force  to  compel  obedience.  In  1512 
four  more  circles  were  added,  comprehending  those  states 
which  had  been  excluded  in  the  first  division.  It  was  the 
business  of  the  police  of  the  circles  to  enforce  the  execution  of 
sentences  pronounced  by  the  Imperial  Chamber  against  re 
fractory  states  of  the  empire.* 

As  the  judges  of  the  Imperial  Chamber  were  appointed 
AuUc  with  the  consent  of  the  diet,  and  held  their  sittings 

Council.  jjj  ^  I'j.gg  imperial  city,  its  establishment  seemed 
rather  to  encroach  on  the  ancient  prerogatives  of  the  emperors. 
Maximilian  expressly  reserved  these  in  consenting  to  the  new 
tribunal.  And,  in  order  to  revive  them,  he  soon  afterwards 
instituted  an  Aulic  Council  at  Vienna,  composed  of  judges 
appointed  by  himself,  and  under  the  politick  control  of  the 
Austrian  government.  Though  some  German  patriots  re- 
garded this  tribunal  with  jealousy,  it  continued  until  the  dis- 
solution of  the  empire.  The  Aulic  Council  had,  in  all  cases, 
a  concurrent  jurisdiction  with  the  Imperial  Chamber ;  an  ex- 
clusive one  in  feudal  and  some  other  causes.  But  it  was 
equally  confined  to  cases  of  appeal ;  and  these,  by  multiplied 
privileges  de  non  appellando,  granted  to  the  electoral  and  su- 
perior princely  houses,  were  gradually  reduced  into  moderate 
compass.* 

The  Germanic  constitution  may  be  reckoned  complete,  as 
to  all  its  essential  characteristics,  in  the  reign  of  Maximilian. 
In  later  times,  and  especially  by  the  treaty  of  Westphalia,  it 
underwent  several  modifications.  Whatever  might  be  its  de- 
fects, and  many  of  them  seem  to  have  been  susceptible  of  re- 
formation without  destroying  the  system  of  government,  it 
had  one  invaluable  excellence  :  it  protected  the  rights  of  the 
weaker  against  the  stronger  powers.  The  law  of  nations  was 
first  taught  in  Germany,  and  grew  out  of  the  public  law  of 
the  empire.  To  narrow,  as  far  as  possible,  the  rights  of 
war  and  of  conquest,  was  a  natural  principle  of  those  who  be- 
longed to  petty  states,  and  had  nothing  to  tempt  them  in  am- 
bition. No  revolution  of  our  own  eventful  age,  except  the 
fidl  of  the  ancient  French  system  of  government,  has  been  so 

I  Putter,  p.  866,  t.  U.  p.  MWt  i  Patter,  p.  857 ;  Pfeflfel,  p.  lOa. 


Gerv  iarr. 


LIMITS  OF  THE  EMPIRE. 


99 


extensive,  or  so  likely  to  produce  important  consequences,  as 
the  spontaneous  dissolution  of  the  German  empire.  Whether 
the  new  confederacy  that  has  been  substituted  for  that  vener- 
able constitution  will  be  equidly  favorable  to  peace,  justice, 
and  liberty,  is  among  the  most  interesting  and  difficult  prob- 
lems that  can  occupy  a  philosophical  observer.^ 

At  the  accession  of  Conrad  I.  Germany  had  by  no  means 
reached  its  present  extent  on  the  eastern  frontier.  Limits  of 
Henry  the  Fowler  and  the  Othos  made  great  ac-  '^®  empire. 
quisitions  upon  that  side.  But  tribes  of  Sclavonian  origin, 
generally  called  Venedic,  or  less  properly.  Vandal,  occupied 
the  northern  coast  from  the  Elbe  to  the  Vistula.  These  were 
independent,  and  formidable  both  to  the  kings  of  Denmark 
and  princes  of  Germany,  till,  in  the  reign  of  Frederic  Barba- 
rossa,  two  of  the  latter,  Henry  the  Lion,  duke  of  Saxony,  and 
Albert  the  Bear,  margrave  of  Brandenburg,  subdued  Meck- 
lenburg and  Pomerania,  which  afterwards  became  duchies  of 
the  empire.  Bohemia  was  undoubtedly  subject,  in  a  feudal 
sense,  to  Frederic  I.  and  his  successors ;  though  its  connection 
with  Germany  was  always  slight.  The  emperors  sometimes 
assumed  a  sovereignty  over  Denmark,  Hungary,  and  Poland. 
But  what  they  gained  upon  this  quarter  was  compensated  by 
the  gradual  separation  of  the  Netherlands  from  their  domin- 
ion, and  by  the  still  more  complete  loss  of  the  kingdom  of 
Aries.  The  house  of  Burgundy  possessed  most  part  of  the 
former,  and  paid  as  little  regard  as  possible  to  the  imperial 
supremacy  ;  though  the  German  diets  in  the  reign  of  Maxi- 
milian still  continued  to  treat  the  Netherlands  as  equally  sub- 
ject to  their  lawful  control  with  the  states  on  the  right  bank 
of  the  Rhine.  But  the  provinces  between  the  Rhone  and  the 
Alps  were  absolutely  separated;  Switzerland  had  completely 
succeeded  in  establishing  her  own  independence  ;  and  the 
kings  of  France  no  longer  sought  even  the  ceremony  of 
an  imperial  investiture  for  Dauphine  and  Provence. 

Bohemia,  which  received  the  Christian  faith  in  the  tenth 
century,  was  elevated  to  the  rank  of  a  kingdom  Bohemia - 
near  the  end  of  the  twelfth.    The  dukes  and  kings  its  constita. 
of  Bohemia  were  feudally  dependent  upon  the  em-  '*°^* 
perors,  from  whom  they  received  investiture.  They  possessed, 
in  return,  a  suffrage  among  the  seven  electors,  and  held  one 

I  The  first  edition  of  Qua  work  was  published  earlj  in  1818. 


m 


:l 


•  [ 


r 


100 


HOUSE  OF  LUXEMBURG. 


Chap.  V. 


of  the  great  offices  in  the  imperial  court  But  separated  by  a 
rampart  of  mountains,  by  a  difference  of  origin  and  language, 
and  perhaps  by  national  prejudices  from  Germany,  the  Bohe- 
mians withdrew  as  far  as  possible  from  the  general  politics  of 
the  confederacy.  The  kings  obtained  dispensations  from  at- 
tending the  diets  of  the  empire,  nor  were  they  able  to  re- 
instate themselves  in  the  privilege  thus  abandoned  till  the 
beginning  of  the  last  century.^  The  government  of  this  king- 
dom, in  a  very  slight  degree  partaking  of  the  feudal  character,* 
bore  rather  a  resemblance  to  that  of  Poland ;  but  the  nobility 
were  divided  into  two  classes,  the  baronial  and  the  equestrian, 
and  the  burghei's  formed  a  third  state  in  the  national  diet.  For 
the  peasantry,  they  were  in  a  condition  of  servitude,  or  predial 
villeinage.  The  royal  authority  was  restrained  by  a  corona- 
tion oath,  by  a  permanent  senate,  and  by  frequent  assemblies 
of  the  diet,  where  a  numerous  and  armed  nobility  appeared 
to  secure  their  liberties  by  law  or  force."  The  sceptre  j)assed, 
in  ordinary  times,  to  the  nearest  heir  of  the  royal  blood  ;  but 
the  right  of  election  was  only  suspended,  and  no  king  of  Bo- 
hemia ventured  to  boast  of  it  as  his  inheritance.''  This  mix- 
ture of  elective  and  hereditary  monarchy  was  common,  as  we 
have  seen,  to  most  European  kingdoms  in  their  original  con- 
stitution, though  few  continued  so  long  to  admit  the  participa- 
tion of  popular  suffrages. 

The  reigning  dynasty  having  become  extinct  in  1306,  by 
House  of  the  death  of  Wenceslaus,  son  of  that  Ottocar  who, 
Luxemburg,  after  extending  his  conquests  to  the  Baltic  Sea, 
and  almost  to  the  Adriatic,  had  lost  his  life  in  an  unsuccessful 
contention  with  the  emperor  Rodolph,  the  Bohemians  chose 
John  of  Luxemburg,  son  of  Henry  VII.  Under  the  kings  of 
this  family  in  the  fourteenth  century,  and  especially  Charles 
IV.,  whose  character  appeared  in  a  far  more  advantageous 
light  in  his  native  domains  than  in  the  empire,  Bohemia  im- 
bibed some  portion  of  refinement  and  science.'    An  university 


»  Pfeffel,  t.  ii.  p.  497. 

3  Bona  ipsorum  totl  Bohemi3L  plera- 
que  omnia  hoereditaria  sunt  seu  alodi- 
alia,  perpauca  feudalia.  Stransky,  Ilesp. 
Bohemica,  p.  392.  Stransky  was  a  Bo- 
nemian  protestant,  who  fled  to  Holland 
after  the  subversion  of  the  civil  and  re- 
ligious liberties  of  his  country  by  the 
fetal  battle  of  Prague  in  1621. 

3  Dubravius,  the  Bohemian  historian 
relates  {lib.    rviii.)    that,   the  kingdom 
haTing  no  written  laws,  Wenceslaus,  one 


of  the  kings,  about  the  year  1300,  wni 
for  an  Italian  lav.yer  to  compile  a  code. 
But  the  nobility  refused  to  consent  to 
this :  aware,  probably,  of  the  conse- 
quences of  letting  in  the  prerogative 
doctrines  of  the  civilians.  They  opposed, 
at  the  same  time,  the  institution  of  an 
university  at  Prague;  which,  however 
took  place  afterwards  under  Charles  IV. 

*  Stransky,    Resp.     Bohem.       Coze'i^ 
House  of  Austria,  p.  487. 

'  Schmidt  i  Coxe 


I 


Germany. 


THE  HUSSITES. 


101 


erected  by  Charles  at  Prague,  became  one  of  the  most  cele- 
brated in  Europe.  John  Huss,  rector  of  the  uni-  john  hubs. 
versity,  who  had  distinguished  himself  by  opposi- a»-1*i^- 
tion  to  many  abuses  then  prevailing  in  the  church,  repaired  to 
the  council  of  Constance,  under  a  safe-conduct  from  the  em- 
peror Sigismund.  In  violation  of  this  pledge,  to  the  indelible 
infamy  of  that  prince  and  of  the  council,  he  was  condemned 
to  be  burned ;  and  his  disciple,  Jerome  of  Prague,  underwent 
afterwards  the  same  fate.  His  countrymen,  aroused  by  this 
atrocity,  flew  to  arms.  They  found  at  their  head 
one  of  those  extraordinary  men  whose  genius, 
created  by  nature  and  called  into  action  by  fortuitous  events, 
appears  to  borrow  no  reflected  light  from  that  of  others. 
John  Zisca  had  not  been  trained  in  any  school  j^^^  ^isca. 
which  could  have  initiated  him  in  the  science  of 
war ;  that  indeed,  except  in  Italy,  was  still  rude,  and  nowhere 
more  so  than  in  Bohemia.  But,  self-taught,  he  became  one 
of  the  greatest  captains  who  had  appeared  hitherto  in  Europe. 
It  renders  his  exploits  more  marvellous  that  he  was  totally 
deprived  of  sight.  Zisca  has  been  called  the  inventor  of  the 
modern  art  of  fortification  ;  the  famous  mountain  near  Prague, 
fanatically  called  Tabor,  became,  by  his  skill,  an  impregna- 
ble entrenchment.  For  his  stratagems  he  has  been  compared 
to  Hannibal.  In  battle,  being  destitute  of  cavalry,  he  dis- 
posed at  intervals  ramparts  of  carriages  filled  with  soldiers,  to 
defend  his  troops  from  the  enemy*s  horse.  His  own  station 
was  by  the  chief  standard;  where,  after  hearing  the  cir- 
cumstances of  the  situation  explained,  he  gave  his  orders  for 
the  disposition  of  the  army.  Zisca  was  never  defeated ;  and 
his  genius  inspired  the  Hussites  with  such  enthusiastic  affec- 
tion, that  some  of  those  who  had  served  under  him  refused  to 
obey  any  other  general,  and  denominated  themselves  Orphans 
in  commemoration  of  his  loss.  He  was  indeed  a  ferocious 
enemy,  though  some  of  his  cruelties  might,  perhaps,  be  ex- 
tenuated by  the  law  of  retaliation ;  but  to  his  soldiers  aflable 
and  generous,  dividing  among  them  all  the  spoil.^ 

Even  during  the  lifetime  of  Zisca  the  Hussite  sect  was 
disunited ;  the  citizens  of  Prague  and  many  of  the  caiixtins. 
nobility  contenting  themselves  with  moderate  de-  ^•^-  ^*^* 
mands,  while  the  Taborites,  his  peculiar  followers,  were  actu- 

1  Len&nt,  Hist,  de  la  Quern  dea  Hussites;  Schmidt ;  Coxe 


102 


HUNGARY. 


Chap.  V 


ated  by  a  most  fanatical  frenzy.  The  former  took  the  name 
of  Calixtins,  from  their  retention  of  the  sacramental  cup,  of 
which  the  priests  had  latterly  thought  fit  to  debar  laymen 
an  abuse  so  totally  without  pretence  or  apology,  that  nothing 
less  than  the  determined  obstinacy  of  the  Romish  church 
could  have  maintained  it  to  this  time.  The  Taborites,  though 
no  longer  led  by  Zisca,  gained  some  remarkable  victories,  but 
were  at  last  wholly  defeated  ;  while  the  Catholic  and  Calixtin 
parties  came  to  an  accommodation,  by  which  Sigismund  was 
acknowledged  as  king  of  Bohemia,  which  he  had  claimed  by 
the  title  of  heir  to  his  brother  Wenceslaus,  and  a  few  indul- 
A.».  1433.  g^J^ces,  especially  the  use  of  the  sacramental  cup, 
conceded  to  the  moderate  Hussites.  But  this  com- 
pact, though  concluded  by  the  council  of  Basle,  being  ill 
observed,  thix)ugh  the  perfidious  bigotry  of  the  see  of  Rome, 
the  reformers  armed  again  to  defend  their  religious  liberties, 
and  ultimately  elected  a  nobleman  of  their  own  party,  by 
A.©.  1458.  "^°^^  George  Podiebrad,  to  the  throne  of  Bohemia, 
which  he  maintained  during  his  life  with  great 
vigor  and  prudence.^  Upon  his  death  they  chose  Uladislaus, 
son  of  Casimir  king  of  Poland,  who  afterwards 
obtained  also  the  kingdom  of  Hungary.  Both 
these  crowns  were  conferred  on  his  son  Louis, 
after  whose  death,  in  the  unfortunate  battle  of  Mohacz,  Fer- 
dinand of  Austria  became  sovereign  of  the  two  kingdoms. 

The  Hungarians,  that  terrible  people  who  laid  waste  the 
Hungary.  Italian  and  German  provinces  of  the  empire  in 
the  tenth  century,  became  proselytes  soon  after- 
wards to  the  religion  of  Europe,  and  their  sovereign,  St. 
Stephen,  was  admitted  by  the  pope  into  the  list  of  Christian 
kings.  Though  the  Hungaiians  were  of  a  race  perfectly 
distinct  from  either  the  Gothic  or  the  Sclavonian  tribes,  their 
system  of  government  was  in  a  great  measure  analogous. 
None  indeed  could  be  more  natural  to  rude  nations  who  had 
but  recently  accustomed  themselves  to  settled  possessions, 
than  a  territorial  aristocracy,  jealous  of  unlimited  or  even 
hereditary  power  in  their  chieftain,  and  subjugating  the  infe- 
rior people  to  that  servitude  which,  in  such  a  state  of  society, 
is  the  unavoidable  consequence  of  poverty. 

The  marriage  of  an  Hungarian  princess  with  Charles  II. 


A.D.  1471. 
A.D.  1527. 


^Leafimt;  Schmidt;  Cos». 


Germant. 


BATTLE  OF  WABNA. 


103 


king  of  Naples,  eventually  connected  her  country  far  more 
than  it  had  been  with  the  affairs  of  Italy.     I  have  mentioned 
in  a  different  place  the  circumstances  which  led  to  the  inva- 
sion of  Naples  by  Louis  king  of  Hungary,  and  the  wars  of 
that  powerful  monarch  with  Venice.    By  marrying  the  eldest 
daughter  of  Louis,  Sigismund,  afterwards  emperor,  sigismund. 
acquired  the  crown  of  Hungary,  which  upon  her  ^•"-  ^^' 
death  without  issue  he  retained  in  his  own  right,  and  was  even 
able  to  transmit  to  the  child  of  a  second  marriage,  and  to  her 
husband  Albert  duke  of  Austria.     From  this  commencement 
is  deduced  the  connection  between  Hungary  and  ^^  ^^ 
Austria.    In  two  years,  however,  Albert  dying  left 
his  widow  pregnant ;  but  the  states  of  Hungary,  ^^f i^* 
jealous  of  Austrian  influence,  and  of  the  intrigues 
of  a  minority,  without  waiting  for  her  delivery,  bestowed  the 
crown  upon  Uladislaus  king  of  Poland.    The  birth  of  Albert's 
posthumous  son,  Ladislaus,  produced  an  opposition  in  behalf 
of  the  infant's  right ;  but  the  Austrian  party  turned  out  the 
weaker,  and  Uladislaus,  after  a  civil  war  of  some  duration, 
became   undisputed  king.      Meanwhile  a  more  formidable 
enemy   drew   near.     The    Turkish   arms  had  subdued  all 
Servia,  and  excited  a  just  alarm  throughout  Christendom. 
Uladislaus  led  a  considerable  force,  to  which  the  presence  of 
the  cardinal  Julian  gave  the  appearance  of  a  crusade,  into 
Bulgaria,  and,  after  several  successes,  concluded  an  gj^jtig  ^j 
honorable  treaty  with  Amurath  II.     But  this  he  Yl^'^i^, 
was  unhappily  persuaded  to  violate,  at  the  instiga- 
tion of  the  cardinal,  who  abhorred  the  impiety  of  keeping 
faith  with  infidels.*     Heaven  judged  of  this  otherwise,  if  the 
judgment  of  Heaven  was  pronounced  upon  the  field  of  Wama. 
In  that  fatal  battle  Uladislaus  was  killed,  and  the  Hungarians 
utterly  routed.     The  crown  was  now  permitted  to  rest  on  the 
head  of  young  Ladislaus ;  but  the  regency  was  allotted  by 
the  states  of  Hungary  to  a  native  warrior,  John  H^ju^jades. 
Hunniades.2    This  hero  stood  in  the  breach  for 


1  iEneas  Sylvius  lays  this  perfidy  on 
Pope  Eugenius  IV.  Scripsit  cardiDali, 
nullum  v.ilere  foedus,  quod  se  ineonsulto 
cum  hostibus  religionis  pcrcussum  esset, 

f).  ^7.     The  words  in  italics  arc  slipped 
n,  to  give  a  slight  pretext  for  breaking 
the  treaty. 

2  Uunnindes  was  a  Wallachian,  of  a 
fmall  family.  The  poles  charged  him 
irith  cowardice  at  Wama.    (iEneas  Syl- 


vius, p.  398.)  And  the  Greeks  Impnte 
the  same  to  him,  or  at  least  desertion  of 
his  troops,  at  Cossova,  where  he  was  do 
feated  in  1448.  (Spondanus,  ad  ann. 
1448.)  Probably  he  was  one  of  those 
prudently  brave  men  who,  when  victory 
ia  out  of  their  power,  reserve  themselvea 
to  fight  another  day  ;  which  is  the  char- 
acter of  all  partisans  accustomed  to 
desultory  war&re.    This  is  the  apology 


! 


104 


RELIEF  OF  BELGRADE. 


Chap.  V. 


twelve  years  against  the  Turkish  power,  frequently  defeated 
but  unconquered  in  defeat.    If  the  renown  of  Hunniades  may 
seem  exaggerated  by  the  partiality  of  writers  who  lived  under 
the  reign  of  his  son,  it  is  confirmed  by  more  unequivocal  evi- 
dence, by  the  dread  and  hatred  of  the  Turks,  whose  children 
were  taught  obedience  by  threatening  them  with  his  name, 
and  by  the  deference  of  a  jealous  aristocracy  to  a  man  of  no 
distinguished  birth.     He  surrendered  to  young  Ladislaus  a 
trust  that  he  had  exercised  with  perfect  fidelity;  but  his  merit 
was  too  great  to  be  forgiven,  and  the  court  never  treated  him 
with  cordiality.     The  last  and  the  most  splendid  service  of 
Belief  of        Hunniades  was  the  relief  of  Belgrade.    That  strong 
f'i^Tm       ^'^^  ^^^^  besieged  by  Mahomet  II.  three  years  after 
'  '       '       the  fall  of  Constantinople;  its  capture  would  have 
laid  open  all  Hungary.    A  tumultuary  army,  chiefly  collected 
by  the  preachmg  of  a  friar,  was  intrusted  to  Hunniades  ;  he 
penetrated  mto  the  city,  and,  having  repulsed  the  Turks  in  a 
fortunate  sally  wherein  Mahomet  was  wounded,  had  the  honor 
of  compelling  him  to  raise  the  siege  in  confusion.    The  relief 
of  Belgrade  was  more  important  in  its  effect  than  in  its  imme- 
diate  circumstances.     It  revived  the  spirits  of  Europe,  which 
had  been  appalled  by  the  unceasing  victories  of  the  infidels. 
Mahomet  himself  seemed  to  acknowledge  the  importance  of 
toe  blow,  and  seldom  afterwards  attacked  the  Huncrarians. 
Hunniades  died  soon  after  this  achievement,  and  was  fallowed 
by  the  king  Ladislaus.*     The  states  of  Hungary,  althou«rh 
ihe  emperor   Frederic  III.  had  secured  to  himself,  as  he 
thought,  the  reversion,  were  justly  averse  to  his  character, 
Matthias        and  to  Austrian  connections.    They  conferred  their 
A^im       2'''''''.  ''''  ^a^^^ias  Corvinus,  son  of  their  great 
Hunniades.      This   prince   reigned   above   thirty 
years  with  considerable  reputation,  to  which  his  patronage 


made  for  him  hy  iEneas  Sylrius :  for- 
tasse  rei  militaris  perito  nulla  in  puenl 
■alus  Tisa,  et  salvare  aliquos  quim  omues 
penre  maiult.  Poloni  acceptiun  eo  prsclio 
cladem  Hunniadis  vecordia;  atque  ignaviae 
tradiderunt ;  ipse  sua  concilia  spreta  con- 
questus  e«t.  I  obserTe  that  all  the  writers 
upon  Hungarian  aflfairs  have  a  party  bias 
one  way  or  other.  The  beat  and  most 
authentic  account  of  Hunniades  seems  to 
Jc,  still  allowing  for  this  partiaUty,  in 

£li*'^r'?'''\/^  •^*»^'^  Thwrocz,  who 
lived  under  Matthias.  Bonflniis,  an 
Italian  compiler  of  the  same  age,  hw 


amplified  this  original  authority  in  hit 
three  decads  of  Hungarian  history. 

I  Ladislaus  died  at  Prague,  at  the  agt 
of  twenty-two,  with  great  suspicion  of 
poison,  which  fell  chiefly  on  Oeorga 
Podiebrad  and  the  Bohemians.  ^Eueas 
Sylvius  was  with  him  at  tlie  time,  and  in 
a  letter  written  immedijitely  after  plainly 
hints  this ;  and  his  manner  carries  with 
it  more  persuasion  than  if  he  had  spoken 
out.  Epist.  324.  Mr.  Coxe,  however,  in- 
forms us  that  the  Bohemian  historisinj 
have  fully  disproved  the  charge. 


Gbrmamt.       early  fflSTORY  OF  SWITZERLAND. 


105 


of  learned  men,  who  repaid  his  munificence  with  very  pro- 
fuse eulogies,  did  not  a  little  contribute.*  Hungary,  at  least 
in  his  time,  was  undoubtedly  formidable  to  her  neighbors, 
and  held  a  respectable  rank  as  an  independent  power  in  the 
republic  of  Europe. 

The  kingdom  of  Burgundy  or  Aries  comprehended  the 
whole  mountainous  region  which  we  now  call  Switzerland. 
It  was  accordingly  reunited  to  the  Germanic  empire  by  the 
bequest  of  Rodolph  along  with  the  rest  of  his  dominions.  A 
numerous  and  ancient  nobility,  vassals  one  to  another,  or  to 
the  empire,  divided  the  possession  with  ecclesias- 
tical  lords  hardly  less  powerful  than  themselves. —its early 
Of  the  former  we  find  the  counts  of  Zahringen,  ^'^^^{^32 
Kyburg,  Hapsburg,  and  Tokenburg,  most  conspic- 
uous; of  the  latter,  the  bishop  of  Coire,  the  abbot  of  St. 
Gall,  and  abbess  of  Seckingen.  Every  variety  of  feudal 
rights  was  early  found  and  long  preserved  in  Helvetia ;  nor 
is  there  any  country  whose  history  better  illustrates  that  am- 
biguous relation,  half  property  and  half  dominion,  in  which 
the  territorial  aristocracy,  under  the  feudal  system,  stood  with 
respect  to  their  dependents.  In  the  twelfth  century  the  Swiss 
towns  rise  into  some  degree  of  importance.  Zurich  was 
eminent  for  commercial  activity,  and  seems  to  have  had 
no  lord  but  the  emperor.  Basle,  though  subject  to  its 
bishop,  posses.?ed  the  usual  privileges  of  municipal  govern- 
ment. Berne  and  Friburg,  founded  only  in  that  century, 
made  a  rapid  progress;  and  the  latter  was  raised,  along  with 
Zurich,  by  Frederic  II.  in  1218,  to  the  rank  of  a  free  im- 
perial city.  Several  changes  in  the  principal  Helvetian 
families  took  place  in  the  thirteenth  century,  before  the  end 
of  which  the  house  of  Hapsburg,  under  the  politic  and  en- 
terprising Rodolph  and  his  son  Albert,  became  possessed, 
through  various  titles,  of  a  great  ascendency  in  Switzer- 
land.^ 

Of  these  titles  none  was  more  tempting  to  an  ambitious 


1  Spondanus  frequently  blames  the 
Italians,  who  received  pensions  from 
Ifatthias,  or  wrote  at  his  court,  for  ex- 
aggerating his  virtues,  or  dissembling 
his  misfortunes.  And  this  was  probably 
the  case.  However,  Spondanus  has 
rather  contmcteJ  a  prtjudice  :>;?;iiiist  the 
Oorvini.    A  treatise  of  Qaleotus  Martius, 


an  Italian  littirateur^  De  dictis  et  factis 
Mathiae,  though  it  often  notices  an  ordi« 
nary  saying  a.s  jocos6  or  facete  dictum, 
gives  a  favorable  impression  of  Matthias's 
ability,  and  also  of  his  integrity. 

•i  Planta's    History    of    the    Helvetic 
Confederacy,  vol.  i.  chaps.  2-6. 


106 


THE  SWISS. 


Chaf.  V. 


GKBMAirr. 


SWISS  CONFEDERACY. 


107 


w 


Albert  of  chief  than  that  of  advocate  to  a  convent  That 
Austria.  specious  name  conveyed  with  it  a  kind  of  indefi- 
nite guardianship,  and  right  of  interference,  which  fre- 
quently ended  in  reversing  the  conditions  of  the  ecclesiasti- 
cal sovereign  and  its  vassal.  But  during  times  of  feudal 
anarchy  there  was  perhaps  no  other  means  to  secure  the  rich 
abbeys  from  absolute  spoliation ;  and  the  free  cities  in  their 
early  stage  sometimes  adopted  the  same  policy.  Among 
The  Swiss.  ^^^^^  advocacies,  Albert  obtained  that  of  some 
convents  which  had  estates  in  the  valleys  of 
Schweitz  and  Underwald.  These  sequestered  regions  in 
the  heart  of  the  Alps  had  been  for  ages  the  habitation  of 
a  pastoral  race,  so  happily  forgotten,  or  so  inaccessible  in 
their  fastnesses,  as  to  have  acquired  a  virtual  independence, 
regulating  their  own  affairs  in  their  general  assembly  with 
a  perfect  equality,  though  they  acknowledged  the  sovereignty 
of  the  empire.^  The  people  of  Schweitz  had  made  Rodolph 
their  advocate.  They  distrusted  Albert,  whose  succession  to 
his  father's  inheritance  spread  alarm  through  Helvetia.  It 
soon  appeared  that  their  suspicions  were  well  founded.  Be- 
sides the  local  rights  which  his  ecclesiastical  advocacies  gave 
him  over  part  of  the  forest  cantons,  he  pretended,  after  his 
election  to  the  empire,  to  send  imperial  bailiffs  into  their  val- 
leys, as  administrators  of  criminal  justice.  Their  oppression 
of  a  people  unused  to  control,  whom  it  was  plainly  the  design 
of  Albert  to  reduce  into  servitude,  excited  those  generous  emo- 
tions of  resentment  which  a  brave  and  simple  race  have  sel- 
Their  insur-  dom  the  discretion  to  repress.  Three  men,  Stauf- 
rection.  f^^^^^  ^^  Schweitz,  Furst  of  Uri,  Melchthal  of 
Underwald,  each  with  ten  chosen  associates,  met  by  night  in 
a  sequestered  field,  and  swore  to  assert  the  common  cause  of 
their  liberties,  without  bloodshed  or  injury  to  the  rights  of 
others.  Their  success  was  answerable  to  the  justice  of  their 
undertaking ;  the  three  cantons  unanimously  took  up  arms, 
and  expelled  their  oppressors  without  a  contest.  Albert's 
A.D.  1308  assassination  by  his  nephew,  which  followed  soon 
afterwards,  fortunately  gave  them  leisure  to  con- 
solidate their  union.^  He  was  succeeded  in  the  empire  by 
Henry  VII.,  jealous  of  the  Austrian  family,  and  not  at  all 

1  Planta»8  History  of  the  Helretio  Confederacy,  toI.  I.  o.  4. 
«Planta,c.6. 


displeased  at  proceedings  which  had  been  accompanied  with 
80  little  violence  or  disrespect  for  the  empire.  But  Leopold 
duke  of  Austria,  resolved  to  humble  the  peasants  who  had 
rebelled  against  his  father,  led  a  considerable  force  into  their 
country.  The  Swiss,  commending  themselves  to  Heaven, 
and  determined  rather  to  perish  than  undergo  that  yoke  a 
second  time,  though  ignorant  of  regular  discipline,  5.^4^,3  ^^ 
and  unprovided  with  defensive  armor,  utterly  dis-  Mor^arten. 
comfitted  the  assailants  at  Morgarten.* 

This  great  victory,  the  Marathon  of  Switzerland,  confirmed 
the  independence  of  the  three  original  cantons.  After  some 
years.  Lucerne,  contiguous  in  situation  and  alike  Formation  of 
in  interests,  was  incorporated  into  their  confed-  Swiss  con- 
eracy.  It  was  far  more  materially  enlarged  about  ^"^^' 
the  middle  of  the  fourteenth  century,  by  the  accession  of 
Zurich,  Glaris,  Zug,  and  Berne,  all  which  took  place  within 
two  years.  The  first  and  last  of  these  cities  had  already 
been  engaged  in  frequent  wars  with  the  Helvetian  nobility, 
and  their  internal  polity  was  altogether  republican.^  They 
acquired,  not  independence,  which  they  already  enjoyed,  but 
additional  security,  by  this  union  with  the  Swiss,  properly  so 
called,  who  in  deference  to  their  power  and  reputation  ceded 
to  them  the  first  rank  in  the  league.  The  eight  already 
enumerated  are  called  the  ancient  cantons,  and  continued,  till 
the  late  reformation  of  the  Helvetic  system,  to  possess  several 
distinctive  privileges  and  even  rights  of  sovereignty  over  sub- 
ject territories,  in  which  the  five  cantons  of  Friburg,  Soleure, 
Basle,  Schaffhausen,  and  Appenzell  did  not  participate.  From 
this  time  the  united  cantons,  but  especially  those  of  Berne 
and  Zurich,  began  to  extend  their  territories  at  the  expense 
of  the  rui-al  nobility.  The  same  contest  between  these 
parties,  with  the  same  termination,  which  we  know  generally 
to  have  taken  place  in  Lombardy  during  the  eleventh  and 
twelfth  centuries,  may  be  traced  with  more  minuteness  in 
the  annals  of  Switzerland.'  Like  the  Lombards,  too,  the 
Helvetic  cities  acted  with  policy  and  moderation  towards  the 
nobles  whom  they  overcame,  admitting  them  to  the  franchises 
of  their  community  as  co-burghers  (a  privilege  which  vir- 
tually implied  a  defensive  alliance  against  any  assailant),  and 
uniformly  respecting  the   legal   rights  of  property.     Many 


1  Planta,  e.  7. 


« Id.  cc.  8, 9. 


•  Id.  e.lO. 


108 


SWISS  CONFEDERACY. 


Chap.  V 


Germant. 


SWISS  TROOPS. 


109 


feudal  superiorities  they  obtained  from  the  owners  in  a  more 
peaceable  manner,  through  purchase  or  mortgage.  Thus  the 
house  of  Austria,  to  which  the  extensive  domains  of  the 
counts  of  Kyburg  had  devolved,  abandoning,  after  repeated 
defeats,  its  hopes  of  subduing  the  forest  cantons,  alienated  a 
great  part  of  its  possessions  to  Zurich  and  Berne.*  And  the 
last  remnant  of  their  ancient  Helvetic  territories  in  Argovia 
was  wrested  in  1417  from  Frederic  count  of  Tyrol,  who,  im- 
prudently supporting  pope  John  XXIII.  against  the  council 
of  Constance,  had  been  put  to  the  ban  of  the  empire.  These 
conquests  Berne  could  not  be  induced  to  restore,  and  thus 
completed  the  independence  of  the  confederate  republics.^ 
The  other  free  cities,  though  not  yet  incorporated,  and  the 
few  remaining  nobles,  whether  lay  or  spiritual,  of  whom  the 
abbot  of  St.  Gall  was  the  principal,  entered  into  separate 
leagues  with  different  cantons.  Switzerland  became,  there- 
fore, in  the  first  part  of  the  fifteenth  century,  a  free  country, 
acknowledged  as  such  by  neighboring  states,  and  subject  to 
no  external  control,  though  still  comprehended  within  the 
nominal  sovereignty  of  the  empire. 

The  affairs  of  Switzerland  occupy  a  very  small  space  in 
the  great  chart  of  European  history.  But  in  some  respects 
they  are  more  interesting  than  the  revolutions  of  mighty 
Kingdoms.  Nowhere  besides  do  we  find  so  many  titles  to  our 
sympathy,  or  the  union  of  so  much  virtue  with  so  complete 
success.  In  the  Italian  republics  a  more  splendid  temple 
may  seem  to  have  been  erected  to  liberty ;  but,  as  we  ap- 
proach, the  serpents  of  faction  hiss  around  her  altar,  and  the 
form  of  tyranny  flits  among  the  distant  shadows  behind  the 
shrine.  Switzerland,  not  absolutely  blameless,  (for  what  re- 
public has  been  so  ?)  but  comparatively  exempt  from  turbu- 
lence, usurpation,  and  injustice,  has  well  deserved  to  employ 
the  native  pen  of  an  historian  accounted  the  most  eloquent  of 
the  last  age.'     Other  nations  displayed  an  insuperable  resolu- 


1  Planta,  c.  11. 

a  Id.  vol.  ii.  c.  1. 

•  I  am  unacquainted  with  MuUer's 
history  in  the  original  languajje ;  but, 
presiiiniug  the  first  volume  of  Mr.  Plan- 
ta's  History  of  the  Ilelvetic  Confederacy 
to  be  a  free  translation  or  abridgment  of 
it,  I  can  well  conceive  that  it  deserves  the 
encomiums  of  Madame  de  Staiil  and  other 
foreign  critics.  It  is  very  rare  to  meet 
with  such  picturesque  and  lively  deline- 


ation in  a  modern  hUtorian  of  di!>tant 
times.  But  I  must  observe  that,  if  the 
authentic  chronicles  of  Switzerland  have 
enabled  Muller  to  embellish  his  narra- 
tion with  BO  much  circumstantial  de- 
tail, he  has  been  remarkably  fortunate 
in  his  authorities.  No  man  could  write 
the  annals  of  England  or  France  in  the 
fourteenth  century  with  such  particu- 
larity, if  he  was  .scrupulous  not  to  fill  up 
the  meagre  sketch  of  chroniclers  from 


I 


tion  in  the  defence  of  walled  towns ;  but  the  steadiness  of  the 
Swiss  in  the  field  of  battle  was  without  a  parallel,  unless  we 
recall  the  memory  of  Lacedaemon.  It  was  even  established 
as  a  law,  that  whoever  returned  from  battle  after  a  defeat 
should  forfeit  his  life  by  the  hands  of  the  executioner.  Six- 
teen hundred  men,  who  had  been  sent  to  oppose  a  predatory 
invasion  of  the  French  in  1444,  though  they  might  have  re- 
treated without  loss,  determined  rather  to  perish  on  the  spot, 
and  fell  amidst  a  far  greater  heap  of  the  hostile  slain.^  At 
the  famous  battle  of  Sempach  in  1385,  the  last  which  Aus- 
tria presumed  to  try  against  the  forest  cantons,  the  enemy's 
knights,  dismounted  from  their  horses,  presented  an  impreg- 
nable barrier  of  lances,  which  disconcerted  the  Swiss ;  till 
WinRelried,  a  gentleman  of  Underwald,  commending  his  wife 
and  children  to  his  countrymen,  threw  himself  upon  the  op- 
posite ranks,  and  collecting  as  many  lances  as  he  could  grasp, 
forced  a  passage  for  his  followers  by  burying  tbem  in  his 
bosom.^ 

The  burghers  and  peasants  of  Switzerland,  ill  provided 
with  cavalry,  and  better  able  to  dispense  with  it  Excellence 
than  the  natives  of  champaign  countries,  may  be  of  the  Swiss 
deemed  the  principal  restorers  of  the  Greek  and  *-^^^^' 
Roman  tactics,  which  place  the  strength  of  armies  in  a  steady 
mass  of  infantry.  Besides  their  splendid  victories  over  the 
dukes  of  Austria  and  their  own  neighboring  nobility,  they 
had  repulsed,  in  the  year  1375,  one  of  those  j^redatory  bodies 
of  troops,  the  scourge  of  Europe  in  that  age,  and  to  whose 
licentiousness  kingdoms  and  free  states  yielded  alike  a  passive 
submission.  They  gave  the  dauphin,  afterwards  Louis  XL, 
who  entered  their  country  in  1444  with  a  similar  body  of 
ruffians,  called  Armagnacs,  the  disbanded  mercenaries  of  the 
English  war,  sufficient  reason  to  desist  from  his  invasion  and 
to  respect  their  valor.  That  able  prince  formed  indeed  so 
high  a  notion  of  the  Swiss,  that  he  sedulously  cultivated  their 
alliance  during  the  rest  of  his  life.  He  was  made  abundantly 
sensible  of  the  wisdom  of  this  policy  when  he  saw  his  greatest 
enemy,  the  duke  of  Burgundy,  routed  at  Granson  and  Morat, 
and  his  affairs  irrecoverably  ruined,  by  these  hardy  repub- 

ehe  stores  of  his  invention.    The  striking    another  advantage  as  a.  painter  of  his- 
scenery  of  Switzerland,  and  Muller's  ex-    tory. 
•ct  acquaintance  with  it,  have  given  him       i  Planta,  vol.  ii.  c.  2. 

« Id.  vol.  i.  c.  10. 


[■k 


l\ 


110 


BATinCATION  OF 


Chap.  V. 


OsBBiAxnr. 


SWISS  mDEPENDEJTCE. 


Ill 


■^. 


•■i 


I 


licans.  The  ensuing  age  is  the  most  conspicuous,  though  not 
the  most  essentially  glorious,  in  the  history  of  Switzerland. 
Courted  for  the  excellence  of  their  troops  by  the  rival 
sovereigns  of  Europe,  and  themselves  too  sensible  both  to 
ambitious  schemes  of  dominion  and  to  the  thirst  of  money, 
the  united  cantons  came  to  play  a  very  prominent  part  in  the 
wars  of  Lorabardy,  with  great  military  renown,  but  not 
without  some  impeachment  of  that  sterling  probity  which  had 
distinguished  their  earlier  eflforts  for  independence.  These 
events,  however,  do  not  fall  within  my  limits ;  but  the  last 

year  of  the  fifteenth  century  is  a  leading  epoch, 
S'SlJ?  with  which  I  shall  close  this  sketch.  Though  the 
Li  1500^"*^*    house  of  Austria  had  ceased  to  menace  the  liberties 

of  Helvetia,  and  had  even  been  for  many  years  its 
ally,  the  emperor  Maximilian,  aware  of  the  important  service 
he  might  derive  from  the  cantons  in  his  projects  upon  Italy, 
as  well  as  of  the  disadvantage  he  sustained  by  their  partiality 
to  French  interest,  endeavored  to  revive  the  unextinguished 
supremacy  of  the  empire.  That  supremacy  had  just  been 
restored  in  Germany  by  the  establishment  of  the  Imperial 
Chamber,  and  of  a  regular  pecuniary  contribution  for  its 
support,  as  well  as  for  other  purposes,  in  the  diet  of  Worms. 
The  Helvetic  cantons  were  summoned  to  yield  obedience  to 
these  imperial  laws ;  an  innovation,  for  such  the  revival  of 
obsolete  prerogatives  must  be  considered,  exceedingly  hostile 
to  their  republican  independence,  and  involving  consequences 
not  less  material  in  their  eyes,  the  abandonment  of  a  line 
of  policy,  which  tended  to  enrich,  if  not  to  aggrandize  them. 
Their  refusal  to  comply  brought  on  a  war,  wherein  the 
Tyrolese  subjects  of  Maximilian,  and  the  Suabian  league,  a 
confederacy  of  cities  in  that  province  lately  formed  under  the 
emperor's  auspices,  were  principally  engaged  against  the 
Swiss.  But  the  success  of  the  latter  was  decisive ;  and  after 
a  terrible  devastation  of  the  frontiers  of  Germany,  peace  was 
concluded  upon  terms  very  honorable  for  Switzerland.  The 
cantons  were  declared  free  from  the  jurisdiction  of  the  Impe- 
rial Chamber,  and  from  all  contributions  imposed  by  the  diet. 
Their  right  to  enter  into  foreign  alliance,  even  hostile  to  the 
empire,  if  it  was  not  expressly  recognized,  continued  unim- 
paired in  practice ;  nor  am  I  aware  that  they  were  at  any 
time  afterwards  supposed  to  incur  the  crime  of  rebellion  by 
such  proceedings.     Though,  perhaps,  in  the  strictest  letter 


of  public  law,  the  Swiss  cantons  were  not  absolutely  released 
from  their  subjection  to  the  empire  until  the  treaty  of  West- 
phalia, their  real  sovereignty  must  be  dated  by  an  historian 
from  the  year  when  every  prerogative  which  a  government 
can  exercise  was  finally  abtmdoned.^ 


^  Planta,  toI.  ii.  c  4. 


112 


COMMENCEMENT  OF  MODERN  HISTORY.  Chap.  VL 


1 


CHAPTER   VI. 

HISTORY   OF   THE    GREEKS   AND    SARACENS. 

Rise  of  Mohammcdism  —  Causes  of  its  Success  —  Progress  of  Saracen  Anns  —  Greek 
Empire --Decline  of  the  Khalife  — The  Greeks  recover  Part  of  their  I,,os8e8  —  The 
Turks  —  The  Crusades  —  Capture  of  Constantinople  by  the  Latins  —  Its  Ilecovery 
by  the  Greeks  — The  Moguls  —  The  Ottomans — Danger  at  Constantinople  — 
Timur  —  Capture  of  Constantinople  by  Mahomet  II.  —  Alarm  of  Europe. 

The  difficulty  which  occurs  to  us  in  endeavoring  to  fix  a 
natural  commencement  of  modern  history  even  in  the  Western 
countries  of  Europe  is  much  enhanced  when  we  direct  our 
attention  to  the  Eastern'  empire.  In  tracing  the  long  series 
of  the  Byzantine  annals  we  never  lose  sight  of  antiquity ; 
the  Greek  language,  the  Roman  name,  the  titles,  the  laws, 
all  the  shadowy  circumstance  of  ancient  greatness,  attend  us 
throughout  the  progress  from  the  first  to  the  last  of  the  Con- 
stantines;  and  it  is  only  when  we  observe  the  external 
condition  and  relations  of  their  empire,  that  we  perceive 
ourselves  to  be  embarked  in  a  new  sea,  and  are  compelled  to 
deduce,  from  points  of  bearing  to  the  history  of  other  nations, 
a  line  of  separation  which  the  domestic  revolutions  of  Con- 
stantinople would  not  satisfactorily  afford.  The  appearance 
of  Mohammed,  and  the  conquests  of  his  disciples,  present  an 
epoch  in  the  history  of  Asia  still  more  important  and  more 
definite  than  the  subversion  of  the  Roman  empire  in  Europe ; 
and  hence  the  boundary-line  between  the  ancient  and  modern 
divisions  of  Byzantine  history  will  intersect  the  reign  of  He- 
raclius.  That  prince  may  be  said  to  have  stood  on  tlie  verge 
of  both  hemispheres  of  time,  whose  youth  was  crowned  with 
the  last  victories  over  the  successors  of  Artaxerxes,  and 
whose  age  was  clouded  by  the  first  calamities  of  Moham- 
medan invasion. 

Of  all  the  revolutions  which  have  had  a  permanent  influ- 
A  earano©  ^^^^  upon  the  civil  history  of  mankind,  none  could 
of  Moham-  SO  little  be  anticipated  by  human  prudence  as  that 
"***'  effected  by  the  religion  of  Arabia.     As  the  seeds 

of  invisible  disease  grow  up  sometimes  in  silence  to  maturity, 


Greeks,  etc.       APPEARANCE  OF  MAHOMMED. 


113 


till  they  manifest  themselves  hopeless  and  irresistible,  the 
gradual  propagation  of  a  new  faith  in  a  barbarous  country 
beyond  the  limits  of  the  empire  was  hardly  known  perhaps, 
and  certainly  disregarded,  in  the  court  of  Constantinople. 
Arabia,  in  the  age  of  Mohammed,  was  divided  into  many 
small  states,  most  of  which,  however,  seem  to  have  looked 
up  to  Mecca  as  the  capital  of  their  nation  and  the  chief  seat 
of  their  religious  worship.  The  capture  of  that  city  accord- 
ingly, and  subjugation  of  its  powerful  and  numerous  aris- 
tocracy, readily  drew  after  it  the  submission  of  the  minor 
tribes,  who  transferred  to  the  conqueror  the  reverence  they 
were  used  to  show  to  those  he  had  subdued.  If  we  consider 
Mohammed  only  as  a  military  usurper,  there  is  nothing  more 
explicable  or  more  analogous,  especially  to  the  course  of 
oriental  history,  than  his  success.  But  as  the  author  of  a 
rehgious  imposture,  upon  which,  though  avowedly  unattested 
by  miraculous  powers,  and  though  originally  discountenanced 
by  the  civil  magistrate,  he  had  the  boldness  to  found  a  scheme 
of  universal  dominion,  which  his  followers  were  half  enabled 
to  realize,  it  is  a  curious  speculation  by  what  means  he  could 
inspire  so  sincere,  so  ardent,  so  energetic,  and  so  permanent 
a  belief. 

A  full  explanation  of  the  causes  which  contributed  to  the 
progress  of  Mohammcdism  is  not  perhaps,  at  causes  of 
present,  attainable  by  those  most  conversant  with  ^^^  success. 
this  department  of  literature.^  But  we  may  point  out  several 
of  leading  importance :  in  the  first  place,  those  just  and  elevated 
notions  of  the  divine  nature  and  of  moral  duties,  the  gold-ore 
that  pervades  the  dross  of  the  Koran,  which  were  calculated 
to  strike  a  serious  and  reflecting  people,  already  perhaps  dis- 
inclined, by  intermixture  with  their  Jewish  and  Christian 
fellow-citizens,  to  the  superstitions  of  their  ancient  idolatry ;  * 
next,  the  artful  incorporation  of  tenets,  usages,  and  traditions 


J  We  are  very  destitute  of  satisfactory 
materials  for  the  history  of  Mohammed 
himself.  Abulfeda,  the  most  judicious 
of  his  biographers,  lived  in  the  fourteenth 
century,  when  it  must  have  been  mor- 
ally im(K>ssible  to  discriminate  the  truth 
amidst  the  torrent  of  fabulous  tradition. 
Al  Jannabi,  whom  Gagnier  translated,  is 
a  mere  legend  writer ;  it  would  l>e  as 
rational  to  reiy  on  the  Acta  Sanctorum 
as  his  romance.  It  is  therefore  difficult 
to   ascertain  the   r«al  character  of  the 

VOL.   U.  S 


prophet,  except  as  it  is  deducible  from 
the  ICoran. 

2  The  very  curious  romance  of  Antar 
written,  perhaps,  before  the  appearance 
of  Mohammed,  seems  to  render  it  proba 
ble  that,  however  idolatry,  as  we  ar» 
told  by  Sale,  might  prevail  iu  some  parts 
of  Arabia,  yet  the  genuine  religion  of 
the  descendants  of  Ishmael  was  a  belief 
in  the  unity  of  God  as  strict  as  is  laid 
down  in  the  Koran  itself,  and  accompa* 
nied  by  the  same  antipathy,  partly  r»> 


lU 


CAUSES  OF  THE 


Chap.  VI 


from  the  various  religions   that  existed  in  Arabia;*   and 
thirdly,  the   extensive  application  of  the    precepts  in  the 
Koran,  a  book  confessedly  written  with  much  elegance  and 
purity,  to  all  legal  transactions  and  all  the  business  of  life. 
It  may  be  expected  that  I  should  add  to  these  what  is  com- 
monly considered  as  a  distinguishing  mark  of  Moharamedism, 
its  indulgence  to  voluptuousness.     But  this  appeare  to  be 
greatly  exaggerated.     Although  the  character  of  its  founder 
may  have  been  tainted  by  sensuality  as  well  as  ferociousness, 
I  do  not  think  that  he  relied  upon  inducements  of  the  former 
kind  for  the  diffusion  of  his  system.     We  are  not  to  judge 
of  this  by  rules  of  Christian  purity,  or  of  European  practice. 
If  polygamy  was  a  prevailing  usage  in  Arabia,  as  is  not 
questioned,  its  permission  gave  no  additional  license  to  the 
proselytes  of  Mohammed,  who  will  be  found  rather  to  have 
narrowed  the  unbounded  liberty  of  oriental  manners  in  this 
respect ;  while  his  decided  condemnation  of  adultery,  and  of 
incestuous  connections,  so  frequent  among  barbarous  nations, 
does  not  argue  a  very  lax  and  accommodating  morality.     A 
devout  Mussulman  exhibits  much  more  of  the  Stoical  than 
the  Epicurean  character.     Nor  can  any  one  read  the  Koran 
without  being  sensible  that  it  breathes  an  austere  and  scrupu- 
lous spirit.     And,  in  fact,  the  founder  of  a  new  religion  or 
sect  is  little  likely  to  obtain  permanent  success  by  indulging 
the  vices  and  luxuries  of  mankind.     I  should  rather  be  dis- 
posed to  reckon  the  severity  of  Mohammed's  discipline  among 
the  causes  of  its  influence.   Precepts  of  ritual  observance,  being 
always  definite  and  unequivocal,  are  less  likely  to  be  neglected, 
after  their  obligation  has  been  acknowledged,  than  those  of 


lil^ons,  partly  national,  towards  the 
Fire-worshippers  which  Mohammed  ia- 
culcated.  This  corroborates  what  I  had 
said  in  the  text  before  the  publication  of 
that  work. 

1 1  am  very  much  disposed  to  beliere, 
notwithstanding  what  seems  to  be  the 
general  opinion,  that  Mohammed  had 
never  read  any  part  of  the  New  Testa- 
ment. His  knowledge  of  Christianity 
appears  to  be  wholly  derived  from  the 
apocryphal  gospels  and  similar  works. 
tie  admitted  the  miraculous  conception 
and  prophetic  character  of  Jesus,  but  not 
his  divinity  or  pretixistence.  Hence  it 
is  rather  surprising  to  read,  In  a  popular 
book  of  sermons  by  a  living  prelate,  that 
all  the  heresies  of  the  Christian  church 
(I  quote  the  Bubstance  from  memory) 


are  to  be  found  in  the  Koran,  but  espe- 
cially that  of  Arianism.  No  one  who 
knows  what  Arianism  Is,  and  what  Mo- 
hammedism  is,  could  possibly  fall  into  so 
strange  an  error.  The  misfortune  haa 
been,  that  the  learned  writer,  while  ac- 
cumulating a  mass  of  reading  upon  thia 
part  of  his  subject,  neglected  what  should 
have  been  the  nucleus  of  the  whole,  a  pe- 
rusal of  the  single  book  which  contains 
the  doctrine  of  the  Arabian  impostor. 
In  this  strange  chimera  about  the  Arian- 
ism of  Mohammed,  he  has  been  led  away 
by  a  misplaced  trust  in  Whitaker;  a 
writer  almost  inviiriably  in  the  wrong, 
and  whose  bad  reasoning  upon  all  the 
points  of  historical  criticism  which  he 
attempted  to  diflcudit  is  quite  notorious. 


Greeks,  etc. 


SUCCESS  OF  MAHOMMED. 


lid 


moral  virtue.  Thus  the  long  fasting,  the  pilgrimages,  the 
regular  prayers  and  ablutions,  the  constant  alms-giving,  the 
abstinence  from  stimulating  liquors,  enjoined  by  the  Koran, 
created  a  visible  standard  of  practice  among  its  followers, 
and  preserved  a  continual  recollection  of  their  law. 

But  the  prevalence  of  Islam  in  the  lifetime  of  its  prophet, 
and  during  the  first  ages  of  its  existence,  was  chiefly  owing 
to  the  spirit  of  martial  energy  that  he  infused  into  it.  The 
religion  of  Mohammed  is  as  essentially  a  military  system  as 
the  institution  of  chivalry  in  the  west  of  Europe.  The  peo- 
ple of  Arabia,  a  race  of  strong  passions  and  sanguinary 
temper,  inured  to  habits  of  pillage  and  murder,  found  in  the 
law  of  their  native  prophet,  not  a  license,  but  a  command,  to 
desolate  the  world,  and  the  promise  of  all  that  their  glowing 
imaginations  could  anticipate  of  Paradise  annexed  to  all  in 
which  they  most  delighted  upon  earth.  It  is  difficult  for  us 
in  the  calmness  of  our  closets  to  conceive  that  feverish  inten- 
sity of  excitement  to  which  man  may  be  wrought,  when  the 
animal  and  intellectual  energies  of  his  nature  converge  to  a 
point,  and  the  buoyancy  of  strength  and  courage  reciprocates 
the  influence  of  moral  sentiment  or  religious  hope.  The 
eff'ect  of  this  union  I  have  formerly  remarked  in  the  Cru- 
sades ;  a  phenomenon  perfectly  analogous  to  the  early  history 
of  the  Saracens.  In  each,  one  hardly  knows  whether  most 
to  admire  the  prodigious  exertions  of  heroism,  or  to  revolt 
from  the  ferocious  bigotry  that  attended  them.  But  the 
Crusades  were  a  temporary  eflTort,  not  thoroughly  congenial 
to  the  spirit  of  Christendom,  which,  even  in  the  darkest  and 
most  superstitious  ages,  was  not  susceptible  of  the  solitary 
and  overruling  fanaticism  of  the  Moslem.  They  needed  no 
excitement  from  pontiffs  and  preachers  to  achieve  the  work 
to  which  they  were  called ;  the  precept  was  in  their  law,  the 
principle  was  in  their  hearts,  the  assurance  of  success  was  in 
their  swords.  "  O  prophet,"  exclaimed  Ali,  when  Moham- 
med, in  the  first  years  of  his  mission,  sought  among  the 
scanty  and  hesitating  assembly  of  his  friends  a  vizir  and 
lieutenant  in  command,  "I  am  the  man;  whoever  rises 
against  thee,  I  will  dash  out  his  teeth,  tear  out  his  eyes, 
break  his  legs,  rip  up  his  belly.  0  prophet,  I  will  be  thy 
▼izir  over  them.**  *    These  words  of  Mohammed's  early  and 


>  Qibbon,  Tol.  Ix.  p.  284. 


116 


CONQUESTS  OF  THE  SARACENS. 


CiLVP.  VL 


II 


illustrious  disciple  are,  as  it  were,  a  text,  upon  which  the 
commentary  expands  into  the  whole  Saracenic  history. 
They  contain  the  vital  essence  of  his  religion,  implicit  fiiith 
and  ferocious  energy.  Death,  slavery,  tribute  to  unbelievers, 
were  the  glad  tidings  of  the  Arabian  prophet.  To  the 
idolaters,  indeed,  or  those  who  acknowledged  no  special  reve- 
lation, one  alternative  only  was  proposed,  conversion  or  the 
sword.  The  people  of  the  Book,  as  they  are  termed  in  the 
Koran,  or  four  sects  of  Christians,  Jews,  Magians,  and  Sa- 
bians,  were  permitted  to  redeem  their  adherence  to  their 
ancient  law  by  the  payment  of  tribute,  and  other  marks  of 
humiliation  and  servitude.  But  the  limits  which  Moham- 
medan intolerance  had'  prescribed  to  itself  were  seldom 
transgressed;  the  word  pledged  to  unbelievers  was  seldom 
forfeited;  and  with  all  their  insolence  and  oppression,  the 
Moslem  conquerors  were  mild  and  liberal  in  comparison 
with  those  who  obeyed  the  pontiffs  of  Rome  or  Constanti- 
nople. 

At  the  death  of  Mohammed  in  632  his  temporal  and 
religious  sovereignty  embraced,  and  was  limited 
conquests      by,   the   Arabian   peninsula.      The   Roman   and 
of  the  Persian  empires,  engaged  in  tedious  and  indeci- 

sive  hostility  upon  the  rivers  of  Mesopotamia 
and  the  Armenian  mountains,  were  viewed  by  the  ambitious 
fanatics  of  his  creed  as  their  quarry.  In  the  very  first  year 
of  Mohammed's  immediate  successor,  Abubeker,  each  of 
these  mighty  empires  was  invaded.  The  latter  opposed  but 
a  short  resistance.  The  crumbling  fabric  of  eastern  despot- 
ism is  never  secure  against  rapid  and  total  subversion;  a 
few  victories,  a  few  sieges,  carried  the  Arabian  arms  from 
the  Tigris  to  the  Oxus,  and  overthrew,  with  the  Sassanian 
dynasty,  the  ancient  and  famous  religion  they  had  professed. 
Seven  years  of  active  and  unceasing  warfare  sufl&ced  to  sub- 

A.D.  jugate  the  rich  province  of  Syria,  though  defended 

632-639.  \^j  numerous  armies  and  fortified  cities ;  and  the 
khalif  Omar  had  scarcely  returned  thanks  for  the  accom- 
plishment of  this  conquest,  when  Amrou,  his  lieutenant, 
announced  to  him  the  entire  reduction  of  Egypt.  After 
some  interval  the  Saracens  won  their  way  along  the  coast 

A.D.  of  Africa  as  far  as  the  Pillars  of  Hercules,  and 

647-698.  2i  third  province  was  irretrievably  torn  from  the 
Greek  empire.    These  western  conquests  mtroduced  them 


Greeks,  etc.     STATE  OF  THE  GREEK  EMPIRR 


117 


J 


1 


j 


to  fresh  enemies,  and  ushered  in  more  splendid  successes ; 
encouraged  by  the  disunion  of  the  Visigoths,  and  perhaps 
invited  by  treachery,  Musa,  the  general  of  a  master  who  sat 
beyond  the  opposite  extremity  of  the  Mediterra- 
nean Sea,  passed  over  into  Spain,  and  within 
about  two  years  the  name  of  Mohammed  was  invoked  under 
the  Pyrenees.^ 

These  conquests,  which  astonish  the  careless  and  superfi- 
cial, ai-e  less  perplexing  to  a  calm  inquirer  than  their  cessation 
the  loss  of  half  the  Roman  empire,  than  the  preservation  of 
the  rest.  A  glance  from  Medina  to  Constantinople  g^^^^^  ^^ 
in  the  middle  of  the  seventh  century  would  proba-  the  Greek 
bly  have  induced  an  indifferent  spectator,  if  such  ^"p^'*- 
a  being  may  be  imagined,  to  anticipate  by  eight  hundred 
years  the  establishment  of  a  Mohammedan  dominion  upon 
the  shores  of  the  Hellespont.  The  fame  of  Heraclius  had 
withered  in  the  Syrian  war ;  and  his  successors  appeared  as 
incapable  to  resist,  as  they  were  unworthy  to  govern.  Their 
despotism,  unchecked  by  law,  was  often  punished  by  success- 
ful rebellion ;  but  not  a  whisper  of  civil  liberty  was  ever 
heard,  and  the  vicissitudes  of  servitude  and  anarchy  consum- 
mated the  moral  degeneracy  of  the  nation.  Less  ignorant  than 
the  western  barbarians,  the  Greeks  abused  their  ingenuity 
in  theological  controversies,  those  especially  which  related  to 
the  nature  and  incarnation  of  our  Saviour ;  wherein  the  dis- 
putants, as  is  usual,  became  more  positive  and  rancorous  as 
their  creed  receded  from  the  possibility  of  human  apprehen- 
sion. Nor  were  these  confined  to  the  clergy,  who  had  not,  in 
the  East,  obtained  the  prerogative  of  guiding  the  national 
faith  ;  the  sovereigns  sided  alternately  with  opposing  factions; 
Heraclius  was  not  too  brave,  nor  Theodora  too  infamous,  for 
discussions  of  theology ;  and  the  dissenters  from  an  imperial 
decision  were  involved  in  the  double  proscription  of  treason 
and  heresy.  But  the  persecutors  of  their  opponents  at  home 
pretended  to  cowardly  scrupulousness  in  the  field ;  nor  was 


»  Ockley'B  History  of  the  Saracens; 
Cardonne,  Revolutions  de  I'Afrique  et 
de  I'Espngne.  The  former  of  these  works 
Is  well  known  and  justly  admired  for 
its  simplicity  and  picturesque  detnils. 
Scarcely  any  narrative  has  ever  excelled 
In  beauty  that  of  the  death  of  Uossein. 
But  these  do  not  tend  to  render  it  more 
deaerving  of  confidence.     On  the  con- 


trary, it  may  be  laid  down  as  a  pretty 
general  rule,  that  eircumstantiality^ 
which  enhances  the  credibility  of  a  wit- 
ness, diminishes  that  of  an  historian  re- 
mote in  time  or  situation.  And  I  observe 
that  Reiske,  in  his  preface  to  Abulfeda, 
speaks  of  Wakidi,  from  whom  Ockley's 
book  is  but  a  translation,  as  a  mere  fab* 
ulist. 


118 


DECLINE  OF  THE  SARACENS. 


Chap.  VI. 


Decline 
of  the 
Saracens. 


the  Greek  church  ashamed  to  require  the  lustration  of  a 
canonical  penance  from  the  soldier  who  shed  the  blood  of  his 
enemies  in  a  national  war. 

But  this  depraved  people  were  preserved  from  destruction 
by  the  vices  of  their  enemies,  still  more  than  by 
some  intrinsic  resources  which  they  yet  possessed. 
A  rapid  degeneracy  enfeebled  the  victorious  Mos- 
lem in  their  career.    That  irresistible  enthusiasm,  that  earnest 
and  disinterested  zeal  of  the  companions  of  Mohammed,  was 
in  a  great  measure  lost,  even  before  the  first  generation  had 
passed  away.     In  the  fruitful  valleys  of  Damascus  and  Bas- 
sora  the  Arabs  of  the  desert  forgot  their  abstemious  habits. 
Rich  from  the  tributes  of  an  enslaved  people,  the  Mohamme- 
dan sovereigns  knew  no  employment  of  riches  but  in  sensual 
luxury,  and  paid  the  price  of  voluptuous  indulgence  in  the 
relaxation  of  their  strength  and  energy.    Under  the  reign  of 
Moawiah,  the  fifth  khalif,  an  hereditary  succession  was  sub- 
stituted for  the  free  choice  of  the  faithful,  by  which  the  first 
representatives  of  the  prophet  had  been  elevated  to  power; 
and  this  regulation,  necessary  as  it  plainly  was  to  avert  in 
some  degree'  the  dangers  of  schism  and  civil  war,  exposed 
the  kingdom  to  the  certainty  of  being  often  governed  by  feeble 
tyrants.     But  no  regulation  could  be  more  than  a  tenaporary 
preservative  against  civil  war.     The  dissensions  which  still 
separate  and  render  hostile  the  followers  of  Mohammed  may 
be  traced  to  the  first  events  that  ensued  upon  his  death,  to 
the  rejection  of  his  son-in-law  Ali  by  the  electors  of  Medina. 
Two  reigns,  those  of  Abubeker  and  Omar,  passed  in  external 
glory  and  domestic  reverence ;  but  the  old  age  of  Othman 
was  weak  and  imprudent,  and  the  conspirators  against  him 
established  the  first  among  a  hundred  precedents  of  rebellion 
and  regicide.     Ali  was  now  chosen ;  but  a  strong  faction  dis- 
puted his  right ;  and  the  Saracen  empire  was,  for  many  years, 
distracted  with  civil  war,  among  competitors  who  appealed, 
in  reality,  to  no  other  decision  than  that  of  the  sword.     The 
family  of  Ommiyah  succeeded  at  last  in  establishing  an  unre- 
sisted, if  not  an  undoubted  title.    But  rebellions  were  perpet- 
ually afterwards  breaking  out  in  that  vast  extent  of  dominion, 
till  one  of  these  revolters  acquired  by  success  a 
*'*' ^^'        better  name  than  rebel,  and  founded  the  dynasty 
of  the  Abbassides. 

Damascus  had  been  the  seat  of  empire  under  the  Ommi- 


Greeks,  Era 


KHALIFS  OF  BAGDAD. 


119 


J 


ades ;  it  was  removed  by  the  succeeding  family  to  Khaii&  os 
their  new  city  of  Bagdad.  There  are  not  any  ^^'^'^^ 
names  in  the  long  line  of  khalifs,  after  the  companions  of 
Mohammed,  more  renowned  in  history  than  some  of  the 
earlier  sovereigns  who  reigned  in  this  capital  —  Almansor, 
Haroun  Alraschid,  and  Almamun.  Their  splendid  palaces, 
their  numerous  guards,  their  treasures  of  gold  and  silver,  the 
populousness  and  wealth  of  their  cities,  formed  a  striking 
contrast  to  the  rudeness  and  poverty  of  the  western  nations 
in  the  same  age.  In  their  court  learning,  which  the  first 
Moslem  had  despised  as  unwarlike  or  rejected  as  profane, 
was  held  in  honor.^  The  khalif  Almamun  especially  was 
distinguished  for  his  patronage  of  letters ;  the  philosophical 
writings  of  Greece  were  eagerly  sought  and  translated ;  the 
stars  were  numbered,  the  course  of  the  planets  was  measured. 
The  Arabians  improved  upon  the  science  they  borrowed,  and 
returned  it  with  abundant  interest  to  Europe  in  the  commu- 
nication of  numeral  figures  and  the  intellectual  language  of 
algebra.*  Yet  the  merit  of  the  Abbassides  has  been  exagger- 
ated  by  adulation  or  gratitude.  After  all  the  vague  praises 
of  hireling  poets,  which  have  sometimes  been  repeated  in 
Europe,  it  is  very  rare  to  read  the  history  of  an  eastern  sov- 
ereign unstained  by  atrocious  crimes.  No  Christian  govern- 
ment, except  perhaps  that  of  Constantinople,  exhibits  such  a 
series  of  tyrants  as  the  khalifs  of  Bagdad ;  if  deeds  of  blood, 
wrought  through  unbridled  passion  or  jealous  policy,  may 
challenge  the  name  of  tyranny.  These  are  ill  redeemed  by 
ceremonious  devotion  and  acts  of  trifling,  perhaps  ostentatious, 
humility,  or  even  by  the  best  attribute  of  Mohammedan 
princes  —  a  rigorous  justice  in  chastising  the  offences  of 
others.  Anecdotes  of  this  description  give  as  imperfect  a 
sketch  of  an  oriental  sovereign  as  monkish  chroniclers  some- 
times draw  of  one  in  Europe  who  founded  monasteries  and 


1  The  Arabian  writers  date  the  origin 
of  their  literature  (except  those  worlcs  of 
fiction  Tvbich  had  always  been  popular) 
from  the  reign  of  Almansor,  a.d.  758. 
Abulpharagius,  p.  160  ;  Gibbon,  c.  52. 

8  Several  very  recent  publications  con- 
tain interesting  details  on  Saracen  litera- 
ture; Borington's  Literary  History  of 
the  Middle  Ages,  Mill's  History  of  Mo- 
hammedanism, chap,  vi.,  Turner's  His- 
ory    of    England,    Tol.    i.      Harris's 


Philolo^cal  Arrangement  is  perhaps  a 
book  better  known ;  and  though  it  has 
since  been  much  excelled,  was  one  of  the 
first  contributions  in  our  own  language 
to  this  department,  in  which  a  great  deal 
yet  remains  for  the  oriental  scholars  of 
Europe.  Casiri's  admirable  catalogue  of 
Arabic  MSS.  in  the  Escurial  ought  before 
this  to  have  been  followed  up  by  a  more 
accurate  examination  of  their  contents 
than  it  was  possible  for  him  to  gife. 


120 


SEPARATION  OF  SPAIN  AND  AFRICA.       Chap.  VI 


obeyed  the  clergy ;  though  it  must  be  owned  that  the  formef 
are  in  much  better  taste. 

Though  the  Abbassides  have  acquired  more  celebrity,  they 
never  attained  the  real  strength  of  their  predecessors.  Under 
the  last  of  the  house  of  Ommiyah,  one  command  was  obeyed 
almost  along  the  whole  diameter  of  the  known  world,  from 
the  banks  of  the  Sihon  to  the  utmost  promontory  of  Portugal. 
But  the  revolution  which  changed  the  succession  of  khalifs 
produced  another  not  less  important.  A  fugitive  of  the  van- 
quished family,  by  name  Abdalrahman,  arrived  in  Spain 
and  the  Moslem  of  that  country,  not  sharing  in  the  prejudices 
SeparaUon  which  had  Stirred  up  the  Persians  in  favor  of  the 
°'d  Afri  ^^"^  °^  Abbas,  and  conscious  that  their  remote  sit- 
uation entitled  them  to  independence,  proclaimed 
him  khalif  of  Cordova.  There  could  be  little  hope  of  re- 
ducing so  distant  a  dependency;  and  the  example  was  not 
unlikely  to  be  imitated.  In  the  reign  of  Haroun  Alraschid 
two  principalities  were  formed  in  Africa  —  of  the  Aglabites, 
who  reigned  over  Tunis  and  Tripoli ;  and  of  the  Edrisites  in 
the  western  parts  of  Barbary.  These  yielded  in  about  a 
century  to  the  Fatimites,  a  more  powerful  dynasty,  who  after- 
wards established  an  empire  in  Egypt.^ 

The  loss,  however,  of  Spain  and  Africa  was  the  inevitable 
effect  of  that  immensely  extended  dominion,  which  their  sepa- 
ration alone  would  not  have  enfeebled.  But  other  revolutions 
DecHne  of  awaited  it  at  home.  In  the  history  of  the  Abas- 
the  khaii6.  gj jgg  q£-  Bagdad  we  read  over  again  the  decline  of 
European  monarchies,  through  their  various  symptoms  of 
ruin ;  and  find  successive  analogies  to  the  insults  of  the  bar- 
barians towards  imperial  Rome  in  the  fifth  century,  to  the  per- 
sonal insignificance  of  the  Merovingian  kings,  and  to  the  feu- 
dal usurpations  that  dismembered  the  inheritance  of  Charle- 
magne. 1.  Beyond  the  northeastern  frontier  of  the  Sar- 
acen empire  dwelt  a  warlike  and  powerful  nation  of  the 
Tartar  family,  who  defended  the  independence  of  Turkestan 
from  the  sea  of  Aral  to  the  great  central  chain  of  mountains. 
In  the  wars  which  the  khalifs  or  their  lieutenants  waged 
against  them  many  of  these  Turks  were  led  into  captivity,  and 
dispersed  over  the  empure.     Their  strength  and  courage  dis- 

»  For  these  revolutions,  which  it  is  not    Cardonne,  who  has  made  as  much  of 
wry  easy  to  fix  in  the  memory,  consult    them  as  the  subject  would  bear. 


Greeks,  etc.         DECLINE  OF  THE  KHALIFS 


121 


tinguished  them  among  a  people  grown  effeminate  by  lux- 
ury ;  and  that  jealousy  of  disaffection  among  his  subjects  so 
natural  to  an  eastern  monarch  might  be  an  additional  motive 
with  the  khalif  Motassem  to  form  bodies  of  guards  out  of 
these  prisoners.    But  his  policy  was  fatally  erroneous.    More 
rude  and  even  more  ferocious  than  the  Arabs,  they  contemned 
the  feebleness  of  the  khalifate,  while  they  gi-asped  at  its 
riches.     The  son  of  Motassem,  Motawakkel,  was  murdered  in 
his  palace  by  the  barbarians  of  the  north ;  and  his  fate  re- 
vealed the  secret  of  the  empire,  that  the  choice  of  its  sover- 
eign had  passed  to  their  slaves.     Degradation  and  death  were 
frequently  the  lot  of  succeeding  khalifs ;   but  in  the  East  the 
son  leaps  boldly  on  the  throne  which  the  blood  of  his  father 
has  stained,  and  the  praetorian  guards  of  Bagdad  rarely  failed 
to  render  a  fallacious  obedience  to  the  nearest  heir  of  the 
house  of  Abbas.     2.  In  about  one  hundred  years  after  the 
introduction  of  the  Turkish  soldiers  the  sovereigns  of  Bagdad 
sunk  almost  into  oblivion.     Al  Radi,  who  died  in  940,  was 
the  last  of  these  that  officiated  in  the  mosque,  that  command- 
ed the  forces  in  person,  that  addressed  the  people  from  the 
pulpit,  that  enjoyed  the  pomp  and  splendor  of  royalty.^     But 
he  was  the  first  who  appointed,  instead  of  a  vizir,  a  new  offi- 
cer —  a  mayor,  as  it  were,  of  the  palace  —  with  the  title  of 
Emir  al  Omra,  commander  of  commanders,  to  whom  he  dele- 
gated by  compulsion  the  functions  of  his  office.     This  title 
was  usually  seized  by  active  and  martial  spirits  ;  it  was  sonae- 
times  hereditary,  and  in  effect  irrevocable  by  the  khalifs, 
whose  names  hardly  appear  after  this  time  in  Oriental  annals. 
3.  During  these  revolutions  of  the  palace  every   province 
successively  shook  off  its  allegiance ;  new  principalities  were 
formed  in  Syria  and  Mesopotamia,  as  well  as  in  Khorasan 
and  Persia,  till  the  dominion  of  the  Commander  of  the  Faith- 
ful was  literally  confined  to  the  city  of  Bagdad  and  its  adja- 
cent territory.     For  a  time  some  of  these  princes,  who  had 
been  appointed  as  governors  by  the  khalifs,  professed  to  re- 
spect his  supremacy  by  naming  him  in  the  public  prayers  and 
upon  the  coin ;  but  these  tokens  of  dependence  were  gradually 
obliterated.^ 


J  Abulfeda,  p  261;  Gibbon,  c.  52; 
Modern  Unir.  llist.  Tol.  il.  Al  Radi's 
command  of  the  army  is  only  mentioned 
by  the  last. 

>  The  decline  of  the  Saracens  is  folly 


discussed  in  the  52nd  chapter  of  Gibbon, 
which  is,  in  itself,  a  complete  philo- 
sophical dissertation  upon  this  part  of 
history 


122 


REVIVAL  OF 


Chap.  VL 


Such  is  the  outline  of  Saracenic  history  for  three  centuries 
R  vivai  of  ^^**  Mohammed ;  one  age  of  glorious  conquest ;  a 
the  Greek  sccond  of  Stationary  but  rather  precarious  great- 
empire,         jjggg  .  ^  tjiir^  Qf  rapid  decline.     The  Greek  empire 

meanwhile  survived,  and  almost  recovered  from  the  shock  it 
had  sustained.  Besides  the  decline  of  its  enemies,  several 
circumstances  may  be  enumerated  tending  to  its  preservation. 
The  maritime  province  of  Cilicia  had  been  overrun  by  the 
Mohammedans  ;  but  between  this  and  the  Lesser  Asia  Mount 
Taurus  raises  its  massy  buckler,  spreading  as  a  natural  bul- 
wark from  the  sea-coast  of  the  ancient  Pamphylia  to  the  hilly 
district  of  Isauria,  whence  it  extends  in  an  easterly  direction, 
separating  the  Cappadocian  and  Cilician  plains,  and,  after 
throwing  off  considerable  ridges  to  the  north  and  south,  con- 
nects itself  with  other  chains  of  mountains  that  penetrate  far 
into  the  Asiatic  continent.  Beyond  this  barrier  the  Saracens 
formed  no  durable  settlement,  though  the  armies  of  Alraschid 
wasted  the  country  as  far  as  the  Hellespont,  and  the  city  of 
Amorium,  in  Phrygia,  was  razed  to  the  ground  by  Al  Motas- 
sem.  The  position  of  Constantinople,  chosen  with  a  sagacity 
to  which  the  course  of  events  almost  gave  the  appearance  of 
prescience,  secured  her  from  any  immediate  danger  on  the 
side  of  Asia,  and  rendered  her  as  little  accessible  to  an  enemy 
as  any  city  which  valor  and  patriotism  did  not  protect.  Yet 
A.D.  668.  ^^  ^^®  ^^y^  ^^  Arabian  energy  she  wiis  twice  at- 
tacked by  great  naval  armaments.  The  first  siege, 
or  rather  blockade,  continued  for  seven  years ;  the 
second,  though  shorter,  was  more  terrible,  and  her  walls,  as 
well  as  her  port,  were  actually  invested  by  the  combined 
forces  of  the  khalif  Waled,  under  his  brother  Moslema.*  The 
final  discomfiture  of  these  assailants  showed  the  resisting  force 
of  the  empire,  or  rather  of  its  capital ;  but  perhaps  the  aban- 
donment of  such  maritime  enterprises  by  the  Saracens  may 
be  in  some  measure  ascribed  to  the  removal  of  their  metrop- 
olis from  Damascus  to  Bagdad.  But  the  Greeks  in  their 
turn  determined  to  dispute  the  command  of  the  sea.  By  pos- 
sessing the  secret  of  an  inextinguishable  fiie,  they  fought  on 
superior  terms ;  their  wealth,  perhaps  their  skill,  enabled  them 
to  employ  larger  and  better  appointed  vessels  ;  and  they  ulti- 
mately expelled  their  enemies  from  the  islands  of  Crete  and 


A.D.  716. 


1  Qibbon,  o.  fi8 


Geeeks,  etc. 


THE  GREEK  EMPIRE. 


123 


Cyprus.     By  land  they  were  less  desirous  of  encountering  the 
Moslem.     The  science  of  tactics  is  studied  by  the  pusillani- 
mous, like  that  of  medicine  by  the  sick ;  and  the  Byzantine 
emperors,  Leo  and  Constantine,  have  left  written  treatises  on 
the  art  of  avoiding  defeat,  of  protracting  contest,  of  resisting 
attack.*     But  this  timid  policy,  and  even  the  purchase  of  ar 
mistices  fi-om  the  Saracens,  were  not  ill  calculated  for  the 
state   of  both   nations.      While   Constantinople   temporized, 
Bagdad  shook  to  her  foundations  ;  and  the  heirs  of  the  Roman 
name  might  boast  the  immortality  of  their  own  empire  when 
they  contemplated  the  dissolution  of  that  which  had  so  rapidly 
sprung  up  and  perished.     Amidst  all  the  crimes  and  revolu- 
tions of  the  Byzantine  government  —  and  its  history  is  but  a 
series  of  crimes  and  revolutions  —  it  was  never  dismembered 
by  intestine  war.     A  sedition  in  the  army,  a  tumult  in  the 
theatre,  a  conspiracy  in  the  palace,  precipitated  a  monarch 
from  the  throne ;  but  the  allegiance  of  Constantinople  was 
instantly  transferred  to  his  successor,  and  the  provinces  im- 
plicitly obeyed  the  voice  of  the  capital.     The  custom  too  of 
partition,  so  baneful  to  the  Latin  kingdoms,  and  which  was  not 
altogether  unknown  to  the  Saracens,  never  prevailed  in  the 
Greek  empire.     It  stood  in  the  middle  of  the  tenth  century, 
as  vicious  indeed  and  cowardly,  but  more  wealthy,  more  en- 
lightened, and  far  more  secure  from  its  enemies  than  under 
the  first  successors  of  Heraclius.      For  about  one  hundred 
years  preceding  there  had  been  only  partial  wars  with  the 
Mohammedan  potentates;  and  in  these  the  emperors  seem 
gradually  to  have  gained  the  advantage,  and  to  have  become 
more  frequently  the  aggressors.     But  the  increasing  distrac- 
tions of  the  East  encouraged  two  brave  usurpers,    a.b^ 
Nicephorus  Phocas  and  John  Zimisces,  to  attempt  963-975. 
the  actual  recovery  of  the  lost  provinces.     They  carried 
the  Roman  arms  (one  may  use  the  term  with  less  reluctance 
than  usual)  over  Syria ;  Antioch  and  Aleppo  were  taken  by 
storm  ;  Damascus  submitted  ;  even  the  cities  of  Mesopotamia, 
beyond  the  ancient  boundary  of  the  Euphrates,  were  added 
to  the  trophies  of  Zimisces,  who  unwillingly  spared  the  cap- 
ital of  the  khalifate.      From  such  distant  conquests  it  was 
expedient,  and  indeed  necessary,  to  withdraw;  but   Cilicia 

1  Gibbon,  c.  63.    Constantine  Porphy-  weakness  and  cowardice,  and  pleasing 

rogenitus,  in  his  advice  to  his  son  as  itself  in  petty  arts  to  elude  the  rapacity 

to  the  administration  of  the  empire,  be-  or  divide  the  power  of  its  enemies 
tnys  a  nmid  not  ashamed  to  confess 


124 


CONQUESTS  OF  THE  TURKS. 


Chap.  VL 


Greeks,  etc.        PROGRESS  OF  THE  GREEKS. 


125 


and  Antioch  were  permanently  restored  to  the  empire.  At 
the  close  of  the  tenth  century  the  emperors  of  Constantinople 
possessed  the  best  and  greatest  portion  of  the  modem  king- 
dom of  Naples,  a  part  of  Sicily,  the  whole  European  domin- 
ions of  the  Ottomans,  the  province  of  Anatolia  or  Asia 
Minor,  with  some  part  of  Syria  and  Armenia.^ 

These  successes  of  the  Greek  empire  were  certainly  much 
rather  due  to  the  weakness  of  its  enemies  than  to  any  revival 
of  national  courage  and  vigor ;  yet  they  would  probably  have 
been  more  durable  if  the  contest  had  been  only 
""^  "■  with  the  khaliiiite,  or  the  kingdoms  derived  from 
it.  But  a  new  actor  was  to  appear  on  the  stage  of  Asiatic 
tragedy.  The  same  Turkish  nation,  the  slaves  and  captives 
from  which  had  become  arbiters  of  the  sceptre  of  Bagdad, 
passed  their  original  limits  of  the  laxartes  or  Sihon.  The 
sultans  of  Ghazna,  a  dynasty  whose  splendid  conquests  were 
of  very  short  duration,  had  deemed  it  poUtic  to  divide  the 
strength  of  these  formidable  allies  by  inviting  a  part  of  them 
into  Khorasan.  They  covered  that  fertile  province  with 
their  pastoral  tents,  and  beckoned  their  compatriots  to  share 
Their  *^®  riches  of  the  south.     The   Ghaznevides  fell 

conquests,  the  carlicst  victims ;  but  Persia,  violated  in  turn 
A.D.  1038.  i^y.  gyej.y  conqueror,  was  a  tempting  and  unresist- 
ing prey.  Togrol  Bek,  the  founder  of  the  Seljukian  dynasty 
of  Turks,  overthrew  the  family  of  Bowides,  who  had  long 
reigned  at  Ispahan,  respected  the  pageant  of  Mohammedan 
sovereignty  in  the  khalif  of  Bagdad,  embraced  with  all  his 
tribes  the  religion  of  the  vanquished,  and  commenced  the  at- 
tack upon  Christendom  by  an  irruption  into  Armenia.  His 
nephew  and  successor  Alp  Arslan  defeated  and  took  prisoner 
the  emperor  Romanus  Diogenes  ;  and  the  conquest 
A.D.  1071.  ^^  ^gj^  Minor  was  almost  completed  by  princes  oi 
the  same  family,  the  Seljukians  of  Rum,*  who  were  permitted 
by  Malek  Shah,  the  third  sultan  of  the  Turks,  to  form  an  in- 
dependent kingdom.  Through  their  own  exertions,  and  the 
selfish  impolicy  of  rival  competitors  for  the  throne  of  Con- 
stantinople, who  bartered  the  strength  of  the  empire  for  as- 
sistance, the  Turks  became  masters  of  the  Asiatic  cities  and 


1  Gibbon,  c.  52  and  63.  The  latter  of 
these  chapters  contains  as  luminous  a 
sketch  of  the  condition  of  Greece  as  the 
former  does  of  Saracenic  history.  In 
each,  the  facts  are  not  grouped  histori- 


cally, according  to  the  order  of  time  but 
philosophically,  according  to  their  rela- 
tions. 
3  Rum,  i.  e.  country  of  tho  Romans. 


J 


fortified  passes  ;  nor  did  there  seem  any  obstacle  to  the  inva- 
sion of  Europe.* 

In  this  state  of  jeopardy  the  Greek  empire  looked  for  aid 
to  the  nations  of  the  West,  and  received  it  in  fuller  The  first 
measure  than  was  expected,  or  perhaps  desired.  Crusade. 
The  deliverance  of  Constantinople  was  indeed  a  very  second- 
ary object  with  the  crusaders.  But  it  was  necessarily  in- 
cluded in  their  scheme  of  operations,  which,  though  they  all 
tended  to  the  recovery  of  Jerusalem,  must  commence  with 
the  first  enemies  that  lay  on  their  line  of  march.  The  Turks 
were  entirely  defeated,  their  capital  of  Nice  restored  to  the 
empire.  As  the  Franks  passed  onwards,  the  emperor 
Alexius  Comnenus  trod  on  their  footsteps,  and  secured  to 
himself  the  fruits  for  which  their  enthusiasm  disdained  to 
wait.  He  regained  possession  of  the  strong  places  on  the 
-^gean  shores,  of  the  defiles  of  Bithynia,  and  of  the  entire 
coast  of  Asia  Minor,  both  on  the  Euxine  and  Mediterranean 
seas,  which  the  Turkish  armies,  composed  of  cavalry  and 
unused  to  regular  warfare,  could  not  recover.^  So  much 
must  undoubtedly  be  ascribed  to  the  first  crusade.  But  I 
think  that  the  general  effect  of  these  expeditions  has  been 
overrated  by  those  who  consider  them  as  having  permanently 
retarded  the  progress  of  the  Turkish  power.  The  Progress  of 
Christians  in  Palestine  and  Syria  were  hardly  in  the  Greeks, 
contact  with  the  Seljukian  kingdom  of  Rum,  the  only  ene- 
mies of  the  empire ;  and  it  is  not  easy  to  perceive  that  their 
small  and  feeble  principalities,  engaged  commonly  in  defend- 
ing themselves  against  the  Mohammedan  princes  of  Meso- 
potamia, or  the  Fatimite  khalifs  of  Egypt,  could  obstruct  the 
arms  of  a  sovereign  of  Iconium  upon  the  Moeander  or  the 
Halys.  Other  causes  are  adequate  to  explain  the  equipoise 
in  which  the  balance  of  dominion  in  Anatolia  was  kept 
during  the  twelfth  century :  the  valor  and  activity  of  the  two 
Comneni,  John  and  Manuel,  especially  the  former ;  and  the 
frequent  partitions  and  internal  feuds,  through  which  the 
Seljukians  of  Iconium,  like  all  other  Oriental  governments, 
became  incapable  of  foreign  aggression. 

But  whatever  obligation  might  be  due  to  the  first  crusaders 
from  the  Eastern   empire  was  cancelled  by  their  descend- 

»  Gibbon,  c.  57 ;  De  Quignes,  Hist,  des  was  reannexed  to  the  empire  during  the 

HuD8>  t.  ii.  1.  2.  reign  of  Alexius,  or  of  his  gallant  son 

>  It    does  not    seem  perfectly    clear  John  Comnenus.     But    the   doubt   is 

whether  the  sea-coast,  north  and  south,  hardly  worth  noticing. 


I 


126 


CAPTURE  OF  CONSTANTINOPLE. 


Chap.  VL 


Greeks,  etc.        PARTITION  OF  THE  EMPIRE. 


127 


I 


ants  one  hundred  years  afterwards,  when  the  fourth  in  num- 
Captureof  ber  of  those  expeditions  was  turned  to  the  sub- 
SjfeTy"'  jugation  of  Constantinople  itself.  One  of  those 
the  Latins,  domestic  revolutions  which  occur  perpetually  in 
Byzantine  histoiy  had  placed  an  usurper  on  the  imperial 
throne.  The  lawful  monarch  was  condemned  to  blindness 
and  a  prison ;  but  the  heir  escaped  to  recount  his  misfortunes 

to  the  fleet  and  army  of  crusaders  assembled  in 
A.i>.  1202.       ^^g  Dalmatian  port  of  Zara.     This  armament  had 
been  collected  for  the  usual  purposes,  and  through  the  usual 
motives,  temporal  and  spiritual,  of  a  crusade ;   the  military 
force  chiefly  consisted  of  French  nobles ;  the  naval  was  sup- 
plied  by  the   republic  of  Venice,  whose   doge   commanded 
personally  in  the  expedition.     It  was  not  apparently  consis- 
tent with   the   primary  object  of  retrieving   the    Christian 
affairs   in   Palestine   to   interfere   in   the   government  of  a 
Christian  empire ;  but  the  temptation  of  punishing  a  faithless 
people,  and   the  hope   of  assistance    in    their    subsequent 
operations,   prevailed.      They   turned   their    prows   up   the 
Archipelago;  and,  notwithstanding  the  vast  population  ond 
defensible  strength  of  Constantinople,  compelled  the  usurper 
to  fly,  and  the  citizens  to  surrender.     But  animosities  spring- 
ing from  religious  schism  and  national  jealousy  were  not 
likely  to  be  allayed  by  such  remedies ;  the  Greeks,  wounded 
in  their  pride  and  bigotry,  regarded  the  legitimate  emperor 
as  a  creature  of  their  enemies,  ready  to  sacrifice  their  church, 
a  stipulated  condition  of  his  restoration,  to  that  of  Rome.    In 
a  few  months  a  new  sedition  and  conspiracy  raised  another 
usurper  in  defiance  of  the  crusaders*  army  encamped  without 

the  walls.     The  siege  instantly  recommenced ;  and 
A.».  1204.       ^^^^  ^j^j.^g  months  the  city  of  Constantinople  was 

taken  by  storm.  The  tale  of  pillage  and  murder  is  always 
uniform;  but  the  calamities  of  ancient  capitals,  like  those 
of  the  great,  impress  us  more  forcibly.  Even  now  we  sym- 
pathize with  the  virgin  majesty  of  Constantinople,  decked 
with  the  accumulated  wealth  of  ages,  and  resplendent  with 
the  monuments  of  Roman  empire  and  of  Grecian  art.  Her 
populousness  is  estimated  beyond  credibility:  ten,  twenty, 
thirty-fold  that  of  London  or  Paris ;  certainly  far  beyond  the 
united  capitals  of  all  European  kingdoms  in  that  age.^     In 

I  Ville  Uardouin  reckons  the  inhabit-    mil  nommes  ou  plus,  by  which  Gibbon 
ftnts  of  CoQstanticople  at  quatre  cens    undentands  him  to  mean  men  of  a  mUi> 


magnificence  she  excelled  them  more  than  in  numbers; 
instead  of  the  thatched  roofs,  the  mud  walls,  the  naiTow 
streets,  the  pitiful  buildings  of  those  cities,  she  had  marble 
and  gilded  palaces,  churches  and  monasteries,  the  works  of 
skilful  architects,  through  nine  centuries,  gradually  sliding 
from  the  severity  of  ancient  taste  into  the  more  various  and 
brilliant  combinations  of  eastern  fancy.^  In  the  libraries 
of  Constantinople  were  collected  the  remains  of  Grecian 
learning ;  her  forum  and  hippodrome  were  decorated  with 
those  of  Grecian  sculpture ;  but  neither  would  be  spared  by 
undistinguishing  rapine  ;  nor  were  the  chiefs  of  the  crusjiders 
more  able  to  appreciate  the  loss  than  their  soldiery.  Four 
horses,  that  breathe  in  the  brass  of  Lysippus,  were  removed 
from  Constantinople  to  the  square  of  St.  Mark  at  Venice ; 
destined  again  to  become  the  trophies  of  war,  and  to  follow 
the  alternate  revolutions  of  conquest.  But  we  learn  from  a 
contemporary  Greek  to  deplore  the  fate  of  many  other  pieces 
of  sculpture,  which  were  destroyed  in  wantonness,  or  even 
coined  into  brass  money.* 

The  lawful  emperor  and  his  son  had  perished  in  the 
rebellion  that  gave  occasion  to  this  catastrophe ;  partition  of 
and  there  remained  no  right  to  interfere  wuth  that  *'*®  empire. 
of  conquest.  But  the  Latins  were  a  promiscuous  multitude, 
and  what  their  independent  valor  had  earned  was  not  to  be 
transferred  to  a  single  master.  Though  the  name  of  emperor 
seemed  necessary  for  the  government  of  Constantinople,  the 
unity  of  despotic  power  was  very  foreign  to  the  principles 
and  the  interests  of  the  crusaders.  In  their  selfish  schemes 
of  aggrandizement  they  tore  in  pieces  the  Greek  empire. 
One  fourth  only  was  allotted  to  the  emperor,  three  eighths 
were  the  share  of  the  republic  of  Venice,  and  the  remainder 
was  divided  among  the  chiefs.  Baldwin  count  of  Flanders 
obtained  the  imperial  title,  with  the  feudal  sovereignty  over 
the  minor  principalities.     A  monarchy  thus  dismembered  had 


tary  age.    Le  Beau  allows  a  million  for 
the  whole  population.     Qibbon,  vol.  xi. 

S.  213.  We  should  probably  rate  Lon- 
on,  in  1204,  too  high  at  60.000  souls. 
Paris  had  been  enlarged  by  Philip  Au- 
gustus, and  8tood  on  more  (p^uod  than 
London.  Delamare  sur  la  Police,  t.  i.  p. 
76. 

1  O  quanta  clTitas,  exclaims  Fulk  of 
Chartres  a  hundred  years  before,  nobllis 
•t  decora !  quot  monasteria  quotque  pa- 


latia  sunt  in  e3i,  opere  mero  fabrcfacta ! 
quo  etiam  in  plateis  vel  in  vicis  opera 
ad  spectandum  mirabilia!  Ttedium  est 
quidem  magnum  recitare,  quanta  sit  ibi 
opulentla  bonorum  omnium,  auri  et 
argenti  palliorum  multifomiium,  sacra* 
Tumquc  reliqularum.  Ouinl  etlam  tem- 
pore, navigio  frequenti  cuncta  hominum 
neccssaria  illuc  afferuotur.  Du  Cbesne, 
Scrip.  Rerum  Oalllcarum,  t.  iv.  p.  822. 
s  Gibbon,  c.  60. 


128 


INVASIONS  OF  ASIA. 


Chat.  VI. 


GSSKKS,  ETC. 


THE  OTTOMANS. 


129 


H 


little  prospect  of  honor  or  durability.  The  Latm  emperors 
of  Constantinople  were  more  contemptible  and  unfortunate, 
not  so  much  from  personal  character  as  political  weakness, 
than  their  predecessors  ;  their  vassals  rebelled  against  sover- 
eicms  not  more  powerful  than  themselves ;  the  Bulgarians  a 
nation  who,  after  being  long  formidable,  had  been  subdued  by 
the  imperial  arms,  and  only  recovered  independence  on  the 
eve  of  the  Latin  conquest,  insulted  their  capital ;  the  Greeks 
^  viewed  them  with  silent  hatred,  and  hailed  the 
wcoye?5oa-  dawning  deliverance  from  the  Asiatic  coast.  On 
•tantinopie.  ^^^^.t  side  of  the  Bosphorus  the  Latin  usurpation 
was  scarcely  for  a  moment  acknowledged ;  Nice  became  the 
seat  of  a  Greek  dynasty,  who  reigned  with  honor  as  tar  as 
theMseander;  and  crossing  into  Europe,  after  having  estab- 
lished their  dominion  throughout  Romania  and 
A.D.  1261.  ^^^^^  provinces,  expelled  the  last  Latin  emperors 
from  Constantinople  in  less  than  sixty  years  from  its  capture. 

Durincr  the  reign  of  these  Greeks  at  Nice  they  had  for- 
tunately Tittle  to  dread  on  the  side  of  their  former  enemies, 
and  were  generally  on  terms  of  friendship  with  the  belju- 
kians  of  Iconium.     That  monarchy  indeed  had  sufficient  ob- 
iects  of  apprehension  for  itself.      Their   own  example  m 
chancring  the  upland  plains  of  Tartary  for  the  cul- 
Kr^he'    tivated  valleys  of  the  south  was  imitated  in  the 
Karismians,    thirteenth   century  by  two   successive   hordes  ot 
northern   barbarians.      The    Karismians,    whose   tents   had 
been  pitched  on  the  lower  Oxus  and  Caspian  Sea,  availed 
themselves  of  the  decline  of  the  Turkish  power  to  establish 
their  dominion  in  Persia,  and  menaced,  though  they  did  not 
overthrow,  the  kingdom  of  Iconium.     A  more  tremendous 
storm  ensued  in  the  eruption  of  Moguls  under  the 
and  Moguls.    ^^^^  ^^  ^ingis  Khan.     From  the  farthest  regions 
of  Chinese  Tartary  issued  a  race  more  fierce  and  destitute  of 
civilization  than  those  who  had  preceded,  whose  numbers  ^yere 
told  by  hundreds  of  thousands,  and  whose  only  test  of  victory 
was  devastation.     All  Asia,  from  the  sea  of   China  to  the 
A  B  1218       Euxine,  wasted  beneath  the  locusts  of  the  north. 
1:J.  1272:       They  annihilated  the  phantom  of  authority  which 
still  lingered  with  the  name  of  khalif  at  Bagdad.     They  re- 
duced into  dependence  and  finally  subverted  the  Seljuk.an 
dynasties  of  Persia,  Syria,  and  Iconium.     The  Turks  of  the 
latter  kin^rdom  betook  themselves  to  the  mountainous  country, 


where  they  formed  several  petty  principalities,  which  sub- 
sisted by  incursions  into  the  territory  of  the  Moguls  or  the 
Greeks.     The  chief  of  one  of  these,  named  Oth-° 
man,  at  the  end  of  the  thirteenth  century,  pene-  ^'^'  ^^ 
trated  into   the   province  of  Bithynia,  from  which  his  pos- 
terity were  never  withdrawn.* 

The  empire  of  Constantinople  had  never  recovered  the 
blow  it  received  at  the  hands  of  the  Latins.     Most 
of  the  islands  in  the  Archipelago,  and  the  provinces  IS  of°fhe 
of  proper  Greece  from  Thessaly  southward,  were  ^'^}^ 
still  possessed  by  those  invaders.     The  wealth  and  *'°^"^' 
naval  power  of  the  empire  had  passed  into  the  hands  of  the 
maritime  republics  ;  Venice,  Genoa,  Pisa,  and  Barcelona  were 
enriched  by  a  commerce  which  they  carried  on  as  independent 
states  within  the  precincts  of  Constantinople,  scarcely  deign- 
ing to  solicit  the  permission  or  recognize  the  supremacy  of 
its  master.     In  a  great  battle  fought  under  the 
walls  of  the  city  between  the  Venetian  and  Geno-  ^''''  ^^^ 
ese  fleets,  the  weight  of   the  Roman  empire,  in   Gibbon's 
expression,  was  scarcely  felt  in  the  balance  of  these  opulent 
and  powerful  republics.     Eight  galleys  were  the  contribution 
of  the  emperor  Cantacuzene  to  his  Venetian  aUies ;  and  upon 
their  defeat  he  submitted  to  the  ignominy  of  excluding  them 
forever  from  trading   in  his  dominions.     Meantime  The  re- 
mains of  the  empire  in  Asia  were  seized  by  the  independent 
Turkish  dynasties,  of  which  the  most  illustrious, 
that  of  the  Ottomans,  occupied  the  province  of  Ottomans. 
Bithynia.      Invited  by  a  Byzantine  faction   into  ^•^- ^*^^- 
Europe,  about  the  middle  of  the  fourteenth  century,  they 
fixed  themselves  in  the  neighborhood  of  the  capital,  and  in 
the  thirty  years*  reign  of  Amurath  L  subdued,  with  little  re- 
sistance, the  province  of  Romania  and  the  small  Christian 
kingdoms  tliat  had  been  formed  on  the  lower  Danube.     Ba- 
jazet,  the  successor  of  Amurath,  reduced  the  independent 
emirs  of  Anatolia  to  subjection,  and,  after  long  threatenin<» 
Constantinople,  invested  it  by  sea  and  land.     The  Greeks 
called  loudly  upon  their  brethren  of  the  West  for 
aid  against  the  common  enemy  of  Christendom ;  ^'^'  ^^' 
but  the  flower  of  French  chivalry  had  been  slain  or  taken  in 
the  battle  of  Nicopolis  in  Bulgaria,^  where  the  king  of  Hun- 

li;^  mh?n'^*;J^'-  •**■  °'''"'  *•  ^-  *•       '  T^«  nungariana  fled  in  this  battle 
16,  Gibbon,  c.  64.  and  dewrted  their  allies,  according  ta 

VOL.  II.  9 


130 


THE  TARTAES  OR  MOGULS. 


Chap.  VL 


gary,  notwithstanding  the  heroism  of  these  volunteers,  was 
entirely  defeated  by  Bajazet.  The  emperor  Manuel  left  his 
capital  with  a  faint  hope  of  exciting  the  courts  of  Europe  to 
some  decided  efforts  by  personal  representations  of  the  danger; 
and,  during  his  absence,  Constantinople  was  saved,  not  by  a 
friend,  indeed,  but  by  a  power  more  formidable  to  her  ene- 
mies than  to  herself. 

The  loose  masses  of  mankind,  that,  without  laws,  agricul 
Th  T  ta  ^^^^y  or  fixcd  dwellings,  overspread  the  vast  centra 
or  Moguls  regions  of  Asia,  have,  at  various  times,  been  im- 
ofTimur.  pgUed  by  necessity  of  subsistcncc,  or  through  the 
casual  appearance  of  a  commanding  genius,  upon  the  domain 
of  culture  and  civilization.  Two  principal  roads  connect  the 
nations  of  Tartary  with  those  of  the  west  and  south ;  the  one 
into  Europe  along  the  sea  of  Azoph  and  northern  coast  of 
the  Euxine ;  the  other  across  the  interval  between  the  Buk- 
barian  mountains  and  the  Caspian  into  Persia.  Four  times 
at  least  within  the  period  of  authentic  history  the  Scythian 
tribes  have  taken  the  former  course  and  poured  themselves 
into  Europe,  but  each  wave  was  less  effectual  than  the  pre- 
ceding. The  first  of  these  was  in  the  fourth  and  fifth  cen- 
turies, for  we  may  range  those  rapidly  successive  migrations 
of  the  Goths  and  Huns  together,  when  the  Roman  empire 
fell  to  the  ground,  and  the  only  boundary  of  barbarian  con- 
quest was  the  Atlantic  ocean  upon  the  shores  of  Portugal. 
The  second  wave  came  on  with  the  Hungarians  in  the  tenth 
century,  whose  ravages  extended  as  far  as  the  southern  prov- 
inces of  France.  A  third  attack  was  sustained  from  the 
Moguls  under  the  children  of  Zingis  at  the  same  period  as 
that  which  overwhelmed  Persia.  The  Russian  monarchy 
was  destroyed  in  this  invasion,  and  for  two  hundred  years 
that  great  country  lay  prostrate  under  the  yoke  of  the  Tartars. 
As  they  advanced,  Poland  and  Hungary  gave  little  opposi 
tion;  and  the  farthest  nations  of  Europe  were  appalled  by 
the  tempest.  But  Germany  was  no  longer  as  she  had  been 
in  the  anarchy  of  the  tenth  century ;  the  Moguls  were  un- 


the  Memoires  de  Boucicaut,  c.  25.  But 
Froissart,  who  seems  a  fairer  authority, 
imputes  the  defeat  to  the  rashness  of  the 
French.  Part  iv.  ch.  79.  The  count  de 
Nevers  (Jean  Sans  Fenr,  afterwards  duke 
of  Burgundy),  who  commanded  the 
French,  was  made  prijioner  with  others 
of  the  royal  blood,  and  ransomed  at  a 


rery  high  price.  Many  of  eminent  birth 
and  merit  were  put  to  death ;  a  &te 
from  which  Boucicaut  was  saved  by  the 
interferwuce  of  the  count  de  Nevers,  who 
might  betti'r  himself  have  perished  with 
honor  on  that  occa.<iion  than  survived  to 
plunge  his  country  into  civil  war  and  hii 
name  into  infamy 


Greeks,  etc 


DEFEAT  OF  BAJAZET. 


131 


used  to  resistance,  and  still  less  inclined  to  regular  warfare  • 
they  retired  before  the  emperor  Frederic  II.,  and  the  utmost 
points  of  their  western  invasion  were  the  cities  of 
Lignitz  in  Silesia  and  Neustadt  in  Austria,     in^"*'^^' 
tlie  fourth  and  last  aggression  of  the  Tartars  their  pro-ress 
m  Europe   is  Iiardly  perceptible;    the  Moguls  of  Timur's 
army  could  only  boast  the  destruction  of  Azoph  and  the  pil- 
lage  of  some  Russian  provinces.     Timur,  the  sovereign  of 
these  Moguls  and  founder  of  their  second  dynasty,  which  ha« 
been  more  permanent  and  celebrated  than  that  of  Zinc^is,  haii 
been  the  prince  of  a  small  tribe  in  Transoxiana,  between  the 
Crihon  and  Sirr,  the  doubtful  frontier  of  settled  and  pastoral 
nations.     His  own  energy  and  the  weakness  of  his  neiMibors 
are  sufficient  to   explain  the  revolution  he  effected.     Like 
former  conquerors,  Togrol  Bek  and  Zingis,  he  chose  the  road 
through  Persia ;  and,  meeting  little  resistance  from  the  dis- 
ordered governments  of  Asia,  extended  his  empire  on  one 
side  to  the  Syrian  coast,  while  by  successes  still  more  re- 
nowned, though  not  belonging  to  this  place,  it  reached  on  the 
other  to  the  heart  of  Hindostan.     In  his  old  age  the  restless- 
ness of  ambition  impelled  him  against  the  Turks  of  AnatoUa. 
liajazet  hastened  from  the  siege  of  Constantinople  to  a  more 
perilous  contest :  his  defeat  and  captivity  in  the  ^ . 
plains  of  Angora  clouded  for  a  time  the  Ottoman  StfSe't" 
crescent,  and  preserved  the  wreck  of  the  Greek  ^'^'  ^^• 
empire  for  fifly  years  longer. 

The  Moguls  did  not  improve  their  victory;  in  the  western 
parts  of  Asia,  as  in  Hindostan,  Timur  was  but  a  n. 
barbarian  destroyer,  though  at  Samarcand  a  sov-  c^nXnti- 
ereign  and  a  legislator.     He  gave  up  Anatolia  to  °°p^*- 
the  sons  of  Bajazet ;  but  the  unity  of  their  power  was  broken ; 
and  the  Ottoman  kingdom,  like  those  which  had  preceded, 
experienced  the  evils  of  partition  and  mutual   animosity! 
±or  about  twenty   years  an  opportunity  was   given  to  the 
Greeks  of  recovermg  part  of  their  losses;   but  they  were 
incapable  of  making  the  best  use  of  this  advantage,  and, 
though  they  regained  possession  of  part  of  Romania,  did  not 
extirpate  a  strong  Turkish  colony  that  held  the  city  of  Galli- 
poh  in  the  Chersonesus.  When  Amurath  II.,  there- 
fore, reunited  under  his  vigorous  sceptre  the  Otto- '"'''  ^^' 
ma,n  monarchy,  Constantinople  was  exposed  to  another  siege 
and  to  fresh  losses.    Her  walls,  however,  repelled  the  enemf  • 


152 


FALL  OF  CONSTANTINOPLE. 


Chap.  VL 


and  during  the  reign  of  Amurath  she  had  leisure  to  repeat 
those  signals  of  distress  which  the  princes  of  Christendom 
refused  to  observe.  The  situation  of  Europe  was,  indeed, 
sufficiently  inauspicious ;  France,  the  original  country  of  the 
crusades  and  of  chivalry,  was  involved  in  foreign  and  domestic 
war ;  while  a  schism,  apparently  interminable,  rent  the  bosom 
of  the  Latin  church  and  impaired  the  efficiency  of  the  only 
power  that  could  unite  and  animate  its  disciples  in  a  religious 
war.  Even  when  the  Roman  pontiffs  were  best  disposed  to 
rescue  Constantinople  from  destruction,  it  was  rather  as 
masters  than  as  allies  that  they  would  interfere ;  their  ungen- 
erous bigotry,  or  rather  pride,  dictated  the  submission  of  her 
church  and  the  renunciation  of  her  favorite  article  of  dis- 
tinctive faith.  The  Greeks  yielded  with  reluctance  and 
insincerity  in  the  council  of  Florence ;  but  soon  rescinded 
their  treaty  of  union.     Ugenius  IV.  procured  a  short  diver- 

k  B  1444        ®^°"  ^^  ^^®  ^^^^  ^^  Hungary ;  but  after  the  un- 
fortunate battle  of  Warna  the  Hungarians  were 
abundantly  employed  in  self-defence. 

The  two  monarchies  which  have  successively  held  their 
seat  in  the  city  of  Constantine  may  be  contrasted  in  the  cir- 
cumstances of  their  decline.  In  the  present  day  we  anticipate, 
with  an  assurance  that  none  can  deem  extravagant,  the  ap- 
proaching subversion  of  the  Ottoman  power ;  but  the  signs 
of  internal  weakness  have  not  yet  been  confirmed  by  the  dis- 
memberment of  provinces;  and  the  arch  of  dominion,  that 
long  since  has  seemed  nodding  to  its  fall  and  totters  at  every 
blast  of  the  north,  still  rests  upon  the  landmarks  of  ancient 
conquest,  and  spans  the  ample  regions  from  Bagdad  to  Bel- 
grade. Far  different  were  the  events  that  preceded  the  disso- 
lution of  the  Greek  empire.  Every  province  was  in  turn 
subdued  —  every  city  opened  her  gates  to  the  conqueror :  the 
limbs  were  lopped  off  one  by  one ;  but  the  pulse 
^'^  *"*•  still  beat  at  the  heart,  and  the  majesty  of  the  Ro- 
man name  was  ultimately  confined  to  the  walls  of  Constanti- 
nople. Before  Mahomet  II.  planted  his  cannon  against  them, 
he  had  completed  every  smaller  conquest  and  deprived  the 
expiring  empire  of  every  hope  of  succor  or  delay.  It  was 
necessary  that  Constantinople  should  fall ;  but  the  magnani- 
mous resignation  of  her  emperor  bestows  an  honor  upon  her 
4.».  1468.  ^^^^  which  her  prosperity  seldom  earned.  The 
long  deferred  but  inevitable  moment  arrived ;  and 


Greeks,  etc. 


ALARM  IN  EUROPE. 


13S 


the  last  of  the  Caesars  (I  will  not  say  of  the  Palaeologi)  folded 
round  him  the  imperial  mantle,  and  remembered  The  name 
which  he  represented  in  the  dignity  of  heroic  death.  It  is 
thus  that  the  intellectual  principle,  when  enfeebled  by  disease 
or  age,  is  found  to  rally  its  energies  in  the  presence  of  death, 
and  pour  the  radiance  of  unclouded  reason  around  the  last 
struggles  of  dissolution. 

Though  the  fate  of  Constantinople  had  been  protracted 
beyond  all  reasonable  expectation,  the  actual  intel-  . , 
ligence   operated  like   that  of  sudden  calamity,  citedbylt 
A   sentiment   of  consternation,   perhaps   of  self- '°  *^"'^^' 
reproach,   thrilled   to  the    heart  of    Christendom.      There 
seemed  no  longer  anything  to  divert  the  Ottoman  armies 
irom  Hungary ;  and  if  Hungary  should  be  subdued,  it  was 
evident  that  both  Italy  and  the  German  empire  were  exposed 
to  invasion.!     A  general  union  of  Christian  powers  was  re- 
quired to  withstand  this  common  enemy.     But  the  popes 
who  had  so  often  armed  them  against  each  other,  wasted  their 
spiritual  and  political  counsels  in  attempting  to  restore  una- 
nimity.    War  was  proclaimed  against  the  Turks  at  the  diet 
ot  l^rankfort,  m  1454;  but  no  efforts  were  made  to  carry  the 
menace  mto  execution.     No  prince  could  have  sat  on  the  im- 
P^"^^^  throne  more  unfitted  for  the  emergency  than  Frederic 
III. ;  his  mean  spirit  and  narrow  capacity  exposed  him  to  the 
contempt  of  mankind  — his  avarice  and  duplicity  ensured  the 
hatred  of  Austria  and  Hungary.    During  the  papacy  of  Pius 
11.,  whose  heart  was  thoroughly  engaged  in  this  legitimate 
ci-usade,  a  more  specious  attempt  was  made  by  convenincr  an 
H^uropean  congress  at  Mantua.     Almost  all  the  sovereTgns 
attended  by  their  envoys ;  it  was  concluded  that  50,000  men- 
at-arms  should  be  raised,  and  a  tax  levied  for  three 
years  of  one  tenth  from  the  revenues  of  the  cler«-y  ^'^•'^^^' 
one  thirtieth  from  those  of  the  laity,  and  one  twentieth  from 
the  capital  of  the  Jews.^     Pius  engaged  to  head  this  arma- 

iSiye  ▼incltur  Hungaria,  sire  coacta         "Spondanus.     Neither  Charlwi  Vtt 


134 


INSTITUTION  OF  JANIZARIES. 


Chai'.  VL 


ment  in  person ;  but  when  he  appeared  next  year  at  Aneona, 
the  appointed  place  of  embarkation,  the  princes  had  failed  in 
all  their  promises  of  men  and  money,  and  he  found  only  a 
headlong  crowd  of  adventurers,  destitute  of  every  necesj^ary, 
and  expecting  to  be  fed  and  paid  at  the  jwpe^s  expense.  It 
was  not  by  such  a  body  that  Mahomet  could  be  expelled  from 
Constantinople.  If  the  Christian  sovereigns  had  given  a 
steady  and  sincere  cooperation,  the  contest  would  still  Iiavo 
Institution  of  been  arduous  and  uncertain.  In  the  early  crusades 
Janizaries,  l\^^^  superiority  of  arms,  of  skill,  and  even  of  dis- 
cipline, had  been  uniformly  on  the  side  of  Europe.  But  the 
present  circumstances  were  far  from  similar.  An  institution, 
begun  by  the  first  and  perfected  by  the  second  Amurath,  had 
given  to  the  Turkish  armies  what  their  enemies  still  wanted, 
military  subordination  and  veteran  experience.  Avrare,  as  it 
seems,  of  the  real  superiority  of  Europeans  in  war,  these 
sultans  selected  the  stoutest  youths  from  their  Bulgarian,  Ser- 
vian, or  Albanian  captives,  who  were  educated  in  habits  of 
martial  discipline,  and  formed  into  a  regular  force  with  the 
name  of  Janizaries.  After  conquest  had  put  an  end  to  per- 
sonjil  captivity,  a  tax  of  every  fifth  male  child  was  raised 
upon  the  Christian  population  for  the  same  purpose.  The 
arm  of  Europe  was  thus  turned  upon  herself;  and  the  west- 
ern nations  must  have  contended  with  troops  of  hereditaiy 
robustness  and  intrepidity,  whose  emulous  enthusiasm  for  the 
country  that  had  adopted  them  was  controlled  by  habitual  obe- 
dience to  their  commanders.* 


1  In  the  long  declamation  of  Mneas 
SylTius  before  the  diet  of  Frankfort  in 
1454,  he  has  the  following  contrast 
between  the  European  and  Turkish  mili- 
tia ;  a  good  specimen  of  the  artifice  with 
which  an  ingenious  orator  can  disguise 
the  truth,  while  he  seems  to  be  stating 
it  most  precisely.  Conferamus  nunc 
Turcos  et  tos  invicem ;  et  quid  speran- 
dum  sit  si  cum  illis  pugnf'tis,  examine- 
mu-».  Yos  nati  ad  arma,  illi  tracti.  Vos 
armati.  illi  inermes ;  tos  gladios  rersatis, 
illi  cultris  utuntur  ;  tos  balistas  tenditi.^, 
illi  arcus  tnihunt ;  tos  loricse  thoraces- 
que  protegunt.  illos  culcitra  tegit ;  vos 
equos  regitis.  illi  ab  equis  reguntur  ;  vos 
nobiles  in  bellum  ducitis,  illi  servos  aut 
artifices  cogunt,  &c.  &c.  p.  685.  This, 
however,  had  little  effect  upon  the  hear- 
ers, who  were  better  judges  of  military 
affairs  than  the  secretary  of  Frederic  III. 
Pius  II.,  or  ^neas  Sylvius,  was  a  lively 
writer  and  a  skilful  intriguer.  Long 
experience  had  given  him  a  considerable 


insight  into  European  politics;  and  hia 
views  are  usually  clear  and  Fensible 
Though  not  so  learned  as  some  popes,  he 
knew  much  better  what  was  going  for- 
ward in  his  own  time.  But  the  vanity 
of  displaying  his  elocjuenco  betrayed  him 
into  a  strange  folly,  when  lie  addi-esscd  a 
very  long  letter  to  Mahomet  II.,  explain- 
ing the  Catholic  faith,  and  urging  him  to 
be  baptized  ;  in  which  case,  so  far  from 
preaching  a  crusade  against  the  Turks, 
he  would  gladly  make  use  of  their  power 
to  recover  the  rights  of  the  church.  Some 
of  his  inducements  are  curious,  and 
must,  if  made  public,  have  been  highly 
gratifying  to  his  friend  Frederic  III. 
Quippe  ut  arbitramur,  si  Christianus 
fuisses,  mortuo  Ladislao  Ungariae  et  Bo- 
hemise  rege,  nemo  prseter  te  sua  regna 
fuisset  Jideptus.  Spenissent  Ungari  post 
diuturna  bellorum  mala  sub  tuo  regim- 
iiie  pacem,  et  illos  Bohemi  secuti  fuis- 
sent ;  sed  cum  esses  nostra;  religionis 
hostis,  elegerunt  Ungari,  &c.  £pist.  896. 


Greeks,  etc.     SUSPENSION  OF  OTTOMAN  CONQUESTS.     135 

Yet  forty  years  after  the  fjdl  of  Constantinople,  at  the  epoch 
of  Charles  VIII.*s  expedition  into  Italy,  the  iust  a 

,  .  £■  T7  XX  "^'i.!  Suspension  of 

apprehensions  ot  Kuropean  statesmen  might  have  the  ottomaa 
gradually  subsided.    Except  the  Morea,  Negropont,  '^°°<i"«^^'«- 
and  a  few  other  unimportant  conquests,  no  real  progress  had 
been  made  by  the  Ottomans.     Mahomet  11.  had  been  kept  at 
bay  by  the  Hungarians ;   he  had  been  repulsed  with  some 
in:nominy  by  the  knights  of  St.  John   from  the   island  of 
Rhodes.     A  petty  chieftain  defied  this  mighty  conqueror  for 
twenty  years  in  the  mountains  of  Epirus;   and  the  perse- 
vering courage  of  his  desultory  warfare  with  such  trifling 
resources,  and   so  little   prospect  of  ultimate  success,  may 
justify  the  exaggerated  admiration  with  which  his  contem- 
poraries honored  the  name  of  Scanderbeg.     Once  only  the 
crescent  was  displayed  on  the   Calabrian   coast; 
but  the  city  of  Otranto  remained  but  a  year  in  ^'"* 
the  possession  of  Mahomet.     On  his  death  a  disputed  suc- 
cession involved   his  children  in   civil  war.      Bajazet,   the 
eldest,  obtained   the  victory;  but  his  rival   brother   Zizim 
fled  to  Rhodes,  from  whence  he  was  removed  to  France, 
and   afterwards   to    Rome.      Apprehensions  of   this   exiled 
prince  seem  to  have  dictated  a  pacific  policy  to  the  reigning 
sultan,  whose  character  did  not  possess  the  usual  energy  of 
Ottoman  sovereigns. 


136 


WEALTH  OF  THE  CHURCH.     Chap.  VH.  Pabt  I. 


ECCLES.  POWEK. 


ITS  INCREASE. 


137 


J 


CHAPTER  Vn. 

HISTORY  OP  ECCLESIASTICAL  POWER  DURING  THE 

MIDDLE  AGES. 


PART  L 


Wealth  of  the  Clergy— its  Sotirces— Encroachments  on  Ecclesiastical  Property— 
their  Jarisdiction  —  arbitratlTe — coercive  —  their  political  Power — Supremacy 
of  the  Crown— Charlemagne  — Change  after  his  Death,  and  Encroachments  of 
the  Church  in  the  ninth  Century  —  Primacy  of  the  See  of  Rome  —  its  early  Stag* 
—  Gregory  I.  — Council  of  Frankfort  — false  Decretals  —  Progress  of  Papal  Au- 
thority-Effects of  Excommunication  — Lothaire  — State  of  the  Church  in  the 
tenth  Century  —  Marriage  of  Priests  —  Simony  —  Episcopal  Elections  —  Imperial 
Authority  over  the  Popes  —  Disputes  concerning  Investitures —  Gregory  VII.  and 
Henry  IV.  —  Concordat  of  Calixtus  —  Election  by  Chapters  —  general  System  of 
Gregory  VII.  —  Progress  of  Papal  Usurpations  in  the  twelfth  Century  —  Inno- 
cent lU.  —  hb  Character  and  Schemes. 

At  the  irruption  of  the  northern  invaders  into  the  Roman 
empire  they  found  the  clergy  already  endowed  with  extensive 
possessions.  Besides  the  spontaneous  oblations  upon  which 
Wealth  f  *^^  ministers  of  the  Christian  church  had  origin- 
the  church  ally  Subsisted,  they  had  obtained,  even  under  the 
empire!^*  pagan  emperors,  by  concealment  or  connivance  — 
for  the  Roman  law  did  not  permit  a  tenure  of 
lands  in  mortmain  —  certain  immovable  estates,  the  revenues 
of  which  were  applicable  to  their  own  maintenance  and  that 
of  the  poor.^  These  indeed  were  precarious  and  liable  to 
confiscation  in  times  of  persecution.  But  it  was  among  the 
first  effects  of  the  conversion  of  Constantine  to  give  not  only 
a  security,  but  a  legal  sanction,  to  the  territorial  acquisitions 
of  the  church.  The  edict  of  Milan,  in  313,  recognizes  the 
actual  estates  of  ecclesiastical  corporations.*  Another,  pub- 
lished in  321,  grants  to  all  the  subjects  of  the  empire  the 
power  of  bequeathing  their  property  to  the  church.*     His 

iGiannone,l8tOTia  di  NapoH,  1.  U.  c.    tion  ;   but  a  comparison  of  the  threa 
B;  Gibbon,  c.  16  and  c.  20;  F.  Paul's    seems  to  justify  my  text. 
Treatise  on  Benefices,  c.  4.     The  last       a  Giannone ;   Gibbon,  ubi  lupra:   F. 
«rnter  does  not  wholly  confirm  this  posi-    Paul,  c.  6. 

3  Idem. 


own  liberality  and  that  of  his  successors  set  an  example 
which  did  not  want  imitators.  Passing  rapidly  from  a  con- 
dition of  distress  and  persecution  to  the  summit  of  prosperity, 
the  church  degenerated  as  rapidly  from  her  ancient  purity, 
and  forfeited  the  respect  of  future  ages  in  the  same  propor- 
tion as  she  acquired  the  blind  veneration  of  her  own.  Cov- 
etousness,  especially,  became  almost  a  characteristic  vice. 
Valentinian  I.,  in  370,  prohibited  the  clergy  from  receiving 
the  bequests  of  women  —  a  modification  more  discreditable 
than  any  general  law  could  have  been.  And  several  of  the 
fathers  severely  reprobate  the  prevailing  avidity  of  their 
contemporaries.^ 

The  devotion  of  the  conquering  nations,  as  it  was  still  less 
enlightened  than  that  of  the  subjects  of  the  empire,  increased 
so  was  it  still  more  munificent.  They  left  indeed  after  its 
the  worship  of  Hesus  and  Taranis  in  their  forests ;  ^"  ^«"*°^* 
but  they  retained  the  elementary  principles  of  that  and  of  all 
barbarous  idolatry,  a  superstitious  reverence  for  the  priesthood, 
a  credulity  that  seemed  to  invite  imposture,  and  a  confidence 
in  the  efficacy  of  gifts  to  expiate  offences.  Of  this  temper  it 
is  undeniable  that  the  ministers  of  religion,  influenced  prob- 
ably not  so  much  by  personal  covetousness  as  by  zeal  for  the 
interests  of  their  order,  took  advantage.  Many  of  the  pecu- 
liar and  prominent  characteristics  in  the  faith  and  discipline 
of  those  ages  appear  to  have  been  either  introduced  or  sedu- 
lously promoted  for  the  purposes  of  sordid  fmud.  To  those 
purposes  conspired  the  veneration  for  relics,  the  worship  of 
images,  the  idolatry  of  saints  and  martyrs,  the  religious  in- 
violability of  sanctuaries,  the  consecration  of  cemeteries,  but, 
above  all,  the  doctrine  of  purgatory  and  masses  for  the  relief 
of  the  dead.  A  creed  thus  contrived,  operating  upon  the 
minds  of  barbarians,  lavish  though  rapacious,  and  devout 
though  dissolute,  naturally  caused  a  torrent  of  opulence  to 
pour  in  upon  the  church.  Donations  of  land  were  contin- 
ually made  to  the  bishops,  and,  in  still  more  ample  proportion, 
to  the  monastic  foundations.  These  had  not  been  very 
numerous  in  the  West  till  the  beginning  of  the  sixth  century, 
when  Benedict  established  his  celebrated  rule.^  A  more 
remarkable  show  of  piety,  a  more  absolute  seclusion  from 

1  Giannnone,  ubi  supra ;  F.  Paul,  c.  6.    i^me  Discours  sur  THist.  Ecclesiastiqu* ; 
tQiannone,  1.  iii.  c.  6;  1.  iv.  c.  12;    Muratori,  Dissert  65. 
SreatiM  on  Benefices,  o.  8;  Fleury,  Uuit 


138 


WEALTH  OF  THE  CHURCH     Chap   VH.  Part  I- 


N 


I 


the  world,  forms  more  impressive  and  edifying  prayers  and 
masses  more  constantly  repeated,  gave  to  the  professed  in 
these  institutions  an  advantage,  in  public  esteem,  over  the 
secular  clergy. 

The  ecck'siastical  hierarchy  never  received  any  territorial 
endowment  by  law,  either  under  the  Roman  empire  or  the 
kingdoms  erected  upon  its  ruins.     But  the  voluntary  munifi- 
cence of  princes,  as  well  as  their  subjects,  amply  supplied  the 
place  of  a  more  universal  provision.     Large  private  estates, 
or,  as  they  were  termed,  patrimonies,  not  only  within  their 
own  dioceses,  but  sometimes  in  distant  countries,  sustained 
^e  dignity  of  the  principal  sees,  and  especially  that  of  Rome.* 
Ihe  Iirench  moniirchs  of  the  first  dynasty,  tlie  Carlovin^rlan 
family  and  their  great  chief,  the  Saxon  line  of  emperors,°the 
kings  of  England  and  Leon,  set  hardly  any  bounds  to  their 
hberahty,  as  numerous  charters  still  extant  in   diplomatic 
wUections  attest.     Many  churches  possessed  seven  or  ei^^ht 
thousand  mansi ;  one  with  but  two  thousand  passed  for  only 
indifferently  rich.^     But  it  must  be  remarked  that  many  of 
rtiese  donations  are  of  lands  uncultivated  and  unappropriated. 
The  monasteries  acquired  legitimate  riches  by  the  culture  of 
these  deserted  tracts  and  by  the  prudent  management  of  their 
revenues,  which  were  less  exposed  to  the  ordinary  means  of 
dissipation  than  those  of  the  laity.     Their  wealth,  continually 
accumulated,  enabled  them  to  become  the  regular  purchasers 
of  landed  estates,  especially  in  the  time  of  the  crusades, 
when  the  fiefs  of  the  nobility  were  constantly  in  the  market 
for  sale  or  mortjrase.* 

If  the  possessions  of  ecclesiastical  communities  had  all 
Sometimes  ^ccn  as  fairly  earned,  we  could  find  nothin«T  in 
l?qKa '^  ^^^"^  *^  reprehend.  But  other  sources  of  wealth 
were  less  pure,  and  they  derived  their  wealth  from 
many  sources.  Those  who  entered  into  a  monastery  threw 
frequently  their  whole  estates  into  the  common  stock ;  and 
even  the  children  of  rich  parents  were  expected  to  make  a 
donation  of  land  on  assuming  the  cowl.  Some  gave  their 
property  to  the  church  before  entering  on  military  expedi- 
tions; gifts  were  made  by  some  to  take  effect  after  their 
hves,  and  bequests  by  many  in  the  terrors  of  dissolution. 

»  St.  Mapc,  t.  i.  p.  281 ;  Oiannone,  1.       a  Muratori,  Diwert.  65:  Du  Cauge,  r. 
,Q„/:l;,,.   ^  ,.       ^,  Eremuu. 

Schmidt,  t.  U.  p.  205.  4  iieeren,  Essai  sur  les  Croisades.  p. 

166;  Schmidt,  t.  iii.  p.  293. 


EccLES.  Power.    SOMETIMES  IMPROPERLY  ACQUIRED.        139 

Even  those  legacies  to  charitable  purposes,  which  the  clergy 
could  with  more  decency  and  speciousness  recommend,  and 
of  which  the  administration  was  generally  confined  to  them, 
were  frequently  applied  to  their  own  benefit.^  They  failed 
not,  above  all,  to  inculcate  upon  the  wealthy  sinner  that  no 
atonement  could  be  so  acceptable  to  Heaven  as  liberal  presents 
to  its  earthly  delegates.*  To  die  without  allotting  a  portion 
of  worldly  wealth  to  pious  uses  was  accounted  almost  like 
suicide,  or  a  refusal  of  the  last  sacraments ;  and  hence  intes- 
tacy passed  for  a  sort  of  fraud  upon  the  church,  which  she 
punished  by  taking  the  administration  of  the  deceased's  effects 
into  her  own  hands.  This,  however,  was  peculiar  to  England, 
and  seems  to  have  been  the  case  there  only  from  the  reign  of 
Henry  HI.  to  that  of  Edward  IIL,  when  the  bishop  took  a 
portion  of  the  intestate's  personal  estate  for  the  advantage  of 
the  church  and  poor,  instead  of  distributing  it  among  his 
next  of  kin.'*  The  canonical  penances  imposed  upon  repent- 
ant offenders,  extravagantly  severe  in  themselves,  were  com- 
muted for  money  or  for  immovable  possessions  —  a  fertile 
though  scandalous  source  of  monastic  wealth,  which  the  popes 
afterwards  diverted  into  their  own  coffers  by  the  usage  of 
dispensations  and  indulgences.*  The  church  lands  enjoyed 
an  immunity  from  taxes,  though  not  in  general  from  military 
service,  when  of  a  feudal  tenure.*  But  their  tenure  was 
frequently  in  what  was  called  frankalmoign,  without  any 
obligation  of  service.     Hence  it  became  a  customary  fraud 


1  Primo  sacris  pastoribu«  data  est  fa- 
culta8,  ut  haercdiUitis  portio  in  pauperes 
et  egenos  dispergeretur;  sed  sensim 
ecclu^iae  quoque  in  pauperum  censum 
▼enerunt,  atque  intestaUe  gentis  mens 
creditaest  proclivior  in  easfuturafuisse  : 
qui  ftx  re  pinguius  illarum  patrimoniuni 
era^it.  Inimo  cpiscopi  ipsi  in  rem  suam 
cjusmodi  cousuetudinem  interdum  con- 
Tcrtebant:  ac  tributum  evasit,  quod 
nntea  pii  moris  fuit.  Muratori,  Antiqui- 
tates  Italiae.  t.  v.  Dissert.  67. 

2  Muratori,  Dissert.  67  (Antiquit. 
Italise,  t.  V.  p.  1055),  has  preserved  a 
curious  charter  of  an  Italian  count,  who 
declares  that,  struck  with  reflections 
upon  his  sinful  state,  he  had  taken 
counsel  with  certain  religious  how  he 
should  atone  for  his  offences.  Accepto 
consilio  ab  iis,  cxcepto  si  renunciare 
sapculo  possera,  nullum  es.se  melius  inter 
eleemosinaruin  virtutes,  quim  si  de  pro- 
priis  meis  substantiiH  in  monasterium 
eoncederem.     Iloc  consilium  ab  iis  li- 


benter,  et  ardentissimo  animo  ego  ao- 
cepi. 

aSelden.  vol.  iii.  p.  1676;  Prynne's 
Constitutions,  vol.  iii.  p.  18;  Blackstone, 
vol.  ii.  chap.  32.  In  France  the  lord  of 
the  flef  seems  to  have  taken  the  whole 
spoil.     Du  Cange,  v.  Intestatus. 

*  Muratori,  Dissert.  68. 

5  Palgrave  has  shown  that  the  Anglo* 
Saxon  clergy  were  not  exempt,  originally 
at  least,  from  the  trhioi/a  nec^ssitas  im- 
posed on  all  alodial  proprietors.  They 
were  better  treated  on  the  Continent; 
and  Boniface  exclaims  that  in  no  part  of 
the  world  was  such  servitude  imposed  on 
the  church  as  among  the  English.  Eng- 
lish Commonwealth,  i.  158.  But  whea 
we  look  at  the  charters  collected  in  Kem- 
ble's  Codex  Diplomaticus  (most  or  near- 
ly all  of  them  in  favor  of  the  church), 
we  shall  hardly  think  they  were  ill  off, 
though  they  might  be  forced  sometimes 
to  repair  a  bridge,  or  send  their  tenanti 
against  the  Danes. 


i\ 


140 


TITHES. 


Chap.  VII.  Part  L 


of  lay  proprietors  to  grant  estates  to  the  church,  which  they 
received  again  by  way  of  Hef  or  lease,  exempted  from  public 
burdens.  *And,  as  if  all  these  means  of  accumulating  what 
they  could  not  legitimately  enjoy  were  insufficient,  the  monks 
prostituted  their  knowledge  of  writing  to  the  purpose  of 
for'^in'T  charters  in  their  own  favor,  which  might  easily  im- 
pos'e  u°pon  an  ignorant  age,  since  it  has  required  a  peculiar 
science  to  detect  them  in  modern  times.  Such  rapacity  might 
seem  incredible  in  men  cut  off  from  the  pursuits  of  life  and 
the  hope  of  posterity,  if  we  did  not  behold  every  day  the 
unreasonableness  of  avarice  and  the  fervor  of  professional 

attachments.*  ,.....-         r 

As  an  additional  source  of  revenue,  and  m  imitation  ot 
the  Jewish  law,  the  payment  of  tithes  was  recom- 
'^"'^*  mended  or  enjoined.     These,  however,  were  not 

applicable  at  first  to  the  maintenance  of  a  resident  clergy. 
Parochial  divisions,  as  they  now  exist,  did  not  take  place,  at 
least  in  some  countries,  till  several  centuries  after  the  estab- 
lishment of  Christianity.*  The  rural  churches,  erected  suc- 
cessively as  the  necessities  of  a  congregation  required,  or 
the  piety  of  a  landlord  suggested,  were  in  fact  a  sort  of 
chapels  dependent  on  the  cathedral,  and  served  by  itinerant 
ministers  at  the  bishop's  discretion.'     The  bishop  himself 


1  Muratori's  65th,  67th,  and  68th  Dis- 
■ertations  on  the  Antiquities  of  Italy 
have  furnished  the  principal  materials  of 
my  text,  with  Father  Paurs  Treatise  on 
Benefices,  especially  chaps.  19  and  29. 
Giaunone,  loc.  cit.  and  1.  iv.  c.  12  ;  1.  v. 
c.  6:  1.  X.  c.  12.  Schmidt,  Uist.  des.  Alle- 
mands,  t.  i.  p.  370;  t.  ii.  p.  203,  462;  t. 
iv.  p.  202.  Fleury,  III.  Discours  sur 
I'Hist.  Eccles.     Du  Cange,  voc.  Precaria. 

2  Muratori,  Dissert.  74,  and  Fleury,  In- 
stitutions au  Droit  ecclesiastique,  t.  i.  p. 
162,  refer  the  origin  of  parishes  to  the 
fourth  century  ;  but  this  must  be  limited 
to  the  most  populous  part  of  the  em- 
pire. 

3  These  were  not  always  itinerant ; 
commonly,  perhaps,  they  were  depend- 
ants of  the  lord,  appointed  by  the  bishop 
on  his  nomination.  —  Lehuerou,  Institut. 
Caroliagiennes,  p.  526.  who  quotes  a  ca- 
pitulary of  the  emperor  Lothaire  in  825. 
"De  clericis  Tero  laicorum.  unde  non- 
nulli  eorum  conqueri  Tideantur,  eo  quod 
quidam  episcopi  ad  eorum  preces  nolint 
In  ecclesiis  suis  eos,  cum  utiles siiit,  ordi- 
nare,  visum  nobis  fuit,  ut  .  .  .  .  et  cum 
caritate  et  ratione  utiles  et  idonei  eli- 


gantur ;  et  si  Wcus  idoneum  utilemqu« 
clericum  obtulerit  nulla  qualibet  occ»- 
Bione  ab  episcopo  sine  ratione  cert*  re- 
pcUatur;   et  si  rejiciendus  est,   propter 
scandjilum   vitandum    evidenti    ratione 
manifestetur."      Another  capitulary  of 
Charles  the  Bald,  in  864,  forbids  the  es- 
tablishment of  priests  in   the  churches 
of  patrons,  or  their  ejection  without  the 
bishop's  consent:  — "De  his    qui    sine 
consensu  episcopi  presbyteros  in  ecclesiis 
suis  constituunt,  vel  de  ccclesiis  dejici- 
unt."    Thus  the  churches  are  recognized 
as  the  property  of  the  lord ;  and  the  par- 
ish may  be  considered  as  an  establislied 
division,   at   least    very    commonly,    so 
early  as  the  Carlovingkin  empire.    I  do 
not  by  any  means  deny  that  it  was  par- 
tially known  in  France  before  that  time. 
Guizot    reckons    the     patronage    of 
churches  by  the  laity  among  the  circum- 
stances  which    diminished    or  retarded 
ecclesia-^tical  power.    (LeconlS.)    It  may 
have  been  so ;  but  without  this  patronage 
there  would  have  been  very  few  parish 
churches.    It  separated,  in  some  degree, 
the  interests  of  the  secular  clergy  from 
those  of  the  bishops  and  the  regulars. 


ECCLES.  POWKB. 


TITHES. 


141 


received  the  tithes,  and  apportioned  them  as  he  thought  fit. 
A  capitulary  of  Charlemagne,  however,  regulates  their  division 
iitto  three  parts ;  one  for  the  bishop  and  his  clergy,  a  second 
for  the  poor,  and  a  third  for  the  support  of  the  fabric  of  the 
church.^  Some  of  the  rural  churches  obtained  by  episcopal 
concessions  the  privileges  of  baptism  and  burial,  which  were 
accompanied  with  a  fixed  share  of  tithes,  and  seem  to  imply 
the  residence  of  a  minister.  The  same  privileges  were  grad- 
ually extended  to  the  rest;  and  thus  a  complete  parochial 
division  was  finally  established.  But  this  was  hardly  th 
case  in  England  till  near  the  time  of  the  conquest.* 

The  slow  and  gradual  manner  in  which  parochial  churches 
became  independent  appears  to  be  of  itself  a  sufficient  an- 
swer to  those  who  ascribe  a  great  antiquity  to  the  universal 
payment  of  tithes.  There  are,  however,  more  direct  proofs 
that  this  species  of  ecclesiastical  property  was  acquired  not 
only  by  degrees  but  with  considerable  opposition.  We  find 
the  payment  of  tithes  first  enjoined  by  the  canons  of  a  pro- 
vincial council  in  France  near  the  end  of  the  sixth  century. 
From  the  ninth  to  the  end  of  the  twelfth,  or  even  later,  it 
is  continually  enforced  by  similar  authority.*  Father  Paul 
remarks  that  most  of  the  sermons  preached  about  the  eighth 
century  inculcate  this  as  a  duty,  and  even  seem  to  place  the 
summit  of  Christian  perfection  in  its  performance.*  This 
reluctant  submission  of  the  people  to  a  general  and  perma- 
nent tribute  is  perfectly  consistent  with  the  eagerness  dis- 
played by  them  in  accumulating  voluntary  donations  upon  the 
church.  Charlemagne  was  the  first  who  gave  the  confirmation 
of  a  civil  statute  to  these  ecclesiastical  injunctions ;  no  one  at 
least  has,  so  far  as  I  know,  adduced  any  earlier  law  for  the 
payment  of  tithes  than  one  of  his  capitularies.®  But  it  would 
be  precipitate  to  infer  either  that  the  practice  had  not  already 
gained  ground  to  a  considerable  extent,  through  the  influence 
of  ecclesiastical  authority,  or,  on  the  other  hand,  that  it  became 


1  Schmidt,  t.  ii.  p  206.  This  seems  to 
have  been  founded  on  an  ancient  canon, 
F.  Paul.  c.  7. 

51  Collier's  Ecclesiastical  Hirtory,  p.  229. 

*  Selden's  History  of  Tithes,  vol.  iii. 
p.  1108,  edit.  Wilkins.  Tithes  are  said 
by  Giannoue  to  have  been  enforced  by 
some  pupal  decrees  in  the  sixth  century. 
1.  iii  c.  6. 

*  Treatise  on  Benefices,  c.  11. 

*  Mably,  (Observations  sur  I'Hist.  de 
France,  t.  i.  p.  238  et  438)  has,  with 


remarkable  rashness,  attacked  the  cur- 
rent opinion  that  Charlemagne  estab- 
lished the  legal  obligation  of  tithes,  and 
denied  that  any  of  his  capitularies  bear 
such  an  interpretation.  Those  which  he 
quotes  have  indeed  a  different  meaning  ; 
but  he  has  overlooked  an  express  enact- 
ment in  789  (Baluzii  Capitularia,  t.  i. 
p.  253),  which  admits  of  no  question; 
and  I  believe  that  there  arc  others  in 
confirmation. 


M 


142  SPOLIATION  OF  CHURCH  PROPERTY.   Chap.  TO.  Part  1. 

universal  in  consequence  of  the  commands  of  Charlemagne.* 
In  the  subsequent  ages  it  was  very  common  to  appropriate 
tithes,  which  had  originally  been  payable  to  the  bisliop,  either 
towards  the  support  of  particular  churches,  or,  accordmg  to 
the  prevalent  superstition,  to  monastic  foundations.  1  hese 
arbitrary  consecrations,  though  the  subject  of  f^Pl'^^" ; 
lasted,  by  a  sort  of  prescriptive  right  of  the  landholder,  till 
about  the  year  1200.  It  was  nearly  at  the  same  time  that 
the  obligation  of  paying  tithes,  which  had  been  origina  ly 
confined  to  those  called  predial,  or  the  fruits  of  the  earth, 
was  extended,  at  least  in  theory,  to  every  species  of  protit, 
and  to  the  wages  of  every  kind  of  labor.* 

Yet  there  were  many  hindrances  that  thwarted  the  clergy 
in  their  acquisition  of  opulence,  and  a  sort  ot  reflux 
Srchur^h      that  set  sometimes  very  strongly  against  them.    In 
property.       ^^^^^  ^f  barbaTous  violence  nothing  can  thoroughly 
compensate  for  the    inferiority  of  physical    strength    and 
prowess.     The  ecclesiastical  history  of  the  middle  ages  pre- 
sents  one  long  contention  of  fraud  against  robbery ;  of  acqui- 
sitions made  by  the  church  through  such  means  as  I  have 
described,  and  torn  from  her  by  lawless  power.     Those  very 
men  who  in  the  hour  of  sickness  and  impending  death 
showered  the  gifts  of  expiatory  devotion  upon  her  altars,  had 
passed  the  sunshine  of  their  lives  in  sacrilegious  plunder. 
Notwithstanding  the  frequent  instances  of  extreme  reverence 
for  reli^'ious  institutions  among  the  nobility,  we  should  be 
deceived  in  supposing  this  to  be  their  general  character. 
Rapacity,  not  less  insatiable  than  that  of  the  abbots,  was 
commonly  united  with  a  daring  fierceness  that  the  abbots 
could  not  resist.*    In  every  country  we  find  continual  lamen- 


1  The  grant  of  Ethelwolf  in  855  has 
appeared  to  some  antiquaries  the  most 
probable  origin  of  the  general  right  to 
tithes  in  Euglaud  [Note  I.]  It  is  said 
by  Marina  that  tithes  were  not  legally 
established  in  Castile  till  the  reign  of 
Alfonso  X.  Ensayo  Robre  les  Siete  Par- 
tid:vs,  c.  359.  „  ^     o  -r    * 

2  Selden,  p.  1114  et  seq. ;  Coke,  2  Inst. 

P-  641.  „.  ,         „      ^. 

aselden's  History  of  Tithes;  Treatise 
on  Benefices,  c.  28;  Giannone,  I.  x.  c.  12. 

4  The  church  was  often  compelled  to 
grant  leases  of  her  lands,  under  the  name 
of  precariff.y  to  laymen,  who  probably 
rendered  little  or  uo  service  in  return, 
though  a  rent  or  census  was  expressed  in 
the  instrument.    These  precaruB  seem  to 


have  been  for  life,  but  were  frequently 
renewed.  They  are  not  to  be  confounded 
with  terra  censuaUs,  or  lands  let  to  a 
tenant  at  rack-rent,  which  of  course 
formed  a  considerable  br.inch  of  revenue. 
The  grant  wa^  called  prerarift  from  being 
obtained  at  the  prayer  of  a  grantee; 
and  the  uncerUiuty  of  its  renewal  cecms 
to  have  given  rise  to  the  adjective  prt 

'  In  the  ninth  century,  though  the  pre- 
tensions of  the  bishops  were  never  higher, 
the  church  itself  was  more  pilbged  un- 
der  pretext  of  these  prfcnner,  and  in 
other  wavs,  than  at  any  fonuer  Ume.— 
Sec  Du  Cango  for  a  long  article  on  VW- 
car  is. 


EccLEs.  Power.    SPOLIATION  OF  CHURCH  PROPERTY.       143 

tation  over  the  plunder  of  ecclesiastical  possessions.  Charles 
Martel  is  reproached  with  having  given  the  first  notorious 
example  of  such  spoliation.  It  was  not,  however,  commonly 
practised  by  sovereigns.  But  the  evil  was  not  the  less  uni- 
versally felt.  The  parochial  tithes  especially,  as  the  hand  of 
robbery  falls  heaviest  upon  the  weak,  were  exposed  to  unlaw- 
ful seizure.  In  the  tenth  and  eleventh  centuries  nothins:  was 
more  common  than  to  see  the  revenues  of  benefices  in  the 
hands  of  lay  impropriators,  who  employed  curates  at  the 
cheapest  rate  ;  an  abuse  that  has  never  ceased  in  the  church.' 
Several  attempts  were  made  to  restore  these  tithes  ;  but  even 
Gregory  VII.  did  not  venture  to  j^roceed  in  it ;  ^  and  indeed 
it  is  highly  probable  that  they  might  be  held  in  some  instances 
by  a  lawful  title.^  Sometimes  the  property  of  monasteries 
was  dilapidated  by  corrupt  abbots,  whose  acts,  however  clan- 
destine and  unlawful,  it  was  not  easy  to  revoke.  And  both 
tlie  bi.-hops  and  convents  were  obliged  to  invest  powerful  lay 
protectors,  under  the  name  of  advocates,  with  considerable 
fiefs,  as  the  price  of  their  assistance  against  depredators. 
But  these  advocates  became  too  often  themselves  the  spoilers, 
and  oppressed  the  helpless  ecclesiastics  for  whose  defence 
they  had  been  engaged.* 

If  it  had  not  been  for  these  drawbacks,  the  clergy  must, 
one  would  imagine,  have  almost  acquired  the  exclusive 
property  of  the  soil.  They  did  enjoy,  according  to  some 
authorities,  nearly  one  half  of  England,  and,  I  believe,  a 
greater  proportion  in  some  countries  of  Europe.*  They  had 
reached,  perhaps,  their  zenith  in  respect  of  territorial  prop- 


1  Du  Cmge,  voc.  Abbas. 

2  Schmidt,  t  iv.  p.  204.  At  an  assem- 
bly held  ut  St.  Denis  in  997  the  bishops 

Eroposcd  to  restore  the  tithes  to  the  sccu- 
ir  clergy ;  but  such  a  tumult  was  ex- 
cited by  this  attempt,  that  the  meeting 
•was  broken  up.  Kecueil  des  Uistoriens, 
t.  xi.  pr»fat.  p.  212. 

8  Seidell's  Hist,  of  Tithes,  p.  1136. 
The  third  council  of  Lateran  restrains 
laymen  from   tran.sferring  their  impro- 

Eriated  tithes  to  other  laymen.  Velly, 
List,  de  Fnince,  t.  iii.  p.  235.  This  seems 
tacitly  to  admit  that  their  possession  was 
«awful,  at  least  by  prescription. 

*  For  the  injuries  sustained  by  ec- 
clesiastical proprietors,  see  Muratori, 
Dissert.  72.  Du  Canjre,  v.  Advocatus. 
Schmidt,  t.  ii.  p.  220.  470 ;  t.  iii.  p.  290; 
t.  It.  p.  188. 202.  Kecueil  des  Uistoriens, 
I.  zi.  prsfat.   p.  184.    Martcnue,  The- 


saurus Anecdotorum,  t.  i.  p.  595.  Vais- 
sctte.  Ilist.  de  Languedoc,  t.  ii.  p.  109, 
and  Appendix,  pa.ssim. 

6  Turner's  Hist,  of  England,  vol.  ii. 
p^  413,  from  Avesbury.  According  to  a 
calculation  fuandcd  on  a  passage  in 
Knyghton,  the  revenue  of  the  English 
church  in  1337  amounted  to  730.000 
marks  per  annum.  Macpherson's  An- 
nals of  Commerce,  vol.  i.  p.  519  ;  Ilis- 
toire  du  Droit  public  Eccles.  Francois, 
t.  i.  p.  214.  Anthony  Ilarmer  (Henry 
Wharton)  says  that  the  monsisteries  did 
not  possess  one  fifth  of  the  land ;  and  I 
incline  to  think  that  he  is  nearer  the 
truth  than  Mr.  Turner,  who  puts  the 
wealth  of  the  church  at  above  28.000 
knights'  fees  out  of  53,215.  The  bishops' 
lauds  could  not  by  any  means  account 
for  the  diflference;  so  that  Mr.  Turner 
was  probably  deceived  by  his  authoiitj. 


H 


144  ECCLESIASTICAL  JURISDICTION.     Chap.  VII.  Pabt  I. 

erty  about  the  conclusion  of  the  twelfth  century.*  After  that 
time  the  disposition  to  enrich  the  clergy  by  pious  donations 
grew  more  languid,  and  was  put  under  certain  legal  restraints, 
to  which  1  shall  hereafter  advert ;  but  they  became  rather 
more  secure  from  forcible  usurpations. 

The  acquisitions  of  wealth  by  the  church  were  hardly  so 
Ecciesias-  remarkable,  and  scarcely  contributed  go  much  to 
tiaii  juris-  her  grcatucss,  as  those  innovations  upon  the  ordi- 
^<="o»-  jjary  course  of  justice  which  iiall  under  the  head 
of  ecclesiastical  jurisdiction  and  immunity.  It  is  hardly, 
perhaps,  necessary  to  caution  the  reader  that  rights  of  terri- 
torial justice,  possessed  by  ecclesiastics  in  virtue  of  their 
fiefs,  are  by  no  means  included  in  this  description.  Episcopal 
jurisdiction,  properly  so  called,  may  be  considered  as  depend- 
ing upon  the  choice  of  litigant  parties,  upon  their  condition, 
and  upon  the  subject-matter  of  their  differences. 

1.  The  arbitrative  authority  of  ecclesiastical  pastors,  if  not 
Arbitratire  ^^^^^^  ^^^^^  Christianity,  grew  up  very  early  in  the 
church,  and  was  natural,  or  even  necessary,  to  an 
insulated  and  persecuted  society.-  Accustomed  to  feel  a  strong 
aversion  to  the  imperial  tribunals,  and  even  to  consider  a  re- 
currence to  them  as  hardly  consistent  \vith  their  profession, 
the  early  Christians  retained  somewhat  of  a  similar  prejudice 
even  after  the  estabHshment  of  their  religion.  The  arbitra- 
tion of  their  bishops  still  seemed  a  less  objectionable  mode 
of  settling  differences.  And  this  arbitrative  jurisdiction  was 
powerfully  supported  by  a  law  of  Constantine,  which  directed 
the  civil  magistrate  to  enforce  the  execution  of  episcopal 
awards.  Another  edict,  ascribed  to  the  same  emperor,  and 
annexed  to  the  Theodosian  code,  extended  the  jurisdiction  of 
the  bishops  to  all  causes  which  either  party  chose  to  refer  to 
it,  even  where  they  had  already  commenced  in  a  secular 
court,  and  declared  the  bishop's  sentence  not  subject  to  appeal. 
This  edict  has  clearly  been  proved  to  be  a  forgery.  It  is 
evident,  by  a  novel  of  Valentinian  III.,  about  450,  that  the 
church  had  still  no  jurisdiction  in  questions  of  a  temporal 


1  The  great  age  of  monasteries  in 
England  was  the  reigns  of  Henry  I., 
Stephen,  and  Henry  II.  Lyttelton's 
Henry  II.  vol.  ii.  p.  329.  David  I.  of 
Scotland,  contemporary  with  Henry  II., 
was  also  a  noted  founder  of  monasteries. 
Dalrymple-s  Annals. 


« 1  Corinth.  T.  4.  The  word  l^ovde- 
vrjuivovg,  rendered  in  our  version  "  of 
no  reputation,"  has  been  interpreted  by 
some  to  mean  penions  destitute  of  coer- 
cive authority,  referees.  The  passage  at 
least  tends  to  discourage  suits  before  m 
seculsur  judga 


[i 


EccLEs.  Power.      ECCLESUSTICAL  JURISDICTION.  145 

nature,  except  by  means  of  the  joint  reference  of  contending 
parties.     Some  expressions,  indeed,  used  by  the  emperor 
seem  mtended  to  repress  the  spirit  of  encroachment  upon  the 
civil  magisti-ates,  which  had  probably  begun  to  manifest  itself. 
Charlemagne,  indeed,  in  one  of  his  capitularies,  is  said  bv 
some  modern  writers  to  have  repeated  aU  the  absurd  and  enor- 
mous^provisions  of  the  spurious  constitution  in  the  Theodosian 
coae.      iiut  this  capitulary  is  erroneously  ascribed  to  Charle- 
ma^e.     It  is  only  found  in  one  of  the  three  books  subjoined 
by  Benedict  Levita  to  the  four  books  of  capitularies  collected 
by  Ansegisus ;  these  latter  relating  only  to  Charlema-ne  and 
I.0U1S,  but  the  others  comprehending  many  of  later  emperors 
and  kings.     And  what  is  of  more  importance,  it  seems  ex- 
ceedingly doubtful  whether  this  is  any  genuine  capitulary  at 
all.     It  IS  not  referred  to  any  prince  by  name,  nor  is  it  found 
111  any  other  coUection.     Certain  it  is  that  we  do  not  find  the 
cnurch,  in  her  most  arrogant  temper,  asserting  the  full  privi- 
leges  contained  in  this  capitulary.^  ^ 

2.  If  it  wa5  considered  almost  as  a  general  obligation  upon 
the  primitive  Christians  to  decide  their  civil  dis- 
putes  by  internal  arbitration,  much  more  would  S^S^  il' 
this  be  incumbent  upon  the  clergy.     The  canons  ""'^ 
of  several  councils,  in  the  fourth  and  fifth  centuries,  sentence 
a  bishop  or  pnest  to  deposition,  who  should  bring  any  suit^ 
civil  or  even  criminal,  before  a  secular  magistrate.    This 
must.  It  should  appear,  be  confined  to  causes  where  the  de- 
tendant  was  a  clerk ;  since  the  ecclesiastical  court  had  hith- 
erto no  coercive  jurisdiction  over  the  laity.    It  was  not  so 
easy  to  induce  laymen,  in  their  suits  against  clerks,  to  prefer 
the  episcopal  tribunal.     The  emperors  were  not  at  all  dis- 
posed to  favor  this  species  of  encroachment  till  the  reign  of 
Justinian,  who  ordered  civil  suits  agamst  ecclesiastics  to  be 
earned  only  before  the  bishops.     Yet  this  was  accompanied 
by  a  provision  that  a  party  dissatisfied  with  the  sentence 
might  apply  to  the  secular  magistrate,  not  as  an  appellant, 
but  a  coordinate  jurisdiction ;  for  if  different  judgments  were 
pven  m  the  two  courts,  the  process  was  ultimately  referred 
to  the  emperor.'    But  the  early  Merovingian  kings  adopted 

«  SSl^l^c'^^^'^SL'Jnr  ?]t\   8      P-  ?•  .  ^^---  d-  I'Academie  des  In. 
1.  iii    c    fi-   1    V?   n    7     a  ^  :U^  f •  f.>    scnptions,  t.  xxxix.  p.  666. 

p.  m"'  Fleiry^^V™';  Discou*S^a^d*'ln'    Ju?\''  -- ^^^ -^^li^^ed  about  the 

ititutionsauD^tEccSa'aue  t    H     ?f«?^  H^    ^^  ^'l^alaric   king,  of  the 

VOL.  n.  J!tfciesiaatique»  t.  IL    Ostrogoths,  and.  of.  course  aflbcted  the 


M 


I 


146  ECCLESLVSTICAL  JURISDICTION.     Cii.vr.  VH.  Pact  L 

the  exclusive  jurisdiction  of  the  bishop  over  causes  wherein 
clerks  were  interested,  without  any  of  the  checks  which  Jus- 
tinian had  provided.  Many  laws  enacted  during  their  reigns, 
and  under  Charlemagne,  strictly  prohibit  the  tempoml  mag- 
istrates from  entertaining  complaints  against  the  children  of 
the  church. 

This  jurisdiction  over  the  civil  causes  of  clerks  was  not 
and  criminal  immediately  attended  with  an  equally  exclusive 
Buits.  cognizance  of  criminal  offences  imputed  to  them, 

wherein  the  state  is  so  deeply  interested,  and  the  church  could 
inflict  so  inadequate  a  punishment.    Justinian  appears  to  have 
reserved  such  offences  for  trial  before  the  imperial  magistrate, 
though  with  a  material  provision  that  the  sentence  against  a 
clerk  should  not  be  executed  without  the  consent  of  the  bishop 
or  the  final  decision  of  the  emperor.     The  bishop  is  not  ex- 
pressly invested  with  this  controlling  power  by  the  laws  of 
the  Merovingians ;  but  they  enact  that  he  must  be  present  at 
the  trial  of  one  of  his  clerks  ;  which  probably  was  intended 
to  declare  the  necessity  of  his  concurrence  in  the  judgment. 
The  episcopal  order  was  indeed  absolutely  exempted  from 
secular  jurisdiction  by  Justinian ;  a  privilege  which  it  had 
vainly  endeavored  to  establish  under  the  earlier  emperors. 
France  permitted  the  same  immunity ;  Chilperic,  one  of  the 
most  arbitrary  of  her  kings,  did  not  venture  to  charge  some 
of  his  bishops  with  treason,  except  before  a  council  of  their 
brethren.     Finally,  Charlemagne  seems  to  have  extended  to 
the  whole  body  of  the  clergy  an  absolute  exemption  from  the 
judicial  authority  of  the  magistrate.^ 

3.  The  character  of  a  cause,  as  well  as  of  the  parties  en- 
^  irao^ed,  mi^ht  brinj;  it  within  the  limits  of  eccle- 

particular      siastical   jurisdiction.      In    all    questions    simply 
causes.  rcligious   the   church   liad   an   original   right   of 

decision ;  in  those  of  a  temporal  nature  the  civil  magistrate 
had,  by  the  imperial  constitution,  as  exclusive  an  authority .^ 


popes  who  were  his  subjects.  St.  Marc, 
t.  i.  p.  60;  Fleury,  Hist.  Eccles.  t.  Tii. 
p.  292. 

1  Memoires  de  I'Acad^mie,  ubi  supra ; 
Giannonc,  1.  iii.  c.  6 ;  Schmidt,  t.  ii.  p.  236 ; 
Fleury,  ubi  supra. 

Some  of  these  writers  do  not  state  the 
law  of  Charlemagne  so  strongly.  Never- 
theless the  words  of  a  capitulary  in  789, 
Ut  cleriol  ecclesiastici  ordinis  si  culpam 
incurrcrint  apud  ecclesiasticos  judicen- 
kUr,  non  apud  saeculares,  are  sufficiently 


general  (Baluz.  Capitul.  t.  i.  p.  227);  and 
the  same  is  expressed  still  more  forcibly 
in  the  collection  published  by  Anscgisua 
under  Louis  the  Debonair.  (Id.  p.  904 
and  1115.)  See  other  proofe  in  Fleury, 
Hist.  Eccles.  t.  iz.  p.  607. 

-  Quoties  de  religiono  agitur,  epl«copoa 
oportet  judioare  ;  alteras  vero  causas  quae 
ad  ordinarios  cognitore«  Vel  ad  us  urn 
publici  juris  pertinent,  legibus  oportet 
audiri.  Lex  Arcadil  et  llonorii  apud 
M6m.  de  TAcademie,  C.  zxxix.  p.  571. 


I  ' 


Eccles.  Toweu.      POLITIC.IL  POWER  OF  CLERGY  147 

Later  ages  witnessed  strange  innovations  in  this  respect,  when 
the  spiritual  courts  usurped,  under  sophistical  pretences,  ahnost 
the  wliole  administration  of  justice.  But  these  encroachments 
were  not  I  apprehend,  very  striking  till  the  twelfth  century  • 
and  as  about  the  same  time  measures,  more  or  less  vio-orous' 
and  successful  began  to  be  adopted  in  order  to  restrain'them, 
1  shall  defer  this  part  of  the  subject  for  the  present. 

In  this  sketch  of  the  riches  and  jurisdiction  of  the  hie- 
rarchy I  may  seem  to  have  implied  their  political  p  ,,.  , 
infhience,  which  is  naturally  connected  with  the  pote'of 
two  former.     They  possessed,  however,  more  di-  *'*®'^^- 
rect  means  of  acquiring  temporal  power.     Even  under  the 
Koman  emperors  they  had  found  their  road  into  palaces :  they 
were   sometimes   ministers,   more   often   secret   counsellors, 
always  necessary  but  formidable  alHes,  whose  support  was 
to  be  conciliated,  and  interference  to  be  respected.     But  they 
assumed  a  far  more  decided  influence  over  the  new  kingdoms 
of  the  West.     They  were  entitled,  in  the  first  place,  by  the 
nature  of  those  free  governments,  to  a  privilege  unknown 
under  the  imperial  despotism,  that  of  assisting  in  the  delib- 
erative ii^semblies  of  the  nation.     Councils  of  bishops,  such 
as  had  been  convoked  by  Constantine  and  his  successors,  were 
limited  111  their  functions  to  decisions  of  faith  or  canons  of 
ecclesiastical  discipline.     But  the  northern  nations  did  not  so 
well  preserve  the  distinction  between  secular  and  spiritual 
egislation.     The  laity  seldom,  perhaps,  gave  their  suffrao-e 
to  the  canons  of  the  church  ;  but  the  church  was  not  so  scru- 
pulous as   to  trespassing  upon  the  province  of  the  laity. 
Many  provisions  are  found  in  the  canons  of  national  and  even 
provincial  councils  which  relate  to  the  temporal  constitution 
of  the  suite.    Thus  one  held  at  Calcluith  (an  unknown  place 
in  England),  m  787,  enacted  that  none  but  legitimate  princes 
should  be  raised  to  the  throne,  and  not  such  as  were  engen- 
dered m  aduUery  or  incest     But  it  is  to  be  observed  that, 
although  this  synod  was  strictly  ecclesiastical,  being  sum 
moned  by  the  pope^s  legate,  yet  the  kings  of  Mercia  and 
Northumberland,  with  many  of  their  nobles,  confirmed  the 
canons  by  their  signature.     As  for  the  councils  held  under 
the  Visigoth  kings  of  Spain  during  the  seventh  century,  it  is 
not  easy  to  determine  whether  they  are  to  be  considered  as 
ecclesiastical  or  temporal  assemblies.^     No  kingdom  was  so 

1  Marina,  Teoria  de  las  Cortes,  t.  L  p.  9. 


148 


SUPREMACY  OF  THE  STATE.  Chap.  VII.  Part  1. 


thoroughly  under  the  bondage  of  the  hierarchy  as  Spain.* 
The  first  dynasty  of  France  seem  to  have  kept  their  national 
convention,  called  the  Field  of  March,  more  distinct  from 
merely  ecclesiastical  councils. 

The  bishops  acquired  and  retained  a  great  part  of  their 
ascendency  by  a  very  respectable  instrument  of  power,  intel- 
lectual superiority.  As  they  alone  were  acquainted  with  the 
art  of  writing,  they  were  naturally  entrusted  with  political 
correspondence,  and  with  the  framing  of  the  laws.  As  they 
alone  knew  the  elements  of  a  few  sciences,  the  education  of 
royal  families  devolved  upon  them  as  a  necessary  duty.  In 
the  fall  of  Rome  their  influence  upon  the  barbai'ians  wore 
down  the  asperities  of  conquest,  and  saved  the  provincials 
half  the  shock  of  that  tremendous  revolution.  As  captive 
Greece  is  said  to  have  subdued  her  Roman  conqueror,  so 
Rome,  in  her  own  turn  of  servitude,  cast  the  fetters  of  a 
moral  captivity  upon  the  fierce  invaders  of  the  north.  Chief- 
ly through  the  exertions  of  the  bishops,  whose  ambition  may 
be  forgiven  for  its  effects,  her  religion,  her  language,  in  part 
even  her  laws,  were  transplanted  into  the  courts  of  Paris 
and  Toledo,  which  became  a  degree  less  barbai'ous  by  imi- 
tation.^ 

Notwithstanding,  however,  the  great  authority  and  privi- 
Supremacy  Icgcs  of  the  church,  it  was  decidedly  subject  to  the 
of  the  state;  supremacy  of  the  crown,  both  during  the  continu- 
ance of  the  Western  empire  and  after  its  subversion.  The 
emperors  convoked,  regulated,  and  dissolved  universal  coun- 
cils ;  the  kings  of  France  and  Spain  exercised  the  same  right 
over  the  synods  of  their  national  churches.*  The  Ostrogoth 
kings  of  Italy  fixed  by  their  edicts  the  limits  within  which 
matrimony  was  prohibited  on  account  of  consanguinity,  and 
granted  dispensations  from  them.*  Though  the  Roman  em- 
perors left  episcopal  elections  to  the  clergy  and  people  of 
the  diocese,  in  which  they  were  followed  by  the  Ostrogoths 
and  Lombards,  yet  they  often  interfered  so  far  as  to  confirm  a 


1  See  instances  of  the  temporal  power 
of  the  Spanish  bishops  in  Fleury,  Uist. 
Eccles.  t.  viii.  p.  368,  897;  t.  ix.  p.  68,  &c. 

2  Schmidt,  t.  i.  p.  365. 

3  Encjclopedie,  art.  Concile.  Schmidt, 
t.  i.  p.  384.  De  Marca,  De  Concordantil 
Sacerdotii  et  Imperii,  1.  ii.  c.  9,  11;  et 
••  iv.  passim. 

The  last  of  these  sometimes  endeavors 


to  extenuate  the  royal  supremacy,  but 
his  own  work  furnishes  abundant  evi- 
dence of  it;  especially  1.  vi.  c.  19,  &c. 
For  the  ecclesiastical  independence  of 
Spain,  down  to  the  eleventh  century,  see 
Marina.  Ensayo  sobre  las  Siete  Partidas, 
c.  322,  &c. ;  and  De  Marca,  1.  vi.  c.  28. 
*  Oiannone,  1.  iii.  c.  6. 


Eccles.  Power.      SUPREMACY  OF  THE  STATE. 


149 


decision  or  to  detennine  a  contest.  The  kings  of  France 
went  further,  and  seem  to  have  invariably  either  nominated 
the  bishops,  or,  what  was  nearly  tantamount,  recommended 
their  own  candidate  to  the  electors. 

But  the  sovereign  who  maintained  with  the  greatest  vigor 
his    ecclesiastical    supremacy  was    Charlemagne,  especially 
Most  of  the  capitularies  of  his  reign  relate  to  the  of  charie- 
discipline  of  the  church ;  principally  indeed  taken  ™^^''®' 
from  the  ancient  canons,  but  not  the  less  receiving  an  addi- 
tional sanction  from  his  authority.^     Some  of  his  regulations, 
which  appear  to  have  been  original,  are  such  as  men  of  high 
church  principles  would,  even  in  modern  times,  deem  infrino-- 
meiits  of  spiritual  independence ;  that  no  legend  of  doubtful 
authority  should  be  read  in  the  cliurches,  but  only  the  canoni- 
cal books,  and  that  no  saint    should  be  honored  whom  the 
whole  church  did  not  acknowledge.     These  were  not  passed 
in  a  synod  of  bishops,  but  enjoined  by  the  sole  authority  of 
the   emperor,  who  seems   to   have  arrogated  a  legislative 
power  over  the  church  which  he  did  not  possess  in  tem- 
poral affiiirs.     Many  of  his  other  laws  relating  to  the  eccle- 
siastical constitution  are  enacted  in  a  general  council  of  the 
lay  nobility  as  well  as  of  prelates,  and  are  so  blended  with 
those  of  a  secular  nature,  that  the  two  orders  may  appear  to 
have  equally  consented  to  the  whole.     His  father  Pepin,  in- 
deed, left  a  remarkable  precedent  in  a  council  held  m  744, 
where  the  Nicene  faith  is  declared  to  be  estabhshed,  and 
even  a  particular  heresy  condemned,  with  the  consent  of  the 
bishops  and  nobles.     But  whatever  share  we  may  imagine 
the  laity  in  general  to  have  had  in  such  matters,  Charlemagne 
himself  did  not  consider  even  theological  decisions  as  beyond 
his  province ;  and,  in  more  than  one  instance,  manifested  a 
determination  not  to  surrender  his  own  judgment,  even  in 
questions  of  that  nature,  to  any  ecclesiastical  authority .^ 


1  Baluzii  Capitularia,  passim ;  Schmidt, 
t.  ii.  p.  239 ;  Gaillard,  Vie  de  Charle- 
magne, t.  iii. 

2  Charlemagne  had  apparently  devised 
an  ecclesiiistical  theory,  which  would  now 
be  called  Erastian,  and  perhaps  not  very 
short  of  that  of  Henry  VIII.  He  directs 
the  clergy  what  to  preach  in  his  own 
name,  and  uses  the  first  person  in  eccle- 
siastical canons.  Yet,  if  we  may  judge 
by  the  events,  the  bishops  lost  no  part  of 
their  permanent  ascendency  in  the  state 
Uirough  this  interference,  though  com- 


pelled to  acknowledge  the  supremacy  of 
a  great  mind.  By  a  vigorous  repression 
of  tliose  secular  propensities  which  were 
displaying  themselves  among  the  superior 
clergy,  he  endeavored  to  render  their 
moral  influence  more  effective.  This, 
however,  could  not  be  achieved  in  the 
ninth  ceutury;  nor  could  it  have  been 
brought  about  by  any  external  power. 
Nor  was  it  easily  consistent  with  the 
continual  presence  of  the  bishops  in 
national  assemblies,  which  had  become 
essential  to  the  polity  of  his  age,  and 


150     PRETENSIONS  OF  THE  HIER.VRCHY    Chap.  VII.  Part  I 

This  part  of  Charlemagne's  conduct  is  duly  to  be  taken 
into  the  account  before  we  censure  his  vast  extension  of 
ecclesiastical  privileges.  Nothing  was  more  remote  from  his 
character  than  the  bigotry  of  those  weak  princes  who  have 
suffered  the  clergy  to  reign  under  their  names.  He  acted 
upon  a  systematic  phm  of  government,  conceived  by  his  own 
comprehensive  genius,  but  requiring  too  continual  an  applica- 
tion of  simihu'  talents  for  durable  execution.  It  was  tlu 
error  of  a  superior  mind,  zealous  for  religion  and  leai'ning 
to  beUeve  that  men  dedicated  to  the  functions  of  the  one,  and 
possessing  what  remained  of  the  other,  might,  tln-ough  strict 
rules  of  discipline,  enforced  by  the  constant  vigilance  of  the 
sovereign,  become  fit  instruments  to  reform  and  civilize  a 
barbarous  empire.  It  was  the  error  of  a  magnanimous  sj)ii'it 
to  judge  too  favorably  of  human  nature,  and  to  i>resume 
that  great  trusts  would  be  fultilled,  and  great  benefits  re- 
membered. 

It  is  highly  probable,  indeed,  that  an  ambitious  hierarchy 
did  not  endure  witliout  reluctance  this  imperial  supremacy 
of  Charlemagne,  though  it  was  not  expedient  for  them  to 
Pretensions  resist  a  pHucc  SO  Ibrmidable,  and  from  whom  tliey 
of  the  iiad  j;o  much  to  expect.     But  their  dissatisfaction 

in^'Srninth  at  a  schcmc  of  government  incom[)atible  with 
century.  their  own  objects  of  perfect  independence  produced 
a  violent  recoil  under  Louis  tlie  Debonair,  who  attem[)ted  to 
act  the  censor  of  ecclesiastical  abuses  with  as  much  earnest- 
ness as  his  father,  though  with  very  inferior  qualili cat  ions  for 
so  delicate  an  undertaking.  Tiie  bishops  accordingly  were 
amon":  the  chief  instigators  of  those  numerous  revolts  of  his 
children  which  harrassed  tliis  emperor.  They  set.  upon  one 
occasion,  the  first  example  of  an  usurpation  whicli  was  to  be- 
come very  dangerous  to  society  —  the  deposition  of  sover- 
eigns by  ecclesiastical  authority.  Louis,  a  prisoner  in  the 
hands  of  his  enemies,  had  been  intimidated  enough  to  under- 
go a  public  penance ;  and  the  bishops  pretended  that,  accord- 
ing to  a  canon  of  the  church,  he  was  incapable  of  returning 


with  which  he  would  not,  for  several 
reasons,  have  wholly  dispcnaetl.  Yet  it 
appears,  by  a  remarkable  capitulary  of 
8ll,  that  he  had  perceived  the  inconve- 
nience of  allowing  the  secular  and  spir- 
itual powers  to  clash  with  each  other : 
—  Discutiendum  est  atquc  intervenien-. 
dam  iu  quantum  se  episcopud  aut  abbas 


rebus  secularibus  debeat  iuscrerc,  vel  in 
quantum  comes,  vel  alter  laicus,  iu  eccle- 
siastica  negotia.  But  as  the  laity,  him- 
self excepted,  had  probably  interfered 
very  little  in  church  affiiiiv,  tliis  capitu- 
larj-  seems  to  bo  restrictive  of  the  pre- 
lates. 


EccLEs.  Power. 


IN  THE  NINTH  CENTURY. 


151 


afterwards  to  a  secular  life  or  preserving  the  character  of 
sovereignty.^  Circumstances  enabled  him  to  retain  the  em- 
pire in  defiance  of  this  sentence ;  but  the  church  had  tasted 
the  pleasure  of  trampling  upon  crowned  heads,  and  was 
eager  to  repeat  the  experiment.  Under  the  disjointed  and 
feeble  administration  of  his  posterity  in  their  several  king- 
doms, the  bishops  availed  themselves  of  more  than  one  op- 
portunity to  exalt  their  temporal  power.  Those  weak  Car- 
lovingian  princes,  in  their  mutual  animosities,  encouraged 
the  pretensions  of  a  common  enemy.  Thus  Charles  the 
Bald  and  Louis  of  Bavaria,  ha\'ing  driven  their  brother 
Lothaire  from  his  dominions,  held  an  assembly  of  some 
bishops,  who  adjudged  him  unworthy  to  reign,  and,  after 
exacting  a  promise  from  the  two  allied  brothers  to  govern 
better  than  he  had  done,  permitted  and  commanded  them  to 
divide  his  territories.^  After  concurring  in  this  unprecedent- 
ed encroachment,  Charles  the  Bald  had  little  right  to  com- 
])lain  when,  some  years  afterwards,  an  assembly  of  bishops 
declared  himself  to  have  forfeited  his  crown,  released  his 
subjects  from  their  allegiance,  and  transferred  his  kingdom  to 
Louis  of  Bavaria.  But,  in  truth,  he  did  not  pretend  to  deny 
the  principle  which  he  had  contributed  to  maintain.  Even 
in  his  own  behalf  he  did  not  appeal  to  the  rights  of  sove- 


1  Habitu  sseculi  so  exuens  habitum 
poonitentis  per  impositionem  manuum 
episcoporum  suscepit ;  ut  post  tantam 
talemque  poenitentiam  nemo  ultra  ad 
militiam  saecularem  redcat.  Acta  ex- 
auctorationis  Ludovici,  apud  Schmidt, 
t.  ii.  p.  G8.  There  was  a  sort  of  prece- 
dent, though  not,  I  think,  very  apposite, 
for  this  doctrine  of  implied  abdication, 
in  the  case  of  Wamba  king  of  the  Visi- 
goths in  Spain,  who,  having  been  clothed 
with  a  monastic  dress,  according  to  a 
commoii  superstition,  during  a  dangerous 
illness,  was  afterwards  adjudged  by  a 
council  incapable  of  resuming  his  crown  ; 
to  which  he  voluntarily  submitted.  The 
story,  as  told  by  an  original  writer, 
quoted  in  Baronius  ad  a.d.  681,  is  too 
obscure  to  warrant  any  positive  infer- 
ence ;  though  I  think  we  may  justly 
suspect  a  fraudulent  contrivance  between 
the  bishops  and  Ervigius,  the  successor 
of  ^Vamba.  The  latter,  besides  his  mo- 
nastic attire,  had  received  the  Last  sacra- 
ments ;  after  which  he  might  be  deemed 
civilly  dead.  J'leury,  3nie  Discours  sur 
I'Hist.  Ecclesiast.,  puts  this  case  too 
Strongly  when  he  tells  us  that  the  bishops 


deposed  Wamba;  it  may  have  been  a 
voluntary  abdication,  influenced  by  su- 
perstition, or,  perhaps,  by  disease.  A 
late  writer  has  taken  a  different  view  of 
this  event,  the  deposition  of  Louis  at 
Compiegue.  It  was  not,  he  thinks,  une 
hardiesse  sacerdotalc,  unc  temerite  eccle- 
siastiqiic,  mais  bien  une  lichete  politique. 
Ce  n'etait  point  une  tentative  pour 
elcver  I'autorite  religieuse  au-dessus  de 
I'autorite  royale  dans  les  affaires  tempo- 
relics  ;  c'etait,  au  contraire,  unabaisse- 
ment  servile  de  la  premiere  devant  le 
niondc.  Fauricl,  Hist,  de  la  Gaule  Me- 
ridionale,  iv.  150.  In  other  words,  the 
bishops  lent  themselves  to  the  aristocratic 
faction  which  was  in  rebellion  against 
Louis.  Ranke,  as  has  been  seen  in  an 
early  note,  thinks  that  they  acted  out  of 
revenge  for  his  deviation  from  the  law  of 
817,  which  established  the  unity  of  the 
empire.  The  bishops,  in  fact,  had  so 
many  secular  and  personal  interests  and 
sympathies,  that  we  cannot  always  judge 
of  their  behavior  upon  general  prin- 
ciples. 

2  Schmidt,  t.  ii.  p.  77.     Velly  t.  ii 
p.  61 ;  see,  too,  p.  74. 


152    PRETENSIONS  OF  THE  HIERARCHY.    Chap.  VH.  Part  I. 


EccLEs  PoAVER.      RISE  OF  THE  PAPAL  POWER. 


153 


' 


i 


reigns,  and  of  the  nation  whom  they  represent.  "  No  one," 
says  this  degenerate  grandson  of  Charlemagne,  "ought  to 
have  desraded  me  from  the  throne  to  which  I  was  consecrat- 
ed,  until  at  least  I  had  been  heard  and  judged  by  the  bishops, 
through  whose  ministry  I  was  consecrated,  who  are  called 
the  thrones  of  God,  in  which  God  sitteth,  and  by  whom 
he  dispenses  his  judgments;  to  whose  paternal  chastise- 
ment I  was  willing  to  submit,  and  do  still  submit  my- 
self." 1 

These  passages  are  very  remarkable,  and  afford  a  decisive 
proof  that  the  power  obtained  by  national  churches,  through 
the  superstitious  prejudices  then  received,  and  a  train  of 
favorable  circumstances,  was  as  dangerous  to  civil  govern- 
ment as  the  subsequent  usurpations  of  the  Roman  pontiff, 
against  which  Protestant  writers  are  apt  too  exclusively  to 
direct  their  animadversions.  Voltaire,  I  think,  has  remarked 
that  the  ninth  century  was  the  age  of  the  bishops,  as  the 
eleventh  and  twelfth  were  of  the  popes.  It  seemed  as  if 
Europe  was  about  to  pass  under  as  absolute  a  domination 
of  the  hierarchy  as  had  been  exercised  by  the  priesthood  of 
ancient  Egypt  or  the  Druids  of  Gaul.  There  is  extant  a 
remarkable  instrument  recording  the  election  of  Boson  king 
(rf  Aries,  by  which  the  bishops  alone  appear  to  have  elevated 
him  to  the  throne,  without  any  concurrence  of  the  nobility.* 
But  it  is  inconceivable  that  such  could  have  really  been  the 
case ;  and  if  the  instrument  is  genuine,  we  must  suppose  it 
to  have  been  framed  in  order  to  countenance  future  preten- 
sions. For  the  clergy,  by  their  exclusive  knowledge  of 
Latin,  had  it  in  their  power  to  mould  the  language  of  public 
documents  for  their  own  purposes ;  a  circumstance  which 
should  be  cautiously  kept  in  mind  when  we  peruse  instru- 
ments drawn  up  during  the  dark  ages. 

It  was  with  an  equal  defiance  of  notorious  truth  that  the 
bishop  of  Winchester,  presiding  as  papal  legate  at  an  assemby 
of  the  clergy  in  1141,  during  the  civil  war  of  Stephen  and 
Matilda,  asserted  the  right  of  electing  a  king  of  England  to 
appertain  principally  to  that  order;  and,  by  virtue  of  this 
unprecedented  claim,  raised  Matilda  to  the  throne.^    England, 

1  Schmidt,  t.  ii.  p.  217.  que  prim6  in  auxlium  Divinitato,  filiam 

SRccueil  des  Historiens,  t.  ix.  p.  304.  pacifici   regis,  &c.,   in   Anglla  Norman- 

*  Ventilata  est  causa,  says  the  Legate,  niacque  dominam  eligimus,  et  ei  fldem 

coram  majori   parte   cleri  Anglise,    ad  et  manutenementum  promittimus.  Qui. 

cujus  jus  potissimiim  spectat  principem  Malmsb.  p.  188. 

«ligere,  simulque  ordinare.  luTOcata  ita- 


indeed,  has  been  obsequious,  beyond  most  other  countries,  to 
the  arrogance  of  her  hierarchy ;  especially  during  the  Anglo- 
Saxon  period,  when  the  nation  was  sunk  in  ignorance  and 
effeminate  superstition.  Every  one  knows  the  story  of  king 
Edwy  in  some  form  or  other,  though  I  believe  it  impossible 
to  ascertain  the  real  circumstances  of  that  controverted  anec- 
dote.^ But,  upon  the  supposition  least  favorable  to  the  king, 
the  behavior  of  Archbishop  Odo  and  Dunstan  was  an  intoler- 
able outrage  of  spiritual  tyranny. 

But  while  the  prelates  of  these  nations,  eaxih  within  his 
respective  sphere,  were  prosecuting  their  system  ^^^  ^^  ^^^ 
of  encroachment  upon  the  laity,  a  new  scheme  papal  power. 
was  secretly  forming  within  the  bosom  of  the  ^^^^"^"g^^ 
church,  to  enthral  both  that  and  the  temporal 
governments  of  the  world  under  an  ecclesiastical  monarch. 
Long  before  the  earliest  epoch  that  can  be  fixed  for  modem 
history,  and,  indeed,  to  speak  fairly,  almost  as  far  back  as 
ecclesiastical  testimonies  can  carry  us,  the  bishops  of  Rome 
had  been  venerated  as  first  in  rank  among  the  rulers  of  the 
church.  The  nature  of  this  primacy  is  doubtless  a  very  con- 
troverted subject.  It  is,  however,  reduced  by  some  moderate 
catholics  to  little  more  than  a  precedency  attached  to  the  see 
of  Rome  in  consequence  of  its  foundation  by  the  chief  of  the 
apostles,  as  well  as  the  dignity  of  the  imperial  city.^  A  sort 
of  general  superintendence  was  admitted  as  an  attribute  of 
this  primacy,  so  that  the  bishops  of  Rome  were  entitled,  and 
indeed  bound,  to  remonstrate,  when  any  error  or  irregularity 
came  to  their  knowledge,  especially  in  the  western  churches, 
a  greater  part  of  which  had  been  planted  by  them,  and  were 
connected,  as  it  were  by  filiation,  with  the  common  capital  of 
the  Roman  empire  and  of  Christendom.*    Various  causes 


1  [Note  IT.] 

2  These  foundations  of  the  Roman  pri- 
macy are  indicated  by  Valentinian  III., 
a  great  favorer  of  that  see,  in  a  novel  of 
the  year  455  :  Cum  igitur  sedis  aposto- 
licte  primatum  B.  Petri  meritum,  qui 
est  princeps  sacerdotalis  coronee  et  llo- 
manae  dignita?  civitjitis,  sacrae  etiam  sy- 
nodi  firmavit  auctoritas.  The  last  words 
allude  to  the  sixth  canon  of  the  Nicene 
council,  which  establishes  or  recognizes 
the  patriarchal  supremacy,  in  their  re- 
spective districts,  of  the  churches  of 
Kome,  Antioch,  and  Alexandria,  De 
Marca,  de  ConcordantiS  Sacerdotii  et  Im- 
perii, 1.  i.  c.  8.    At  a  much  earlier  period, 


Irenseus  rather  vaguely,  and  Cyprian 
more  positively,  admit,  or  rather  assert, 
the  primacy  of  the  church  of  Rome, 
which  the  latter  seems  even  to  have  con- 
sidered as  a  kind  of  centre  of  Catholio 
unity,  though  he  resisted  every  attempt 
of  that  church  to  arrogate  a  controlling 
power. —  See  his  treatise  De  Unitate  Ec- 
clesisc.    [1818.]  [Note  III.] 

a  Dupin.  De  antiqu3L  Ecclesise  DLsci- 
plini,  p.  306  ct  seqq.  ;  Histoire  du  Droit 
public  ecclesiastique  Francois,  p.  149. 
The  opinion  of  the  Roman  see's  suprem- 
acy, though  apparently  rather  a  vague 
and  general  notion,  as  it  still  continues 
in  those  Catholics  who  deny  its  inMli' 


iK 


154 


PATRIAKCHATE  OF  ROME.     Chap.  VU.  Part  t 


EccLES.  PowEB.      PATRIARCHATE  OF  ROME. 


155 


had  a  tendency  to  prevent  the  bishops  of  Rome  from  aug- 
menting their  authority  in  the  East,  and  even  to  diminish 
that  which  they  had  occasionally  exercised;  the  institution 
of  patriarchs  at  Antiocli,  Alexandria,  and  afterwards  at  Con- 
stantinople, with  extensive  rights  of  jurisdiction ;  the  differ- 
ence of  rituals   and   discii^line ;    but,  above  all,  the  many 
disgusts  taken  by  the  Greeks,  wliich  ultimately  produced  an 
irreparable  schism  between  the  two  churches  in   the  ninth 
century.      But  within  the  pale  of  the  Latin  church  ever}- 
succeeding  age   enhanced   the   power   and   dignity   of    the 
Roman  see.     By  the  constitution  of  the  church,  such  at  least 
as  it  became  in  the  fourth  century,  its  divisions  being  ar- 
ranged in  conformity  to  tliose  of  the  empire,  every  province 
ought  to  have  its  metropolitan,  and  every  vicariate  its  ecclesi- 
astical exarch  or  primate.     The  bishop  of  Rome  presided,  in 
the  latter  capacity,  over  the  Roman  vicariate,  comprehending 
southern  Italy,  and  the  three  chief  Mediterranean  islands! 
But  as  it  happened,  none  of  the  ten  provinces  forming  this 
division  had  any  metropolitan  ;  so  that  the  pojies  exercised 
all  metropolitical  functions  within  them,  such  as  the  consecra- 
tion  of   bishops,    the   convocation    of  synods,   the   ultimate 
decision   of   appeals,   and   many   other   sorts   of  authority. 
These  provinces   are   sometimes   called   the   Roman   patri- 
Patriarchate    archate  ;  the  bishoi)s  of  Rome  bavin""  always  been 
ofiiome.       reckoned  one,  generally  indeed  ihe°  iirst,'of  the 
patriarchs ;  each  of  whom  was  at  the  head  of  all  the  metro- 
politans within    his    limits,   but    without    exercising    those 
privileges  which  by  the  ecclesiastical  constitution  appertained 
to  the  latter.     Though  the  Roman  patriarcliate,  properly  so 
called,  was  comparatively  very  small  in  extent,  it  gave  its 
chief,   for   the   reason   mentioned,  adviintages   in   i^oint   of 
authority  which  the  others  did  not  possess.^ 

I  may  perhaps  appear  to  have  noticed  circumstances  inter- 
estmg  only  to  ecclesiastical  scholars.  But  it  is  important  to 
apprehend  this  distinction  of  the  patriarchate  from  the 
prunacy  of  Rome,  because  it  was  by  extending  the  bounda- 


bility,  seoms  to  have  prevailed  very  much 
in  the  fourth  century.  Fleury  brJn"-3 
remarkable  proofs  of  tliis  from  the  wrft- 
ings  of  Socrates,  Sozomen,  Ammianus 
Marcelhnus,  and  Optatus.  Hist.  Eccles. 
t.  ui.  p.  282.  320,  449 ;  t.  iv.  p.  227 

^^"?™'  ^^»i"q«3i  Eccles.  Disciplina, 
p.  Sy,  &c. ;  Giannone,  1st.  di  Napoll,  1. 


ii.  c.  8;  1.  iii  c.  6.;  I>e  Marca,  1.  i,  c.  7  ct 
alibi.  There  is  some  disagreement  among 
these  writers  as  to  the  extent  of  the  Ro- 
man patriarchate,  which  some  suppose 
to  have  even  at  first  comprehended  all 
the  western  churches,  though  tho}-  ad- 
mit that,  in  a  more  i>artjcular  sense,  it 
was  confined  to  the  vicariate  of  Rome 


ries  of  the  former,  and  by  applying  the  maxims  of  her 
administration  in  the  south  of  Italy  to  all  the  western 
churches,  that  she  accomplished  the  first  object  of  her  scheme 
of  usurpation,  in  subverting  the  provincial  system  of  govern- 
ment under  the  metropolitans.  Their  first  encroachment  of 
this  kind  was  in  the  province  of  Illyricum,  which  they 
annexed  in  a  manner  to  their  own  patriarchate,  by  not 
permitting  any  bishops  to  be  consecrated  without  their  con- 
sent.^ This  was  before  the  end  of  the  fourth  century. 
Tlieir  subsequent  advances  were,  however,  very  gradual. 
About  the  middle  of  the  sixth  century  we  find  them  confirm- 
ing the  elections  of  archbishops  of  Milan.^  They  came  by 
degrees  to  exercise,  though  not  always  successfully,  and 
seldom  without  opposition,  an  appellant  jurisdiction  over  the 
causes  of  bishops  depo-ed  or  censured  in  provincial  synods. 
This,  indeed,  had  been  granted,  if  we  believe  the  fact,  by  the 
canons  of  a  very  early  council,  that  of  Sardica,  in  347,  so  far 
as  to  i)ermit  the  pope  to  order  a  revision  of  the  process,  but 
not  to  annul  the  sentence.^  Valentinian  III.,  influenced  by 
Leo  the  Great,  one  of  the  most  ambitious  of  pontiffs,  had 
gonci  a  great  deal  further,  and  established  almost  an  absolute 
judicial  supremacy  in  the  Holy  See.^     But  the  metropolitans 


1  Dupin,  p.  66 ;  Fleury,  IDst.  Eccles. 
t.  v.  p.  373.  The  ecclesiastical  province 
of  Illyricum  included  Macedonia.  Siri- 
cius,  the  author  of  this  encroachment, 
seems  to  have  been  one  of  the  first 
usurpers.  In  a  letter  to  the  Spani.sh 
bishops  (A.D.  375)  he  exalts  his  own  au- 
thority very  high.    De  Marcii,  1.  i.  c  8. 

2  St.  Marc,  t.  i.  p.  139,  lo^i. 

8  Dupin,  p.  109;  De  Marca,  1.  vi.  c.  14. 
These  canons  have  been  questioned,  and 
Dupiu  does  not  seem  to  liiy  much  stress 
on  tlioir  authority,  though  I  do  not  per- 
ceive that  either  he,  or  Fleury  (Ilist. 
Eccles.  t.  iii.  p.  372),  doubts  their  genu- 
ineness. Sardica  was  a  city  of  Illyricum, 
which  the  translator  of  Mosheim  hascon- 
foun«led  with  Sardes. 

Consultations  or  references  to  the 
bishop  of  Rome,  in  difficult  cases  of  faith 
or  discipline,  ha!d  been  common  in  early 
ages,  and  were  even  made  by  provincial 
and  nation-.il  councils.  But  these  were 
also  made  to  other  bishops  eraiment  for 
personal  merit,  or  the  dignity  of  their 
•ees.  Tlie  popes  endeavored  to  claim 
this  as  a  matter  of  right.  Innocent  I. 
asserts  (a.d.  402)  that  ho  was  to  be 
consulted,  quoties  fldei  ratio  ventilutur; 
and  Gelasius  (a.d.  492),  qutmtum  ad  re- 
ligionem  pertinet,  non   nisi    apostoliciu 


8edi,  juxti  canones,  debetur  summa  ju- 
dicii  totius.  As  the  oak  is  in  the  acorn, 
so  did  these  maxims  contain  the  system 
of  Ik'llarmin.  De  Marc- 1, 1.  i.  c.  10 ;  and 
1.  vii.  c.  12.    Dupin. 

*  Some  bishops  beloi'ging  to  the  pro- 
vince of  Uilary,  metropolitan  of  Aries, 
appealed  from  his  sen'ence  to  Leo,  who 
not  only  entertained  their  appeal,  but 
presumed  to  depose  Hilary.  This  as- 
sumption of  power  wouid  have  had  little 
effect,  if  it  had  not  beei!  seconded  by  the 
emperor  in  very  unguarded  language ; 
hoc  perenni  sanctione  decernimus,  ne 
quid  tam  episcopis  GaUicanis,  quam  ah- 
arum  provinciarum,  contra  consuetu- 
dinem  veterem  liceat  sine  auctoritate 
viri  venerabilis  papae  urbis  astemve  ten- 
tare  ;  sed  illis  omnibusque  pro  lege  sit, 
quidquid  sanxit  vel  sanxerit  apostolicae 
pedis  auctoritas.  De  Marca,  De  Concor- 
dantia  Sacerdotii  et  Imperii,  1.  i.  c.  8. 
The  same  emperor  enacted  that  any 
bishop  who  refused  to  attend  the  tribunal 
of  the  pope  wlien  summoned  should  be 
compelled  by  the  governor  of  1-is  prov- 
ince; ut  quisquis  episcoporum  ad  ju- 
dicium Koinani  episcopi  evocatus  venire 
neglexerit,  per  uioderatorem  ejusdem  pro- 
vini-iic  adesse  cogatur.  Id.  1.  vii.  c.  13; 
Dupin,  De  Ant.  Dlscipl.  p.  29  et  171. 


I 

^1 


III 


i 


i 


156 


GREGORY  I. 


Chap.  VII.  Part  I. 


ECCLES.  POWKR. 


GREGORY  I. 


157 


, 


were  not  inclined  to  surrender  their  prerogatives  ;  and,  upon 
the  whole,  the  papal  authority  had  made  no  decisive  progress 
in  France,  or  perhaps  anywhere  beyond  Italy,  till  the  pon- 
tificate of  Gregory  I. 

This  celebrated  person  was  not  distinguished  by  learning, 
Gregory  I.  which  he  affected  to  depreciate,  nor  by  his  literary 
g^A^  performances,  which  the  best  critics  consider  as 
below  mediocrity,  but  by  qualities  more  necessary 
for  his  purpose,  intrepid  ambition  and  unceasing  activity. 
He  maintained  a  perpetual  correspondence  with  the  emperors 
and  their  ministers,  with  the  sovereigns  of  the  western  king- 
doms, with  all  the  hierarchy  of  the  Catholic  church  ;  employ- 
ing, as  occasion  dictated,  the  language  of  devotion,  arrogance, 
or  adulation.^  Claims  hitherto  disputed,  or  half  preferred, 
assumed  under  his  hands  a  more  definite  form ;  and  nations 
too  ignorant  to  compare  precedents  or  discriminate  principles 
yielded  to  assertions  confidently  made  by  the  authority  which 
they  most  respected.  Gregory  dwelt  more  than  his  prede- 
cessors upon  the  power  of  the  keys,  exclusively,  or  at  least 
principally,  committed  to  St.  Peter,  which  had  been  supposed 
in  earlier  times,  as  it  is  now  by  the  Galilean  Catholics,  to  be 
inherent  in  the  general  body  of  bishops,  joint  sharers  of  one 
indivisible  episcopacy.  And  thus  the  patriarchal  rights,  be- 
ing manifestly  of  mere  ecclesiastical  institution,  were  artfully 
confounded,  or  as  it  were  merged,  in  the  more  paramount 
supremacy  of  the  papal  chair.  From  the  time  of  Gregory 
the  popes  appear  in  a  great  measure  to  have  thrown  away 
that  scaffolding,  and  relied  in  preference  on  the  pious  venera- 
tion of  the  people,  and  on  the  opportunities  which  might 
occur  for  enforcing  their  dominion  with  the  pretence  of  divine 
authority.^ 


1  The  flattering  style  in  which  this 
pontiff  addressed  Brunehautand  Phocas, 
the  most  flagitious  monsters  of  his  time, 
is  meutioned  in  all  civil  and  ecclesiastical 
histories.  Fleury  quotes  a  remarkable 
letter  to  the  patriarchs  of  Antioch  and 
Alexandria  wherein  he  says  that  St, 
Peter  has  one  see,  divided  into  three, 
llome,  Antioch,  and  Alexandria;  stoop- 
ing to  this  absurdity,  and  inconsistence 
with  his  real  system,  in  order  to  concil- 
iate their  alliance  against  his  more  im- 
mediate rival,  the  patriarch  of  Constan- 
tinople,    mat.  Eccles.  t.  viii.  p.  124. 

2  Gregory  seems  to  have  established 
the  appellant  jurisdiction  of  the  see  of 


Rome,  which  had  been  long  in  suspense. 
Stephen,  a  Spanish  bishop,  having  been 
deposed,  appealed  to  Home.  Gregory 
sent  a  legate  to  Spain,  with  full  powers 
to  confirm  or  rescind  the  sentence.  He 
says  in  his  letter  on  this  occasion,  & 
sede  apostolic^,  quae  omnium  ecclesi- 
arum  caput  est,  causa  luc  •  audienda  ac 
dirimenda  fuerat.  De  Marca,  1.  vil.  c.  18. 
In  writing  to  the  bishops  of  France  he 
eigoins  them  to  obey  Virgilius  bishop  of 
Aries,  whom  he  has  nppoint»»(l  his  legate 
in  France,  secundum  antiquum  consue- 
tudinem ;  so  that,  if  any  contention 
should  arise  in  the  church,  he  may  ap- 
pease it  by  his  authority,  as  vicegerent 


It  cannot,  I  think,  be  said  that  any  material  acquisitions  of 
ecclesiastical  power  were  obtained  by  the  successors  of  Greg- 
ory for  nearly  one  hundred  and  fifty  years.^  As  none  of 
them  possessed  vigor  and  reputation  equal  to  his  own,  it 
might  even  appear  that  the  papal  influence  was  retrograde. 


of  the  apostolic  see;  auctoritatis  suae 
vigore,  vicibus  nempe  apostolicae  sedis 
functus,  discreti  modenitione  compescat. 
Gregorii  Opera,  t.  ii.  p.  783  (edit.  Bene- 
dict.); Dupin,  p.  34;  Pasquier,  Rechcr- 
chcs  de  la  France,  1.  iii.  c.  9. 

^  I  observe  that  some  modern  publi- 
cations annex  considerable  importance 
to  a  supposed  concession  of  the  title  of 
Universjil  Bishop,  made  by  the  emperor 
Phocas  in  606  to  Boniface  III.,  and  even 
appear  to  date  the  papal  supremacy  from 
this  epoch.    Those  who  have  imbibed  this 
notion  may  probably  have  been  misled 
by  a  loose  expres.sion  in  Mosheim's  Eccle- 
siastical History,  vol.  ii.  p.  169  ;  though 
the  general  tenor  of  that  passage  by  no 
means  gives  countenance  to  their  opin- 
ion.    But  there  arc  several  strong  objec- 
tions to  our  considering  this  as  a  leading 
&ct,  much  less  as  marking  an  era  in  the 
history  of  the  papacy.     1.  Its  truth,  as 
commonly  stated,  appears    more    than 
questionable.    The  Roman  pontiflb,  Greg- 
ory I.  and  BonifJacc  III.,  had  been  ve- 
hemently opposing  the   assumption  of 
this  title  by  the  patriarch  of  Constanti- 
nople, not  as  due  to  themselves,  but  as 
one  to  which  no  bishop  could  legitimately 
pretend.    There  would  be  something  al- 
most ridiculous  in  the  cmperor-s  imme- 
diately  conferring   an    appellation    on 
themselves    which  they    had  just   dis- 
claimed ;    and    though     this    objection 
would  not  stand  against  evidence,  yet 
when  we  find  no  better  authority  quoted 
for  the  fact  than  Baronius,  who  is  no 
authority  at  all,  it  retains  considerable 
weight.    And  indeed   the  want  of  early 
testimony  is  so    decisive   an    objection 
to  any  alleged  historical  fact,  that,  but 
for  the  strange  prepossessions  of  some 
men,  one    might    rest  the    case    here. 
Fleury  t^ikes  no  notice  of  this  part  of  the 
story,  though    he  tells  us  that  Phocas 
compelled  the    patriarch  of  Constanti- 
nople to  resign  his  title.    2.  But  if  the 
strongest  proof  could  be  advanced  for 
the  authenticity  of  this  circumstance,  we 
might  well  deny  its  importance.    The 
eoncession  of  Phocas  could  have  been  of 
uo  validity  in  Lombardy,  France,  and 
other  western  countries,  where  neverthe- 
le.ss  the  papal  supremacy  was    incom- 
parably more  establislied  than    in   the 
Bast.     8.    Even  within    the    empire  it 
could  have  had  no  efflcacj  after  the  vio- 
lent death  of  that  usurper ,which  followed 


soon  afterwards.  4.  The  title  of  Uni- 
versal Bishop  is  not  very  intelligible; 
but,  whatever  it  meant,  the  patriarchs  of 
Constantinople  had  borne  it  before,  and 
continued  to  bear  it  ever  afterwards. 
(Dupin,  De  Antiqu^L  Discipline,  p.  329.) 
5.  The  preceding  popes,  Pelagius  II.  and 
Gregory  I.  had  constantly  disclaimed  the 
appellation,  though  it  had  been  adopted 
by  some  towards  Leo  the  Great  in  the 
council  of  Chalcedon  (Fleury,  t.  viii. 
p.  95);  nor  does  it  appear  to  have  been 
retained  by  the  successors  of  Boniface. 
It  is  even  laid  down  in  the  decretum  of 
Gratian  that  the  pope  is  not  styled  uni- 
versal :  nee  etiam  Romanus  pontifex  uni- 
versalis appellatur  (p.  303,  edit.  1591), 
though  some  refer  its  assumption  to  the 
ninth  century.  Nouveau  Traite  de  Diplo- 
matique, t.  V.  p.  93.  In  fact  it  has  never 
been  an  usual  title.  6.  The  popes  had 
unquestionably  exercised  a  species  of 
supremacy  for  more  than  two  centuries 
before  this  time,  which  had  lately  reached 
a  high  point  of  authority  under  Gregory  I. 
The  rescript  of  Valentinian  III.  in  455, 
quoted  in  a  former  note,  would  certainly 
be  more  to  the  purpose  than  the  letter 
of  Phocas.  7.  Lastly,  there  are  no  sen- 
sible marks  of  this  supremacy  making  a 
more  rapid  progress  for  a  century  and  a 
half  after  the  pretended  grant  of  that 
emperor.  [1818.]  The  earliest  mention 
of  this  transaction  that  I  have  found,  and 
one  which  puts  an  end  to  the  pretended 
concession  of  such  a  title  as  Universal 
Bishop,  is  in  a  brief  general  chronology, 
by  Bede,  entitled  '  De  Temporum  Ra- 
tione.'  He  only  says  of  Phocas,  —  Hie, 
rogante  papa  Bonifacio,  statuit  sedem 
Romana;  et  apostolicae  ccclesiae  caput 
esse  omnium  ecclesiarum,  quia  ecclesia 
Constantinopolitana  primam  se  omnium 
ecclesiarum  scribebat.  Bedte  Opera,  curi 
Giles,  vol.  vi.  p.  323.  This  was  probably 
the  exact  truth;  and  the  subsequent 
additions  were  made  by  some  zealous 
partisans  of  Rome,  to  be  seized  hold  of 
in  a  later  age,  and  turned  against  her  by 
some  of  her  equally  zealous  enemies. 
The  distinction  generally  made  is,  that 
the  pope  is  "  universalis  ecclesiae  epis- 
copus,"  but  not ''  episcopus  universalis ;" 
that  is,  he  has  no  immediate  jurisdiction 
in  the  dioceses  of  other  bishops,  though 
he  can  correct  them  for  the  undue  exer- 
cise of  their  own.  The  Ultramontanos 
of  course  go  further. 


158 


ST.  BONIFACE. 


Chap.  VII.  Part  L 


But  in  effect  the  principles  which  supported  it  were  ttiking 
deeper  root,  and  acquiring  strength  by  occasional  thougli  not 
very  frequent  exercise.  Appeals  to  the  pope  were  some- 
times made  by  prelates  dissatisfied  with  a  local  sentence ;  but 
his  judgment  of  reversal  was  not  always  executed,  as  we  per- 
ceive by  the  instance  of  bishop  Wilfrid.^  National  councils 
were  still  convoked  by  princes,  and  canons  enacted  under 
Iheir  authority  by  the  bishops  who  attended.  Though  the 
thurch  of  Lombardy  was  under  great  subjection  during  this 
period,  yet  those  of  France,  and  even  of  England,  plantcjl  as 
the  latter  had  been  by  Gregory,  continued  to  preserve  a 
tolerable  measure  of  independence.^  The  first  striking  in- 
fringement of  this  was  made  through  the  influence  of  an 
Englishman,  Wintrid,  better  known  as  St.  Boniface,  the 
apostle  of  Germany.  Having  undertaken  the 
conversion  of  Thuringia,  and  other  still  heathen 
countries,  he  applied  to  the  pope  for  a  commission,  and  was 
consecrated  bishop  without  any  determinate  see.  Upon  this 
occasion  he  took  an  oath  of  obedience,  and  became  ever  af- 
terwards a  zealous  upholder  of  the  apostolical  chair.  His 
success  in  the  conversion  of  Germany  was  great,  his  reputa- 
tion eminent,  which  enabled  Inm  to  effect  a  material  revolu- 
tion in  ecclesiastical  government.  Pelagius  II.  had,  about 
580,  sent  a  pallium,  or  vest  peculiar  to  metropolitans,  to  the 
bishop  of  Aries,  perpetual  vicar  of  the  Roman  see  in  Gaul.* 


1 1  refer  to  the  English  historians  for 
the  history  of  Wilfrid,  which  neither 
altojrether  supports,  nor  much  impejiches, 
the  iudepentlency  of  our  Anglo-Saxou 
church  iu  700 ;  a  matter  hardly  worth  so 
much  contention  as  Usher  and  Stilling- 
flect  seem  to  have  thought.  The  con- 
secnvtion  of  Theodore  by  pope  Vitalian 
in  668  is  a  stronger  fact,  and  cannot  be 
got  over  by  those  injudicious  protestants 
who  take  the  bull  by  the  horns.  The 
history  of  Wilfrid  has  been  lately  put  in 
a  light  as  fcivonible  as  possible  to  him- 
self and  to  the  authority  of  Home  by  Dr. 
Lingard.  We  have  for  this  to  rely  on 
Eddius  (published  in  Gale's  Scriptores), 
a  panegyrist  iu  the  usual  style  of  legend- 
ary biography,  —  a  style  which  has,  on 
me  at  least,  the  effect  of  producing  utter 
distrust.  Mendacity  is  the  badge  of  all 
the  tribe.  Bedo  is  more  respectable; 
but  in  this  case  we  do  not  learn  much 
from  him.  It  seems  impossible  to  deny 
that,  if  Eddius  is  a  trustworthy  histo- 
rian, Dr.  Liiigard  has  made  out  his  case ; 
and  that  we  must  own  appeals  to  Rome 
to  have  been  recognized  in  the  Anglo- 


Saxon  church.  Nor  do  I  perceive  any 
improbability  in  this,  considering  that 
the  church  had  been  founded  by  Au- 
gust! n,  and  restored  by  Theodore,  both 
under  the  authority  of  the  Roman  see. 
This  intrinsic  presumption  is  worth  more 
than  the  testimony  of  Eddius.  But  we 
see  by  the  rest  of  Wilfrid's  history  that 
it  was  not  easy  to  put  the  sentence  of 
Rome  in  execution.  The  plain  facts  are, 
that,  having  gone  to  Rome  claiming  the 
see  of  York,  and  having  had  his  claim 
recognized  by  the  pope,  he  ended  his 
days  as  bishop  of  Ilex  ham. 

3  Schmidt,  t.  i.  p.  386,  894. 

3  Ut  ad  instar  suum,  in  Galliarum 
partibus  primi  sacerdotis  locum  obtineat, 
et  quidquid  ad  gubernation«'ni  vcl  dis- 
pensationem  ecclesiastici  status  geren- 
dum  est,  servatis  patrum  regulis,  et  sedis 
apostolicse  constitutis,  faciat.  Praeterea, 
pallium  illi  concedit,  &c.  Dupiu,  p.  34. 
Gregory  I.  confirmed  this  vicariate  to 
Virgilius  bishop  of  Aries,  and  gave  him 
the  power  of  convoking  synods.  Do 
Marca,  1.  vi.  c.  7. 


EccLES.  Power.       SYNOD  OF  FR.\JS^KFORT. 


159 


Gregory  I.  had  made  a  similar  present  to  other  metropoli- 
tans.. But  it  was  never  supposed  that  they  were  obliged  to 
wait  for  this  favor  before  they  received  consecration,  until  a 
synod  of  the  French  and  German  bishops,  held  at  synod  of 
Fi'ankfort  in  71:2,  by  Boniface,  as  legate  of  pope  ^'ran^fort. 
Zacliary.  It  was  here  enacted  that,  as  a  token  of  their  wil- 
ling subjection  to  the  see  of  Rome,  all  metropolitans  should 
request  the  pallium  at  the  hands  of  the  pope,  and  obey  his 
lawful  commands.^  This  was  construed  by  the  popes  to 
mean  a  promise  of  obedience  before  receiving  the  pall,  which 
was  changed  in  after  times  by  Gregory  VII.  into  an  oath  cf 
fealty.* 

This  council  of  Frankfort  claims  a  leading  place  as  an 
epoch  in  the  history  of  the  papacy.  Several  events  ensued, 
chielly  of  a  political  nature,  which  rapidly  elevated  that 
usurpation  almost  to  its  greatest  height.  Subjects  of  the 
throne  of  Constantinople,  the  popes  had  not  as  yet  interfered, 
unless  by  mere  admonition,  with  the  temporal  magistrate. 
The  first  instance  wherein  the  civil  duties  of  a  nation  and 
the  rights  of  a  crown  appear  to  iiave  been  submitted  to  his 
decision  was  in  that  iamous  reference  as  to  the  deposition  of 
Childeric.  It  is  impossible  to  consider  this  in  any  other  light 
than  as  a  point  of  casuistry  laid  before  the  first  religious 
judge  in  the  church.  Certainly,  the  Franks  who  raised  the 
king  of  their  choice  upon  their  shields  never  dreamed  that  a 
foreign  priest  had  conferred  upon  him  the  right  of  governing. 
Yet  it  was  easy  for  succeeding  advocates  of  Rome  to  construe 
this  transaction  very  favorably  for  its  usurpation  over  the 
thrones  of  the  eartli.^ 


1  Decrevimus,  says  Boniface,  in  nostro 
synodal!  conventu,  et  confessi  sumus 
fidem  catholicam,  et  unitatem  et  subjec- 
tionem  Romnna9  ccclesioe  fine  tcnus  ser- 
vare,  S.  Pctro  et  vicario  ejus  velle  sub- 
jici,  metropolitanos  pallia  ab  ilia  sede 
quflcrere,  et,  per  omnia,  prsecepta  S.  Pe- 
tri canonice  sequi.  Dc  Marca,  1.  vi.  c.  7 ; 
Schmidt,  t.  i.  p.  424,  438,  446.  This 
vrriter  justly  remarks  the  obligation 
which  Rome  had  to  St.  Boniface,  who 
anticipated  the  system  of  Isidore.  We 
have  a  letter  from  him  to  the  English 
clergy,  with  a  copy  of  canons  passed  in 
one  of  his  .synods,  for  the  exaltation  of 
the  apostolic  see,  but  the  church  of  Eng- 
land wa^j  not  then  inclined  to  acknowl- 
edge so  great  a  supremacv  in  llome. 
Collier's  Eccles.  History,  p.  128. 

In  the  eighth  g»!ueral  council,  that  of 


Constantinople  in  872,  this  prerogative 
of  sending  the  pallium  to  metropolitans 
was  not  only  confirmed  to  the  pope,  but 
extended  to  the  other  patriarchs,  who 
had  every  disposition  to  become  as  great 
usurpers  as  their  more  fortunate  elder 
brother. 

2  De  Marca,  ubi  supra.  Schmidt,  t.  ii. 
p.  262.  According  to  the  latter,  this 
oath  of  fidelity  was  exacted  in  the  ninth 
century;  which  is  very  probable,  since 
Gregory  VII.  himself  did  but  fill  up  the 
sketch  which  Nicholas  I.  and  John  VIII. 
had  delineated.  I  have  since  found  this 
confirmed  by  Gratian,  p.  305. 

3  Eginhard  says  that  Pepin  was  made 
king  per  auctoritateni  Romani  pontificis; 
an  ambiguous  word,  which  may  rise  to 
command,  or  sink  to  advice,  according  to 
the  disposition  of  the  interpreter. 


160 


FALSE  DECRETALS.       Chap.  VII.  Pakt  I. 


I  shall  but  just  glance  at  the  subsequent  political  revolu- 
tions of  that  period ;  the  invasion  of  Italy  by  Pepin,  his 
donation  of  the  exarchate  to  the  Holy  See,  the  conquest  of 
Lombardy  by  Charlemagne,  the  patriarchate  of  Rome  con- 
ferred upon  both  these  princes,  and  the  revival  of  the  West- 
em  empire  in  the  person  of  the  latter.  These  events  had  a 
natural  tendency  to  exalt  the  papal  supremacy,  which  it  is 
needless  to  indicate.  But  a  circumstance  of  a  very  different 
nature  contributed  to  this  in  a  still  greater  degree.  About 
the  conclusion  of  the  eighth  century  there  appeared,  under 
the  name  of  one  Isidore,  an  unknown  person,  a  collection  of 
^e  ecclesiastical  canons,  now  commonly  denominated 

Decretals.  jh^  p^g^  Decrctals.^  Thcsc  purported  to  be  re- 
scripts or  decrees  of  the  early  bishops  of  Rome ;  and  their 
effect  was  to  diminish  the  authority  of  metropolitans  over 
their  suffmgans,  by  establishing  an  appellant  jurisdiction  of 
the  Roman  See  in  all  causes,  and  by  forbidding  national 
councils  to  be  holden  without  its  consent.  Every  bishop 
according  to  the  decretals  of  Isidore,  was  amenable  only  to 
the  immediate  tribunal  of  the  pope ;  by  which  one  of  the 
most  ancient  rights  of  the  provincial  synod  was  abro-^ated. 
Every  accused  person  might  not  only  appeal  from  an  inferior 
sentence,  but  remove  an  unfinished  process  before  the  supreme 
pontiff.  And  the  latter,  instead  of  directing  a  revision  of  the 
proceedings  by  the  original  judges,  might  annul  them  by  his 
own  authority ;  a  strain  of  jurisdiction  beyond  the  canons  of 
Sardica,  but  certainly  warranted  by  the  more  recent  practice 
of  Rome.  New  sees  were  not  to  be  erected,  nor  bishops 
translated  from  one  see  to  another,  nor  their  resi'^nations 
accepted,  without  the  sanction  of  the  pope.  They  were  still 
indeed  to  be  consecrated  by  the  metroix)litan,  but  in  the  pope's 
name.  It  has  been  plausibly  suspected  that  these  decretals 
were  forged  by  some  bishop,  in  jejdousy  or  resentment ;  and 


1  The  era  of  the  False  Decretals  has 
not  been  precisely  fixed  ;  they  have  sel- 
dom been  supposed,  however,  to  have 
appeared  much  before  800.  But  there 
is  a  genuine  collection  of  canons  pub- 
lished by  Adrian  I.  in  785,  which  contain 
nearly  the  same  principles,  and  many  of 
^hich  are  copied  by  Isidore,  as  well  as 
Charlemagne  in  his  Capitularies.  De 
Marca,  1.  vii.  c.  20  ;  Giannone,  1.  v.  c.  6: 
Dupin,  De  Antiqul  Disciplina,  p.  133. 
Fleury,  Hist.  Eccles.  t.  ix.  p.  500,  seems 
to  consider  the  decretals  as  older  than 


this  collection  of  Adrian ;  but  I  have 
not  observed  the  same  opinion  in  any 
other  writer.  The  right  of  appeal  from 
a  sentence  of  the  metropolitan  deposing; 
a  bishop  to  the  Holy  See  is  positively 
recognized  in  the  Capitularies  of  Louis 
the  Debonair  (Baluze,  p.  lUOO) ;  the  three 
last  books  of  which,  according  to  the 
collection  of  Ansegisus,  are  said  to  be 
apostolica  auctoritato  roborata,  quia  his 
cudendis  maxima  apostolica  iuterfult  k- 
gatio.    p,  1132. 


EccLEs.  Power.  PAPAL  ENCROACHMENTS.  161 

their  general  reception  may  at  least  be  partly  ascribed  to 
such  sentiments.  The  archbishops  were  exceedingly  power- 
ful, and  might  often  abuse  their  superiority  over  inferior 
prelates ;  but  the  whole  episcopal  aristocracy  had  abundant 
reason  to  lament  their  acquiescence  in  a  system  of  which  the 
metropolitans  were  but  the  eariiest  victims.  Upon  these  spu- 
rious decretals  was  built  the  great  fabric  of  papal  supremacy 
over  the  different  national  churches ;  a  fabric  which  has  stood 
after  its  foundation  crumbled  beneath  it ;  for  no  one  has  pre- 
tended to  deny,  for  the  last  two  centuries,  that  the  imposture 
IS  too  palpable  for  any  but  the  most  ignorant  ages  to  credit.^ 

The  Gallican  church  made  for  some  time  a  spirited  though 
unavailing  struggle  against  this  rising  despotism. 
Gregory  IV  having  come  into  France  to  abet  the  STck^Je'nts 
ctuldren  ot  Louis  the  Debonair  in  their  rebellion,  «» the 
and  threatened  to  excommunicate  the  bishops  who  ^^^^**^' 
adhered  to  the  emperor,  was  repelled  with  indignation  by 
those  prelates.     «If  he  comes  here  to  excommunicate,"  said 
they,  «he  shall  depart  hence  excommunicated."  ^    in  the 
subsequent  reign  of  Charles  the  Bald  a  bold  defender  of 
ecclesiastical  independence  was  found  in  Hincmar  archbishop 
of  Rheims,  the  most  distinguished  statesman  of  his  a^^e. 
Appeals  to  the  pope  even  by  ordinary  clerks  had  become 
common,  and  the  provincial  councils,  hitherto  the  supreme 
spiritual  tribunal,  as  well  as  legislature,  were  falling  rapidly 
into  decay.     The  frame  of  church  government,  which  had 
lasted  from  the  third  or  fourth  century,  was  nearly  dissolved; 
a  refractory  bishop  was  sure  to  invoke  the  supreme  court  of 
appeal,  and  generally  met  there  with  a  more  favorable  judi- 
cature.    Hincmar,  a  man  equal  in  ambition,  and  ahnost  in 
public  estimation,  to  any  pontiff,  sometimes  came  off  success- 
fiilly  m  his  contentions  with  Rome.«     But  tune  is  fatal  to  the 


II  have  not  seen  any  account  of  the 
decretals  so  clear  and  judicious  as  in 
Schmidt's  History  of  (Jermany,  t.  11.  p. 
249.  Indeed  all  the  ecclesiastical  part 
of  that  work  is  executed  in  a  very  supe- 
rior manner.  See  also  De  Marca,  1.  iii. 
c.  6;  1.  vii.  c.  20.  The  latter  writer, 
from  whom  I  have  derived  much  infor- 
mation, is  by  no  means  a  strenuous  ad- 
versary of  ultramontane  pretensions.  In 
feet,  it  was  his  object  to  please  both  in 
France  and  at  Rome,  to  become  both  an 
archbishop  and  a  cardinal.  He  failed 
nevertheless  of  the  latter  hope  ;  it  being 
ImpoBSible  at  that  time  (1650)  to  satisfy 

VOL.  U  11 


the  papal  court,  without  sacrificing  al 
together  the  Oallican  church  and  the 
crown. 

2  De  Marca,  1.  iv.  c.  11 ;  VeUy,  &c. 

«  De  Marca  1.  iv,  c.  68,  &c. ;  1.  vi.  c.  14, 
28;  1.  vii.  c.  21.  Dupin,  p.  133,  &c! 
Hist,  du  Droit  Eccl6s.  Fran^jois,  p.  188, 
224.  Velly,  &c.  Hincmar  however  was 
not  consistent;  for,  having  obtained  the 
Bee  of  Rheims  in  an  equivocal  manner, 
he  had  applied  for  confirmation  at  Rome, 
and  in  other  respects  impaired  the  Gal- 
lican rights.  Pasquier,  Recherchea  de  la 
trance,  1.  iii.  c.  12. 


II 


162  PAPAL  ENCROACHMENTS.     Chap.  VU.  Part  I 

unanimity  of  coalitions ;  the  French  bishops  were  accessible 
to  superstitious   prejudice,  to  corrupt  influence,  to  mutual 
jealousy.     Above  all,  they  were  conscious  that  a  persuasion 
of  the   pope's   omnipotence   had  taken   hold   of  the  laity. 
Tlioucrh  they  complained  loudly,  and  invoked,  like  patnots 
of  a  dyin<T  state,  names  and  principles  of  a  freedom  that  was 
no  more,  they  submitted  almost  in  every  instance  to  the  con- 
tinual usurpations  of  the  Holy  See.     One  of  those  which 
most  annoyed  their  aristocracy  was  the  concession  to  monas- 
teries  of  exemption  from  episcopal  authority.     These  had 
been  very  uncommon  till  about  the  eighth   centuiy,  after 
which  they  were  studiously  multiplied.^     It  was  naturally  a 
favorite  object  with  the  abbots ;  and  sovereigns,  in  those  ages 
of  blind  veneration  for  monastic  establishments,  were  pleaded 
to  see  their  own  foundations  rendered,  as  it  would  seem,  more 
respectable  by  privileges  of  independence.     The  popes  had 
a  closer  interest  in  granting  exemptions,  which  attached  to 
them  the  regular  clergy,  and  lowered   the   dignity  ot   the 
bishops.     In  the  eleventh  and  twelfth  centuries  whole  orders 


1  The  earliest  instance  of  a  papal  ex- 
emption  is  in  455,  which  indeed  is  a 
respectable  antiquity.     Others  scarcely 
occur  till  the  pontificate  of  Zachary  in 
the  middle  of  the  eighth  century,  who 
granted  an  exemption  to  Monto  Casino, 
ita  ut  nuUius  juri  Bubjaceat,  nisi  sohus 
Romani  pontificis.      See  this  discussed 
in  Giannone,  I.  v.  c.  6.    Precedents  for 
the  exemption  of  monasteries  from  epis- 
copal jurisdiction  occur  in  Marculfus's 
forms  compiled  towards  the  end  of  the 
geventh  century,  but  these  were  by  royal 
authority.     The  kings  of  France  were 
supreme  heads  of  their  national  church. 
Schmidt,  t.  i.  p.  382 ;  Dc  Marca,  1.  iii. 
c  16  ;  Fleury,  Institutions  au  Droit,  t.  i. 
p.  228.     Muratori,    Dissert.  70  (t.   iu. 
p.  104,  Italian),  is  of  opinion  that  ex- 
emptions of  monasteries  from  episcopal 
visitation  did  not   become  frequent  in 
Italy  till  the  eleyenth  century ;  and  that 
many  charters  ol  this  kind  are  forgeries. 
It  is  held  also  by  some  English  anti- 
quaries that  no  Anglo-Saxon  monastery 
was  exempt,  and  that  the  first  instance 
Is  that  of  Battle  Abbey  under  the  Con- 

Sueror ;  the  charters  of  an  earlier  date 
aving  been  forged.  Hody  on  ConTOca- 
tions,  p.  20  and  170.  It  is  remarkable 
that  this  giant  is  made  by  William,  and 
confirmed  by  Lanfranc.  Collier,  p.  256. 
Exemptions  became  very  usual  in  Eng- 
land afterwards.  Henry,  vol.  v.  p.  337. 
It  is  nevertheless  to  be  admitted  that 


the  bishops  had  exercised  an  arbitrary, 
and  sometimes  a  tyrannical  power  over 
the  secular  clergy  ;  and  after  the  monks 
became  part  of  the  church,  which  was 
before  the  close  of  the  sixth  century, 
they  also  fell  under  a  control  not  always 
fairly  exerted.     Both  complained  greatly, 
as  the  acts  of  councils  bear  witness :  — 
Un  fait  Unportant  et  trop  peu  remarque 
se  revele  i^it.  et  li  dans  le  cours  de  cette 
epoque;    c'est    la  lutte  des  prfitres  de 
paroissecontreles  6v6ques.   Guizot.Uist. 
de  la  Civilis.  en  France,  Le^on  13.    In 
this  contention  the  weaker  must  have 
given  way :  but  the  regulars,  sustained 
by  public  respect,  and  having  the  coun< 
tenance  of  the  sec  of  Home,  which  began 
to  encroach  upon  episcopal  authority, 
came  out  successful  in  securing  tliem- 
selves  by  exemptions  from  the  jurisdic- 
tion of  the  bishops.    The  latter  furnished 
a  good  pretext  by  their  own  relaxation 
of  manners.     The   monasteries  in  the 
eighth  and  ninth  centuries  seem  not  to 
have  given  occasion  to  much  reproach, 
at  least  in  comparison  with  the  prelacy. 
Au  commencement  du  huitiime  si^le, 
I'eglise  etait  elle  tomb^  dans  un  desordre 
presque  egal  i  celui  de  la  soci6te  civile. 
Sans  sup^rieurs  et  sans  iuferieurs  k  re- 
douter,  d6gag6»  de  la  surveillance  dea 
metropoUtains  comme  des  conciles  et  de 
rinfluence  des  prfitres,  une  foule  d'ivS 
ques  se  livraient  aux  plus  scandaleux 
excis. 


Ifi 


EccLEs.  Power.       PAPAL  ENCROACHMENTS.  163 

of  monks  were  declared  exempt  at  a  single  stroke ;  and  the 
abuse  began  to  awaken  loud  complaints,  though  it  did  not  fail 
to  be  aggravated  afterwards. 

The  principles  of  ecclesiastical  supremacy  were  readily 
applied  by  the  popes  to  support  still  more  insolent  and  upon 
usurpations.     Chiefs  by  divine  commission  of  the  ^^^^'^  govem- 
whole  church,  every  earthly  sovereign  must  be  sub-  """"*"• 
ject  to  their  interference.    The  bishops  indeed  had,  I'Othaire. 
with  the  common  weapons  of  their  order,  kept  their  own  sov- 
ereigns in  check  ;  and  it  could  not  seem  any  extraordinary 
stretch  in  their  supreme  head  to  assert  an  equal  prerogative. 
Uregory  IV.,  as  I  have  mentioned,  became  a  party  in  the 
revolt  against  Louis  I.,  but  he  never  carried  his  threats  of 
^xcommuiiicadon  into  effect.     The  first  instance  where  the 
Koman  pontiffs  actuaUy  tried  the  force  of  their  arms  against 
a  sovereign  was  the  excommunication  of  Lothaire  kincr  of 
Lorraine,  and  grandson  of  Louis  the  Debonair.     This  prince 
had  repudiated  his  wife,  upon  unjust  pretexts,  but  with  the  ap- 
probation of  a  national  council,  and  had  subsequently  married 
his  concubine.     Nicolas  L,  the  actual  pope,  despatched  two 
egates  to  mv^estigate  this  business,  and  decide  according  to 
the  canons.     They  hold  a  council  at  Metz,  and  confirm  the 
divorce  and  marriage.     Enraged  at  this  conduct  of  his  am- 
bassadors, the  pope  summons  a  council  at  Rome,  annuls  the 
sentence,  deposes  the  archbishops  of  Treves  and  Cologne, 
and  directs  the  king  to  discard  his  mistress.     After  some 
shuffling  on  the  part  of  Lothaire  he  is  excommunicated ;  and, 
m  a  short  time,  we  find  both  the  king  and  his  prelates,  who 
had  begun  with  expressions  of  passionate  contempt  towards 
the  pope,  suing  humbly  for  absolution  at  the  feet  of  Adrian 
11.,  successor  of  Nicolas,  which  was  not  granted  without  diffi- 
culty.   In  aU  Its  most  impudent  pretensions  the  Holy  See  has 
attended  to  the  circumstances  of  the  time.      Lothaire  had 
powei-ful  neighbors,  the  kings  of  France  and  Germany,  ea^er 
to  invaxle  his  dominions  on  the  first  intimation  from  Rome ; 
while  the  real  scandalousness  of  his  behavior  must  have 
intimidated  his  conscience,  and  disgusted  his  subjects. 

li^xcommunication,  whatever  opinions  may  be  entertained 
Bs  to  Its  religious  efficacy,  was  originally  nothing  Excommi^ni- 
more  in  appearance  than  the  exercise  of  a  right  «^'^o^«- 
which  every  society  claims,  the  expulsion  of  refractory  mem. 
bers  from  its  body.   No  direct  temporal  disadvantages  attended 


I 


164  EXCOMMUNICATIONS.       Chap.  Vn.  Pam  I 

this  penalty  for  several  ages ;  but  as  it  was  the  ^ff'^^ve'e  of 
spirkual  censures,  and  tended  to  exclude  the  object  of  it  not 
only  from  a  participation  in  religious  rites,  but  m  a  cons.der- 
ab  e  dXe  from  the  intercourse  of  Christian  society,  it  was 
used  sp&y  and  upon  the  gravest  occasions.     Gradually, 
rrh?chur°ch  became  more  powerful  and  more  !mP~. 
excommunications  were  issued  upon  every  provocation,  rather 
as"  pon  of  ecclesiastical  warfare  than  with  any  regard  to 
its  original  intention.    There  was  certainly  some  pretext  for 
ma^y  of  these  censures,  as  the  only  means  of  defence  within 
the  reach  of  the  clergy  when  their  possessions  were  awlessly 
violated.'     Others  were  founded  upon  the  necessity  ot  en- 
forcing their  contentious  jurisdiction,  which,  while  it  was 
rapidly  extending  itself  over  ahnost  all  persons  and  causes, 
h^  not  acquired  any  proper  coercive  process.    The  spiritual 
courts  in  England,  whose  jurisdiction  is  ^o '«"1''<»,™"^,^„^' 
in  -eneral,  so  Uttle  of  a  religious  nature,  had  til    lately  no 
means  even  of  compelling  an  appearance,  nmch  less  ot  en- 
forcino-  a  sentence,  but  by  excommumcation.'    Princes  who 
felt  the  inadequacy  of  their  own  laws  to  secure  obedience 
called  in  the  assistance  of  more  formidable  sanctions.    Several 
capitularies  of  Charlemagne  denounce  the  penalty  of  excom- 
munication against  incendiaries  or  deserters  from  the  army. 
Charles  the  Bald  procured  similar  censures  agamst  his  re- 
volted vassals.    Thus  the  boundary  between  temporal  and 
spiritual  offences  grew  every  day  less  distinct ;  and  the  clergy 
were  encouraged  to  fresh  encroachments,  as  they  discovered 
the  secret  of  rendering  them  successful."  .,.,.. 

The  civil  magistrate  ought  undoubtedly  to  protect  the  ju=t 
rio-hts  and  la^vful  jurisdiction  of  the  church.    It  is  not  so  evi- 
de°nt  that  he  should  attach  temporal  penalties  to  her  censures. 
Excommunication  has  never  carried  such  a  presumption  ot 
moral  turpitude  as  to  disable  a  man,  upon  Miy  sohd  pnnci- 
ples,  from  the  usual  privileges  of  society.     Superstition  and 
tyranny,  however,  decided  otherwise.     The  support  due  to 
church  censures  by  temporal  judges  is  vaguely  declared  in 
the  capitukries  of  Pepin  and  Charlemagne.     It  became  in 
later  ages  a  more  established  principle  in  France  and  Eng- 

the  writ  De  excommunicato  capiendo,  m    xxxix.  p.  oyo,  »c. 


EccLKs.  Power. 


INTERDICTS. 


165 


land,  and,  I  presume,  in  other  countries.     By  our  common 
law  an  excommunicated  person  is  incapable  of  being  a  wit- 
ness or  of  bringing  an  action ;  and  he  may  be  detained  in 
prison  until  he  obtains  absolution.     By  the  Establishments 
of  St.  Louis,  his  estate  or  person  might  be  attached  by  the 
magistrate.*     These  actual  penalties  were  attended  by  marks 
of  abhorrence  and  ignominy  still  more  calculated  to  make  an 
impression  on  ordinary  minds.     They  were  to  be  shunned, 
like  men  infected  with  leprosy,  by  their  servants,  their  friends, 
and  their  families.     Two  attendants  only,  if  we  may  trust  a 
current  history,  remained  with  Robert  king  of  France,  who, 
on  account  of  an  irregular  marriage,  was  put  to  this  ban  by 
Gregory  V.,  and  these  threw  all  the  meats  which  had  passed 
his  table  into  the  fire.^    Indeed  the  mere  intercourse  with  a 
proscribed  person  incurred  what  was  called  the  lesser  ex- 
communication, or  privation  of  the  sacraments,  and  required 
penitence  and  absolution.     In  some  places  a  bier  was  set 
before  the  door  of  an  excommunicated  individual,  and  stones 
thrown  at  his  windows :  a  singular  method  of  compelling  his 
submission.'    Everywhere  the  excommunicated  were  debarred 
of  a  regular  sepulture,  which,  though  obviously  a  matter  of 
police,  has,  through  the  superstition  of  consecrating  burial- 
grounds,  been  treated  as  belonging  to  ecclesiastical  control. 
Their  carcasses  were  supposed  to  be  incapable  of  corruption, 
which  seenas  to  have  been  thought  a  privilege  unfit  for  those 
who  had  died  in  so  irregular  a  manner.^ 

But  as  excommunication,  which  attacked  only  one  and 
perhaps  a  hardened  sinner,  was  not  always  efiica- 
cious,  the  church  had  recourse  to  a  more  compre-  ^'®'^''*^- 
hensive  punishment.  For  the  offence  of  a  nobleman  she 
put  a  county,  for  that  of  a  prince  his  entire  kingdom,  under 
an  interdict  or  suspension  of  religious  offices.  No  stretch  of 
her  tyranny  was  perhaps  so  outrageous  as  this.  During  an 
interdict  the  churches  were  closed,  the  bells  silent,  the  dead 


1  Ordonnances  des  Rois,  t.  1.  p.  121. 
But  an  excommunicated  person  might 
Bue  in  the  lay,  though  not  in  the  spirit- 
ual court.  No  law  seems  to  have  been  so 
Bevere  in  this  respect  as  that  of  England ; 
though  it  is  not  strictly  accurate  to  say 
with  Dr.  Cosens  (Gibson's  Codex,  p.  1102), 
that  the  writ  De  excommun.  capiendo 
Is  a  privilege  peculiar  to  the  English 
church. 


2  Velly,  t.  ii. 

3  Vaissette,  Hist,  de  Languedoc,  t.  iii. 
Appendix,  p  850 ;  Du  Cange,  v.  ^xcom- 
municatio. 

*  Du  Cange,  y.  Imblocatus:  where 
several  authors  are  referred  to,  for  the 
constant  opinion  among  the  members  of 
the  Greek  church,  that  the  bodies  of  ex- 
communicated persons  remain  in  statu 
quo. 


166 


INTERDICTS. 


Chap.  VII.  Tart  I. 


EccLKs.  Power.      USURPATION  OF  THE  POPES. 


167 


unburied,  no  rite  but  those  of  baptism  and  extreme  unction 
performed.     The  penalty  fell  upon  those  who  had  neither 
partaken  nor  could  have   prevented  the  offence ;   and  the 
offence  was  often  but  a  private  dispute,  m  which  the  pride  ot 
a  pope  or  bishop  had  been  wounded.    Interdicts  were  so  mre 
before  the  time  of  Gregory  VII.,  that  some  have  referred 
them  to  him  as  their  author ;  instances  may  however  be  found 
of  an  earlier  date,  and  especially  that  wl"ch  accompanied  the 
above-mentioned  excommunication  of  Robert  king  of  France. 
They  were  afterwards  issued  not  unfrequently  against  king- 
doms ;  but  in  particular  districts  they  continually  occurred. 
This  was  the  mainspring  of  the  machinery  that  the  clergy 
set  in  motion,  the  lever  by  which  they  moved  the  world. 
From  the  moment  that  these  interdicts  and  excommunications 
had  been  tried  the  powers  of  the  earth  might  be  said  to  have 
existed  only  by  sufferance.     Nor  was  the  validity  of  such 
denunciations  supposed  to  depend  upon  their  justice.      ine 
imposer  indeed  of  an  unjust  excommunication  was  guilty  ot 
a  sin ;  but  the  party  subjected  to  it  had  no  remedy  but  sub- 
mission.    He  who  disregards  such  a  sentence,  says  Beau- 
manoir,  renders  his  good  cause  bad.^     And  indeed,  without 
annexing  so  much  importance  to  the  direct  consequences  ot 
an  un-rounded  censure,  it  is  evident  that  the  received  theory 
of  reunion  concerning  the  indispensable  obligation  and  mys- 
terious" efficacy  of  the  rights  of  communion  and  confession 
must  have  induced  scrupulous  mmds  to  make  any  temporal 
sacrifice  rather  than  incur  their  privation.     One  is  rather 
surprised  at  the  instances  of  failure  than  of  success  in  the 
employment  of  these  spiritual  weapons  against  sovereigns  or 
the  laity  in  general.   It  was  perhaps  a  fortunate  circumstance 
for  Europe  that  they  were  not  introduced,  upon  a  large  scale, 
durin^T  the  darkest  ages  of  superstition.     In  the  eighth  or 
ninth^centuries  they  would  probably  have  met  with  a  more 
implicit  obedience.     But  after  Gregory  VII.,  as  the  spirit  of 
ecclesiastical  usurpation  became  more  violent,  there  grew  up 
by  slow  degrees  an  opposite  feeling  in  the  laity,  which  npen- 
ed  into  an  alienation  of  sentiment  from  the  church,  and  a 
conviction  of  that  sacred  .truth  which  superstition  and  soph- 
istry have  endeavored  to  eradicate  from  the  heart  of  man, 

1  QianBone,  1.  tU.  c.  1 ;  Schmidt,  t.  iv.    plini,  p.  288  ;  ft    M*^»  ^-^  P'  ^ ' 
p.  m;  Dupln,  De  antiiul  Eccl.  Disci-    Fleury^^Institutious,  t.  li.  p.  200. 


that  no  tyrannical  government  can  be  founded  on  a  divine 
commission. 

Excommunications  had  very  seldom,  if  ever,  been  lev- 
elled at  the  head  of  a  sovereign  before  the  instance 
of  Lothaire.  His  ignominious  submission  and  the  usurpation 
general  feebleness  of  the  Carlovingian  line  pro-  ^^  ^^^ 
iluced  a  repetition  of  the  menace  at  least,  and  in  ^°^^' 
cases  more  evidently  beyond  the  cognizance  of  a  spiritual 
authority.  Upon  the  death  of  this  Lothaire,  his  uncle  Charles 
the  Bald  having  possessed  himself  of  Lorraine,  to  which  the 
emperor  Louis  II.  had  juster  pretensions,  the  pope  Adrian 
11.  warned  him  to  desist,  declaring  that  any  attempt  upon 
that  country  would  bring  down  the  penalty  of  excommunica- 
tion. Sustained  by  the  intrepidity  of  Hincmar,  the  king  did 
not  exhibit  his  usual  pusillanimity,  and  the  pope  in  this  in- 
stance failed  of  success.^  But  John  VIII.,  the  next  occupier 
of  the  chair  of  St.  Peter,  carried  his  pretensions  to  a  height 
which  none  of  his  predecessors  had  reached.  The  Carlovingian 
princes  had  formed  an  alliance  against  Boson,  the  usurper  of 
the  kingdom  of  Aries.  The  pope  writes  to  Charles  the  Fat, 
"  I  have  adopted  the  illustrious  prince  Boson  as  my  son ;  be 
content  therefore  with  your  own  kingdom,  for  I  shall  instant- 
ly excommunicate  all  who  attempt  to  injure  my  son."  *  In 
another  letter  to  the  same  king,  who  had  taken  some  prop- 
erty from  a  convent,  he  enjoins  him  to  restore  it  within  sixty 
days,  and  to  certify  by  an  envoy  that  he  had  obeyed  the  com- 
mand, else  an  excommunication  would  immediately  ensue,  to 
be  followed  by  still  severer  castigation,  if  the  king  should  not 
repent  upon  the  first  punishment.^  These  expressions  seem 
to  intimate  a  sentence  of  deposition  from  his  throne,  and  thus 
anticipate  by  two  hundred  years  the  famous  era  of  Gregory 
VII.,  at  which  we  shall  soon  arrive.  In  some  respects  John 
VIII.  even  advanced  pretensions  beyond  those  of  Gregory. 
He  asserts  very  plainly  a  right  of  choosing  the  emperor,  and 
may  seem  indirectly  to  have  exercised  it  in  the  election  of 
Charles  the  Bald,  who  had  not  primogeniture  in  his  favor.* 
This  prince,  whose  restless  ambition  was  united  with  mean- 
ness as  well  as  insincerity,  consented  to  sign  a  capitulation, 


1  De  Marca,  1.  iv.  c.  11. 
«  Schmidt,  t.  li.  p.  260. 
s  Durioribus   deinceps   sciens  te  rer- 
beribufl  erudiendum.    Sclimidt,  p.  261. 


*  Baluz.    Capitularia,    t.   ii.   p.  251  * 
Schmidt,  t.  ii.  p.  197. 


168 


CORRUPTION  OF  MORALS.     Chap.  VH.  Part  I. 


EccLES.  Power.        NEGLECT  OF  CELIBACY. 


169 


Dn  his  coronation  at  Rome,  in  favor  of  the  pope  and  church, 
a  precedent  which  was  improved  upon  in  subsequent  ages.* 
Rome  was  now  prepared  to  rivet  her  fetters  upon  sovereigns, 
and  at  no  period  have  the  condition  of  society  and  the  cir- 
cumstances of  civil  government  been  so  favorable  for  her 
„    .  ambition.      But  the  consummation  was  still  sus- 

Their 

degeneracy  pcudcd,  and  cvcu  her  progrcss  arrested,  for  more 
century!^*^  than  a  hundred  and  fifty  years.  This  dreary  inter- 
val is  filled  up,  in  the  annals  of  the  papacy,  by  a 
series  of  revolutions  and  crimes.  Six  popes  were  deposed, 
two  murdered,  one  mutilated.  Frequently  two  or  even  three 
competitors,  among  whom  it  is  not  always  possible  by  any 
genuine  criticism  to  distinguish  the  true  shepherd,  drove  each 
other  alternately  from  the  city.  A  few  respectable  names 
appear  thinly  scattered  through  this  darkness ;  and  some- 
times, perhaps,  a  pope  who  had  acquired  estimation  by  his 
private  virtues  may  be  distinguished  by  some  encroachment 
on  the  rights  of  princes  or  the  privileges  of  national  churches. 
But  in  general  the  pontiffs  of  that  age  had  neither  leisure  nor 
capacity  to  perfect  the  great  system  of  temporal  supremacy, 
and  looked  rather  to  a  vile  profit  from  the  sale  of  episcopal 
confirmations,  or  of  exemptions  to  monasteries.' 

The  corruption  of  the  head  extended  naturally  to  all  other 
Corruption  members  of  the  church.  All  writers  concur  in 
of  morals,  stigmatizing  the  dissoluteness  and  neglect  of  de- 
cency that  prevailed  among  the  clergy.  Though  several 
codes  of  ecclesiastical  discipline  had  been  compiled  by  par- 
ticular prelates,  yet  neither  these  nor  the  ancient  canons 
were  much  regarded.  The  bishops,  indeed,  who  were  to 
enforce  them  had  most  occasion  to  dread  their  severity. 
They  were  obtruded  upon  their  sees,  as  the  supreme  pontiffs 
were  upon  that  of  Rome,  by  force  or  corruption.  A  child 
of  five  years  old  was  made  archbishop  of  Rheims.  The  see 
of  Narbonne  was  purchased  for  another  at  the  age  of  ten.' 
By  this  relaxation  of  morals  the  priesthood  began  to  lose  its 
hold  upon  the  prejudices  of  mankind.  These  are  nourished 
chiefly  indeed  by  shining  examples  of  piety  and  virtue,  but 
also,  in  a  superstitious  age,  by  ascetic  observances,  by  the  fast- 

1  Schmidt,  t.  ii.  p.  199.  p.  252.    It  was  almost  general  in  the 

2  Schmidt,  t.  ii.  p.  414;  Mosheim ;  church  to  have  bishops  under  twenty 
St.  Marc ;  Muratori,  Ann.  d'ltalia,  pas-  years  old.  Id.  p.  149.  Even  the  pope 
rt™'  Benedict  IX.  is  said  to  have  been  only 

»  VaiBsette,  ffist.  de  Languedoc,  t.  ii.    twelve,  but  this  has  been  doubted. 


ing  and  watching  of  monks  and  hermits,  who  have  obviously 
BO  bad  a  lot  in  this  life,  that  men  are  induced  to  conclude  that 
they  must  have  secured  a  better  reversion  in  futurity.  The 
regular  clergy  accordingly,  or  monastic  orders,  who  practised, 
at  least  apparently,  the  specious  impostures  of  self-mortifica- 
tion, retained  at  all  times  a  far  greater  portion  of  respect 
than  ordinary  priests,  though  degenerated  themselves,  as  was 
admitted,  from  their  primitive  strictness. 

Two  crimes,  of  at  least  violations  of  ecclesiastical  law,  had 
become  almost  universal  in  the  eleventh  century,  Neglect  of 
and  excited  general  indignation  —  the  marriage  or  the  rules  of 
concubinage  of  priests,  and  the  sale  of  benefices.  ^^    ^^'  ^ 
By  an  effect  of  those  prejudices  in  favor  of  austerity  to  which 
I  have  just  alluded,  celibacy  had  been,  from  very  early  times, 
enjoined  as  an  obligation  upon  the  clergy.     It  was  perhaps 
permitted  that  those  already  married  for  the  first  time,  and  to 
a  virgin,  might  receive  ordination ;  and  this,  after  prevailing 
for  a  length  of  time  in  the  Greek  church,  was  sanctioned  by 
the  council  of  TruUo  in  691,^  and  has  ever  since  continued 


1  This  council  was  held  at  Constan- 
tinople in  the  dome  of  the  palace,  called 
TruUus,  by  the  Latins.  The  nomina- 
tive TruUo,  though  soloecistical,  is  used, 
I  believe,  by  ecclesiastical  writers  in 
English.  St.  Marc,  t.  i.  p.  294 ;  Art  de 
verifier  les  Dates,  t.  i.  p.  157 ;  Fleury, 
Hist.  Eccl^s.  t.  X.  p.  110.  Bishops  are 
not  within  this  permission,  and  cannot 
retain  their  wives  by  the  discipline  of  the 
Greek  church.  Lingard  says  of  the  An- 
glo-Saxon church,  —  "  During  more  than 
200  years  from  the  death  of  Augustin  the 
laws  respecting  clerical  celibacy,  so  gall- 
ing to  the  natural  propensities  of  man, 
but  so  calculated  to  enforce  an  elevated 
idea  of  the  sanctity  which  becomes  the 
priesthood,  were  enforced  with  the  ut- 
most rigor :  but  during  part  of  the  ninth 
century  and  most  of  the  tenth,  when  the 
repented  and  sanguinary  devastations  of 
the  Danes  threatened  the  destruction  of 
the  hierarchy  no  less  than  of  the  govern- 
ment, the  ancient  canons  opposed  but  a 


feeble  barrier  to  the  impulse  of  the  pas- 
sions." Ang.-Sax.  Church,  p.  176.  What- 
ever may  have  been  the  case  in  England, 
those  who  look  at  the  abstract  of  the 
canons  of  French  and  Spanish  councils, 
in  Dupin's  Ecclesiastical  History,  from 
the  sixth  to  the  eleventh  century,  will 
find  hardly  one  wherein  there  is  not 
some  enactment  against  bishops  or  priests 
retaining  wives  in  their  houses.  Such 
provisions  were  not  repeated  certainly 
without  reason ;  so  that  the  remark  of 
Fleury,  t.  xi.  p.  5Qi,  that  he  has  found 
no  instance  of  clerical  marriage  before 
893,  cannot  weigh  for  a  great  deal.  It  is 
probable  that  bishops  did  not  often  marry 
after  their  consecration ;  but  this  cannot 
be  presumed  of  priests.  Southey,  in  his 
VindiciaB  EcclesiiE  Anglicauae,  p.  290, 
while  he  produces  some  instances  of 
clerical  matrimony,  endeavors  to  mis- 
lead the  reader  into  the  supposition  that 
it  was  even  conformable  to  ecclesiastical 
canons.* 


*  A  late  writer,  who  has  glosed  over  every  fact  in  ecclesiastical  history  which  | 
could  make  against  his  own  particular  tenets,  asserts,  —  "  In  the  earliest  ages  of  the 
church  no  restriction  whatever  had  been  placed  on  the  clergy  in  this  respect." 
Palmer's  Compendious  Ecclesiastical  History,  p.  115.  This  may  be,  and  I  believe 
it  is,  very  true  of  the  Apostolical  period;  but  the  "earliest  ages^^  are  generally 
understood  to  go  further :  and  certainly  the  prohibition  of  marriage  to  priests  was 
an  established  custom  of  some  antiquity  at  the  time  of  the  Nicene  council.  The 
question  agitated  there  was,  not  whether  priests  should  marry,  contrary  as  it  was 
admitted  by  their  advocate  to  apx^^  kKKXijaiag  Trafjodoaig.,  but  whether  married 
men  should  be  ordained.  I  do  not  see  any  difference  in  principle  ;  but  the  chnrcll 
had  made  one. 


170 


NEGLECT  OF  THE        Chap.  VU.  Iakt  I. 


one  of  the  distinguishing  features  of  its  discipline.      The 
Latin  church,  however,  did  not  receive  these  canons,  and  has 
uniformly  persevered  in  excluding  the  three  orders  of  priests, 
deacons,  and   subdeacons,  not    only  from  contracting  matri- 
mony, but  from  cohabiting  with  wives  espoused  before  their 
ordination.     The  prohibition,  however,  during  some  ages  ex- 
isted only  in  the  letter  of  her  canons.     In  every  country  the 
secular  or  parochial  clergy  kept  women  in  their  houses,  upon 
more  or  less  acknowledged  terms  of  intercourse,  by  a  conni- 
vance of  their  ecclesiastical  superiors,  which  almost  amounted 
to  a  positive  toleration.     The  sons  of  priests  were  capable  of 
inheriting  by  the  law  of  France  and  also  of  Castile.^     Some 
vigorous  efforts  had  been  made  in  England  by  Dunstan,  with 
the   assistance  of  King  Edgar,  to  dispossess    the  married 
canons,  if  not  the  parochial  clergy,  of  their  benefices ;  but 
the  abuse,  if  such  it  is  to  be  considered,  made  incessant  prog- 
ress, till  the  middle  of  the  eleventh   century.     There  was 
certainly  much  reason  for  the  rulers  of  the  church  to  restore 
this  part  of  their  discipline,  since  it  is  by  cutting  off  her 
members  from  the  charities  of  domestic  life  that  she  secures 
their  entire  affection  to  her  cause,  and  renders  them,  like 
veteran  soldiers,  independent  of  every  feeling  but  that  of 
fidelity  to  their  commander  and  regard  to  the  interests  of 
their  body.     Leo  IX.  accordingly,  one  of  the  first  pontiffs 
who  retrieved  the  honor  of  the  apostolic  chair,  after  its  long 
period  of  ignominy,  began  in  good  earnest  the  difficult  work 
of  enforcing  celibacy  among  the  clergy.*     His  successors 
never  lost  sight  of  this  essential  point  of  discipline.     It  was 
a  struggle  against  the  natural  rights  and  strongest  affections 
of  mankind,  which  lasted  for  several  ages,  and  succeeded 
only  by  the  toleration  of  greater  evils  than  those  it  was  in- 
tended to  remove.     The  laity,  in  general,  took  part  against 
the  married  priests,  who  were  reduced  to  infamy  and  want, 
or  obliged  to  renounce  their  dearest  connections.     In  many 
parts  of  Germany  no  ministers  were  left  to  perform  divine 
services.*     But  perhaps  there  was  no  country  where  the 


1  Recuell  des  Historiens,  t.  xl.  preCxce. 
Marina,  Ensayo  sobre  las  Siete  Partidas, 
c.  221,  223.  This  was  by  yirtue  of  the 
general  indulgence  shown  by  the  cus- 
toms of  that  country  to  concubinage,  or 
baragania ;  the  children  of  such  an  union 
always  inheriting  in  default  of  those  born 
in  solemn  wedlock.    Ibid. 


a  St.  Marc,  t.  iil.  p.  152,  164,  219,  602, 
&c. 

3  Schmidt,  t.  iU.  p.  279;  Martenne, 
Thesaurus  Anecdotorum,  t.  i.  p.  230. 
A  Danish  writer  draws  a  still  darker 
picture  of  the  tyranny  exercised  towards 
the  married  clergy,  which,  if  he  does  not 
exaggerate,  was  severe  indeed :  alii  mem> 


EccLEs.  Power. 


RULES  OF  CELIBACY. 


171 


rules  of  celibacy  met  with  so  little  attention  as  in  England. 
It  was  acknowledged  in  the  reign  of  Henry  I.  that  the 
greater  and  better  part  of  the  clergy  were  married,  and  that 
prince  is  said  to  have  permitted  them  to  retain  their  wives.^ 


biis  truncabautur,  alii  occidebantur,  alii 
de  patriSL  cxpellebantur,  pauci  sua  reti- 
nuere.  Langebek,  Script.  Rerum  Da- 
uicarum,  t.  i.  p.  880.  The  prohibition 
was  repeated  by  Waldcmar  II.  in  1222, 
so  that  there  seems  to  have  been  much 
difficulty  found.    Id.  p.  287  and  p.  272. 

>  Wilkins,  Concilia,  p.  387  :  Chronicon 
Saxon ;  Collier,  p.  248,  286,  294 ;  Lyttel- 
ton,  vol.  iii.  p.  328.  The  third  Lateran 
council  fifty  years  afterwards  spe:iks  of 
the  detcstible  custom  of  keeping  concu- 
bines long  used  by  the  English  clergy. 
Cum  in  AugliA  prava  et  dctestabili  con- 
suctudinc  et  lonjjo  tempore  fuerit  obten- 
tum,  ut  cleric!  in  domibus  suis  fornica- 
rias  habeant.  Labbe,  Concilia,  t.  x.  p. 
1633.  EugenJus  IV.  sent  a  legate  to  im- 
pose celibacy  on  the  Irish  clergy.  Lyt- 
teltou's  Uenry  II.  vol.  ii.  p.  42. 

The  English  clergy  long  set  at  nought 
the  fulminations  of  the  pope  against 
their  domestic  happiness ;  and  the  com- 
mon law,  or  at  least  irresistible  custom, 
seems  to  have  been  their  shield.  There 
is  some  reason  to  believe  that  their  chil- 
dren were  legitimate  for  the  purposes  of 
inheritance,  which,  however,  I  do  not 
assert.  The  fons  of  priests  are  men- 
tioned in  several  instruments  of  the 
twelfth  and  thirteenth  centuries  ;  but  we 
cannot  be  sure  that  they  were  not  born 
before  their  fathers^  ordination,  or  that 
they  were  reckoned  legitimate.* 

An  instance  however  occurs  in  the 
Rot.  Cur.  Regis,  a.d.  1194,  where  the 
assize  find  that  there  has  been  no  presen- 
tation to  the  church  of  Dunstiin,  but  the 
parsons  have  held  it  from  father  to  son. 
Sir  Francis  Palgrave,  in  his  Introduction 
to  these  records  (p.  29),  gives  other  proofs 
of  this  hereditary  succession  in  bene- 
fices. Qiraidus  Cambrensis,  about  the 
end  of  Uenry  II. 's  reign  {apufi  Wright's 
Political  Songs  of  England,  p.  353),  men- 
tions the  marriage  of  the  parochial  clergy 
us  almost  universal.  More  sacerdotum 
parochialium  Anglioe  fere  cunctorum 
damuabiii  quidem  et  detestabili,  publi- 
cum secum  habebat  comitem  individuam, 
et  in  foco  focariam,  et  in  cubiculo  concu- 
binam.  They  were  called  focaria,  as 
living  at  the  same  hearth ;  and  this 
might  be  tolerated,  perhaps,  on  pretence 


,  quomam 
cum    su9l 


of  service;  but  the  fellowship,  we  per- 
ceive, was  not  confined  to  the  fireside. 
It  was  about  this  time  that  a  poem,  De 
Concubinis  Sacerdotum,  commonly  at- 
tributed to  AValter  ^lapes,  but  alluding 
by  name  to  Pope  Innocent  III.,  humor- 
ously defends  the  uncanonical  usage.  It 
begins  thus :  — 

"  Prisciani  regula  penitus  cassatur, 
Sacerdos  per  Ate  et  /tac  olim  declina- 

batur, 
Sed  per  hie  solummodo  nunc  articu- 

latur, 
Cum  per  nostrum  prsesulem  heec  amo- 

veatur." 

The  last  lines  are  better  known,  having 
been  often  quoted :  — 

''£cce  jam  pro   clericis  multum  alle- 

gavi, 
Necnon  pro  presbytens  multa  compro- 

bavi; 
Pater-noster  nunc  pro  me 

peccavi, 
Dicat    quisque    presbyter 

suavi." 
Poems  ascribed  to  Mapes^  p.  171. 
den  Society,  1841.) 

Several  other  poems  in  this  very  cu- 
rious volume  allude  to  the  same  subject. 
In  a  dialogue  between  a  priest  and  a 
bcholar,  the  latter  having  taxed  him  with 
keeping  a  presbytem  in  his  house,  the 
parson  defends  himself  by  recrimina- 
tion :  — 

"  Malo  cum  presbytcra  pulcra  fomlcari, 
Servituros  domino  tilios  lucrari, 
Quam  vagas  satellites  per  antra  sec- 

tari; 
Est  inhonestissimum  sic  dehonestari." 

(p.  256.) 

John,  on  occasion  of  the  interdict  pro- 
nounced against  him  in  1208,  seized  th« 
concubines  of  the  priests  and  compelled 
them  to  redeem  themselves  by  a  fine. 
Presbyterorum  et  clericorum  focarise  per 
totam  Angliam  a  ministris  regis  captai 
sunt,  et  ad  se  redimendum  graviter  com- 
pulsae.  Matt.  Paris,  p.  190.  This  is 
omitted  by  Lingard. 

It  is  said  by  Raumer  (Gesch.  der  Ho- 
henstaufien,  vi.  235)  that  there  w&s  a 


(Cam- 


*  Among  the  witnesses  to  some  instruments  in  the  reign  of  Edward  I.,  printed 
by  Mr.  Hudson  Gurney  from  the  court-rolls  of  the  manor  of  Keswick  in  Norfolk, 
we  have  more  than  once  Walter  filius  presbyteri.    But  the  rest  are  described  by  the 
father's  surname,  except  one,  who  is  called  filius  Beatricis  ;  and  as  he  may  be  sua 
pected  of  being  illegitimate,  we  cannot  infer  the  contrary  as  to  the  priest's  son. 


pi  I 


172 


EPISCOPAL  ELECTIONS.     Chap.  VII.  Part  I 


But  the  hierarchy  never  relaxed  in  their  efforts ;  and  all  the 
councils,  general  or  provincial,  of  the  twelfth  centuiy,  utter 
denunciations  against  concuhinary  priests.^  After  that  age 
we  do  not  find  them  so  frequently  mentioned ;  and  the  abuse 
by  degrees,  though  not  suppressed,  was  reduced  within  limits 
at  wWch  the  church  might  connive. 

Simony,  or  the  corrupt  purchase  of  spiritual  benefices,  was 
the  second  characteristic  reproach  of  the  clergy  in 
Simony.        ^^^  eleventh  century.    The  measures  taken  to  re- 
pre'=;s  it  deserve  particular  consideration,  as  they  produced 
effects  of  the  highest  importance  in  the  history  of  the  middle 
Episcopal       a^es.    According  to  the  primitive  custom  of  the 
elections.       church,  an   episcopal   vacancy   was  failed  up   py 
election  of  the  clergy  and  people  belonging  to  the  city  or  dio- 
cese.    The  subject  of  their  choice  was,  after  the  establish- 
ment of  the  federate  or  provincial  system,  to  be  approved  or 
rejected  by  the  metropolitan  and  his  suffragans ;  and,  if  ap- 
proved, he  was  consecrated  by  them.^     It  is  probable  that,  in 
almost  every  case,  the  clergy  took  a  leading  part  in  the  selec- 
tion of  their  bishops ;  but  the  consent  of  the  laity  was  abso- 
lutely necessary  to  render  it  valid.«     They  were,  however, 
by  degrees,  excluded  from  any  real  participation,  first  in  the 
Greek,  and  finally  in  the  western  church.     But  this  was  not 
effected  till  pretty  late  times;  the  people  fully  preserved  their 
elective  rights  at  Milan  in  the  eleventh  century,  and  traces 
of  their  concurrence  may  be  found  both  in  France  and  Ger- 
many in  the  next  age.* 


married  bishop  of  Prague  during  the 
pontificate  of  Innocent  III.,  and  that  the 
custom  of  clerical  marriages  lasted  in 
Hungary  and  Sweden  to  the  end  of  the 
thirteenth  century. 

The  marriages  of  English  clergy  are 
noticed  and  condemned  in  some  provin- 
cial constitutions  of  1237.  Matt.  Paris, 
p.  381.  And  there  is,  even  so  late  as 
1404,  a  mandate  by  the  bishop  of  Exeter 
against  married  priests.  WUkins,  Con- 
cilia, t.  iii.  p.  277. 

1  Quidam  sacerdotes  Latini,  says  In- 
nocent III.,  in  domibus  suis  habent  con- 
cubinas,  et  nonnulli  aliquas  sibi  non  me- 
tuunt  desponsare.  Opera  Innocent  III. 
p.  658.  See  also  p.  300  and  p.  407.  The 
latter  cannot  be  supposed  a  very  common 
case,  after  so  many  prohibitions ;  the 
more  usual  practice  was  to  keep  a  female 
in  their  houses,  under  some  pretence  of 
relationship  or  servitude,  as  is  still  said 
to  be  usvial  in  Catholic  countries.    Du 


Cange,  t.  Focaria.  A  writer  of  respect- 
able authority  asserts  that  the  clergy 
frequently  obtained  a  bishop's  license  to 
cohabit  with  a  mate.  Harmer's  [Whar- 
ton's] Observations  on  Iluruct,  p.  11.  I 
find  a  passage  in  Nicholas  de  Clcmangis 
about  1400,  quoted  in  Lewis's  Life  of 
Pecock,  p.  30.  Plerisquo  in  dlocesibus, 
rectores  parochiarum  ex  certo  et  con- 
ducto  cum  his  prailatis  pretio,  passim  et 
publicd  concublnas  tenent.  This,  how- 
ever, does  not  amount  to  a  direct  license. 
3  Marca,  de  Concordantii,  &c.,  l.Ti.  c.2. 

3  Father  Paul  on  Benefices,  c.  7. 

4  De  Marca,  ubi  supra.  Schmidt,  t.  It. 
p.  173.  The  form  of  election  of  a  bishop 
of  Puy,  in  1053,  runs  thus :  clems,  popu- 
lus,  et  militia  elegimus.  Vaissette,  Hist, 
de  Languedoc.  t.  ii.  Appendix,  p.  220. 
Even  Gratian  seems  to  admit  in  one 
place  that  the  laity  had  a  sort  of  share, 
though  no  decisive  voice,  in  filling  up  an 
episcopal  vacancy.     Electio  clericorum 


EccLES.  Power. 


INVESTITURES. 


173 


It  does  not  appear  that  the  early  Christian  emperors  inter- 
posed with  the  freedom  of  choice  any  further  than  to  make 
their  o^vn  confirmation  necessary  in  the  great  patriarchal 
sees,  such  as  Rome  and  Constantinople,  ^vhich  were  frequent- 
ly the  objects  of  violent  competition,  and  to  decide  in  contro- 
verted elections.*  The  Gothic  and  Lombard  kings  of  Italy 
followed  the  same  line  of  conduct.^  But  in  the  French  mon- 
archy a  more  extensive  authority  was  assumed  by  the  sover- 
eign. Though  the  practice  was  subject  to  some  variation,  it 
may  be  said  generally  that  the  Merovingian  kings,  the  line 
of  Charlemagne,  and  the  German  emperors  of  the  house  of 
Saxony,  conferred  bishoprics  either  by  direct  nomination,  or, 
as  was  more  regular,  by  recommendatory  letters  to  the  elec- 
tors.* In  England  also,  before  the  conquest,  bishops  were  ap- 
pointed in  the  witenagemot ;  and  even  in  the  reign  of 
William  it  is  said  that  Lanfranc  was  raised  to  the  see  of 
Canterbury  by  consent  of  parliament.*  But,  independently 
of  this  prerogative,  which  length  of  time  and  the  tacit  sanc- 
tion of  the  people  have  rendered  unquestionably  legitimate, 
the  sovereign  had  other  means  of  controlling  the  election  of  a 
bishop.  Those  estates  and  honors  which  compose  the  tem- 
poralities of  the  see,  and  without  which  the  naked  spiritual 
privileges  would  not  have  tempted  an  avaricious  generation, 
had  chiefly  been  granted  by  former  kings,  and  were  assimi- 
lated to  lands  held  on  a  beneficiary  tenure.  As  they  seemed 
to  partake  of  the  nature  of  fiefs,  they  required  similar  formal- 
ities— investiture  by  the  lord,  and  an  oath  of  fealty  investitures. 
by  the  tenant.  Charlemagne  is  said  to  have  in- 
troduced this  practice;  and,  by  way  of  visible  symbol,  as 


est,  petitio  plebis.  Decret.  1.  i.  distinctio 
62.  And  other  subsequent  passages  con- 
firm this. 

1  Gibbon,  c.  20;  St.  Marc,  Abr6ge 
Chronologique,  t.  i.  p.  7. 

3  Fra  Paolo  on  Benefices,  c.  ix. ;  Gian- 
none,l.  iii.c.6;  1.  iv. c.l2;  St.Marc,t. i. 
p.  37. 

3  Schmidt,  t.  i.  p.  386 ;  t.  U.  p.  245, 487. 
This  interference  of  the  kings  was  per- 
haps not  quite  conformable  to  their  own 
laws,  which  only  reserved  to  them  the 
confirmation.  Episcopo  decedente,  says 
a  constitution  of  Clotmre  II.  in  615,  in 
loco  ipsiuR,  qui  a  metropolitano  ordi- 
nari  debet,  a  provincialibus,  a  clero  et 
populo  eligatur:  et  si  persona  condlgna 
fUerit,  per  ordinationem  principis  ordine- 
tar.    Balox.  Capital,  t.  i.  p.  21.    Charle- 


magne is  said  to  hare  adhered  to  this 
limitation,  leaving  elections  free,  and 
only  approving  the  person,  and  confer- 
ring investiture  on  him.  F.  Paul  on 
Benefices,  c.  xv.  But  a  more  direct  in- 
fluence was  restored  afterwards.  Ivon 
bishop  of  Chartres,  about  the  year  1100, 
thus  concisely  expresses  the  several  par- 
ties concurring  in  the  creation  of  » 
bishop :  eligente  clero,  suffragante  po- 
pulo, dono  regis,  per  manum  metropoli 
tani,  approbante  Romano  pontifice.  Du 
Chesne,  Script.  Rerum  Gallicarum,  t.  iv 
p.  174. 

«  Lyttelton's  Hist,  of  Henry  II.  rol.  iv. 
p.  144.  But  the  passage,  which  he  quotes 
from  the  Saxon  Chronicle,  is  not  found  in 
the  best  edition. 


ill! 


IN 


174  CONFIRMATION  OF  POPES.     Chap.  VII.  Part  L 

usual  in  feudal  institutions,  to  have  put  the  ring  and  crozier 
into  the  hands  of  the  newly  consecrated  bishop.  And  this 
continued  for  more  than  two  centuries  afterwards  without  ex- 
citing any  scandal  or  resistance.^ 

The   church  has   undoubtedly   surrendered   part  of   her 
independence  in  return  for  ample  endowments  and  temporal 
power ;  nor  could  any  claim  be  more  reasonable  than  that  ot 
feudal  superiors  to  grant  the  investiture  of  dependent  hets. 
But  the  fairest  right  may  be  sullied  by  abuse ;    and   the 
sovereigns,  the  lay  patrons,  the  prelates  of  the  tenth  and 
eleventh  centuries,  made   their  powers  of  nomination  and 
investiture  subservient  to  the  grossest  rapacity.*    According 
to  the  ancient  canons,  a  benefice  was  avoided  by  any  simoni- 
acal  payment  or  stipulation.     If  these  were  to  be  enforced, 
the  church  must  almost  be  cleared  of  its  ministers.     Either 
through  bribery  in  places  where  elections  still  prevailed,  or 
through  corrupt  agreements  with  princes,  or  at  least  cus- 
tomary presents  to  their  wives  and  ministers,  a  large  propor- 
tion of  the  bishops  had  no  valid  tenure  in  their  sees.     The 
case  was  perhaps  worse  with  inferior  clerks ;  in  the  church 
of  Milan,  which  was  notorious  for  this  corruption,  not  a  single 
ecclesiastic  could  stand  the  test,  the  archbishop  exacting  a 
price  for  the  collation  of  every  benefice.* 

The  bishops  of  Rome,  like  those  of  inferior  sees,  were 
re<nilarly  elected  by  the  citizens,  laymen  as  well  as  ecclesi- 
astics. But  their  consecration  was  deferred  until  the  popular 
-  .^i  choice  had  received  the  sovereign's  sanction.  The 
coiSation  Romans  regularly  despatched  letters  to  Constanti- 
of  popes.  ^^pjg  Qj,  ^  ^^Q  exarchs  of  Ravenna,  praying  that 
their  election  of  a  pope  might  be  confirmed.  Exceptions, 
if  any,  are  infrequent  while  Rome  was  subject  to  the  eastern 
empire.*  This,  among  other  imperial  prerogatives,  Charle- 
magne might  consider  as  his  own.  He  possessed  the  city, 
especially  lifter  his  coronation  as  emperor,  in  full  sovereignty; 


EccLES.  Power.       DECREE  OF  NICOLAS  n. 


175 


1  De  Marca,  p.  416 ;  Qiannone,  1.  ^. 
c.  7. 

2  Bonlfece  marquis  of  Tuscany,  father 
of  the  countess  Matilda,  and  by  far  the 
greatest  prince  in  Italy,  was  flogged  be- 
fore the  altar  by  an  abbot  for  selling 
benefices.  Muratori,  ad.  ann.  1046.  The 
o£Fence  was  much  more  common  than  the 
punishment,  but  the  two  combined  fur- 
nish a  good  specimen  of  the  eleventh 
century. 


3  St.  Marc,  t.  lii.  p.  65,  188,  219,  230, 
296,  568;  Muratori,  a.d.  958,  1057,  &c.; 
Fleury,  ffist.  Eccles.  t.  xni.  p.  «3.  The 
sum  however  appears  to  have  been  very 
small :  rather  like  a  fee  than  a  bnbe. 

4Le  Blanc,  Dissertation  sur  l'Aut<^ 
rit6  des  Empereurs.  This  is  subjoined 
to  his  Trait6  des  Monnoyes ;  but  not  in 
all  copies,  which  makes  those  that  want 
it  less  valuable .  St.  Marc  and  Muratori, 
passim. 


and  even  before  that  event  had  investigated,  as  supreme 
chief,  some  accusations  preferred  against  the  pope  Leo  III. 
No  vacancy  of  the  papacy  took  place  after  Charlemagne 
became  emperor ;  and  it  must  be  confessed  that,  in  the  first 
which  happened  under  Louis  the  Debonair,  Stephen  IV.  was 
consecrated  in  haste  without  that  prince's  approbation.^  l>:it 
Gregory  IV.,  his  successor,  waited  till  his  election  had  been 
confirmed ;  and  upon  the  whole  the  Carlovingian  emperors, 
tliough  less  uniformly  than  their  predecessors,  retained  that 
mark  of  sovereignty.*  But  during  the  disorderly  state  of 
Italy  which  followed  the  last  reigns  of  Charlemagne's  pos- 
terity, while  the  sovereignty  and  even  the  name  of  an 
emperor  were  in  abeyance,  the  supreme  dignity  of  Christen- 
dom was  conferred  only  by  the  factious  rabble  of  its  capital. 
Otho  the  Great,  in  receiving  the  imperial  crown,  took  upon 
him  the  prerogatives  of  Charlemagne.  There  is  even  extant 
a  decree  of  Leo  VIII.,  which  grants  to  him  and  his  successors 
the  right  of  naming  future  popes.  But  the  authenticity  of 
this  instrument  is  denied  by  the  Italians.^  It  does  not  appear 
that  the  Saxon  emperors  went  to  such  a  length  as  nomination, 
except  in  one  instance  (that  of  Gregory  V.  in  996) ;  but 
they  sometimes,  not  uniformly,  confirmed  the  election  of  a 
pope,  according  to  ancient  custom.  An  explicit  right  of 
nomination,  was,  however,  conceded  to  the  emperor  Henry 
in.  in  1047,  as  the  only  means  of  rescuing  the  Roman 
church  from  the  disgrace  and  depravity  into  which  it  had 
fallen.  Henry  appointed  two  or  three  very  good  popes; 
acting  in  this  against  the  warnings  of  a  selfish  policy,  as  fatal 
experience  soon  proved  to  his  family.* 

This  high  prerogative  Avas  perhaps  not  designed  to  extend 
beyond  Henry  himself.  But  even  if  it  had  been  transmissible 
to  his  successors,  the  infancy  of  his  son  Henry  IV.,  and  the 
factions  of  that  minority,  precluded  the  possibility  of  its  exer- 
cise. Nicolas  n.,  in  1059,  published  a  decree  which  restored 
the  right  of  election  to  the  Romans,  but  with  a  Decree  of 
remarkable  variation  from  the  original  form.     The  Nicolas  n. 


1  Muratori,  a.d.  817 ;  St.  Marc. 

8  Le  Blanc;  Schmidt,  t.  il.  p.  186; 
St.  Marc,  t.  i.  p.  887,  393,  &c. 

3  St.  Marc  has  defended  the  authen- 
ticity of  this  instrument  in  a  separate 
dissertation,  t.  iv.  p.  1167,  though  ad- 
mitting some  interpolations.  Pagi,  in 
Baronium,  t.  iv.  p.  8,  seemed  to  me  to 
bare   urged   some  weighty  objections: 


and  Muratori,  Annali  d'  Italia,  a.d.  962, 
speaks  of  it  as  a  gross  imposture,  in 
which  he  probably  goes  too  far.  It  ob- 
tained credit  rather  early,  and  is  ad 
mitted  into  the  Decretum  of  Gratian. 
notwithstanding  its  obvious  tendency, 
p.  211,  edit.  1591. 

*  St.  Marc ;  Muratori ;  Schmidt ;  Stru- 
vius. 


Ilkr 


>i 


ii 


t 


M       I 


176  DIFFERENCES  OF  GREGORY  VH.     Chap.  VII.  Part  I. 

cardinal    bishops    (seven  in  number,  holding   sees   in   the 
neighborhood  of  Rome,  and  consequently  suffragans  of  the 
pope  as  patriarch  or  metropolitan)  were  to  choose  the  su- 
preme pontiff,  with   the   concurrence  first  of  the   cardinal 
priests  and  deacons  (or  ministers  of  the  parish  churches  of 
Rome),  and  afterwards  of  the  laity.     Thus  elected,  the  new 
pope  was  to  be  presented  for  confirmation  to  Henry,  "  now 
king,  and  hereafter  to  become  emperor,"  and  to  such  of  his 
successors  as  should  personally  obtain  that  privilege.^     This 
decree  is  the  foundation  of  that  celebrated  mode  of  election 
in  a  conclave  of  cardinals  which  has  ever  since  determined 
the  headship  of  the  church.     It  was  intended  not  only  to 
exclude  the  citizens,  who  had  indeed  justly  forfeited  their 
primitive  right,  but  as  far  as  possible  to  prepare  the  way  for 
an  absolute  emancipation  of  the  papacy  from  the  imperial 
control ;  reserving  only  a  precarious  and  personal  concession 
to  the  emperors  instead  of  theu:  ancient  legal  prerogative 
of  confirmation. 

The  real  author  of  this  decree,  and  of  all  other  vigorous 
Gregory  VH.  mcasurcs  adopted  by  the  popes  of  that  age,  whether 
A.D.1073.      fQj.  xhe  assertion  of  their  independence   or   the 
restoration  of  discipline,  was  Hildebrand,  ai'chdeacon  of  the 
church  of  Rome,  by  far  the  most  conspicuous  person  of  the 
eleventh  century.     Acquiring  by  his  extraordmary  qualities 
an  unbounded  ascendency  over  the  Italian  clergy,  they  re- 
garded him  as  their  chosen  leader  and  the  hope  of  their 
common  cause.     He  had  been  empowered  singly  to  nominate 
a  pope  on  the  part  of  the  Romans  after  the  (Jeath  of  Leo  IX., 
and  compelled  Henry  IH.  to  acquiesce  in  his  choice  of  Victor 
II.'    No   man   could  proceed  more  fearlessly  towards  his 
object  than  Hildebrand,  nor  with  less  attention  to  conscien- 
tious impediments.     Though  the  decree  of  Nicolas  II.,  his 
own  work,  had  expressly  reserved  the  right  of  confinnation 
of  the  young  king  of  Germany,  yet  on  the  death  of  that  pope 
Hildebrand  procured  the  election  and  consecration  of  Alex- 
ander II.  without  waiting  for  any  authority.*     During  this 
pontificate  he  was  considered  as  something  greater  than  the 
pope,  who  acted  entirely  by  his  counsels.     On  Alexander's 
decease  Hildebrand,  long  since  the  real  head  of  the  church, 

1  St.  Marc,  t.  Ui.  p.  276.    The  first    necessary  for  a  pope's  election.    LabM, 
eanon  of  the  third  Lateran  council  makes    Concilia,  t.  x.  p.  1608. 
the  consent  of  two  thirds  of  the  college       >  St.  Marc,  p.  97- 

s  Id.  p.  ao6. 


ECCLES.  POWEB. 


WITH  HENRY  IV. 


177 


was  raised  with  enthusiasm  to  its  chief  dignity,  and  assumed 
the  name  of  Gregory  VII. 

Notwithstanding  the  late  precedent  at  the  election  of  Alex- 
ander II.,  it  appears  that  Gregory  did  not  yet^jg^j^.^^ 
consider  his  plans  suflaciently  mature  to  throw  off  ences  with 
the  yoke  altogether,  but  declined  to  receive  conse-  ^^"'y^- 
cration  until  he  had  obtained  the  consent  of  the  king  of 
Germany.^     This  moderation  was  not  of  long  continuance. 
The  situation  of  Germany  speedily  afforded  him  an  opportu- 
nity of  displaying  his  ambitious  views.     Henry  IV.,  through 
a  very   bad   education,   was   arbitrary   and   dissolute;    the 
Saxons  were  engaged  in  a  desperate  rebellion ;  and  secret 
disaffection  had  spread  among  the  princes  to  an  extent  of 
which  the  pope  was  much  better  aware  than  the  king.^     He 
began  by  excommunicating  some  of  Henry's  ministers  on 
pretence  of  simony,  and  made  it  a  ground  of  remonstrance 
that  they  were  not  instantly  dismissed.     His  next  step  was  to 
pubhsh  a  decree,  or  rather  to  renew  one  of  Alexander  II., 
against  lay  investitures.'    The  abolition  of  these  was  a  fa- 
vonte  object  of  Gregory,  and  formed  an  essential  part  of  his 
general  scheme  for  emancipating  the  spiritual  and  subjugating 
the  temporal  power.     The  ring  and  crosier,  it  was  asserted 
by  the  papal  advocates,  were  the  emblems  of  that  power 
which  no  monarch  could  bestow ;  but  even  if  a  less  offensive 
symbol  were  adopted  in  investitures,  the  dignity  of  the  church 
was  lowered,  and  her  purity  contaminated,  when  her  highest 
mmisters  were  compeUed  to  solicit  the   patronage   or  the 
approbation   of   laymen.      Though   the   estates  of   bishops 
might,  strictly,  be  of  temporal  right,  yet,  as  they  had  hem 
inseparably  annexed  to  their  spiritual  ofiice,  it  became  just 
that  what  was  first  in  dignity  and  importance  should  carry 
with  It  those  accessory  parts.     And  this  was  more  necessary 
than  m  former  times  on  account  of  the  notorious  traffic  which 
flovereigns  made  of  their  usurped  nommation  to  benefices,  so 
that  scarcely  any  prelate  sat  by  their  favor  whose  possession 
was  not  invalidated  by  simony. 

The  contest  about  investitures,  though  begun  by  Gregory 
VlL,  did  not  occupy  a  very  prominent  place  during  his  pon 
lihcate  ;  its  mterest  being  suspended  by  other  more  extraordi- 


178         DIFFERENCES  OF  GREGORY  VII.     Chap.  VH.  Pabt  I 

narv  and  important  dissensions  between  the  church  and  em- 
n^     The  pope,  after  tampering  some  time  with  the  dis- 
^e;ted  p^ty  in  Germany,  summoned  Henry  o  appear  a 
R>me  and  yindicate  himself  from  the  charges  aUeged  by  his 
Sets      Such  an  outrage  naturally  exasperated  a  young 
Jid  passionate  monarch.  ^Assembling  a  number  of  bishops 
^d  other  vassals  at  Worms,  he  procured  a  sentence  tha 
Gre.^ry  should  no  longer  be  obeyed  as  lawfu^  pope.     But 
^e  time  was  past  for  those  arbitrary  e°«'-°^hmem\or  at 
least  hi"h  prerogatives,  of  former  emperors.    The  relations 
if  dependency  between  church  and  state  were  now  about  to 
be  reversed.     Gregory  had  no  sooner  received  accounts  of 
the  proceedings  atVorms  than  he  summoned  a  council  m 
the  Lateran  palace,  and  by  a  solemn  sentence  not  only  ex 
communicated  Henry,  but  deprived  hto  of  the  kingdoms  of 
Germany  and  Italy,  releasing  his  subjects  from  their  a^le- 
ffiance  and  forbiddmg  them  to  obey  him  as  sovereign.     IKus 
^e^;?  VII  obtained  the  glory  of  leaving  all  his  predeces- 
s^rslehind,  and  astonishing  mankind  by  an  act  of  audaci  y 
and  ambition  which  the  most  emulous  of  his  successors  could 

''^he  fiJKpulses  of  Henry's  mind  on  hearing  this  denun- 
ciation were  indignation  and  resentment  But,  like  other  in- 
experienced and  misguided  sovereigns,  he  had  formed  an 
erroneous  calculation  of  his  own  resources.  A  con^P'^^cy. 
lon.^  prepared,  of  which  the  dukes  of  Suabia  and  Cannthia 
were  the  chiefs,  began  to  manifest  itself.     Some  were  alien- 

deponere   posse    denegablt,    quicunqu© 
decreta  sanctissimi  papae  Gregonl   non 
proscribenda  judicabit.    Ipse  enim  vir 
apostolicus   ....    Praeterea,  hben  ho- 
mines Ilenricum  eo  pacto  sibl  pracposue- 
runt  in  regem,  ut  electores  bu03  justd 
iudicare  et  regaU  proTidentia  gubernare 
satageret,  quod  pactum  lUe  postea  pi»- 
varicari  et  contemnere  non  cesaaTit,  &c. 
Ergo,  et  absque  scdis  apostolicre  judlclo 
principes  eum  pro  rege  merito  refutare 
possent,  cum  pactum  adimplere  contemp- 
serit,  quod  iis  pro  electlone  su    proml- 
serat ;   quo  non  adimpleto,  nee  rex  esse 
potest     Vita  Greg.  VH.  in  Muraton, 
Script.  Rer.  Ital.  t.  ili.  p.  842. 

Upon  the  other  hand,  the  friends  and 
supporters  of  Henry ,though  ecclesiastics, 
protested  against  thU  noyel  stretch  of 
prerogative  in  the  Roman  sec.  oercni 
proofe  of  this  are  adduced  by  Schmidt, 
t.  Ui.  p.  815. 


ECCLES.  POWEB. 


WITH  HENRY  IV. 


179 


1  The  sentence  of  Gregory  VH.  against 
the    emperor    Henry  was    directed,  we 
should  always  remember,  to  persons  al- 
ready well  disposed  to  reject  his  author- 
ity.   Men  are  glad  to  be  told  that  it  is 
their  duty  to  resist  a  soTerelgn  against 
whom  they  are  in  rebellion,  and  will  not 
be  very  scrupulous  in  examining  conclu- 
sions which  fall  in  with  their  inclinations 
and  interests.    Allegiance  was  in  those 
turbulent  ages  easily  thrown  off,  and  the 
right  of  resistance  was  in  continual  exer- 
cise.   To  the  Germans  of  the  eleventh 
century   a   prince   unfit   for   Christian 
communion  would  easily  appear  unfit  to 
reign  over  them ;  and  though  Henry  had 
not  given  much  real  provocation  to  the 
pope,  his  vices  and  tyranny  might  seem 
to  challenge  any   spiritual   censure    or 
temporal  chastisement.    A  nearly  con- 
temporary writer  combines  the  two  jus- 
tifications of  the  rebellious  party.    Nemo 
Komanorum  pontificem   reges   a   regno 


ated  by  his  vices,  and  others  jealous  of  his  family.     The  re- 
belhous  Saxons  took  courage ;  the  bishops,  mtimidated  by  ex- 
communications, withdrew  from  his  side ;  and  he  suddenly 
found  himself  ahnost  insulated  in  the  midst  of  his  dominions. 
In  this  desertion  he  had  recourse,  through  panic,  to  a  miser- 
able expedient.     He  crossed  the  Alps  with  the  avowed  de- 
termmation  of  submitting,  and  seekmg  absolution  from  the 
pope.     Gregory  was  at  Canossa,  a  fortress  near  Reggio,  be- 
longing to  his  faithful  adherent  the  countess  Matilda.     It  was 
in  a  winter  of  unusual  severity.     The   emperor 
was  admitted,  without  his  guards,  into  an  outer  '"'''     '' 
court  of  tlie  castle,  and  three  successive  days  remained  from 
morning  till  evening  in  a  woollen  shirt  and  with  naked  feet ; 
Willie  Cxregory,  shut  up  with  the  countess,  refused  to  admit 
him  to  his  presence.     On  the  fourth  day  he  obtained  absolu- 
tion ;  but  only  upon  condition  of  appearing  on  a  certain  day 
to  le^n  the  pope's  decision  whether  or  no  he  should  be  re- 
stored to  his  kingdom,  until  which  time  he  promised  not  to 
assume  the  ensigns  of  royalty. 

This  base  humiliation,  instead  of  conciUating  Henry's  ad- 
versaries, forfeited  the  attachment  of  his  friends.     In  his  con- 
test with  the  pope  he  had  found  a  zealous  support  in  the  prin- 
cipal J^ombard  cities,  among  whom  the  married  and  simonia- 
cal  clergy  had  great  influence.^     Indignant  at  his  submission 
to  Grregory,  whom  they  affected  to  consider  as  an  usurper  of 
the  papal  chair,  they  now  closed  their  gates  against  the  em- 
peror, and  spoke  openly  of  deposing  him.  In  this  singular  po- 
sition between  opposite  dangers,  Henry  retrod  his  late  stepL 
and  broke  off  his  treaty  with  the  pope ;  preferring,  if  he  must 
tail,  to  fall  as  the  defender  rather  than  the  betrayer  of  his  im- 
perial rights.     The  rebeUious  princes  of  Germany  chose  an- 
other king,  Rodolph  duke  of  Suabia,  on  whom  Gregory,  after 
some  delay,  bestowed  the  crown,  with  a  Latin  verse  import- 
ing that  It  was  given  by  virtue  of  the  original   commission 


at  Milan  for  about  twenty  years  before 
this  time,  excited  by  the  intemperate 
wal  of  some  partisans  who  endeavored 
to  execute  the  papal  decrees  against 
Irregular  clerks  by  force.  The  history  of 
these  feuds  has  been  written  by  two  con- 
temporaries  Arnulf  and  Landulf,  pub- 
Hjhed  ,n  the  4th  volume  of  Murktori's 
SK"V"  "*'''T  't*"<'«rum;  sufficient 
Mtracts  from  which  wiU  be  found  iu  St. 


Marc,  t.  iii.  p.  280,  &c.,  and  In  Mura- 
tori'B  Annals.  The  Milanese  clergy  set 
up  a  pretence  to  retain  wives,  under  the 
authority  of  their  great  archbishop,  St. 
Ambrose,  who,  it  seems,  has  spoken  with 
more  indulgence  of  this  practice  than 
most  of  the  fathers.  Both  Arnulf  and 
Landulf  favor  the  married  clerks  ;  and 
were  perhaps  themselves  of  that  descrip- 
tion.   Muraton. 


180 


DISPUTE  ABOUT  INVESTITURES.     Chaf.  VII.  Part  I. 


of  St.  Peter.^    But  the  success  of  this  pontiff  in  his  imme- 
diate designs  was  not  answerable  to  his  intrepidity.     Henry 
both  subdued  the  German  rebellion  and  carried  on  the  war 
with  so  much  vigor,  or  rather  so  little  resistance  in,  Italy, 
that  he  was  crowned  in  Rome  by  the   antipope   Guibert, 
whom  he  had  raised  in  a  council  of  his  partisans  to  the  gov- 
ernment of  the  church  instead  of  Gregory.     The  latter  found 
an  asylum  under  the  protection  of  Roger  Guiscard,  at  Sa- 
Dispute         l6r"o»  where  he  died  an  exile.     His  mantle,  how- 
aboutin-       ever,  descended   upon   his   successors,   especially 
yestitures.      jj^y^^^  jj  ^^^  Paschal  H.,  who  strcnuou^y  per- 
severed in  the  great  contest  for  ecclesiastical  independence  ; 
the  former  with  a  spirit  and  policy  worthy  of  Gregory  VH., 
the  latter  with  steady  but  disinterested  prejudice.^     Thojr 
raised  up  enemies  against  Henry  IV.  out  of  the  bosom  of  hia 
family,  instigating  the  ambition  of  two  of  his  sons  successive- 
ly, Conrad  and  Henry,  to  mingle  in  the  revolts  of  Germany. 
But  Rome,  under  whose  auspices  the  latter  had  not  scrupled 
to  engage  in  an  almost  parricidal  rebellion,  was  soon  disiip- 
pointed  by  his  unexpected  tenaciousness  of  that  obnoxious 
prerogative  which  had  occasioned  so  much  of  his  father's 
misery.     He  steadily  refused  to  part  with  the  right  of  inves- 
titure ;  and  the  empire  was  still  committed  in  open  ho.-tility 
with  the  church  for  fifteen  years  of  his  reign.     But  Henry 
V.  being  stronger  in  the  support  of  his  German  vassals  than 
his  father  had  been,  none  of  the  popes  with  whom  he  was 
engaged  had  the  boldness  to  repeat  the  measures  of  Gregory 
Compro-        VII.     At  length,  each  party  grown  weary  of  this 
mised  ^        Tuinous  contention,  a  treaty  was  agreed  upon  be- 
of°CaUxttis,    iween  the  emperor  and  Calixtus  II.  which  put  an 
A.D.  1122.      gjj^  ijy  compromise  to  the  question  of  ecclesiastical 
investitures.      By  this  compact  the  emperor  resigned  forever 
all  pretence  to  invest  bishops  by  the  ring  and  crosier,  and 


1  Petra  dedit  Petro,  Petnu  diadema 
Rodolpho. 

*  Paschal  n.  waa  so  conscientious  in 
his  abhorrence  of  investitures,  that  he 
actually  signed  an  agreement  with 
Henry  V.  in  1110,  whereby  the  prelates 
were  to  resign  all  the  lands  and  other 
possessions  which  they  held  in  fief  of  the 
emperor,  on  condition  of  the  latter  re- 
nouncing the  right  of  inrestiture,  which 
indeed,  in  such  circumstances,  would  fall 
of  itself.    This  extraordinary  conce2>si>n, 


as  may  be  Imagined,  wm  not  rery  satis- 
foctory  to  the  cardinals  and  bishops  about 
Paschal's  court,  more  worldly-minded 
than  himself,  nor  to  those  of  the  empe- 
ror's party,  whose  joint  clamor  soon  put  a 
stop  to  the  treaty.  St.  Marc,  t.  iv.  p.  976. 
A  letter  of  Paschal  to  Anselm  (Schmidt, 
t.  iii.  p.  304)  seems  to  imply  that  he 
thought  it  better  for  the  church  to  b« 
without  riches  than  to  enjoy  them  oo 
condition  of  doing  »iomage  to  laymen. 


EccLES.  Power.      COMPROMISED  BY  CONCORDAT. 


181 


recognized  the  liberty  of  elections.  But  in  return  it  was 
agreed  that  elections  should  be  made  in  his  presence  or  that 
of  his  officers,  and  that  the  new  bishop  should  receive  his 
temporalities  from  the  emperor  by  the  sceptre.^ 

Both  parties  in  the  concordat  at  Worms  receded  from  so 
much  of  their  pretensions,  that  we  might  almost  hesitate  to 
determine  which  is  to  be  considered  as  victorious.     On  the 
one  hand,  in  restoring  the  freedom  of  episcopal  elections  the 
emperors  lost  a  prerogative  of  very  long  standing,  and  almost 
necessary  to  the  maintenance  of  authority  over  not  the  least 
turbulent  part  of  their  subjects.     And  though  the  form  of  in- 
vestiture by  the  ring  and  crosier  seemed  in  itself  of  no  im- 
portance, yet  it  had   been   in   effect  a   collateral   security 
against  the  election  of  obnoxious  persons.    For  the  emperors 
detaining  this  necessary  part  of  the  pontificals  until   they 
should  confer  investiture,  prevented  a  hasty  consecration  of 
the  new  bishop,  after  which,  the  vacancy  being  legally  filled, 
it  would  not  be  decent  for  them  to  withhold  the  temporali- 
ties.    But  then,  on  the  other  hand,  they  preserved  by  the 
concordat  their  feudal  sovereignty  over  the  estates  of  the 
church,  in  defiance  of  the  language  which  had  recently  been 
held  by  its  rulers.     Gregory  VII.  had  positively  declared,  in 
the  Lateran  council  of  1080,  that  a  bishop  or  abbot  receiving 
investiture  from  a  layman  should  not  be  reckoned  as  a  prel- 
ate.^   The  same  doctrine  had  been  maintained  by  all  his 
successors,  without  any  limitation  of  their  censures  to  the 
formality  of  the  ring  and  crosier.     But  Calixtus  II.  himself 
had  gone  much  further,  and  absolutely  prohibited  the  com- 
pelling ecclesiastics  to  render  any  service  to  laymen  on  ac- 
count of  their  benefices.*     It  is  evident  that  such  a  general 
immunity  from  feudal  obligations  for  an  order  who  possessed 
nearly  half  the  lands  in  Europe  struck  at  the  root  of  those  in- 
stitutions by  which  the  fabric  of  society  was  principally  held 
together.     This  complete  independency  had  been  the  aim  of 
Gregory's  disciples ;  and  by  yielding  to  the  continuance  of 
lay  investitures  in  any  shape  Calixtus  may,  in  this  point  of 


iSt.  Marc,  t.  iv.  p.  1093;  Schmidt, 
t.  iii.  p.  178.  The  latter  quotes  the  Latin 
words. 

2  St.  Marc,  t.  iv.  p.  774.  A  bishop  of 
Placentia  asserts  that  prelates  dishonored 
their  order  by  putting  their  hands, 
which  held  the  body  and  blood  of  Christ, 


between  those  of  impure  laymen,  p.  956. 
The  same  expressions  are  used  by  others, 
and  are  levelled  at  the  form  of  feudal 
homage,  which,  according  to  the  prin- 
ciples of  that  age,  ought  to  have  been  as 
obnoxious  as  investiture. 
3  Id.  p.  1061,  1067. 


182 


INVESTITURES. 


Chap.  TH.  Part  I 


EccLES.  Power.        CAPITULAR  ELECTIONS. 


183 


view,  appear  to  have  relinquished  the  principal  ohject  of 

contention.  ,  ,  ,. 

The  emperors  were  not  the  only  sovereigns  whose  practice 
of  investiture  excited  the  hostility  of  Rome,  although  they 
sustained  the  principal  brunt  of  the  war.  A  sinailar  contest 
broke  out  under  the  pontificate  of  Paschal  II.  with  Henry  I. 
of  En^Land ;  for  the  circumstances  of  which,  as  they  contain 
nothinl  peculiar,  I  refer  to  our  own  historians.  It  is  remark- 
able  that  it  ended  in  a  compromise  not  unlike  that  adjusted 
at  Worms;  the  king  renouncing  aU  sorts  of  investitures, 
while  the  pope  consented  that  the  bishop  should  do  homage 
for  his  temporalities.  This  was  exactly  the  custom  of  France, 
where  an  investiture  by  the  ring  and  crosier  is  said  not  to 
have  prevailed ;  ^  and  it  answered  the  main  end  of  sovereigns 
by  keeping  up  the  feudal  dependency  of  ecclesiastical  estates. 
But  the  kuigs  of  Castile  were  more  fortunate  than  the  rest ; 
discreetly  yielding  to  the  pride  of  Rome,  they  obtained  what 
was  essential  to  their  own  authority,  and  have  always  pos- 
sessed, by  the  concession  of  Urban  II.,  an  absolute  privilege 


iRanke   observes   that   according   to 
the  concordat  of  Worms    predominant 
influence  was  yielded  to  the  emperor  in 
Germany  and  to  the  pope  in  Italy;  an 
agreement,  however,  which  was  not  ex- 
pressed \*ith  precision,  and  which  con- 
tained the  germ  of  fre?h  disputes.     Hist, 
of  Reform,  i.  34.    But  even  if  this  victory 
should  be  assigned  to"  Rome  in  respect  of 
Germany,  it  does  not  seem  equally  clear 
as  to  England.     Lingard   says   of  the 
agreement  between  Henry  I.  and  Pas- 
chal II.,  —  "  Upon  the  whole,  the  church 
gained  little  by  this   compromise.     It 
might  check,  but  did  not  abolish,  the 
principal  abuse.    If  Henry  surrendered 
an   unnecessary  ceremony,  he  still  re- 
tained the  substance.    The  right  which 
he  assumed  of  nominating  bishops  and 
abbots  was  left  unimpaired."    Hist,  of 
Engl.  ii.  169.    But  if  this  nomination  by 
the  crown  was  so  great  an  abuse,  why 
did  the  popes  concede  it  to  Spain  and 
France  ?    The  real  truth  is,  that  no  mode 
of  choosing  bishops  is  altogether  unex- 
ceptionable.     But,    upon    the    whole, 
nomination   by  the  crown  is  likely  to 
work  better  than  any  other,  even  for  the 
religious  good   of  the   churoh.      As    a 
means  of  preserving  the  connection  of  the 
clergy  with  the  state,  it  is  almost  indis- 
pensable. 

Schmidt  observes,  as  to  Germany,  that 
the  dispute  about  investitures  was  not 
Wholly  to  the  advantage  of  the  church : 


though  she  seemed  to  come  out  success- 
fully, yet  it  produced  a  hatred  on  the 
part  of  the  laity,  and,  above  all,  a  deter- 
mination ia  the  princes  and  nobility  to 
grant  no  more  lands  over  which  their 
suzerainty  was  to  be  disputed,    iii.  2G9. 
The  emperors  retained  a  good  deal  — the 
regale,  or  possession  of  the  temporalities 
during  a  vacancy ;  the  prerogative,  on  a 
disputed  election,  of  investing  whichever 
candidate  they  pleaded;  above  all,  per- 
haps, the  recognition  of  a  great  principle, 
that  the  church  was,  as  to  its  temporal 
estate,  the  subject  of  the  civil  magistrate. 
The  feudal  element  of   society   was  so 
opposite  to  the  ecclesiastical,  that  what- 
ever was  gained  by  the  former  was  so 
much  subtracted  frMn  the  efficacy  of  the 
latter.    This  left  an  importance  to  the 
imperial   investiture  after   the    Culixtin 
concordat,  which  was  not  intended  pro- 
bably by  the  pope.    For  the  words,  a« 
quoted  by  Schmidt  (iU.  301),  — Habeat 
impcratoria  dignitas  electum  liber  ,  con- 
secratum  canonictj,regaliter  persceptrum 
sine  pretio  tamen  investiru  solenniter  — 
imply  nothing  more  than  a  formality. 
The  emperor  is,  as  it  were,  commanded 
to  invest  the  bishop  after  consecration. 
But   in    practice    the  emperors    always 
conferred  the  investiture  before  conse- 
cration.   Schmidt,  iv.  153 

2  Histoire  du  Droit  public  ecclesias- 
tique  Francois,  p.  261.  I  .do  not  fulU 
rely  on  this  authority. 


of  nomination  to  bishoprics  in  their  dominions.^  An  early 
evidence  of  that  indifference  of  the  popes  towards  the  real 
independence  of  national  churches  to  which  subsequent  ages 
were  to  lend  abundant  confirmation. 

When  the  emperors  had  surrendered  their  pretensions  to 
interfere  in  episcopal  elections,  the  primitive  mode  introduction 
of  collecting  the  suffrages  of  clergy  and  laity  in  of  capitular 
conjunction,  or  at  least  of  the  clergy  with  the®®^'**"^'* 
laity's  assent  and  ratification,  ought  naturally  to  have  revived. 
But  in  the  twelfth  century  neither  the  people,  nor  even  the 
general  body  of  the  diocesan  clergy,  were  considered  as 
worthy  to  exercise  this  function.  It  soon  devolved  altogether 
upon  the  chapters  of  cathedral  churches.^  The  original  of 
these  may  be  traced  very  high.  In  the  earliest  ages  we  find 
a  college  of  presbytery  consisting  of  the  priests  and  deacons, 
assistants  as  a  council  of  advice,  or  even  a  kind  of  parliament, 
to  their  bishops.  Parochial  divisions,  and  fixed  ministers 
attached  to  them,  were  not  established  till  a  later  period. 
But  the  canons,  or  cathedral  clergy,  acquired  afterwards  a 
more  distinct  character.  They  were  subjected  by  degrees 
to  certain  strict  observances,  little  differing,  in  fact,  from 
those  imposed  on  monastic  orders.  They  lived  at  a  common 
table,  they  slept  in  a  common  dormitory,  their  dress  and  diet 
were  regulated  by  peculiar  laws.  But  they  were  distin- 
guished from  monks  by  the  right  of  possessing  individual 
property,  which  was  afterwards  extended  to  the  enjoyment 
of  separate  prebends  or  benefices.  These  strict  regulations, 
chiefly  imposed  by  Louis  the  Debonair,  went  into  disuse 
through  the  relaxation  of  discipline;  nor  were  they  ever 
effectually  restored.  Meantime  the  chapters  became  ex- 
tremely rich;  and  as  they  monopolized  the  privilege  of 
electing  bishops,  it  became  an  object  of  ambition  with  noble 


1 F.  Paul  on  Benefices,  c.  24 ;  Zurita, 
Anales  do  Aragon,  t.  iv.  p.  905.  Fleury 
■ays  that  the  kings  of  Spain  nominate  to 
bishoprics  by  virtue  of  a  particular  indul- 
gence, renewed  by  the  pope  for  the  life 
of  each  prince.  Institutions  au  Droit, 
t.  i.  p.  106. 

«  Fra  Paolo  (Treatise  on  Benefices,  c. 
24)  says  that  between  1122  and  ll45 
It  became  a  rule  almost  everywhere 
MtabUshed  that  bishops  should  be  chos- 
tn  by  the  chapter.  Schmidt,  however, 
Mngl  a  few  instances  where  the  consent 
of  the  nobility  and  other  laics  is  expressed. 


though  perhaps  little  else  than  a  matter 
of  form.  Innocent  II.  seems  to  have 
been  the  first  who  declared  that  whoever 
had  the  majority  of  the  chapter  in  his 
Ikvor  should  bo  deemed  duly  elected; 
and  this  was  confirmed  by  Otho  IV.  in 
the  capitulation  upon  his  accession.  Hist, 
des  Allemands,  t.  iv.  p.  175.  Fleniy 
thinks  that  chapters  had  not  an  exclusive 
election  till  the  end  of  the  twelfth  cen- 
tury. The  second  Lateran  council  in 
il39  represses  their  attempts  to  engrosa 
it.  Institutions  au  Droit  Eccl6s.  t.  L 
p.  100. 


184 


GENERAL  CONDUCT   Chap.  VH.  Pabt  L 


ECCUCS.  POWEB. 


OF  GREGORY  VH. 


185 


faimlies  to  obtain  canonries  for  their  younger  children,  as  the 
surest  road  to  ecclesiastical  honors  and  opulence.     Contrary, 
therefore,  to  the  general  policy  of  the  church,  persons  of 
inferior  birth  have  been  rigidly  excluded  from  these  founda- 
tions.^ .  r,  .V 
The  object  of  Gregory  VH.,  in  attempting  to  redress  those 
more  flafrrant  abuses  which  for  two  centuries  had 
S^l  of     deformed"  the  face  of  the  Latin   church,  is  not 
Gregory  vn.  incapable,  perhaps,  of  vindication,  though  no  suf- 
ficient apology  can  be  offered  for  the  means  he  employed. 
But  the  disinterested  love  of  reformation,  to  which  candor 
mit^ht  ascribe  the  contention  against  investitures,  is  belied  by 
the°  general  tenor  of  his  conduct,  exhibiting  an  arrogance 
without  pai-allel,  and  an  ambition  that  grasped  at  universal 
and  unUmited  monarchy.     He  may  be  caUed  the  common 
enemy  of  all  sovereigns  whose  dignity  as  well  as  independence 
mortified  his  infatuated  pride.     Thus  we  find  him  menacing 
Philip  I.  of  France,  who  had  connived  at  the  pillage  of  some 
Itahan  merchants  and  pilgrims,  not  only  with  an  interdict, 
but  a  sentence  of  deposition.^     Thus  too  he  asserts,  as  a 
known  historical  fact,  that  the  kingdom  of  Spain  had  formerly 
belonged,  by  special  right,  to  St.  Peter ;  and  by  virtue  of  this 
imprescriptible  claim  he  grants  to  a  certain  count  de  Rouci 
all  territories  which  he  should  reconquer  from  the  Moors,  to 
be  held  in  fief  from  the  Holy  See  by  a  stipulated  rent.*     A 
similar  pretension  he  makes  to  the  kingdom  of  Hungary,  and 
bitterly  reproaches  its  sovereign,  Solomon,  who  had  done  hom- 
age to  the  emperor,  in  derogation  of  St.  Peter,  his  legitimate 
lord.*    It  was  convenient  to  treat  this  apostle  as  a  great 


1  Schmidt,  t.  ii.  p.  224,  473;  t.  iii. 
p.  281.  Encyclop6die  art.  Chanoine.  F. 
Paul  on  Benefices,  c.  16.  Fleury,  Sme  Dis- 
cours  8ur  I'Hist.  Eccles. 

2  St.  Marc,  t.  iii.  p.  628;  Fleury,  Hist. 
Eccles.  t.  xiu.  p.  281,  284. 

3  The  language  he  employs  is  worth 
quoting  as  a  specimen  of  his  style  :  Non 
latere  tos  credimus,  regnum  Hispanise 
ab  antiquo  juris  sancti  Petri  fuisse,  et 
adhuc  licet  diu  a  paganis  sit  occupatum, 
lege  tamen  justitiae  non  eyacuati,  nulli 
mortalium,  sed  soli  apostolicse  sedi  ex 
aequo  pertinere.  Quod  enim  auctore  Deo 
semcl  in  proprietates  ecclesiarum  justi 
pervenerit,  maneute  Eo,  ab  usu  quidem, 
sed  ab  earum  jure,  occasione  transeuntis 
temporis,  sine  legitimi  concessione  diyelli 
Hon  poterit.    Itaque  comes  Evalus  de 


Roceio,  ctgus  fiunam  apud  vos  haud  ob- 
scuram  esse  putamus,  terram  illam  ad 
honorem  Sti.  Petri  ingredi,  et  a  pagano- 
rum  manibus  eripere  cupiens,  banc  con- 
cessionem  ab  apostolic^  sede  obtinuit,  ut 
partem  illam,  unde  paganos  suo  studio 
et  adjuncto  sibi  aliorum  auxilioexpellere 
possit,  sub  conditione  inter  nos  factce 
pactionis  ex  parte  Sti.  Petri  possideret. 
Labb6,  Concilia,  t.  x.  p.  10.  Three  in- 
stances occur  in  the  Corps  Diplomatique 
of  Dumont,  where  a  duke  of  Dalmatia 
(t.  i.  p. 58),  a  count  of  Provence  (p.  68), 
and  a  count  of  Barcelona  (ibid.),  put 
themselves  under  the  feudal  superiority 
and  protection  of  Gregory  VII.  The 
motive  was  suflBciently  obvious. 

4  St.  Marc,  t.  iU.  p.  624,  674 ;  Schmidt 
p.  78. 


feudal  suzerain,  and  the  legal  principles  of  that  age  were 
dexterously  applied  to  rivet  more  forcibly  the  fetters  of 
superstition.^ 

While  temporal  sovereigns  were  opposing  so  inadequate  a 
resistance  to  a  system  of  usurpation  contrary  to  all  precedent 
and  to  the  common  principles  of  society,  it  was  not  to  be  ex- 
pected that  national  churches  should  persevere  in  opposing 
pretensions  for  which  several  ages  had  paved  the  way. 
Gregory  VII.  completed  the  destruction  of  their  liberties. 
Tiie  principles  contained  in  the  decretals  of  Isidore,  hostile 
as  they  were  to  ecclesiastical  independence,  were  set  aside 
as  insuflGicient  to  establish  the  absolute  monarchy  of  Rome. 
By  a  constitution  of  Alexander  II.,  during  whose  pontificate 
Hildebrand  himself  was  deemed  the  effectual  pope,  no  bishop 
in  the  catholic  church  was  permitted  to  exercise  his  functions, 
until  he  had  received  the  confirmation  of  the  Holy  See :  ^  a 
provision  of  vast  importance,  through  which,  beyond  perhaps 
any  other  means,  Rome  has  sustained,  and  still  sustains,  her 
temporal  influence,  as  well  as  her  ecclesiastical  supremacy. 
The  national  churches,  long  abridged  of  their  liberties  by 
gradual  encroachments,  now  found  themselves  subject  to  an 
undisguised  and  irresistible  despotism.  Instead  of  affording 
protection  to  bishops  against  their  metropolitans,  under  an 
insidious  pretence  of  which  the  popes  of  the  ninth  century 
had  subverted  the  authority  of  the  latter,  it  became  the 
favorite  policy  of  their  successors  to  harass  all  prelates  with 
citations  to  Rome.''  Gregory  obliged  the  metropolitans  to 
attend  in  person  for  the  pallium.*  Bishops  were  summoned 
even  from  England  and  the  northern  kingdoms  to  receive 
the  commands  of  the  spiritual  monarch.  William  the  Con- 
queror having  made  a  difficulty  about  permitting  his  prelates 
to  obey  these  citations,  Gregory,  though  in  general  on  good 
terms  with  that  prince,  and  treating  him  with  a  deference 
which  marks  the  effect  of  a  firm  character  in  repressing  the 
ebuUitions  of  overbearing  pride,^  complains  of  this  as  a  per- 
secution unheard  of  among  pagans.®  The  great  quarrel 
between  archbishop  Anselm  and  his  two  sovereigns,  William 


1  The  character  and  policy  of  Gregory 
vn.  are  well  discussed  by  Schmidt,  t.  iii. 
p.  807. 

«  St.  Marc,  p.  460. 

*  Schmidt,  t.  iU.  p.  80,  322. 


4  Id.  t.  iv.  p.  170. 

6  St.  Marc,  p.  628,  788 ;  Schmidt,  t.  ill 
p.  82. 
e  St.  Marc,  t.  iv.  p.  761;  Collier,  p.  252 


Mi 


186       AUTHORITY  OF  PAPAL  LEGATES.     Chap.  VU.  Part  I 

Rufus  and  Henry  I.,  was  originally  founded  upon  a  similar 
refusal  to  permit  his  departure  for  Rome. 

This  perpetual  control  exercised  by  the  popes  over  eccle- 
siastical, and  in  some  degree  over  temporal  afiairs, 
of^'pa^i        was  maintained  by  means  of  their  legates,  at  once 
legates.         ^^iq  ambassadors  and  the  lieutenants  of  the  Holy 
See.     Previously  to  the  latter  part  of  the  tenth  age  these 
had  been  sent  not  frequently  and  upon  special  occasions. 
The  legatine  or  vicarial  commission  had  generally  been  in- 
trusted°to  some  eminent  metropolitan  of  the  nation  within 
which  it  was  to  be  exercised ;  as  the  archbishop  of  Canter- 
bury was  perpetual  legate  in  England.      But  the  special 
commissioners,  or  legates  a  latere,  suspending  the  pope's  ordi- 
nary vicars,  took  upon  themselves  an  unbounded  authority 
over  the  national  churches,  holding  councils,  pi-omulgating 
canons,  deposing  bishops,  and  issuing  interdicts  at  their  dis- 
cretion.    They  lived  in  splendor  at  the  expense  of  the  bishops 
of  the  province.     This  was  the  more  galling  to  the  hierarchy, 
because  simple  deacons  were  often  mvested  with  this  dignity, 
which  set  them  above  primates.   As  the  sovereigns  of  France 
and    England    acquired    more   courage,   they   considerably 
abridgedlhis  prerogative  of  the  Holy  See,  and  resisted  the 
entrance  of  any  legates  into  their  dominions  without  their 

consent 

From  the  time  of  Gregory  VII.  no  pontiff  thought  of 
awaiting  the  confirmation  of  the  emperor,  as  in  earlier  ages, 
before  he  was  installed  in  the  throne  of  St.  Peter.  On  the 
contrary,  it  was  pretended  that  the  emperor  was  himself  to 
be  confirmed  by  the  pope.  This  had  indeed  been  broached 
by  John  VIH.  two  hundred  years  before  Gregory.'*  It  was 
still  a  doctrine  not  calculated  for  general  reception ;  but  the 
popes  availed  themselves  of  every  opportunity  which  the 
temporizing  policy,  the  negligence  or  bigotry  of  sovereigns 
threw  into  their  hands.      Lothaire  coming  to  receive  the 


ECCLXS.  POWEB. 


ADRIAN  IV. 


187 


1  De  Marca,  1.  Ti.  c.  28, 30, 31.  Schmidt, 
t.  ii.  p.  498;  t.  Ui.  p.  312,  320.  Hist, 
du  Droit  Public  Eccl.  Francois,  p.  260. 
Fleury,  4me  Discours  sur  I'liiat.  Eccles. 

8.10. 

>Vide  supra.  It  appears  manifest 
that  the  scheme  of  temporal  sovereignty 
was  only  suspended  by  the  disorders  of 
the  Roman  See  in  the  tenth  century, 
Peter  Damian,  a  celebrated  writer  of  the 
age  of  Hildebrand,  and  his  friend,  puts 


these  words  into  the  mouth  of  Jesus 
Christ,  as  addressed  to  pope  Victor  II. 
i^  claves  totius  universalis  ecclesi® 
mew  tuis  manibus  tradidi,  et  super  earn 
to  mihi  vicarium  posui,  quam  proprii 
sanguinis  effujione  redemi.  Et  si  pauca 
sunt  ista,  etiam  monarchias  addidi :  im- 
mo  Bublato  rege  de  medio  totius  Uomani 
imperii  yacautis  tibi  jura  permlsi. 
Schmidt,  t.  iii.  p-  78. 


imperial  crown  at  Rome,  this  circumstance  was  commemo- 
rated by  a  picture  in  the  Lateran  palace,  in  which,  and  in 
two  Latin  verses  subscribed,  he  was  represented  as  doing 
homage  to  the  pope.*  When  Frederic  Barbarossa  came 
upon  the  same  occasion,  he  omitted  to  hold  the  ^^j^^  jy 
stirrup  of  Adrian  IV.,  who,  in  his  turn,  refused  to 
give  him  the  usual  kiss  of  peace ;  nor  was  the  contest  ended  but 
by  the  emperor's  acquiescence,  who  was  content  to  follow  the 
precedents  of  his  predecessors.  The  same  Adrian,  expostu^ 
lating  with  Frederic  upon  some  slight  grievance,  reminded 
him  of  the  imperial  crown  which  he  had  conferred,  and 
declared  his  wiUingness  to  bestow,  if  possible,  still  greater 
benefits.  But  the  phrase  employed  (majora  beneficia)  sug- 
gested the  idea  of  a  fief;  and  the  general  insolence  which 
pervaded  Adrian's  letter  confirming  this  interpretation,  a 
ferment  arose  among  the  German  princes,  in  a  congress  of 
whom  this  letter  was  dehvered.  "  From  whom  then,"  one 
of  the  legates  was  rash  enough  to  say,  "  does  the  emperor  hold 
his  crown,  except  from  the  pope  ?  "  which  so  irritated  a  prince 
of  Wittelsbacli,  that  he  was  with  difiiculty  prevented  from 
cleaving  the  priest's  head  with  his  sabre.^  Adrian  IV.  was 
tlie  only  Englishman  that  ever  sat  in  the  papal  chair.  It 
might,  perhaps,  pass  for  a  favor  bestowed  on  his  natural 
sovereign,  when  he  granted  to  Henry  II.  the  kingdom  of 
Ireland ;  yet  the  language  of  this  donation,  wherein  he  as- 
serts all  islands  to  be  the  exclusive  property  of  St.  Peter, 
should  not  have  had  a  very  pleasing  sound  to  an  insular 
monarch. 

I  shall  not  wait  to  comment  on  the  support  given  to  Becket 
by  Alexander  III.,  which  must  be  familiar  to  the  innocent  in. 
English  reader,  nor  on  his  speedy  canonization ;  a  -,^^,g 
reward  which  the  church  has  always  held  out  to 
its  most  active  friends,  and  which  may  be  compared  to  titles 
of  nobility  granted  by  a  temporal  sovereign.*  But  the  epoch 
when  the  spirit  of  papal  usurpation  was  most  strikingly  dis- 


1  B«x  Tenit  ante  fores,  Jurans  prius 
urbis  honores : 
Post  homo  fit  papse,  sumit  quo  dante 
coronam. 

Muratori,  Annali,  a.d.  1157- 

There  was  a  pretext  for  this  artful 

line.    Lothaire  had  received  the  estate 

of  Matilda  in  fief  from  the  pope,  with 

a  reversion  to  Henrj'  the  Proud,  his  son- 

tt-law.    Schmidt,  p.  349. 


2  Muratori,  ubi  supra.    Schmidt,  t  iii. 
p.  893. 

3  The  first  instance  of  a  solemn  papal 
canonization  is  that  of  St.  Udalric  by 
John  XVI.  in  993.  However,  the  metro- 
politans continued  to  meddle  with  this 
sort  of  apotheosis  till  the  pontificate  of 
Alexander  III.,  who  reserved  it,  as  a 
choice  prerogative,  to  the  Holy  See.  Art 
de  verifier  Ics  Dates,  t.  i.  p.  247  and  290. 


'fl 


II  if 


188  EXTRAORDINARY  PRETENSIONS     Chap.  VII.  Pabt  L 

played  was  the  pontificate  of  Innocent  IIL  In  each  of  the 
three  leading  objects  which  Rome  has  pursued,  independent 
sovereignty,  supremacy  over  the  Christian  church,  control 
over  the  princes  of  the  earth,  it  was  the  fortune  of  this  pon- 
tiff to  conquer.  He  realized,  as  we  have  seen  in  another 
place,  that  fond  hope  of  so  many  of  his  predecessors,  a  do- 
minion over  Rome  and  the  central  parts  of  Italy.  Durmg 
his  pontificate  Constantinople  was  taken  by  the  Latins ;  and 
however  he  might  seem  to  regret  a  diversion  of  the  crusaders, 
which  impeded  the  recovery  of  the  Holy  Land,  he  exulted 
in  the  obedience  of  the  new  patriarch  and  the  reunion  of  the 
Greek  church.  Never,  perhaps,  either  before  or  smce,  was 
the  great  eastern  schism  in  so  fair  a  way  of  being  healed ; 
even  the  kings  of  Bulgaria  and  of  Armenia  acknowledged 
the  supremacy  of  Innocent,  and  permitted  his  mterference 
with  their  ecclesiastical  institutions. 

The  maxims  of  Gregory  YTL,  were  now  matured  by  more 
than  a  hundred  years,  and  the  right  of  trampling 
OTdinarr      upou  the  uccks  of  kings  had  been  received,  at 
pretensions.    ^^^^^    among   churchmcu,   as    an    inherent   attri- 
bute of  the  papacy.     "  As  the  sun  and  the  moon  are  placed 
in  the  firmament"  (such  is  the  language  of  Innocent),  **the 
greater  as  the  light  of  the  day,  and  the  lesser  of  the  night, 
thus  are  there  two  powers  m  the  church  —  the  pontifical, 
which,  as  having  the  charge  of  souls,  is  the  greater ;  and  the 
royal,  which  is  the  less,  and  to  which  the  bodies  of  men  only 
are  intrusted."  ^     Intoxicated  with  these  conceptions  (if  we 
may  apply  such  a  word  to  successful  ambition),  he  thought 
no  quarrel  of  princes  beyond  the  sphere  of  his  jurisdiction. 
"  Though  I  cannot  judge  of  the  right  to  a  fief,"  said  Innocent 
to  the  fings  of  France  and  England,  "yet  it  is  my  provmce 
to  judge  where  sin  is  committed,  and  my  duty  to  prevent  all 
public  scandals."     Philip  Augustus,  who  had  at  that  time  the 
worse  in  his  war  with  Richard,  acquiesced  in  this  sophism ; 
the  latter  was  more  refractory  till  the  papal  legate  began  to 
menace  him  with  the  rigor  of  the  church.^     But  the  king  of 
England,  as  well  as  his  adversary,  condescended  to  obtain 


BccLES.  Power. 


OF  INNOCENT  m. 


189 


iVita  Innocentii  Tertil  in  Muratori, 
Scriptores  Rerum  Ital.  t.  ili.  pars  i.  p.  448. 
This  Life  is  written  by  a  contemporary. 
St.  Marc,  t.  v.  p.  325.  Sctiinidt,  t.  iv. 
p.  227. 

a  Philippus  rex  Francise  in  manu  ejus 
datA  fide  protnisit  se  ad  mandatum  ipslus 


pacem  vel  treugaa  cum  rege  Anglia 
initurum.  Richardus  autem  rex  Anglia 
se  difflcllem  ostondebat.  Sed  cum  idem 
legatus  ei  cepit  rigorem  eccUsiasticum  in- 
tentare,  saniorl  ductus  consilio  acquier't 
Vita  Innocentii  Tertii,  t.  iii.  pars  i.  p. 
508. 


temporary  ends  by  an  impolitic  submission  to  Rome.  We 
have  a  letter  from  Innocent  to  the  king  of  Navarre,  directing 
him,  on  pain  of  spiritual  censures,  to  restore  some  castles 
which  he  detained  from  Richard.*  And  the  latter  appears 
to  have  entertained  hopes  of  recovering  his  ransom  paid  to 
the  emperor  and  duke  of  Austria  through  the  pope's  inter- 
ference.^ By  such  blind  sacrifices  of  the  greater  to  the  less, 
of  the  future  to  the  present,  the  sovereigns  of  Europe  played 
continually  into  the  hands  of  their  subtle  enemy. 

Though  I  am  not  aware  that  any  pope  before  Innocent 
m.  had  thus  announced  himself  as  the  general  arbiter  of 
differences  and  conservator  of  the  peace  throughout  Christen- 
dom, yet  the  scheme  had  been  already  formed,  and  the  public 
mind  was  in  some  degree  prepared  to  admit  it.  Gerohus,  a 
writer  who  lived  early  in  the  twelfth  century,  published  a 
theory  of  perpetual  pacification,  as  feasible  certainly  as  some 
that  have  been  planned  in  later  times.  All  disputes  among 
princes  were  to  be  referred  to  the  pope.  If  either  party  re- 
fused to  obey  the  sentence  of  Rome,  he  was  to  be  excommu- 
nicated and  deposed.  Every  Christian  sovereign  was  to 
attack  the  refractory  delinquent  under  pain  of  a  similar 
forfeiture.'  A  project  of  this  nature  had  not  only  a  magnifi- 
cence flattering  to  the  ambition  of  the  church,  but  was 
calculated  to  impose  upon  benevolent  minds,  sickened  by  the 
cupidity  and  oppression  of  princes.  No  control  but  that  of 
religion  appeared  sufficient  to  restrain  the  abuses  of  society ; 
while  its  salutary  influence  had  already  been  displayed  both 
in  the  Truce  of  Grod,  which  put  the  first  check  on  the  custom 
of  private  war,  and  more  recently  in  the  protection  afforded 
to  crusaders  against  all  aggression  during  the  continuance 
of  their  engagement  But  reasonings  from  the  excesses  of 
liberty  in  favor  of  arbitrary  government,  or  from  the  calami- 
ties of  national  wars  in  favor  of  universal  monarchy,  involve 
the  tacit  fallacy,  that  perfect,  or  at  least  superior,  wisdom  and 
virtue  will  be  found  in  the  restraining  power.  The  experi- 
ence of  Europe  was  not  such  as  to  authorize  so  candid  an 
expectation  in  behalf  of  the  Roman  See. 


1  Innocentii  Opera  (Colonias,  1574),  p. 
124. 

«  Id.  p.  134.  Innocent  actually  wrote 
•ome  letters  for  this  purpose,  but  with- 
out any  effect,  nor  was  he  probably  at  all 
loUcitous  about  it.  p.  139  and  Ui.  Nor 
had  he  interfered  to  procure  Richard's 


release  from  prison:  though  Eleanor 
wrote  him  a  letter,  in  which  she  asks, 
''  Has  not  Ck)d  given  you  the  power  to 
govern  nations  and  kings  ? ' '  Velly ,  Hist, 
de  France,  t.  iii.  p.  382. 
3  Schmidt,  t.  iv.  p.  232 


190 


EXTRAORDINARY  PRETENSIONS    Chap.  VII.  Part  I 


EccLEs.  Power. 


OF  INNOCENT  HI. 


191 


li 


There  were  certainly  some  instances,  where  the  tempoi*al 
Bupremacy  of  Innocent  III.,  however  usuri)ed,  may  appear  to 
have  been  exerted  beneficially.    He  directs  one  of  his  le^tes 
to  compel  the  observance  of  peace  between  the  kmgs  of  Cas- 
tile  and   Portugal,  if  necessary,  by  excommunication   and 
interdict.^     He  enjoins  the  king  of  Aragon  to   restore  his 
coin,  which  he  had  lately  debased,  and  of  which  great  com- 
plaint had  arisen  in  his  kingdom.^     Nor  do  I  question  his 
sincerity  in  these,  or  in  any  other  cases  of  interference  with 
civil  government.     A  great  mind,  such  as  Innocent  HI.  un- 
doubtedly possessed,  though  prone  to  sacrifice  every  other 
object  to  ambition,  can  never  be  indifferent  to  the  beauty  of 
social  order  and  the  happiness  of  mankind.     But,  if  we  may 
judge  by  the  correspondence  of  this  remarkable  person,  his 
foremost  gratification  was  the  display  of  unbounded  power. 
His  letters,  especially  to  ecclesiastics,  are  full  of  unprovoked 
rudeness.     As  impetuous  as  Gregory  VH.,  he  is  unwilling  to 
owe  anything  to  fiivor ;  he  seems  to  anticipate  denial ;  heats 
himself  into  anger  as  he  proceeds,  and,  where  he  commences 
with  solicitation,  seldom  concludes  without  a  menace.*     An 
extensive  learning  in  ecclesiastical  law,  a  close  observation 
of  whatever  was  passing  in  the  world,  an  unwearied  diligence, 
sustained  his  fearless  ambition.*     With  such  a  temper,  and 
with  such  advantages,  he  was  formidable  beyond  all  his  pre- 
decessors, and  perhaps  beyond  all  his  successors.     On  every 
side  the  thunder  of  Rome  broke  over  the  heads  of  princes. 
A  certain  Swero  is  excommunicated  for  usurping  the  crown 
of  Norway.     A  legate,  in  passmg  through  Hungary,  is  de- 
tained by  the  king :  Innocent  writes  in  tolerably  mild  terms 
to  this  potentate,  but  fails  not  to  intunate  that  he  might  be 
compelled  to  prevent  his  son's  accession  to  the  throne.     The 
king  of  Leon  had  married  his  cousin,  a  princess  of  Castile. 


1  Innocent.  Opera,  p.  146. 

a  p.  378. 

»  p.  31,  73, 76,  &c.  &c. 

*  The  following  instance  may  illustrate 
the  character  of  this  pope,  and  his  spirit 
of  governing  the  whole  world,  as  much  as 
those  of  a  more  public  nature.  He  writes 
to  the  chapter  of  Pisa  that  one  Rubens, 
a  citizen  of  that  place,  had  complained  to 
him,  that,  having  mortgaged  a  house  and 
garden  for  two  hundred  and  fifty-two 
pounds,  on  condition  that  he  might  re- 
deem it  before  a  fixed  day,  within  which 
time  he  had  been  unavoidably  prevented 
from  raising  the  money,  the  creditor  had 


now  refiised  to  accept  it ;  and  directs  them 
to  inquire  into  the  facts,  and,  if  they 
prove  truly  stated,  to  compel  the  creditor 
by  spiritual  censures  to  restore  the  prem- 
ises, reckoning  their  rent  during  the  time 
of  his  mortgage  as  part  of  the  debt,  an^ 
to  receive  the  remainder.  Id.  t.  ii.  p.  17. 
It  must  be  admitted  that  Innocent  III. 
discouraged  in  general  those  vexatious 
and  dilatory  appeals  firom  inferior  eccle- 
siastical tribunals  to  the  court  of  Rome, 
which  had  gained  ground  before  his  time, 
and  especially  in  the  pontificate  of  Alex- 
ander III. 


Innocent  subjects  the  kingdom  to  an  interdict  When  the 
clergy  of  Leon  petition  him  to  remove  it,  because,  when  they 
ceased  to  perform  their  functions,  the  laity  paid  no  tithes,  and 
listened  to  heretical  teachers  when  orthodox  mouths  were 
mute,  he  consented  that  divine  service  with  closed  doors,  but 
not  the  rites  of  burial,  might  be  performed.^  The  king  at 
length  gave  way,  and  sent  back  his  wife.  But  a  more  illus- 
trious victory  of  the  same  kind  was  obtained  over  Philip 
Augustus,  who,  having  repudiated  Isemburga  of  Denmark, 
had  contracted  another  marriage.  The  conduct  of  the  king, 
though  not  without  the  usual  excuse  of  those  times,  nearness  of 
blood,  was  justly  condemned ;  and  Innocent  did  not  hesitate 
to  visit  his  sins  upon  the  people  by  a  general  interdict. 
This,  after  a  short  demur  from  some  bishops,  was  enforced 
throughout  France ;  the  dead  lay  unburied,  and  the  living 
were  cut  off  from  the  offices  of  religion,  till  Philip,  thus  sub- 
dued, took  back  his  divorced  wife.  The  submission  of  such 
a  prince,  not  feebly  superstitious,  like  his  predecessor  Robert, 
nor  vexed  with  seditions,  like  the  emperor  Henry  IV.,  but 
brave,  firm,  and  victorious,  is  perhaps  the  proudest  trophy  in 
the  scutcheon  of  Rome.  Compared  with  this,  the  subse- 
quent triumph  of  Innocent  over  our  pusillanimous  John 
seems  cheaply  gained,  though  the  surrender  of  a  powerful 
kingdom  into  the  vassalage  of  the  pope  may  strike  us  as  a 
proof  of  stupendous  baseness  on  one  side,  and  audacity  on 
the  other.*  Yet,  under  this  very  pontificate,  it  was  not  un- 
paralleled. Peter  II.,  king  of  Aragon,  received  at  Rome  the 
belt  of  knighthood  and  the  royal  crown  from  the  hands  of  In- 
nocent III. ;  he  took  an  oath  of  perpetual  fealty  and  obedi- 
ence to  him  and  his  successors  ;  he  surrendered  his  kingdom, 
and  accepted  it  again  to  be  held  by  an  annual  tribute,  in  re- 
turn for  the  protection  of  the  Apostolic  See.^  This  strange 
conversion  of  kingdoms  into  spiritual  fiefs  was  intended  as 
the  price  of  security  from  ambitious  neighbors,  and  may  be 


1  Innocent.  Opera,  t.  U.  p.  411.  Vita 
Innocent  III. 

2  The  stipulated  annual  payment  of 
1000  marks  was  seldom  made  by  the  kings 
of  England :  but  one  is  almost  ashamed 
that  it  should  ever  have  been  so.  Uenry 
III.  paid  it  occasionally  when  he  had  any 
object  to  attain,  and  even  Edward  I.  for 
some  years  ;  the  latest  payment  on  record 
Is  in  the  seventeenth  of  his  reign.  After 
a  long  discontinuance,  it  was  demanded 
In  the  fortieth  of  Edward  III.  (1360),  but 


the  parliament  unanimously  declared 
that  John  had  no  right  to  subject  the 
kingdom  to  a  superior  without  their  con- 
sent ;  which  put  an  end  forever  to  the  ap- 
plications. Prynne's  Constitutions,  voL 
iii. 

8  Zurita,  Anales  de  Aragon,  t.  i.  f  91. 
This  was  not  forgotten  towards  the  latter 
part  of  the  same  century,  when  Peter  III. 
was  engaged  in  the  Sicilian  war,  and 
served  as  a  pretence  for  the  pope's  sen- 
tence of  deprivation. 


ii 


192         PRETENSIONS  OF  INNOCENT  IH.     Chap.  VII.  Part  I 


deemed  analogous  to  the  change  of  alodial  into  feudal,  or 
more  strictly,  to  that  of  lay  into  ecclesiastical  tenure,  which 
was  frequent  during  the  turbulence  of  the  darker  ages. 

I  have  mentioned  already  that  among  the  new  pretensions 
advanced  by  the  Roman  See  was  that  of  confirming  the  elec- 
tion of  an  emperor.  It  had  however  been  asserted  rather 
incidentally  than  in  a  peremptory  manner.  But  the  doubtful 
elections  of  Philip  and  Otho  after  the  death  of  Henry  VI. 
gave  Innocent  III.  an  opportunity  of  maintaining  more  posi- 
tively this  pretended  right.  In  a  decretal  epistle  addre.>-sed 
to  the  duke  of  Zahringen,  the  object  of  which  is  to  direct 
him  to  transfer  his  allegiance  from  Philip  to  the  other  com- 
petitor, Innocent,  after  stating  the  mode  in  which  a  regular 
election  ought  to  be  made,  declares  the  pope's  immediate 
authority  to  examine,  confirm,  anoint,  crown,  and  consecrate 
the  elect  emperor,  provided  he  shall  be  worthy ;  or  to  reject 
him  if  rendered  unfit  by  great  crimes,  such  as  sacrilege, 
heresy,  perjury,  or  persecution  of  the  church ;  in  default  of 
election,  to  supply  the  vacancy  ;  or,  in  the  event  of  equal  suf- 
frages, to  bestow  the  empire  upon  any  person  at  his  discre- 
tion.^ The  princes  of  Germany  were  not  much  influenced 
by  this  hardy  assumption,  which  manifests  the  temper  of  In- 
nocent III.  and  of  his  court,  rather  than  their  power.  But 
Otho  IV.  at  his  coronation  by  the  pope  signed  a  capitulation, 
which  cut  off  several  privileges  enjoyed  by  the  emperors, 
even  since  the  concordat  of  Calixtus,  in  respect  of  episcopal 
elections  and  investitures.* 


1  Decretal.  1.  i.  tit.  6.  c.  &(,  commonly 
cited  Venerabilem.  The  rubric  or  synop- 
sis of  this  epistle  asserts  the  pope's  right 
electum  imperatorem  examin&re,  appro- 
bare  et  inuDgere,  consecrare  et  coronare, 
si  est  dignns ;  yel  rcjicere  si  est  indignus, 
ut  quia  sacrilegus,  excommunicatus,  ty- 
rannuB,  fatuus  et  hsereticus,  paganus, 


peijurus,  Tel  ecclesla  persecutor.  Et 
electoribus  nolentibus  eligere,  papa  sup- 
plet.  Et  data  paritate,  Tocum  cligcntium, 
nee  accedento  majoro  concordii,  papa  po- 
test gratificari  cui  yult.  The  epistle  it 
self  is,  if  possible,  more  strongly  express 

sSchmidt,  t.  iv.  p.  149,  175. 


KccLES.  Power. 


PAPAL  AUTHORITY. 


193 


PART  n. 


Continual  Progress  of  the  Papacy  — Canon  Law  — Mendicant  Orders— Dispensing 
Power  — Taxation  of  the  Clergy  by  the  Popes  — Encroachments  on  Rights  of  Pa- 
tronage—  Mandats,  Reserres,  &c.  —  General  DisafTection  towards  the  See  of 
Rome  in  the  Thirteenth  Century  —  Progress  of  Ecclesiastical  Jurisdiction  —  Im 
munity  of  the  Clergy  in  Criminal  Cases  —  Restraints  imposed  upon  their  Jurisdic- 
tion—Upon their  Acquisition  of  Property —  Boniface  VIII. —  Ilis  Quarrel  with 
Philip  the  Fair  — Its  Termination  —  Gradual  Decline  of  Papal  Authority  —  Louis 
of  Bavaria  —  Secession  to  Avignon  and  Return  to  Rome  —  Conduct  of  Avignon 
Popes  —  Contested  Election  of  Urban  and  Clement  produces  the  great  Schism  — 
Council  of  Pisa  — Constance  — Basle— Methods  adopted  to  restrain  the  Papal 
Usurpations  in  England,  Germany,  and  France  —  Liberties  of  the  Galilean  Church 
—  DecUue  of  the  Papal  Influence  in  Italy. 

The  noonday  of  papal  dominion  extends  from  the  pontifi- 
cate of  Innocent  HI.  inclusively  to  that  of  Boniface  Papai  au- 
Vni. ;  or,  in  other  words,  through  the  thirteenth  ^J^'j^  ^ 
century.     Rome  inspired  during  this  age  all  the  teenth  cen- 
terror  of  her  ancient  name.     She  was  once  more  ^^^' 
the  mistress  of  the  world,  and  kings  were  her  vassals.     1 
have  already  anticipated  the  two  most  conspicuous  instances 
when  her  temporal  ambition  displayed  itself,  both  of  which 
are  inseparable  from  the  civil  history  of  Italy .^    In  the  first 
of  these,  her  long  contention  with  the  house  of  Suabia,  she 
finally  triumphed.     After  his  deposition  by  the  council  of 
Lyons  the  affairs  of  Frederic  II.  went  rapidly  into  decay. 
With  every  allowance  for  the  enmity  of  the  Lombards  and 
the  jealousies  of  Grermany,  it  must  be  confessed  that  his 
proscription  by  Innocent  IV.  and  Alexander  IV.  was  the 
main  cause  of  the  ruin  of  his  family.     There  is,  however,  no 
other  instance,  to  the  best  of  my  judgment,  where  the  pre- 
tended right  of  deposing  kings  has  been  successfully  exercis- 
ed.   Martin  IV.  absolved  the  subjects  of  Peter  of  Aragon 
from  their  allegiance,  and  transferred  his  crown  to  a  princ 
of  France  ;  but  they  did  not  cease  to  obey  their  lawful  sover 
eign.     This  is  the  second  instance  which  the  thirteenth  cen- 
tury presents  of  interference  on  the  part  of  the  popes  in  a 
great  temporal  quarrel.      As   feudal  lords  of  Naples  and 


TOL.  u. 


t  8m  abore,  Chapter  m. 
13 


^\ 


194 


OASON  LAW. 


Chap.  VII.  Pabt  IL 


ECCLES.   POWEB. 


CANON  LAW. 


195 


Sicily,  they  had  indeed  some  pretext  for  engaging  in  the 
hostilities  between  the  houses  of  Anjou  and  Aragon,  as  well 
as  for  their  contest  with  Frederic  II.  But  the  pontiffs  of  that 
age,  improving  upon  the  system  of  Innocent  III.,  and  san- 
guine with  past  success,  aspired  to  render  every  European 
kingdom  formally  dependent  upon  the  see  of  Rome.  Thus 
Boniface  VIII.,  at  the  instigation  of  some  emissaries  from 
Scotland,  clahned  that  monarchy  as  paramount  lord,  and  in 
terposed,  though  vainly,  the  sacred  panoply  of  ecclesiastica 
rights  to  rescue  it  from  the  arms  of  Edward  I.* 

This  general  supremacy  effected  by  the  Roman  church 
over  mankind  in  the  twelfth  and  thirteenth  centu- 
ries  derived  material  support  from  the  promulga- 
tion of  the  canon  law.     The  foundation  of  this  jurisprudence 
is  laid  in  the   decrees  of  councils,  and  in  the  rescripts  or 
decretal  epistles   of   popes  to   questions   propounded  upon 
emergent  doubts  relative  to  matters  of  discipline  and  ecclesi- 
astical economy.     As  the  jurisdiction  of  the  spiritual  tribu- 
nals increased,  and  extended  to  a  variety  of  persons  and 
causes,  it  became  almost  necessary  to  establish  an  uniform 
system  for  the  regulation  of  their  decisions.     After  several 
minor  compilations  had  appeared,  Gratian,  an  Italian  monk, 
published  about  the  year  1140  his  Decretum,  or  general 
collection  of  canons,  papal  epistles,  and  sentences  of  fathers, 
arranged  and  digested  into  titles  and  chapters,  in  imitation  of 
the   Pandects,   which   very  little   before  had  begun  to  be 
studied  again  with  great  diligence.*     This  work  of  Gratian, 
though  it  seems  rather  an  extraordinary  performance  for  the 
age  when  it  appeared,  has  been  censured  for  notorious  incor- 
rectness as  well  as  inconsistency,  and   especially  for  the 
authority  given  in  it  to  the  false  decretals  of  Isidore,  and  con- 
sequently to  the  papal  supremacy.     It  fell,  however,  short  of 
what  was  required  in  the  progress  of  that  usurpation.    Greg- 
ory IX.  caused  the  five  books  of  Decretals  to  be  published 
by  Raimond  de  Pennafort  in  1234.     These  consist  almost 
entirely  of  rescripts  issued  by  the  later  popes,   especially 
Alexander  III.,  Innocent  III.,  Honorius  III.,  and  Gregory 
himself.      They  form  the  most  essential  part  of  the  canon 
law,  the  Decretum  of  Gratian  being  comparatively  obsolete. 

1  Dal^mple'8  Annala  of  Scotland,  ▼ol.    date   of  lt«  appearance  (iii.  848) ;  bnl 
I.  p.  267.  others  bring  it  down  some  years  lat«r. 

*  Tiraboschi  has  fixed  on  1140  as  the 


In  these  books  we  find  a  regular  and  copious  system  of  ju« 
risprudence,  derived  in  a  great  measure  from  the  civil  law, 
but  with  considerable  deviation,  and  possibly  improvement. 
Boniface  VIII.  added  a  sixth  part,  thence  called  the  Sext, 
itself  divided  into  five  books,  in  the  nature  of  a  supplement 
to  the  other  five,  of  which  it  follows  the  arrangement,  and 
composed  of  decisions  promulgated  since  the  pontificate  of 
Gregory  IX.  New  constitutions  were  subjoined  by  Clement 
V.  and  John  XXII.,  under  the  name  of  Clementines  and 
Extravagantes  Johannis;  and  a  few  more  of  later  pontiffs 
are  included  in  the  body  of  canon  law,  arranged  as  a  second 
supplement  after  the  manner  of  the  Sext,  and  called  Ex- 
travagantes Communes. 

The  study  of  this  code  became  of  course  obligatory  upon 
ecclesiastical  judges.     It  produced  a  new  class  of  legal  practi- 
tioners, or  canonists ;  of  whom  a  great  number  added,  like 
their  brethren,  the  civilians,  their  illustrations  and  commenta- 
ries, for  which  the  obscurity  and  discordance  of  many   pas- 
sages, more  especially  in  the  Decretum,  gave  ample  scope. 
From  the  general  analogy  of  the  canon  law  to  that  of  Jus- 
tinian,  the   two   systems   became,  in  a  remarkable  manner, 
collateral  and  mutually  intertwined,  the  tribunals  governed 
by  either  of  them  borrowing  their  rules  of  decision  from  the 
other  in  cases  where  their  peculiar  jurisprudence  is  silent  or 
of  dubious  interpretation.^     But  the  canon  law  was  almost 
entirely  founded  upon  the  legislative  authority  of  the  pope;  the 
decretals  are  in  fact  but  a  new  arrangement  of  the  bold  epis- 
tles of  the  most  usurping  pontiffs,  and  especially  of  Innocent 
III.,  with  titles  or  rubrics  comprehending  the  substance  of 
each  in  the  compiler's  language.     The  superiority  of  ecclesi- 
astical to  temporal  power,  or  at  least  the  absolute  indepen- 
dence of  the  former,  may  be  considered  as  a  sort  of  key-note 
which   regulates   every  passage  in  the  canon  law.^     It  is 
expressly   declared  that  subjects  owe  no  allegiance  to  an 
excommunicated  lord,  if  after  admonition  he  is  not  reconciled 
to  the  church.'    And  the  rubric  prefixed  to  the  declaration 


>  Duck,  De  Usu  Juris  Clrills.  1. 1,  c.  8. 

3  Constitutiones  principum  ecclesias- 
tfcis  coDstitutionibus  non  prseeminent, 
•ed  obaequuntur.  Decretum,  distinct. 
10.  Statutum  generale  laicorum  ad  ec* 
eleslas  vol  ad  ecclesia^ticas  personas,  vel 
eorum  bona,  in  earum  pra^udicium  non 
•xtenditur.    Decretal.  1.  i.  tit.  2,  c.  10. 


Qusecunque  a  principlbus  in  ordinibus 
yel  in  ecclesiasticis  rebus  decreta  inye- 
niuntur,  nullius  auctoritatis  esse  mon- 
strantur.    Decretum,  distinct.  96. 

3  Domino  excommunicato  manente. 
subditi  fidelitatem  non  debent ;  et  d 
longo  tempore  in  e  perstiterit,  et  moni- 
tus  non  pareat  ecclesiae,  ab  ejus  debito 


II 


196 


MENDICANT  ORDERS.    Chap.  VH.  Part  H. 


of  Frederic  II.'s  deposition  in  the  council  of  Lyons  asserts 
that  the  pope  may  dethrone  the  emperor  for  lawful  causes.* 
These  rubrics  to  the  decretals  are  not  perhaps  of  direct 
authority  as  part  of  the  law  ;  but  they  express  its  sense,  so  as 
to  be  fairly  cited  instead  of  it.«  By  means  of  her  new  juris- 
prudence, Rome  acquired  in  every  country  a  powerful  body 
of  advocates,  who,  though  many  of  them  were  laymen,  would, 
with  the  usual  bigotry  of  lawyers,  defend  every  pretension  or 
abuse  to  which  their  received  standard  of  authority  gave 

sanction.* 

Next  to  the  canon  law  I  should  reckon  the  institution  of 
the  mendicant  orders  among  those  circumstances  which  prin- 
Mendicant  cipally  Contributed  to  the  aggrandizement  of  Rome, 
orders.  By  the  acquisition,  and  in  some  respects  the  enjoy- 

ment, or  at  least  ostentation,  of  immense  riches,  the  ancient 
monastic  orders  had  forfeited  much  of  the  public  esteem.* 
Austere  principles  as  to  the  obligation  of  evangelical  poverty 
were  inculcated  by  the  numerous  sectaries  of  that  age,  and 
eagerly  received  by  the  people,  already  much  alienated  from 
an  established  hierarchy.  No  means  appeared  so  efficacious 
to  counteract  this  effect  as  the  institution  of  religious  socie- 
ties strictly  debarred  from  the  insidious  temptations  of  wealth. 
Upon  this  principle  were  founded  the  orders  of  Mendicant 
Friars,  incapable,  by  the  rules  of  their  foundation,  of  possess- 
ing estates,  and  maintained  only  by  alms  and  pious  remunera- 
tions. Of  these  the  two  most  celebrated  were  formed  by  St 
Dominic  and  St.  Francis  of  Assisi,  and  established  by  the 
authority  of  Honorius  III.  in  1216  and  1223.  These  great 
reformers,  who  have  produced  so  extraordinary  an  effect  upon 


absolyuntur.  Decretal.  1.  t.  tit.  87,  c.  18. 
I  must  acknowledge  that  the  decretal 
epistle  of  Honorius  III.  scarcely  war- 
rants this  general  proposition  of  the 
rubric,  though  it  seems  to  lead  to  it. 

1  Papa  imperatorem  deponere  potest 
ex  causis  legitinis.    1. 11.  tit.  18,  c.  2. 

3  If  I  understand  a  bull  of  Gregory 
Xni.,  prefixed  to  his  recension  of  the 
canon  law,  he  confirms  the  rubrics  or 
glosses  along  with  the  text :  but  I  cannot 
speak  with  certainty  as  to  his  meaning. 

3  For  the  canon  law  I  hare  consulted, 
besides  the  Corpus  Juris  Canonici,  Tira- 
boschi,  Storia  della  Litteratura,  t.  iv. 
and  v.;  Giannone,  1.  xir.  c.  8;  1.  xix. 
c.  8 ;  1.  xxii.  c.  8.  Fleury,  Institutions 
au  Droit  Ecclesiastique.  t.  i.  p.  10,  and 
if^  Discours  sur  I'Histoire  Eccl^.  Duck, 


De  UsQ  Juris  Givilis,  1.  i.  o.  8.  Schmidt, 
t.  ir.  p.  39.  F.  Paul,  Treatise  of  Bene- 
fices, c.  81.  I  fear  that  my  few  citations 
from  the  canon  law  are  not  made  scien- 
tifically; the  proper  mode  of  reference 
Is  to  the  first  word;  but  the  book  and 
title  are  rather  more  conTenient;  and 
there  are  not  many  readers  in  England 
who  will  detect  this  impropriety. 

4  It  would  be  easy  to  bring  eyidence 
from  the  writings  of  erery  puecessive 
century  to  the  general  Ticiousne?s  of  thf 
regular  clergy,  whose  memory  it  is  some- 
times the  fiishion  to  treat  with  respect. 
See  particularly  Muratori,  Dissert.  65; 
and  Fleury,  S"^  Discours.  The  latter 
obserres  that  their  great  wealth  was  the 
cause  of  this  relaxation  in  discipline. 


EccLES.  Power,  MENDICANT  ORDERS. 


197 


mankind,  were  of  very  different  characters ;  the  one,  active 
and  ferocious,  had  taken  a  prominent  part  in  the  crus&de 
against  the  unfortunate  Albigeois,  and  was  among  the  first 
who  bore  the  terrible  name  of  inquisitor ;  while  the  other,  a 
harmless  enthusiast,  pious  and  sincere,  but  hardly  of  sane 
mind,  was  much  rather  accessory  to  the  intellectual  than  to 
the  moral  degradation  of  his  species.     Various  other  mendi- 
cant orders  were  instituted  in  the  thirteenth  century;  but 
most  of  them  were  soon  suppressed,  and,  besides  the  two 
principal,  none  remain  but  the  Augustin  and  the  Carmelites.* 
Tliese  new  preachers  were  received  with  astonishing  ap- 
probation by  the  laity,  whose  religious  zeal  usually  depends 
a  good  deal  upon  their  opinion  of  sincerity  and  disinterest- 
edness in  theu-  pastors.    And  the  progress  of  the  Dominican 
and  Franciscan  friars  in  the  thirteenth  century  bears  a  re- 
markable analogy  to  that  of  our  English  Methodists.     Not 
deviating    from   the    faith    of   the    church,   but    professing 
rather  to  teach  it  in  greater  purity,  and  to  observe  her  ordi- 
nances with  greater  regularity,  while  they  imputed  supineness 
and  corruption  to  the  secular  clergy,  they  drew  round  their 
sermons  a  multitude  of  such  listeners  as  in  all  ages  are  attract- 
ed by  similar  means.      They  practised  all  the  stratagems  of 
itinerancy,  preaching  in  public  streets,  and  administering  the 
communion  on  a  portable  altar.      Thirty  years  after  their  in- 
stitution an  historian  complains  that  the  parish  churches  were 
deserted,  that  none  confessed  except  to  these  friars,  in  short, 
that  the  regular  discipline  was  subverted.^    This  uncontrolled 
privilege    of   performing  sacerdotal  functions,  which  their 
modem  antitypes  assume  for  themselves,  was  conceded  to  the 
mendicant  orders  by  the  favor  of   Rome.     Aware  of  the 
powerful  support  they  might  receive  in  turn,  the  pontiffs  of 
the  thirteenth  century  accumulated  benefits  upon  the  disciples 
of  Francis  and  Dominic.     They  were  exempted  from  episco- 
pal authority ;  they  were  permitted  to  preach  or  hear  confes- 
sions without  leave  of  the  ordinary,'  to  accept  of  legacies, 
and  to  inter  in  their  churches.     Such  privileges  could  not  be 
granted  without  resistance  from  the  other  clergy;  the  bishops 


1  Mosheim's  Ecclesiastical  History; 
Fleury,  S*m  Discours ;  Crevier,  Hlstoire 
oe  I'Dniyersit*  de  Paris,  t.  i.  p.  318. 

>  Matt.  Paris,  p.  607. 

'  Another  reason  for  preferring  the 
Wmi  i*  given  by  Archbishop  Peckham ; 


quoniam  casus  episcopates  reservati  epis- 
copis  ab  homine,  vel  a  jure,  communiter 
a  Deum  timentibus  episcopis  ipsis  Ara- 
tribus  committuntur,  et  non  presbyteris, 
quorum  simplicitas  non  sufficit  aliis  diri- 
gendis.    Wilkina,  Concilia,  t.  ii.  p.  169 


^ 


198 


PAPAL  DISPENSATIONS.    Chap.  VH.  Part  IL 


1: 

1!    t 


i:| 


remonstrated,  the  university  of  Paris  maintained  a  strenu- 
ous opposition ;  but  their  reluctance  served  only  to  protract 
the  final  decision.  Boniface  VIII.  appears  to  have  peremp- 
torily established  the  privileges  and  immunities  of  the  mendi- 
cant orders  in  1295.* 

It  was  naturally  to  be  expected  that  the  objects  of  such 
extensive  favors  would  repay  their  benefactors  by  a  more  than 
usual  obsequiousness  and  alacrity  in  their  service.  Accord- 
ingly the  Dominicans  and  Franciscans  vied  with  each  other 
in°magnifying  the  papal  supremacy.  Many  of  these  monks 
became  eminent  in  canon  law  and  scholastic  theology.  The 
great  lawgiver  of  the  schools,  Thomas  Aquinas,  whose  opin- 
ions the  Dominicans  especially  treat  as  almost  infallible,  went 
into  the  exaggerated  principles  of  his  age  in  favor  of  the 
see  of  Rome.^  And  as  the  professors  of  those  sciences  took 
nearly  all  the  learning  and  logic  of  the  times  to  their  own 
share,  it  was  hardly  possible  to  repel  their  arguments  by  any 
direct  reasoning.  But  this  partiality  of  the  new  monastic 
orders  to  the  popes  must  chiefly  be  understood  to  apply  to 
the  thirteenth  century,  circumstances  occurring  in  the  next 
which  gave  in  some  degree  a  different  complexion  to  their 
dispositions  in  respect  of  the  Holy  See. 

We  should  not  overlook,  among  the  causes  that  contribut- 
ed to  the  dominion  of  the  popes,  their  prerogative  of  dispens- 
inty  with  ecclesiastical  ordinances.  The  most  remarkable 
Papal  dis-  exercise  of  this  was  as  to  the  canonical  impedi- 
pensations  of  mcnts  of  matrimony.  Such  strictness  as  is  pre- 
marriage, scribed  by  the  Christian  religion  with  respect  to 
divorce  was  very  unpalatable  to  the  barbarous  nations.  They 
in  fact  paid  it  little  regard ;  under  the  Merovingian  dynasty, 
even  private  men  put  away  their  wives  at  pleasure.*  In 
many  capitularies  of  Charlemagne  we  find  evidence  of  the 
prevailing  license  of  repudiation  and  even  polygamy.*     The 


»  CrcTier,  Hist,  de  I'Univeraiti  de 
Paris,  t.  i.  et  t.  li.  passim.  Fleury,  ubl 
supra.  Hist,  da  Droit  Ecclesiastique 
Francois,  t.  i.  p.  394,  896,  446.  CoIUer's 
Ecclesiastical  History,  vol.  i.  p  437,  448, 
452.  Wood's  Antiquities  of  Oxford,  Tol. 
I.  p.  376,480.    (Qutch's  edition.) 

s  It  was  maintained  by  the  enemies  of 
the  mendicants,  especially  William  St. 
Amour,  that  the  pope  could  not  give 
them  a  priyilege  to  preach  or  perform 
the  other  duties  of  the  parish  priests. 
Thomas  Aquinas  answered  that  a  bishop 


might  perform  any  spiritual  functions 
within  his  diocese,  or  commit  the  charge 
to  another  instead,  and  that  the  pope, 
being  to  the  whole  church  what  a  bishop 
is  to  his  dioce.se,  might  do  the  same  every- 
where.   Crevier,  1. 1,  p.  474. 

3  Marculfl  FormulK,  1.  ii.  c.80. 

*  Although  a  man  might  not  marry 
again  when  his  wife  had  taken  the  veil, 
he  was  permitted  to  do  so  if  she  was  in 
fee  ted  with  the  leprosy.  Compare  Ca^ 
pitularia  Pippini,  a.d.  752  and  766.  Ii 
a  woman  conspiried  to  murder  her  bar 


EccLBS.  Power.        PAPAL  DISPENSATIONS. 


199 


principles  which  the  church  inculcated  were  in  appearance 
the  very  reverse  of  this  laxity ;  yet  they  led  indirectly  to 
the  same  effect.  Marriages  were  forbidden,  not  merely  with- 
in the  limits  which  nature,  or  those  inveterate  associations 
which  we  call  nature,  have  rendered  sacred,  but  as  far  as  the 
seventh  degree  of  collateral  consanguinity,  computed  from  a 
common  ancestor.^  Not  only  was  affinity,  or  relationship  by 
marriage,  put  upon  the  same  footing  as  that  by  blood,  but  a 
fantastical  connection,  called  spiritual  affinity,  was  invented  in 
order  to  prohibit  marriage  between  a  sponsor  and  godchild. 
An  union,  however  innocently  contracted,  between  parties 
thus  circumstanced,  might  at  any  time  be  dissolved,  and  their 
subsequent  cohabitation  forbidden  ;  though  their  children,  I 
believe,  in  cases  where  there  had  been  no  knowledge  of  the 
impediment,  were  not  illegitimate.  One  readily  apprehends 
the  facilities  of  abuse  to  which  all  this  led ;  and  history  is  full 
of  dissolutions  of  marriage,  obtained  by  fickle  passion  or  cold- 
hearted  ambition,  to  which  the  church  has  not  scrupled  to 
pander  on  some  suggestion  of  relationship.  It  is  so  difficult 
to  conceive,  I  do  not  say  any  reasoning,  but  any  honest  su- 
perstition, which  could  have  produced  those  monstrous  regu- 
lations, that  I  was  at  first  inclined  to  suppose  them  designed 
to  give,  by  a  side-wind,  that  facility  of  divorce  which  a  licen- 
tious people  demanded,  but  the  church  could  not  avowedly 
grant.  This  refinement  would  however  be  unsupported  by 
facts.  The  prohibition  is  very  ancient,  and  was  really  deriv- 
ed from  the  ascetic  temper  which  introduced  so  many  other 
absurdities.^  It  was  not  until  the  twelfth  century  that  either 
this  or  any  other  established  rules  of  discipline  were  sup- 


band,  be  might  remarry.  Id.  a.d.  753. 
A  Uunge  proportion  of  Pepin's  laws  re- 
late to  incestuous  connections  and  di- 
vorces. One  of  Charlemagne  seems  to 
imply  that  polygamy  was  not  unknown 
even  among  priests.  Si  sacerdotes  plures 
uxores  habuerint,  sacerdotio  priventur; 
quia  socularibus  deteriores  sunt.  Capi- 
fUl.  A.D.  769.  This  seems  to  imply  that 
their  marriage  with  one  was  allowable, 
which  nevertheless  is  contradicted  by 
other  pasMges  in  the  Capitularies 
1  See  the  canonical  computation  ex- 

{tlained  in  St.  Marc.  t.  iii.  p.  376.  Also 
n  Blackstone's  Law  Tracts,  Treatise  on 
Consanguinity.  In  the  eleventh  century 
an  opinion  bc^an  to  gain  ground  in  Italy 
that  third-coiislns  might  marry,  being  in 
tha  MTenth  d^^ree  according  to  the  civil 


law.  Peter  Damian,  a  passionate  abettor 
of  Hildebrand  and  his  maxims,  treats 
this  with  horror,  and  calls  it  an  heresy. 
Fleury,  t.  xiii.  p.  152,  St.  Marc,  ubi 
supra.  This  opinion  was  supported  by  a 
reference  to  the  Institutes  of  Justinian ; 
a  proof,  among  several  others,  how  much 
earlier  that  bM>k  was  known  than  is  vul- 
garly supposed. 

s  Oregbry  I.  pronounces  matrimony 
to  be  unlawful  as  £Etr  as  the  seventh 
degree ;  and  even,  if  I  xinderstand  his 
meaning,  as  long  as  any  relationship 
could  be  traced;  which  seems  to  have 
been  the  maxim  of  strict  theologians, 
though  not  absolutely  enforced.  Da 
Cange,  v.  Generatio;  Fleury,  Hist.  £c- 
cl6s.  t.  iz.  p.  211. 


^ 


200 


PAPAL  DISPENSATIONS.    Chap.  VIL  Pabt  H. 


posed  liable  to  arbitrary  dispensation;  at  least  the  stricter 
churchmen  had  always  denied  that  the  pope  could  infringe 
canons,  nor  had  he  asserted  any  right  to  do  so.^  But  Inno- 
cent in.  laid  down  as  a  maxim,  that  out  of  the  plenitude  of 
his  power  he  might  lawfully  dispense  with  the  law ;  and  ac- 
cordingly granted,  among  other  instances  of  this  prerogative, 
dispensations  from  impediments  of  marriage  to  the  emperor 
Otho  IV.'*  Similar  indulgences  were  given  by  his  succes- 
sors, though  they  did  not  become  usual  for  some  ages.  The 
fourth  Lateran  council  in  1215  removed  a  great  part  of  the 
restraint,  by  permitting  marriages  beyond  the  fourth  degree, 
or  what  we  call  third-cousins;'  and  dispensations  have 
been  made  more  easy,  when  it  was  discovered  that  they 
might  be  converted  into  a  source  of  profit  They  served  a 
more  important  purpose  by  rendering  it  necessary  for  the 
princes  of  Europe,  who  seldom  could  marry  into  one  an- 
other's houses  without  transgressing  the  canonical  limits,  to 
keep  on  good  terms  with  the  court  of  Rome,  which,  in  sev- 
eral instances  that  have  been  mentioned,  fulminated  its 
censures  against  sovereigns  who  lived  without  permission 
in  what  was  considered  an  incestuous  union. 

The  dispensing  power  of  the  popes  was  exerted  in  several 
cases  of  a  temporal  nature,  particularly  in  the 
legitimation  of  children,  for  purposes  even  of  suc- 
cession. This  Innocent  III.  claimed  as  an  indirect 
consequence  of  his  right  to  remove  the  canonical 
impediment  which  bastardy  offered  to  ordination ;  since  it 
would  be  monstrous,  he  says,  that  one  who  is  legitimate  for 
spiritual  functions  should  continue  otherwise  in  any  civil  mat- 
ter.* But  the  most  important  and  mischievous  species  of 
dispensations  was  from  the  observance  of  promissory  oaths. 
Two  principles  are  laid  down  in  the  decretals  —  that  an  oath 
disadvantageous  to  the  church  is  not  bindmg ;  and  that  one 
extorted  by  force  was  of  slight  obligation,  and  might  be  an- 
nulled by  ecclesiastical  authority.*    As  the  first  of  these 


Bispensa- 

tioDS  from 
promissory 
oaths. 


JDeMarca,l.m.cc.7,  8,14.  Schmidt, 
t.  iv.  p.  235.  DispensatiODS  were  origi- 
nally granted  only  as  to  canonical  pen- 
ances, but  not  prospectively  to  authorize 
a  breach  of  discipline.  Qratian  asserts 
that  the  pope  is  not  bound  by  the  canons, 
in  which,  Fleury  observes,  he  goes  be- 
yond the  False  Decretals.  Septifeme  Dis- 
oours,  p.  291. 

s  Secundum  plenitndinem  potestatis 


de  jure  possumus  supra  jus  dispensare. 
Schmidt,  t.iv.  p.  235. 

3  Fleury,  Institutions  au  Droit  Eccle* 
eiastique,  t.  i.  p.  296. 

♦  Decretal,  1.  ir.  tit.  17,  c.  18. 

'  Juramentum  contra  utilitatem  eccle* 
siasticam  praestitum  non  tenet.  Decre- 
tal. 1.  ii.  tit.  24,  c.  27,  et  Sext.  1.  i.  tit.  11, 
c.  1.  A  juramento  per  metum  eztorte 
ecclesia  solet  absolyere,  et  t^us  trans- 


EccLES.  PowEB,      PAPAL  ENCROACHMENTS. 


201 


mflYJms  gave  the  most  unlimited  privilege  to  the  popes  of 
breaking  all  faith  of  treaties  which  thwarted  their  interest  or 
passion,  a  privilege  which  they  continually  exercised,^  so  the 
second  was  equally  convenient  to  princes  weary  of  observing 
engagements  towards  their  subjects  or  their  neighbors.  They 
protested  with  a  bad  grace  against  the  absolution  of  their 
people  from  allegiance  by  an  authority  to  which  they  did  not 
scruple  to  repair  in  order  to  bolster  up  their  own  perjuries. 
Thus  Edward  I.,  the  strenuous  asserter  of  his  temporal  rights, 
and  one  of  the  first  who  opposed  a  barrier  to  the  encroach- 
ments of  the  clergy,  sought  at  the  hands  of  Clement  V.  a 
dispensation  from  his  oath  to  observe  the  great  statute  against 
arbitrary  taxation. 

In  all  the  earlier  stages  of  papal  dominion  the  supreme 
head  of  the  church  had  been  her  guardian  and  Encroach- 
protector;  and  this  beneficent  character  appeared  ^^«^*/J*^  ^j^^ 
to  receive  its  consummation  in  the  result  of  that  freedom  of 
arduous  struggle  which  restored  the  ancient  prac-  ®  ^  ^°°^* 
tice  of  free  election  to  ecclesiastical   dignities.     Not  long, 
however,  after  this  triumph  had  been  obtained,  the  popes 
began  by  little  and  little  to  interfere  with  the  regular  consti- 
tution.    Their  first  step  was  conformable  indeed  to  the  pre- 
vailing system  of  spiritual  independency.     By  the  concordat 
of  Calixtus  it  appears  that  the  decision  of  contested  elections 
was  reserved  to  the  emperor,  assisted  by  the  metropolitan 


gressores  ut  peccantes  mortaliter  non 
punicntur.  Eodem  lib.  et  tit.  c.  15. 
The  whole  of  this  title  in  the  decretals 
upon  oaths  seems  to  have  given  the  first 
opening  to  the  lax  casuistry  of  succeed- 
ing times. 

1  Take  one  instance  out  of  many. 
Piccinino,  the  famous  condottiere  of  the 
fifteenth  century,  had  promised  not  to 
attack  Francis  Sforza,  at  that  time  en- 
^ged  against  the  pope.  Eugenius  IV. 
(the  same  excellent  person  who  had  an- 
nulled the  compatacta  with  the  Hussites, 
rvleaeing  those  who  had  sworn  to  them, 
and  who  afterwards  made  the  king  of 
Hungary  break  his  treaty  with  Amurath 
II.)  absolves  him  from  this  promise,  on 
the  express  ground  that  a  treaty  disad- 
vantageous to  the  church  ought  not  to 
be  kept.  Sismondi,  t.  ix.  p.  196.  The 
church  in  that  age  was  synonymous  with 
the  papal  territories  In  Italy. 

It  was  in  conformity  to  this  sweeping 
principle  of  ecclesiastical  utility  that 
Urban  VI.  made  the  following  solemn 


and  general  declaration  against  keeping 
faith  with  heretics.  Attendentes  quod 
hujusmodi  confoederationes,  coUigationes, 
et  ligae  seu  conventiones  factae  cum  hu- 
jusmodi haereticis  seu  schismaticis  post- 
quam  tales  effect!  erant,  sunt  temerariae, 
illicitae,  et  ipso  jure  nuUae  (etsi  forte  ante 
ipsorum  lapsum  in  schisma,  seu  hseresin 
initae  seu  factae  fuissent),  etiam  si  forent 
juramento  vel  fide  data  flrmatae,  aut  con- 
flrmatione  apostolici  vel  quicunque  fir- 
mitate  alia  roboratae,  postquam  tales,  ut 
praemittitur,  sunt  effecti.    Rymer,  t.  vU. 

p.  352. 

It  was  of  little  consequence  that  all 
divines  and  sound  interpreters  of  canon 
law  maintain  that  the  pope  cannot  dis- 
pense with  the  divine  or  moral  law,  as 
De  Marca  tells  us,  1.  iii.  c.  15,  though  he 
admits  that  others  of  less  sound  judg- 
ment assert  the  contrary,  as  was  common 
enough,  I  believe,  among  the  Jesuits  at 
the  beginning  of  the  seventeenth  century. 
His  power  of  interpreting  the  law  was 
of  itself  a  privilege  of  dispensing  with  it 


202 


PAPAL  ENCROACHMENTS.     Chap.  VH.  Fabt  IL 


ECCLES.  POWEB. 


MANDATS. 


203 


and  suffragans.  In  a  few  cases  during  the  twelfth  century 
this  imperial  prerogative  was  exercised,  though  not  altogether 
undisputed.^  But  it  was  consonant  to  the  prejudices  of  that 
age  to  deem  the  supreme  pontiff  a  more  natural  judge,  as  in 
other  cases  of  appeal.  The  point  was  early  settled  in  Eng- 
land, where  a  doubtful  election  to  the  archbishopric  of  York, 
under  Stephen,  was  referred  to  Rome,  and  there  kept  five 
years  in  litigation.^  Otho  IV.  surrendered  this  among  other 
rights  of  the  empire  to  Innocent  III.  by  his  capitulation;' 
and  from  that  pontificate  the  papal  jurisdiction  over  such 
controversies  became  thoroughly  recognized.  But  the  real 
aim  of  Innocent,  and  perhaps  of  some  of  his  predecessors, 
was  to  dispose  of  bishoprics,  under  pretext  of  determining 
and  on  coutcsts,  as  a  matter  of  patronage.    So  many  rules 

rights  of  were  established,  so  many  formalities  required  by 
pa  ronage.  ^jjgjp  constitutions,  incorporated  afterwards  into  the 
canon  law,  that  the  court  of  Rome  might  easily  find  means 
of  annulling  what  had  been  done  by  the  chapter,  and  bestow- 
ing the  see  on  a  favorite  candidate.*  The  popes  soon  assumed 
not  only  a  right  of  decision,  but  of  devolution ;  that  is,  of 
supplying  the  want  of  election,  or  the  unfitness  of  the  elected, 
by  a  nomination  of  their  own.*  Thus  archbishop  Langton, 
if  not  absolutely  nominated,  was  at  least  chosen  in  an  invalid 
and  compulsory  manner  by  the  order  of  Innocent  III.,  as  we 
may  read  in  our  English  historians.  And  several  succeeding 
archbishops  of  Canterbury  equally  owed  their  promotion  to 
the  papal  prerogative.  Some  instances  of  the  same  kind 
occurred  in  Germany,  and  it  became  the  constant  practice  in 
Naples.' 

While  the  popes  were  thus  artfully  depriving  the  chapters 


I 


1  Schmidt,  t.  iii.  p.  299 ;  t.  ir.  p.  149. 
According  to  the  concordat,  elections 
ought  to  be  made  in  the  presence  of  the 
emperor  or  his  oflScers  ;  but  the  chapters 
coDtrived  to  exclude  them  bj  degrees, 
though  not  perhaps  till  the  thirteenth 
century.  Compare  Schmidt,  t.  iii.  p. 
296;  t.  iv.  p  146. 

2  Henry's  Hist,  of  England,  toI.  v. 
p.  324.  Lyttelton'8  Henry  U.,  Tol.  i. 
p.  356. 

3  Schmidt,  t.  iy.  p.  149.  One  of  these 
was  the  spolium^  or  morable  estate  of  a 
bishop,  which  the  emperor  was  used  to 
••l»  upon  his  decease,  p.  164.  It  was 
certainly  a  very  leonine  prerogative ;  but 
the  popes  did  not  fail,  at  a  subsequent 
dme,  to  claim  it  for  themselves.   Fleury, 


Institutions  au  Droit,  1. 1.  p.  425.  Len- 
fant,  Conciie  do  Constince,  t.  ii.  p.  130. 

«  F.  Paul,  c.  30.  Schmidt,  t.  iv.  p.  177, 
247. 

<^Thu8  we  find  it  expressed,  as  cap- 
tiously as  words  could  be  devised,  in  the 
decretals,  1.  i.  tit.  6,  c.  22.  Electus  a 
mt^ori  et  saniori  parte  capituli,  si  est,  et 
erat  idoneus  tempore  electionis,  confirma- 
bitur ;  si  autem  erit  indignus  in  ordini- 
bus  scientil  vel  setate,  et  fuit  scienter 
clectus,  electus  a  miaori  parte,  si  est  dig- 
nus,  confirmabitur. 

A  person  canonlcally  disqualified  when 
pr^ented  to  the  pope  for  confirmation 
was  said  to  be  postulatus,  not  electus. 

<  Giauaoue,  1.  xir.  c.  6 ;  1.  xix.  c.  5. 


of  their  right  of  election  to  bishoprics,  they  inter-  „ 
fered  in  a  more  arbitrary  manner  with  the  collation 
of  inferior  benefices.  This  began,  though  in  so  insensible  a 
manner  as  to  deserve  no  notice  but  for  its  consequences,  with 
Adrian  IV.,  who  requested  some  bishops  to  confer  the  next 
benefice  that  should  become  vacant  on  a  particular  clerk.^ 
Alexander  III.  used  to  solicit  similar  favors.^  These  recom- 
mendatory letters  were  called  mandats.  But  though  such 
requests  grew  more  frequent  than  was  acceptable  to  patrons, 
they  were  preferred  in  moderate  language,  and  could  not 
decently  be  refused  to  the  apostolic  chair.  Even  Innocent 
HI.  seems  in  general  to  be  aware  that  he  is  not  asserting  a 
right;  though  in  one  instance  I  have  observed  his  violent 
temper  break  out  against  the  chapter  of  Poitiers,  who  had 
made  some  demur  to  the  appointment  of  his  clerk,  and  whom 
he  threatens  with  excommunication  and  interdict.*  But,  as  we 
find  in  the  history  of  all  usurping  governments,  time  changes 
anomaly  into  system,  and  injury  into  right ;  examples  beget 
custom,  and  custom  ripens  into  law ;  and  the  doubtful  prece- 
dent of  one  generation  becomes  the  fundamental  maxim  of 
another.  Honorius  III.  requested  that  two  prebends  in 
every  church  might  be  preserved  for  the  Holy  See;  but 
neither  the  bishops  of  France  nor  England,  to  whom  he 
preferred  this  petition,  were  induced  to  comply  with  it.* 
Gregory  IX.  pretended  to  act  generously  in  limiting  himself 
to  a  single  expectative,  or  letter  directing  a  particular  clerk 
to  be  provided  with  a  benefice  in  every  church.*  But  his 
practice  went  much  further.  No  country  was  so  intolerably 
treated  by  this  pope  and  his  successors  as  England  throughout 
the  ignominious  reign  of  Henry  m.  Her  church  seemed 
to  have  been  so  richly  endowed  only  as  the  free  pasture  of 
Italian  priests,  who  were  placed,  by  the  mandatory  letters 
of  Gregory  IX.  and  Innocent  IV.,  in  all  the  best  benefices. 
If  we  may  trust  a  solemn  remonstrance  in  the  name  of  the 
whole  nation,  they  drew  from  England,  in  the  middle  of  the 
thirteenth  century,  sixty  or  seventy  thousand  marks  every 
year;  a  sum  far  exceeding  the  royal  revenue.®  This  was 
asserted  by  the  English  envoys  at  the  council  of  Lyons. 


1  St.  Marc,  t.  t.  p.  41.  Art  de  verifier 
les  Dates,  t.  i.  p.  288.  Encyclopedic,  art. 
Mandats. 

»  Schmidt,  t.  ir.  p.  239. 

*  Innocent  III.  Opera,  p.  502 


«  Matt.  Paris,  p.  267.    De  Marca,  1.  ir 
c.  9. 
6  F.  Paul  on  Benefices,  c.  80 
•  M.  Paris,  p.  579,  740. 


204 


MANDATS. 


Chap.  VII.  Pabt  IL 


But  the  remedy  was  not  to  be  sought  in  remonstrances  to  the 
court  of  Rome,  which  exulted  in  the  success  of  its  encroach- 
ments. There  was  no  defect  of  spirit  in  the  nation  to  oppose 
a  more  adequate  resistance ;  but  the  weak-minded  individual 
upon  the  throne  sacrificed  the  public  interest  sometimes 
through  habitual  timidity,  sometimes  through  silly  ambition. 
If  England,  however,  suffered  more  remarkably,  yet  other 
countries  were  far  from  being  untouched.  A  German  writer 
about  the  beginning  of  the  fourteenth  century  mentions  a 
cathedral  where,  out  of  about  thirty-five  vacancies  of  prebends 
that  had  occurred  within  twenty  years,  the  regular  patron 
had  filled  only  two.^  The  case  was  not  very  different  in 
France,  where  the  continual  usurpations  of  the  popes  pro- 
duced the  celebrated  Pragmatic  Sanction  of  St.  Louis.  This 
edict,  the  authority  of  which,  though  probably  without  cause, 
has  been  sometimes  disputed,  contains  three  important  pro- 
visions; namely,  that  all  prelates  and  other  patrons  shall 
enjoy  their  full  rights  as  to  the  collation  of  benefices,  accord- 
ing to  the  canons ;  that  churches  shall  possess  freely  their 
rights  of  election ;  and  that  no  tax  or  pecuniary  exaction 
shall  be  levied  by  the  pope,  without  consent  of  the  king  and 
of  the  national  church.^     We  do  not  find,  however,  that  the 


1  Schmidt,  t.  ri.  p.  104. 

2  Ordonnances  des  Rois  de  France,  t.  i. 
p.  97.  Objections  have  been  made  to 
the  authenticity  of  this  edict,  and  in 
particular  that  we  do  not  find  the  king 
to  have  had  any  previous  differences 
with  the  see  of  Rome ;  on  the  contrary, 
he  was  just  indebted  to  Clement  IV.  for 
bestowing  the  crown  of  Naples  on  his 
brother  the  count  of  Provence.  Velly 
has  defended  it.  Hist,  de  France,  t.  vi. 
p.  57  ;  and  in  the  opinion  of  the  learned 
Benedictine  editors  of  L'Art  de  verifier 
les  Dates,  t.  i.  p.  685,  cleared  up  all 
difftculties  as  to  its  genuineness.  In 
foct,  however,  the  Pragmatic  Sanction  of 
St.  Louis  stands  by  itself,  and  can  only 
be  considered  as  a  protestation  against 
abuses  which  it  was  still  impossible  to 
suppress. 

Of  this  law,  which  was  published  in 
1268,  Sismondi  says,  £n  Usant  la  prag- 
matique  sanction,  on  se  demande  avec 
etonnement  ce  qui  a  pu  causer  sa  prodi- 
gieuse  c61ebrite.  EUe  n-introduit  aucun 
droit  nouveau ;  elle  ne  change  rien  k 
I'organisation  ecclesiastique  ;  elle  declare 
Beulement  que  tons  les  droits  existans 
seront  conserves,  que  toute  la  legislation 
canonique  soit  executee.  A  I'exception 
de  Particle  v,  sur  la  lev^s  d'argent  de  la 


cour  de  Rome,  elle  ne  contient  rien  qu<f 
cette  cour  n'eut  pu  publier  clle-m6me ; 
et  quant  k  cet  article,  qui  paroit  seul 
dirige  contre  la  chambre  apostolique,  ii 
n'est  pas  plus  precis  que  ccux  que  bien 
d'autres  rois  do  France,  d'Angleterre,  et 
d'Allemagne,  avaient  dejA  promulgues 
k  plusieurs  reprises,  et  toujours  sans 
eflet.  Hist,  des  Franc,  v.  106.  But  Sis- 
mondi overlooks  the  fourth  article,  which 
enacts  that  all  collations  of  benefices 
shall  be  made  according  to  the  maxims 
of  councils  and  fathers  of  the  church. 
This  was  designed  to  repress  the  dis« 
pensations  of  the  pope ;  and  if  the  French 
lawyers  had  been  powerful  enough,  it 
would  have  been  successful  in  that  ob- 
ject. He  goes  on,  indeed,  himself  to 
say,  —  Ce  qui  changca  la  pragmatique 
sanction  en  une  barri^re  puissante  contre 
les  usurpations  de  la  cour  de  Rome,  c'est 
que  les  legistcs  s'en  emparerent ;  ils  pri- 
rent  soin  de  I'expliquer,  de  la  com- 
meuter;  plus  elle  6tait  vague,  et  plus, 
entre  leurs  mains  habiles,  elle  pouvoit 
recevoir  d'extension.  Elle  8uffl.<^it  seule 
pour  garantir  toutes  les  libertes  du  roy- 
aume  ;  une  fois  que  los  parlcmens  etoient 
resolus  de  ne  jamais  permettre  qu'ello 
fat  viol6e,  tout  empietement  de  la  cour 
de  Rome  ou  des  tribunauz  ecclesiasti- 


EccLES.  Power.    PROVISIONS  AND  RESERVES. 


205 


French  government  acted  up  to  the  spirit  of  this  ordinance 
and  the  Holy  See  continued  to  invade  the  rights  of  collation 
with  less  ceremony  than  they  had  hitherto  used.     Clement 
IV.  published  a  bull  in  1266,  which,  after  asserting  an  abso- 
lute prerogative  of  the  supreme  pontiff  to  dispose  of  all  pre- 
ferments, whether  vacant  or  in  reversion,  confines  itself  in 
the  enacting  words  to  the  reservation  of  such  benefices  as 
belong  to  persons  dying  at  Rome  (vacantes  in  curia)  .^  These 
had  for  some  time  been  reckoned  as  a  part  of  the  pope's 
special  patronage ;  and  their  number,  when  all  causes  of  im- 
portance were  drawn  to  his  tribunal,  when   metropolitans 
were  compelled  to  seek  their  pallium  in  person,  and  even  by 
a  recent  constitution  exempt  abbots  were  to  repair  to  Rome 
for  confirmation,^  not  to  mention  the  multitude  who  flocked 
thither  as  mere  courtiers  and  hunters  after  promotion,  must 
have  been  very  considerable.     Boniface  VIII.  repeated  this 
law  of   Clement  IV.  in  a  still  more  positive  tone;*  and 
Clement  V.  laid  down  as  a  maxim,  that  the  pope  might  freely 
bestow,  as  universal  patron,  all  ecclesiastical  benefices.*     In 
order  to  render  these  tenable  by  their  ItaUan  courtiers,  the 
canons  against  pluralities  and  nonresidence  were  dispensed 
with ;  so  that  individuals  were  said  to  have  accumulated  fifty 
or  sixty  preferments.*    It  was  a  consequence  from  this  ex- 
travagant principle,  that  the  pope  might  prevent  provisions 
the  ordinary  collator  upon  a  vacancy  ;  and  as  this  reserves, 
could  seldom  be  done  with  sufficient  expedition  in  ^^' 
places  remote  from  his  court,  that  he  might  make  reversion- 
ary grants  during  the  life  of  an  incumbent,  or  reserve  certain 
benefices  specifically  for  his  own  nomination. 

The  persons  as  well  as  estates  of  ecclesiastics  were  secure 
from  arbitrary  taxation  in  all  the  kmgdoms  founded  upon  the 
ruins  of  the  empire,  both  by  the  common  liberties  of  free- 


ques,  toute  levee  de  deniers  ordonnde  par 
elle,  toute  Election  irreguli^re,  toute  ex- 
communication, tout  interdit,  qui  tou- 
choieut  rautorite  royale  ou  les  droits  du 
Bujet,  furent  denonces  par  les  legistes  en 
parlement,  comme  contraires  aux  fran- 
chises des  ^lises  de  France,  et  k  la 
pragmatique  sanction.  Ainsi  sUntrodui- 
■ait  I'appel  comme  d'abus  qui  r^ussit 
Mul  k  contenir  la  jurisdiction  ecclesias- 
tique dans  de  justes  bornes. 

i  Sext.  Decretal.  1.  ui.  t.  iv.  c.  2.    F. 
Paul  on  Benefices,  c.  35      This  writer 


thinks  the  privilege  of  nominating  bene- 
fices vacant  in  curia  to  have  been  among 
the  first  claimed  by  the  popes,  even  be- 
fore the  usage  of  mandats.    c.  80. 
3  Matt.  Paris,  p.  817. 

3  Sext.  Decret.  1.  iii.  t.  iv.  c.  8.  H« 
extended  the  vacancy  in  curi&  to  aU 
places  within  two  days'  journey  of  thfl 
papal  couVt. 

4  F.  Paul,  c.  35. 

6  Id.  c.  33,  34,  85.    Schmidt,  t.  It.  p 
104 


206 


PAPAL  TAXATION        Chaf.  VII.  Pabt  n. 


ECCLBS.  POWEB. 


OF  THE  CLERGY. 


207 


I 


Papal  taxa-  °^®^»  ^^^  more  particularly  by  their  own  immu- 
tionof  the  nitics  and  the  horror  of  sacrilege.^  Such  at  least 
clergy.  ^^  ^^j^.  j^g^  security,  whatever  violence  might 

occasionally  be  practised  by  tyrannical  princes.  But  this 
exemption  was  compensated  by  annual  donatives,  probably 
to  a  large  amount,  which  the  bishops  and  monasteries  were 
accustomed,  and  as  it  were  compelled,  to  make  to  their  sov- 
ereigns.^ They  were  subject  also,  generally  speaking,  to  the 
feudal  services  and  prestations.  Henry  I.  is  said  to  have 
extorted  a  sum  of  money  from  the  English  church.'  But 
the  fii^st  eminent  instance  of  a  general  tax  required  from  the 
clergy  was  the  famous  Saladine  tithe ;  a  tenth  of  all  movable 
estate,  imposed  by  the  kings  of  France  and  England  upon  all 
their  subjects,  with  the  consent  of  their  great  councils  of 
prelates  and  barons,  to  defray  the  expense  of  their  intended 
crusade.  Yet  even  this  contribution,  though  called  for  by 
the  imminent  peril  of  the  Holy  Land  after  the  capture  of 
Jerusalem,  was  not  paid  without  reluctance;  the  clergy 
doubtless  anticipating  the  future  extension  of  such  a  precedent* 
Many  years  had  not  elapsed  when  a  new  demand  was  made 
upon  them,  but  from  a  different  quarter.  Innocent  IH.  (the 
name  continually  recurs  when  we  trace  the  commencement 
of  an  usurpation)  imposed  in  1199  upon  the  whole  church  a 
tribute  of  one  fortieth  of  movable  estate,  to  be  paid  to  his  own 
collectors;  but  strictly  pledging  himself  that  the  money 
should  only  be  applied  to  the  purposes  of  a  crusade.*  This 
crusade  ended,  as  is  well  known,  in  the  capture  of  Constan- 
tinople. But  the  word  had  lost  much  of  its  original  mean- 
ing ;  or  rather  that  meaning  had  been  extended  by  ambition 
and  bigotry.  Gregory  IX.  preached  a  crusade  against  the 
emperor  Frederic,  in  a  quarrel  which  only  concerned  his 
temporal  principality ;  and  the  church  of  England  was  taxed 
by  his  authority  to  carry  on  this  holy  war.*    After  some 


I 

I 


1  Muratori,I>isaert.  70;  Schmidt,  t.  iU. 
p.  211. 

3  Schmidt,  t.  iii.  p.  2U.  Da  Cange,  t. 
Dona. 

3  Eadmer,  p.  83- 

*  Schmidt,  t.  ir.  p.  212.  Lyttelton's 
Henry  II.,  toI.  Ui.  p.  472.  Velly,  t.  iii. 
p.  816.  ' 

*  Innocent,  Opera,  p.  266. 

*  M.  Paris,  p.  470.  It  was  hardly 
possible  for  the  clergy  to  make  any  ef- 
fective  resistance  to  the  pope,  without 


unrareling  a  tissue  which  they  had  heen 
assiduonsily  weaTing.  One  En^^lish  pre. 
late  distinguished  himself  in  tbi.s  reign 
by  his  strenuous  protestation  against  all 
abuses  of  the  church.  This  was  Robert 
Orosstete,  bishop  of  Lincoln,  who  died  in 
1253.  the  most  learned  Englishman  of 
his  time,  and  the  first  who  had  any  tinc- 
ture of  Greek  literature.  Matthew  Paris 
gives  him  a  high  character,  which  ha 
deserved  for  his  learning  and  integrity ; 
one  of  his  commendations  is  for  keeping 


opposition  the  bishops  submitted;  and  from  that  time  no 
bounds  were  set  to  the  rapacity  of  papal  exactions.  The 
usurers  of  Cahors  and  Lombardy,  residing  in  London,  took 
up  the  trade  of  agency  for  the  pope ;  and  in  a  few  years,  he 
is  said,  partly  by  levies  of  money,  partly  by  the  revenues  of 
benefices,  to  have  plundered  the  kingdom  of  950,000  marks ; 
a  sum  equivalent,  perhaps,  to  not  less  than  fifteen  millions 
sterling  at  present  Innocent  IV.,  during  whose  pontificate 
the  tyranny  of  Rome,  if  we  consider  her  temporal  and  spir- 
itual usurpations  together,  seems  to  have  reached  its  zenith,^ 
hit  upon  the  device  of  ordering  the  English  prelates  to  fur- 
nish a  certain  number  of  men-at-arms  to  defend  the  church 
at  their  expense.  This  would  soon  have  been  commuted 
into  a  standing  escuage  instead  of  military  service.^  But  the 
demand  was  perliaps  not  complied  with,  and  we  do  not  find 
it  repeated.  Henry  IIL's  pusillanimity  would  not  permit 
any  effectual  measures  to  be  adopted ;  and  indeed  he  some- 
times shared  in  the  booty,  and  was  indulged  with  the  produce 
of  taxes  imposed  upon  his  o^vn  clergy  to  defray  the  cost  of 
his  projected  war  against  Sicily.^  A  nobler  example  was  set 
by  the  kingdom  of  Scotland :  Clement  IV.  having,  in  1267, 
granted  the  tithes  of  its  ecclesiastical  revenues  for  one  of  his 
mock  crusades,  king  Alexander  HI.,  with  the  concurrence  of 
the  church,  stood  up  against  this  encroachment,  and  refused 
the  legate  permission  to  enter  his  dominions.''  Taxation  of 
the  clergy  was  not  so  outrageous  in  other  countries ;  but  the 
popes  granted  a  tithe  of  benefices  to  St.  Louis  for  each  of 
his  own  crusades,  and  also  for  the  expedition  of  Charles  of 
Ahjou  against  Manfred.*  In  the  council  of  Lyons,  held  by 
Gregory  X.  in  1274,  a  general  tax  in  the  same  proportion 
was  imposed  on  all  the  Latin  church,  for  the  pretended  pur- 
pose of  carrying  on  a  holy  war.* 


a  good  table.  But  Grosstete  appears  to 
have  been  imbued  in  a  great  degree  with 
the  spirit  of  his  age  as  to  ecclesiastical 
power,  though  unwilling  to  yield  it  up 
to  the  pope :  and  it  is  a  strange  thing  to 
reckon  him  among  the  precursors  of  the 
Reformation.  M.  Paris,  p.  754.  Bering- 
ton's  Literary  History  of  the  Middle 
A«fl,  p.  378. 

>  M.  Paris,  p.  613.  It  would  be  end- 
less to  multiply  proofe  from  Matthew 
Paris,  which  indeed  occur  in  almost  every 
page,  ms  laudable  zeal  against  papal 
tyranny,  on  which  some  protestant 
Writers  have  been  so  pleased  to  dwell, 


was  a  little  stimulated  by  personal  feel 
ings  for  the  abbey  of  St.  Alban-s ;  and 
the  same  remark  is  probably  applicable 
to  his  love  of  civil  liberty. 

»  Rymer,  t.  i.  p.  699,  &c.  The  sub- 
stance  of  English  ecclesiastical  history 
during  the  reign  of  Henry  III.  may  be 
collected  from  Henry,  and  still  bettex 
fiwm  Collier. 

3  Dalrymple's  Annals  of  Scotland,  vol. 
i.  p.  179. 

848;  t.  T.  p.  343  ;  t. 


*  VeUy,  t.  iv.  p. 
vi.  p.  47. 

5  Idem,  t.  vi.  p. 
p.  347. 


308.    St.  Marc,  t.  vL 


208        DISAFFECTION  TOWARDS  ROME.     Chap.  VH.  Part  U 

These  gross  invasions  of  ecclesiastical  property,  however 
submissively  endured,    produced  a   very  general 
^^^Z    disaffection  towards   the   court  of    Rome.      The 
court  of        reproach  of  venality  and  avarice  was  not  mdeed 
^°'**  cast  for  the  first  time  upon  the  sovereign  pontiffs; 

but  it  had  been  confined,  in  earlier  ages,  to  particular  m- 
stances,  not  affecting  the  bulk  of  the  cathohc  church.  But, 
pillaged  upon  every  slight  pretence,  without  law  and  without 
redress,  the  clergy  came  to  regard  their  once  paternal  mon- 
arch as  an  arbitrary  oppressor.  All  writers  of  the  thirteenth 
and  following  centuries  complain  in  terms  of  unmeasured 
indignation,  and  seem  almost  ready  to  reform  the  general 
abuses  of  the  church.  They  distinguished  however  clearly 
enough  between  the  abuses  which  oppressed  them  and  those 
which  it  was  their  interest  to  preserve,  nor  had  the  least  in- 
tention of  waiving  their  own  immunities  and  authority.  But 
the  laity  came  to  more  universal  conclusions.  A  spirit  of 
inveterate  hatred  grew  up  among  them,  not  only  towards  the 
papal  tyranny,  but  the  whole  system  of  ecclesiastical  inde- 
pendence. The  rich  envied  and  longed  to  plunder  the  estates 
of  the  superior  clergy;  the  poor  learned  from  the  Waldenses 
and  other  sectaries  to  deem  such  opulence  incompatible 
with  the  character  of  evangelical  ministers.  The  itinerant 
minstrels  invented  tales  to  satirize  vicious  priests,  which  a 
predisposed  multitude  eagerly  swallowed.  If  the  thirteenth 
century  was  an  age  of  more  extravagant  ecclesiastical  pre- 
tensions than  any  which  had  preceded,  it  was  certainly  one 
in  which  the  disposition  to  resist  them  acquired  greater  con- 
sistence. 

To  resist  had  indeed  become  strictly  necessary,  if  the  tem- 
poral governments  of  Christendom  would  occupy  any  better 
station  than  that  of  officers  to  the  hierarchy.  I  have  traced 
already  the  first  stage  of  that  ecclesiastical  juris- 
fJSSt?  diction,  which,  through  the  partial  indulgence  of 
SJti?r^       sovereigns,  especially  Justinian  and  Charlemagne, 

°  **^'  had  become  nearly  independent  of  the  civil  magis- 
trate. Several  ages  of  confusion  and  anarchy  ensued,  during 
which  the  supreme  regal  authority  was  hterally  suspended 
in  France,  and  not  much  respected  in  some  other  countries. 
It  is  natural  to  suppose  that  ecclesiastical  jurisdiction,  so  far 
as  even  that  was  regarded  in  such  barbarous  times,  would  be 
esteemed  the  only  substitute  for  coercive  law,  and  the  best 


EocLxs.  Power.    ECCLESIASTICAL  JURISDICTION. 


209 


security  against  wrong.  But  I  am  not  aware  that  it  extended 
itself  beyond  its  former  limits  till  about  the  beginning  of  the 
twelfth  century.  From  that  time  it  rapidly  encroached  upon 
the  secular  tribunals,  and  seemed  to  threaten  the  usurpation 
of  an  exclusive  supremacy  over  all  persons  and  causes.  The 
bishops  gave  the  tonsure  indiscriminately,  in  order  to  swell 
the  hst  of  their  subjects.  This  sign  of  a  clerical  state, 
though  below  the  lowest  of  their  seven  degrees  of  ordination, 
implying  no  spiritual  office,  conferred  the  privileges  and  im- 
munities of  the  profession  on  all  who  wore  an  ecclesiastical 
habit  and  had  only  once  been  married.*  Orphans  and 
widows,  the  stranger  and  the  poor,  the  pilgrim  and  the  leper, 
under  the  appellation  of  persons  in  distress  (miserabiles  per- 
sonae),  came  within  the  peculiar  cognizance  and  protection  of 
the  church  ;  nor  could  they  be  sued  before  any  lay  tribunal. 
And  the  whole  body  of  crusaders,  or  such  as  merely  took 
the  vow  of  engaging  in  a  crusade,  enjoyed  the  same  cleri- 
cal privileges. 

But  where  the  character  of  the  litigant  parties  could  not, 
even  with  this  large -construction,  be  brought  within  their 
pale,  the  bishops  found  a  pretext  for  their  jurisdiction  in  the 
nature  of  the  dispute.  Spiritual  causes  alone,  it  was  agreed, 
could  appertain  to  »the  spiritual  tribunal.  But  the  word  was 
indefinite ;  and  according  to  the  interpreters  of  the  twelfth 
century,  the  church  was  always  bound  to  prevent  and  chas- 
tise the  commission  of  sin.  By  this  sweeping  maxim,  which 
we  have  seen  Innocent  III.  apply  to  vindicate  his  control 
over  national  quarrels,  the  common  differences  of  individuals, 
which  generally  involve  some  charge  of  wilful  injury,  fell 
into  the  hands  of  a  religious  judge.  One  is  almost  surprised 
to  find  that  it  did  not  extend  more  universally,  and  might 
praise  the  moderation  of  the  church.  Real  actions,  or  suits 
relating  to  the  property  of  land,  were  always  the  exclusive 
province  of  the  lay  court,  even  where  a  clerk  was  the  defend- 
ant*    But  the  ecclesiastical  tribunals  took  cognizance  of 


1  Clerici  qui  cum  unicis  et  yirginibna 
eontraxerunt,  si  tonauram  et  Testes  de- 
ferent  clericales,  privilegium  retineant 

■ praeseDti  declaramus  edicto,  hujus- 

modi  clericofl  conjug&tos  pro  commissis 
ab  iifl  ezcessibua  Tel  delictis,  trahi  non 
posse  eriminaliter  aut  ciTiUter  ad  judi- 
dum  Bsculare.  Bonifiuius  OctaTUS,  in 
Sext.  Decretal.  K  iii.  tit.  ii.  c.  i. 

Philip   the  Bold,  howeTer,  had  sub- 

VOL.  II.  14 


jected  these  married  clerks  to  taxes,  an 
later  ordinances  of  the  French  kings  ren 
dered  them  amenable  to  temporal  juris 
diction;   from  which,  in  Naples,  by  Ta- 
rious  provisions  of  the  Angevin  line,  they 
always  continued  free.    Qiannone,  1.  xix. 
c.  6. 

3  Decretal,  1.  ii.  t.  ii.  Ordonnance» 
des  Rois,  t.  i.  p.  40  (a.d.  1189).  In  the 
council  of  Lambeth  in  1261  the  bishops 


210 


ECCLESUSnCAL  JURISDICTION    Chaf.  VH.  Pabt  U. 


breaches  of  contract,  at  least  where  an  oath  had  been  pledg- 
ed, and  of  personal  trusts.^  They  had  not  only  an  exclusive 
jurisdiction  over  questions  immediately  matrimonial,  but  a 
concurrent  one  with  the  civil  magistrate  in  France,  though 
never  in  England,  over  matters  incident  to  the  nuptial  con- 
tract, as  claims  of  marriage  portion  and  of  dower.*  They  took 
the  execution  of  testaments  into  their  hands,  on  account  of 
the  legacies  to  pious  uses  which  testators  were  advised  to  be 
queath.**  In  process  of  time,  and  under  favorable  circum 
stances,  they  made  still  greater  strides.  They  pretended  a 
right  to  supply  the  defects,  the  doubts,  or  the  negligence  of 
temporal  judges;  and  invented  a  class  of  mixed  causes, 
whereof  the  lay  or  ecclesiastical  jurisdiction  took  possession 
according  to  priority.  Besides  this  extensive  authority  in 
civil  disputes,  they  judged  of  some  offences  which  naturally 
belong  to  the  criminal  law,  as  well  as  of  some  others  which 
participate  of  a  civil  and  criminal  nature.  Such  were  per- 
jury, sacrilege,  usury,  incest,  and  adultery ;  *  from  the  pun- 
ishment of  aU  which  the  secular  magistrate  refrained,  at  least 
in  England,  after  they  had  become  the  province  of  a  sepa- 
rate jurisdiction.  Excommunication  still  continued  the  only 
chastisement  which  the  church  could  directly  inflict  But 
the  bishops  acquired  a  right  of  having  their  own  prisons 
for  lay  offenders,^  and  the  monasteries  were  the  appropriate 
prisons  of  clerks.  Their  sentences  of  excommunication  were 
enforced  by  the  temporal  magistrate  by  imprisonment  or 
sequestration  of  effects;  in  some  cases  by  confiscation  or 
death.® 


claim  a  right  to  Judge  inter  clericos  suos, 
Tel  inter  laicos  conquerentes  et  clericos 
de&ndentes,  in  personalibus  actionibus 
super  contractibua,  aut  delictis  aut  quasi, 
i.  e.  quasi  dilictis.  Wilkins,  Concilia,  t.  i. 
p.  747. 

1  Ordonnances  des  Rois,  p.  819  (a.d. 
1290). 

«  Id.  p.  40, 121,  220,  819. 

«  Id.  p.  819.  Glanyil,  1.  Tii.  c.  7. 
Sancho  IV.  gave  the  same  jurisdiction  to 
the  clergy  of  Castile,  Teoria  de  las  Cortes, 
t.  iii.  p.  20  ;  and  in  other  respects  fol- 
lowed the  example  of  his  father,  Alfonso 
X.,  in  favoring  their  encroachments. 
The  church  of  Scotland  seems  to  hare 
had  nearly  the  same  jurisdiction  as  that 
of  England.  Pinkerton's  History  of 
Scotland,  vol.  i.  p.  173. 

*  It  was  a  maxim  of  the  canon,  as  well 
M  tho  common  law,  that  no  person 


should  be  punished  twice  for  the  same 
ofFence;  therefore,  if  a  clerk  had  been 
degraded,  or  a  penance  imposed  on  a 
layman,  it  was  supposed  unjust  to  pro- 
ceed against  him  in  a  temporal  court. 

6  Charlemagne  is  said  by  Glannone  to 
haTe  permitted  the  bishops  to  hare 
prisons  of  their  own.    1.  vi.  c.  7. 

«  Qiannone,  1.  xix.  c.  5,  t.  iii  Schmidt, 
t  iy.  p.  195 ;  t.  vi.  p.  126.  Fleury,  7«»« 
Discours,  M6m.  de  TAcad.  des  Inscript. 
t.  xxxiz.  p.  608.  Ecclesiastical  juris- 
diction not  haying  been  uniform  in  dif- 
ferent ages  and  countries,  it  Is  difficult 
without  much  attention  to  distinguish 
its  general  and  permanent  attributes 
from  those  less  completely  established. 
Its  description,  as  given  in  the  Decretals, 
lib.  ii.  tit.  ii.,  De  foro  competenti,  doM 
not  support  the  pretensions  made  by  the 
canonists,  nor  come  up  to  the  sweeping 


ECCLES.  POWBB. 


AND  IMMUNITY. 


211 


The  clergy  did  not  forget  to  secure  along  with  this  juris- 
diction  their  own   absolute   exemption   from  the  and  immu 
criminal  justice  of  the   state.     This,  as   I   have  ^^'y- 
above  mentioned,  had  been  conceded  to  them  by  Charle- 
magne;  and  this   privilege  was   not   enjoyed  by  clerks  in 
England  before  the  conquest;  nor  do  we  find  it  proved  by 
any  records  long  afterwards ;  though  it  seems,  by  what  we 
read  about  the  constitutions  of  Clarendon,  to  have  grown  into 
use  before  the  reign  of  Henry  II.     As  to  France  and  Ger- 
many,  I  cannot  pretend  to  say  that  the  law  of  Charlemagne 
granting  an  exemption  from  ordinary  criminal  process  was 
ever  abrogated.     The  False  Decretals  contain  some  passages 
m  favor  of  ecclesiastical  immunity,  which  Gratian  repeats  in 
his  collection.^     About  the  middle  of  the  twelfth  century  the 
principle  obtained  general  reception,  and  Innocent  III.  de- 
cided it  to  be  an  inalienable  right  of  the  clergy,  whereof  they 
could  not  be  divested  even  by  their  own  consent.^      Much 
less  were  any  constitutions  of  princes,  or  national  usages, 
deemed  of  force  to  abrogate  such  an  important  privilege.* 
These,  by  the  canon  law,  were  invalid  when  they  affected  the 
nghts  and  liberties  of  holy  church.*     But  the  spiritual  courts 
were  charged  with  scandalously  neglecting  to  visit  the  most 
atrocious  offences  of  clerks  with  such  punishment  as  they 
could  inflict.     The  church  could  always  absolve  from  her 
own  censures;  and  confinement  in  a  monastery,  the  usual 
sentence  upon  criminals,  was  frequently  slight  and  temporary. 
Several  instances  are  mentioned  of  heinous  outrages  that  re- 
mained nearly  unpunished  through  the  shield  of  ecclesiastical 
privilege.*    And  as  the  temporal  courts  refused  their  assist- 
ance  to  a  rival  jurisdiction,  the  clergy  had  no  redress  for  their 
own  mjuries,  and  even  the  murder  of  a  priest  at  one  time,  as 
we  are  told,  was  only  punishable  by  excommunication.* 


definition  of  ecclesiastical  jurisdiction  by 
Boniface  VIH.  in  the  Sext.  1.  iii.  tit. 
xxiii.  c.  40,  sive  ambse  partes  hoc  volu- 
erint,  sive  una  super  causis  ecclesiasticia, 
rive  qua  ad  forum  ecclesiasticum  ratione 
penonarum,  negotiorum,  vel  rerum  de 
jure  vel  de  antiqui  consuetudine  perti- 
nere  noscuntur. 

*  Fleury,  7n>«  Discours. 

*  Id.  Institutions  au  Droit  EccWs.  t. 
U.  p.  8. 

»  In  criminalibus  causis  in  nuUo  casu 
poesunt  clerici  ab  aliquo  quim  ab  eccle- 
■Mtico  judice  condemnari,  etiamsi  con- 


suetudo  regia  habeat  ut  fures  a  judicibus 
saecularibua  judicentur.  Decretal.  1.  i. 
tit.  1.  c.  8. 

*  Decret.  distinct.  96. 

6  Collier,  vol.  i.  p.  861.  It  is  laid 
down  in  the  canon  laws  that  a  layman 
cannot  be  a  witness  in  a  criminal  case 
against  a  clerk.  Decretal.  I.  ii.  tit.  xx. 
c.  14. 

«  Lyttelton's  Henry  II.,  vol.  iii.  p.  332. 
This  must  be  restricted  to  that  period  of 
open  hostility  between  the  chorcli  and 
state. 


212 


ENDEAVORS  TO  REPRESS    Chap.  VH.  Pabt  H. 


EccLEs.  Power.    ECCLESIASTICAL  JURISDICTION. 


213 


Such  an  incoherent  medley  of  laws  and  magistrates,  upon 
the  sTmmetrical  arrangement  of  which  all  social 
SSSfto  ^     economy  mainly  depends,  could  not  fail  to  produce 
press  it  in      a  violent  collision.     Every  sovereign  was  mter- 
*^^*'''^*        ested  in  vindicating  the  authority  of  the  constitu- 
tions which  had  been  formed  by  his  ancestors,  or  by  the  people 
whom  he  governed.    But  the  first  who  undertook  this  arduous 
work,  the  first  who  appeared  openly  against  ecclesiastical 
tyranny,  was  our  Henry  II.     The  Anglo-Saxon  church,  not 
80  much  connected  as  some  others  with  Rome,  and  enjoying  a 
sort  of  barbarian  immunity  from  the  thraldom  of  canonical 
discipline,  though  rich,  and  highly  respected  by  a  devout  na- 
tion, had  never,  perhaps,  desired  the  thorough  independence 
upon  secular  jurisdiction  at  which  the  continental  hierarchy 
aimed.     William  the  Conqueror  first  separated  the  ecclesias- 
tical from  the  civil  tribunal,  and  forbade  the  bishops  to  judge 
of  spiritual  causes  in  the  hundred  court.*     His  language  is, 
however,  too  indefinite  to  warrant  any  decisive  proposition  as 
to  the  nature  of  such  causes ;  probably  they  had  not  yet  been 
carried  much  beyond  their  legitimate  extent.    Of  clerical  ex- 
emption from  the  secular  arm  we  find  no  earlier  notice  than 
in  the  coronation  oath  of  Stephen ;  which,  though  vaguely 
expressed,  may  be  construed  to  include  it.^     But  I  am  not 
certain  that  the  kw  of  England  had  unequivocally  recognized 
that  claim  at  the  time  of  the  constitutions  of  Clarendon.     It 
was  at  least  an  innovation,  which  the  legislature  might  with- 
out scruple  or  transgression  of  justice  aboUsh.    Henry  II.,  in 
that  famous  statute,  attempted  in  three  respects  to  limit  the 
jurisdiction  assumed  by  the  church;  asserting  for  his  own 
judges  the  cognizance  of  contracts,  however  confirmed  by 
oath,  and  of  rights  of  advowson,  and  also  that  of  offences 
committed  by  clerks,  whom,  as  it  is  gently  expressed,  after 


I  Ut  nuUus  episcopus  rel  archidiaco- 
nua  de  legibua  episcopalibus  ampliua  in 
Uundret  placita  teneant,  uec  causam  qu« 
ad  regimen  anlmarum  pertinet,  ad  ju- 
diciam  ssecularium  hominum  adducant. 
Wilkin?,  Leges  Anglo-Saxon.  230. 

Before  the  conquest  tlie  bishop  and 
earl  sat  together  in  the  court  of  the 
county  or  hundred,  and,  as  we  may  in- 
fer from  the  tenor  of  this  charter,  eccle- 
siastical matters  were  decided  loosely, 
and  rather  by  the  common  law  than  ac- 
cording to  the  canons.  This  practice 
had  l^n  already  forbidden  by  some 
cauous  enacted  under  Edgar,  id.  p.  83, 


but  apparently  with  little  effect.  Th« 
separation  of  the  ciTil  and  ecclesiastical 
tribunals  was  not  made  in  Denmark  till 
the  reign  of  Nicholas,  who  ascended  the 
throne  in  1105.  Langebek,  Script.  Rer. 
Danic.  t.  ir.  p.  880.  Others  refer  the 
law  to  St.  Canut,  about  1080.  t.  li.  p. 
209. 

s  Ecclesiasticarum  personarum  et  om- 
nium clericorum,  et  rerum  eorum  ju»- 
titiam  et  potestateni,  ct  distributionem 
honorum  eccleslasticorum,  in  manu  epls- 
coporum  esse  perhibeo,  et  confirmo.  Wil* 
kins,  Leges  Anglo-Saxon,  p.  310. 


conviction  or  confession  the  church  ought  not  to  protect.^ 
These  constitutions  were  the  leading  subject  of  difference 
between  the  king  and  Thomas  a  Becket.  Most  of  them  were 
annulled  by  the  pope,  as  derogatory  to  ecclesiastical  liberty. 
It  is  not  improbable,  however,  that,  if  Louis  VII.  had  played 
a  more  dignified  part,  the  see  of  Rome,  which  an  existing 
schism  rendered  dependent  upon  the  favor  of  those  two  mon- 
archs,  might  have  receded  in  some  measure  from  her  preten- 
sions. But  France  implicitly  giving  way  to  the  encroachments 
of  ecclesiastical  power,  it  became  impossible  for  Hemy  com- 
pletely to  withstand  them. 

The  constitutions  of  Clarendon,  however,  produced  some 
effect,  and  in  the  reign  of  Henry  III.  more  unremitted  and 
successful  efforts  began  to  be  made  to  maintain  the  indepen- 
dence of  temporal  government  The  judges  of  the  king's 
court  had  until  that  time  been  themselves  principally  ecclesi- 
astics, and  consequently  tender  of  spiritual  privileges.^  But 
now,  abstaining  from  the  exercise  of  temporal  jurisdiction,  in 
obedience  to  the  strict  injunctions  of  their  canons,'  the  clergy 
gave  place  to  common  lawyers,  professors  of  a  system  very 
discordant  from  their  own.  These  soon  began  to  assert  the 
supremacy  of  their  jurisdiction  by  issuing  writs  of  prohibition 
whenever  the  ecclesiastical  tribunals  passed  the  boundaries 
which  approved  use  had  established.*  Little  accustomed  to 
such  control,  the  proud  hierarchy  chafed  under  the  bit ;  several 
provincial  synods  protest  against  the  pretensions  of  laymen  to 
judge  the  anointed  ministers  whom  they  were  bound  to  obey;^ 
the  cognizance  of  rights  of  patronage  and  breaches  of  con- 
tract is  boldly  asserted ;«  but  firm  and  cautious,  favored  by  the 
nobility,  though  not  much  by  the  king,  the  judges  receded 
not  a  step,  and  ultimately  fixed  a  barrier  which  the  church 
was  forced  to  respect.'     In  the  ensuing  reign  of  Edward  I., 


»  Wilkin?,  Leges  Anglo-Saxon,  p.  823 ; 
Lyttelton's  Henry  II. ;  Collier,  &c. 

«  Dugdale's  Origines  Juridicales,  c.  8. 

»  Decretal.  1.  i.  tit.  xxxvii.  c.  1.  Wil- 
kina,  Concilia,  t.  ii.  p.  4. 

*  Prynne  has  produced  several  ex- 
tracts from  the  pipe-rolls  of  Henry  II., 
where  a  person  ha."!  been  fined  quia  placi- 
tayit  d«!  laico  feodo  in  curia  christiani- 
tatis.  And  a  bishop  of  Durham  is  fined 
fire  hundred  marks  quia  tenuitplacitum 
de  advoeatione  cujusdam  ecclesict  in  curi4 
ehristianitatis.  Epistle  dedicatory  to 
Piynne's  Records,  toI.  iii.    QlanvU  gives 


the  form  of  a  writ  of  prohibition  to  the 
spiritual  court  for  inquiring  de  feodo 
laico  ;  for  it  had  jurisdiction  over  lands 
in  frankalmoign.  This  is  comformable  to 
the  constitutions  of  Clarendon,  and  shows 
that  they  were  still  in  foroe.  See  also 
Lyttelton's  Henry  II.,  vol.  iii.  p.  97. 

6  Cum  judicandi  Christos  domini  nulla 
sit  laicis  attributa  potestas.  apud  quoa 
manet  necessitas  obsequendi.  Wilkins, 
Concilia,  t.  i.  p.  747. 

«  Id.  ibid. ;  et  t.  u.  p.  90. 

7  Vide  Wilkins,  Concilia,  t.  ii.  passim. 


B' ' 


I 


214  ECCLESIASTICAL  JURISDICTION.    Chap.  VH.  Part  H. 

an  archbishop  acknowledges  the  abstract  right  of  the  king's 
bench  to  issue  prohibitions;^  and  the  statute  entitled  Circum- 
specte  agatis,  in  the  thirteenth  year  of  that  prince,  while  by 
its  mode  of  expression  it  seems  designed  to  guarantee  the 
actual  privileges  of  spiritual  jurisdiction,  had  a  tendency, 
especially  with  the  disposition  of  the  judges,  to  preclude  the 
assertion  of  some  which  are  not  therein  mentioned.  Neither 
the  right  of  advowson  nor  any  temporal  contract  is  specified 
in  this  act  as  pertaining  to  the  church ;  and  accordingly  the 
temporal  courts  have  ever  since  maintained  an  undisputed 
jurisdiction  over  them.^  They  succeeded  also  partially  in 
preventing  the  impunity  of  crimes  perpetrated  by  clerks.  It 
was  enacted  by  the  statute  of  Westminster,  in  1275,  or  rather 
a  construction  was  put  upon  that  act,  which  is  obscurely  worded, 
that  clerks  indicted  for  felony  should  not  be  delivered  to  their 
ordinary  until  an  inquest  had  been  taken  of  the  matter  of  ac- 
cusation, and,  if  they  were  found  guilty,  that  their  real  and 
personal  estate  should  be  forfeited  to  the  crown.  In  later 
times  the  clerical  privilege  was  not  allowed  till  the  party  had 
pleaded  to  the  indictment,  and  being  duly  convict,  as  is  the 
practice  at  present.* 

The  civil  magistrates  of  France  did  not  by  any  means 
exert  themselves  so  vigorously  for  their  emancipa- 
tion.     The   same   or  rather   worse    usurpations 
existed,  and  the   same    complaints  were   made, 
under  Philip  Augustus,  St.  Louis,  and  Philip  the  Bold ;  but 


BccLKS.  PowEB.      ALIENATIONS  IN  MORTMAIN. 


215 


LessTigor- 
008  in 
France. 


1  Licet  prohibitiones  hnjusmodi  a  curii 
christianissimi  regis  nostri  just*  procul- 
dubio,  ut  diximus,  coDcedantur.  Id. 
t.  ii.  p.  100  and  p.  115. 

s  The  statute  Circumspect^  ^atis,  for 
it  Is  acknowledged  as  a  statute,  though 
not  drawn  up  in  the  form  of  one,  is 
founded  upon  an  answer  of  Edward  I.  to 
the  prelates  who  had  petitioned  for  some 
modification    of    prohibitions.      Collier, 
always  prone  to  exaggerate  church  au- 
thority, insinuates  that  the  jurisdiction 
of  the  spiritual  court  over  breaches  of 
contract,  eyen  without  oath,  is  preserved 
by  this  statute ;  but  the  express  words 
of  the  king  show  that  none  whatever  was 
intended,  and  the  archbishop  complains 
bitterly  of  it  afterwards.    Wilkins,  Con- 
cilia, t.  li.  p.  118.    Collier's  Ecclesiast. 
mstory,  vol.  i.  p.  487.     So  far   from 
having  any  cognizance  of  civil  contracts 
not  confirmed  by  oath,  to  which  I  am 
not  certain  that  the  church  ever  pre- 
tended in  any  country,  the  spiritual  court 


had  no  jurisdiction  at  all,  even  where  an 
oath  had  intervened,  unless  there  was  a 
deficiency  of  proof  by  writing  or  wit- 
nesses. Qlanvil,  1.  x.  c.  12 ;  Constitut. 
Clarendon,  art.  15. 

» 2  Inst.  p.  168.  This  is  not  likely 
to  mislead  a  well-informed  reader,  but 
it  ought,  perhaps,  to  be  mentioned  that 
by  the  "  clerical  privilege  "  we  are  only 
to  understand  what  is  called  benefit  of 
clergy,  which  in  fact  is,  or  rather  wai 
till  recent  alterations  of  the  law  since  the 
first  edition  of  this  work,  no  more  than 
the  remission  of  capital  punishment  fbr 
the  first  conviction  of  felony,  and  that 
not  for  the  clergv  alone,  but  for  all  cul 
prits  alike.  They  were  not  called  upon 
at  any  time,  I  believe,  to  prove  their 
claim  as  clergy,  except  by  reading  the 
neck-verse  after  trial  and  conviction  in 
the  king's  court.  They  were  then  in 
strictness  to  be  committed  to  the  ordi- 
nary or  ecclesiastical  superior,  whkh 
probably  was  not  often  done. 


the  laws  of  those  sovereigns  tend  much  more  to  confirm  than 
to  restrain  ecclesiastical  encroachments.^  Some  limitations 
were  attempted  by  the  secular  courts ;  and  an  historian  gives 
us  the  terms  of  a  confederacy  among  the  French  nobles  in 
1246,  binding  themselves  by  oath  not  to  permit  the  spiritual 
judges  to  take  cognizance  of  any  matter,  except  heresy,  mar- 
riage, and  usury.^  Unfortunately  Louis  IX.  was  almost  as 
little  disposed  as  Henry  III.  to  shake  off  the  yoke  of  ecclesi- 
astical dominion.  But  other  sovereigns  in  the  same  period, 
from  various  motives,  were  equally  submissive.  Frederic  IL 
explicitly  adopts  the  exemption  of  clerks  from  criminal  as 
well  as  civil  jurisdiction  of  seculars.'  And  Alfonso  X.  intro- 
duced the  same  system  in  Castile ;  a  kingdom  where  neither 
the  papal  authority  nor  the  independence  of  the  church  had 
obtained  any  legal  recognition  until  the  promulgation  of  his 
code,  which  teems  with  all  the  principles  of  the  canon  law.* 
It  is  almost  needless  to  mention  that  all  ecclesiastical  powers 
and  privileges  were  incorporated  with  the  jurisprudence  of 
the  kingdom  of  Naples,  which,  especially  after  the  accession 
of  the  Angevin  line,  stood  in  a  peculiar  relation  of  depend- 
ence upon  the  Holy  See.* 

The  vast  acquisitions  of  landed  wealth  made  for  many 
aees  by  bishops,  chapters,  and  monasteries,  began  Restraints 

^°   ,•',  .1.1  /»  .on  aliena- 

at  length  to  excite  the  jealousy  oi   sovereigns,  tions  in 
They  perceived  that,  although  the  prelates  might  mortmain, 
send  their  stipulated  proportion  of  vassals  into  the  field,  yet 
there  could  not  be  that  active  cooperation  which  the  spirit 
of  feudal  tenures  required,  and  that  the  national  arm  was 
palsied  by  the  diminution  of  military  nobles.    Again  the  re- 


1  It  seems  deducible  from  a  law  of 
Philip  Augustus,  Ordonnances  des  Rois, 
t.  i.  p.  39,  that  a  clerk  convicted  of  some 
heinous  offences  might  be  capitally  pun- 
ished after  degradation ;  yet  a  subse- 
quent ordinance,  p.  43,  renders  this 
doubtful ;  and  the  theory  of  clerical  im- 
munity became  afterwards  more  fully 
established. 

3  Matt.  Paris,  p.  629. 

s  Statuimus,  ut  nullus  ecclesiasticam 
personam,  in  criminali  qusestione  vel 
civili,  trahere  ad  judicium  sseculare  prse- 
sumat.  Ordonnances  des  Rois  de  France, 
t.  i.  p.  611,  where  this  edict  is  recited 
and  approved  by  Louis  Hutin.  Philip 
the  Bold  had  obtained  leave  from  the 
pope  to  arrest  clerks  accused  of  heinous 
crimes,  on  condition  of  remitting  them 
to  the  bishop's  court  for  trial.    Hist,  du 


Droit  Eccl.  Fran^.  t.  i.  p.  426.  A  coun- 
cil at  Bourges,  held  in  1276  had  so  abso- 
lutely condemned  all  interference  of  the 
secular  power  with  clerks  that  the  king 
was  obliged  to  solicit  this  moderate  &- 
Yor.    p.  421. 

♦  Marina,  Ensayo  Historico-Critico  so- 
bre  las  Siete  Partidas,  c.  320,  &c.  Hist, 
du  Droit  Eccles.  Fran^.  t.  i.  p.  442. 

6  Giannone,  1.  xix.  c.  v. ;  1.  xx.  c.  8. 
One  provision  of  Robert  king  of  Naples 
is  remarkable  :  it  extends  the  immunity 
of  clerks  to  their  concubines.    Ibid. 

Villani  strongly  censures  a  law  made 
at  Florence  in  1345,  taking  away  the 
personal  immunity  of  clerks  in  criminal 
cases.  Though  the  state  could  make 
such  a  law,  he  says,  it  had  no  right  to  do 
so  against  the  liberties  of  holj  ohoxch. 
1.  xii.  c.  43. 


I 


216 


BONIFACE  Vm. 


Chap.  VII.  Paet  n. 


£CCLE8.  POWSB. 


BONIFACE  vm. 


217 


liefs  upon  succession,  and  similar  dues  upon  alienation,  inci- 
dental to  fiefs,  were  entirely  lost  when  they  came  into  the 
hands  of  these  undying  corporations,  to  the  serious  injury  of 
the  feudal  superior.  Nor  could  it  escape  reflecting  men, 
during  the  contest  about  investitiu*es,  that,  if  the  church  per- 
emptorily denied  the  supremacy  of  the  state  over  her  tem- 
poral wealth,  it  was  but  a  just  measure  of  retaliation,  or  rather 
self-defence,  that  the  state  should  restrain  her  further  acquisi- 
tions. Prohibitions  of  gifts  in  mortmain,  though  unknown  to 
the  lavish  devotion  of  the  new  kingdoms,  had  been  establish- 
ed by  some  of  the  Roman  emperors  to  check  the  overgrown 
wealth  of  the  hierarchy.^  The  first  attempt  at  a  limitation 
of  this  description  in  modem  times  was  made  by  Frederic 
Barbarossa,  who,  in  1158,  enacted  that  no  fief  should  be 
transferred,  either  to  the  church  or  otherwise,  without  the 
permission  of  the  superior  lord.  Louis  IX.  inserted  a  pro- 
vision of  the  same  kind  in  his  Establishments.*  Castile  had 
also  laws  of  a  similar  tendency.'  A  license  from  the  crown 
is  said  to  have  been  necessary  in  England  before  the  con- 
quest for  alienations  in  mortmain ;  but  however  that  may  be, 
tiiere  seems  no  reason  to  imagine  that  any  restraint  was  put 
upon  them  by  the  common  law  before  Magna  Charta;  a 
clause  of  which  statute  was  construed  to  prohibit  all  gift?  to 
religious  houses  without  the  consent  of  the  lord  of  the  fee. 
And  by  the  7th  Edward  I.  alienations  in  mortmain  are  abso- 
lutely taken  away ;  though  the  king  might  always  exercise 
his  prerogative  of  granting  a  license,  which  was  not  supposed 
to  be  affected  by  the  statute.* 

It  must  appear,  I  think,  to  every  careful  inquirer  that  the 
Boni&ce  papal  authority,  though  manifesting  outwardly 
^^^'  more  show  of  strength  every  year,  had  been  se- 

cretly undermined,  and  lost  a  great  deal  of  its  hold  upon 
public  opinion,  before  the  accession  of  Boniface  VIII.,  in 
1294,  to  the  pontifical  throne.  The  clergy  were  rendered 
sullen  by  demands  of  money,  invasions  of  the  legal  right  of 
patronage,  and  unreasonable  partiality  to  the  mendicant 
orders ;  a  part  of  the  mendicants  themselves  had  begun  to 


»  Giannone,  1.  iii. 

«  Ordonnances  des  Roia,  p.  218.    See, 
too,  p.  303  and  alibi.    Du  Cange,  v.  Ma-        -  «. 
nus  morta.    Amortissiment^  in  Denisart    c.  18 
and  other  French  law-books.     Fleory, 
IiiBtit.  au  Droit,  t.  i.  p.  850. 


*  Marina,  Eiuayo  tohre  laa  Siete  Par> 
tidas,  c.  235. 
<2  Inst.  p.  74.    Blackstone,  toI.  tt. 


declaim  against  the  corruptions  of  the  papal  court ;  while  the 
laity,  subjects  alike  and  sovereigns,  looked  upon  both  the 
head  and  the  members  of  the  hierarchy  with  jealousy  and 
dislike.  Boniface,  full  of  inordinate  arrogance  and  ambition, 
and  not  sufficiently  sensible  of  this  gradual  change  in  human 
opinion,  endeavored  to  strain  to  a  higher  pitch  the  despotic 
pretensions  of  former  pontiffs.  As  Gregory  VII.  appears 
the  most  usurping  of  mankind  till  we  read  the  history  of  In- 
nocent III.,  so  Innocent  III.  is  thrown  into  shade  by  the  su- 
perior audacity  of  Boniface  VIII.  But  independently  of  the 
less  favorable  dispositions  of  the  public,  he  wanted  the  most 
essential  quality  for  an  ambitious  pope,  reputation  for  integ- 
rity. He  was  suspected  of  having  procured  through  fraud 
the  resignation  of  his  predecessor  Celestine  V.,  and  his  harsh 
treatment  of  that  worthy  man  afterwards  seems  to  justify  the 
reproach.  His  actions,  however,  display  the  intoxication  of 
extreme  self-confidence.  If  we  may  credit  some  historians, 
he  appeared  at  the  Jubilee  in  1300,  a  festival  successfully  in- 
stituted by  himself  to  throw  lustre  around  his  court  and  fill 
his  treasury,^  dressed  in  imperial  habits,  with  the  two  swords 
borne  before  him,  emblems  of  his  temporal  as  well  as  spirit- 
ual dominion  over  the  earth.* 

It   was   not   long   after   his   elevation   to   the   pontificate 
before  Boniface  displayed  his  temper.     The  two 
most  powerful  sovereigns  of  Europe,  Philip  the  wi^th  the^ 
Fair  and  Edward  I.,  began  at  the  same  moment  ^  °|i^^ 
to  attack  in  a  very  arbitrary  manner  the  revenues 
of  the   church.     The   English   clergy   had,   by   their   own 
voluntary  grants,  or  at  least  those  of  the  prelates  in  their 
name,  paid  frequent  subsidies  to  the  crown  from  the  begin- 
ning of  the  reign  of  Henry  III.     They  had  nearly  in  effect 
waived  the  ancient  exemption,  and  retained  only  the  com- 
mon privilege  of  English  freemen  to  tax  themselves  in  a  con- 


1  The  Jubilee  was  a  centenary  com- 
memoratioa  in  honor  of  St.  Peter  and 
St.  Paul,  established  by  Boniface  VIII. 
on  the  faith  of  an  imaginary  precedent  a 
century  before.  The  period  was  soon 
reduced  to  fifty  years,  and  from  thence  to 
twenty-five,  as  it  still  continues.  The 
court  of  Rome,  at  the  next  jubilee,  will 
however  read  with  a  sigh  the  description 
given  of  that  in  1300.  Papa  innumera- 
bilem  pecuniam  ab  iisdem  recepit,  quia 
die  et  nocte  duo  clerici  stabant  ad  altarc 
sancti  Pauli,  tenentes  in  eorum  manibus 


rastcUos,  rastellantcs  pecuniam  inflnitam. 
Auctor  apud  Muratori,  Annali  d'  Italia. 
Plenary  indulgences  were  granted  by 
Boniface  to  all  who  should  keep  their 
jubilee  at  Rome,  and  I  suppose  are  still 
to  be  had  on  tne  same  terms.  Matteo 
Yiliani  gives  a  curious  account  of  the 
throng  at  Rome  in  1350. 

3  Qiannone,  1.  xxi.  c.  3.  Velly,  t.  rii. 
p.  149.  I  have  not  observed  any  good 
authority  referred  to  for  this  fact,  which 
is  however  in  the  character  of  Bonl&ce 


m 


218 


DISPUTES  OF  BONIFACE  Vm.   Chap  VH.  Pakt  H. 


stitutional  manner.  But  Edward  I.  came  upon  them  with 
demands  so  frequent  and  exorbitant,  that  they  were  compel- 
led to  take  advantage  of  a  bull  issued  by  Boniface,  forbidding 
them  to  pay  any  contribution  to  the  state.  The  king  disre- 
garded every  pretext,  and,  seizing  their  goods  into  his  hands, 
with  other  tyrannical  proceedings,  ultimately  forced  them  to 
acquiesce  in  his  extortion.  It  is  remarkable  that  the  pope 
appears  to  have  been  passive  throughout  this  contest  of 
Edward  I.  with  his  clergy.  But  it  was  far  otherwise  in 
•ndof  France.     Philip  the  Fair  had  imposed  a  tax  on 

Vxanoe.  ^j^g  ecclcsiastical  order  without  their  consent,  a 
measure  perhaps  unprecedented,  yet  not  more  odious  than 
the  similar  exactions  of  the  king  of  England.  Irritated  by 
some  previous  differences,  the  pope  issued  his  bull  known  by 
the  initial  words  Clericis  laicos,  absolutely  forbidding  the 
clergy  of  every  kingdom  to  pay,  under  whatever  pretext  of 
voluntary  grant,  gift,  or  loan,  any  sort  of  tribute  to  their 
government  without  his  special  permission.  Though  France 
was  not  particularly  named,  the  king  understood  himself  to 
be  intended,  and  took  his  revenge  by  a  prohibition  to  export 
money  from  the  kingdom.  This  produced  angry  remon- 
strances on  the  part  of  Boniface ;  but  the  Gallican  church 
adhered  so  faithfully  to  the  crown,  and  showed  indeed  so 
much  willingness  to  be  spoiled  of  their  money,  that  he  could 
not  insist  upon  the  most  unreasonable  propositions  of  his  bull, 
and  ultimately  allowed  that  the  French  clergy  might  assist 
their  sovereign  by  voluntary  contributions,  though  not  by 
way  of  tax. 

For  a  very  few  years  after  these  circumstances  the  pope 
and  king  of  France  appeared  reconciled  to  each  other ;  and 
the  latter  even  referred  his  disputes  with  Edward  I.  to '  the 
arbitration  of  Boniface,  "  as  a  private  person,  Benedict  of 
Gaeta  (his  proper  name),  and  not  as  pontiff;"  an  almost  nu- 
gatory precaution  against  his  encroachment  upon  temporal 
authority.^     But  a  terrible  storm  broke  out  in  the  first  year 


1  Walt.  Hemingford,  p.  150.  The  award 
of  Boniface,  which  he  expresses  himself 
to  make  both  as  pope  and  Benedict  of 
Oaeta,  is  published  in  Rymer,  t.  ii.  p.  819, 
and  is  very  equitable.  NeTertheless, 
the  French  historians  agre«}d  to  charge 
him  with  partiality  towards  Edward, 
and  mention  several  proofs  of  it,  which 
do  not  appear  in  the  bull  itself.  Previous 
to  its  publication  it  was  allowable  enough 


to  follow  common  ftune  ;  but  Velly  has 
repeated  mere  falsehoods  from  Meieray 
and  Baillet,  while  he  refers  to  the  in- 
strument itself  in  Rymer,  which  dit- 
proves  them.  Hist,  de  France,  t.  tU. 
p.  139.  M.  Oaillard,  one  of  the  most 
candid  critics  in  history  that  France  erer 
produced,  pointed  out  the  error  of  hev 
common  historians  in  the  Mem.  de  l'Ao»> 
d6mie  des  Inscriptions,  t.  zxxix.  p.  642 ; 


EccLES.  Power.    WITH  ENGLAND  AND  FRANCE. 


219 


of  the  fourteenth  century.  A  bishop  of  Pamiers,  who  had 
been  sent  as  legate  from  Boniface  with  some  complaint,  dis- 
played so  much  insolence  and  such  disrespect  towards  the 
king,  that  PhiUp,  considering  him  as  his  own  subject,  was 
provoked  to  put  him  under  arrest,  with  a  view  to  institute  a 
criminal  process.  Boniface,  incensed  beyond  measure  at  this 
violation  of  ecclesiastical  and  legatine  privileges,  published 
several  bulls  addressed  to  the  king  and  clergy  of  France, 
charging  the  former  with  a  variety  of  offences,  some  of  them 
not  at  all  concerning  the  church,  and  commanding  the  latter 
to  attend  a  council  which  he  had  summoned  to  meet  at  Rome. 
In  one  of  these  instruments,  the  genuineness  of  which  does 
not  seem  liable  to  much  exception,  he  declares  in  concise 
and  clear  terms  that  the  king  was  subject  to  him  in  temporal 
as  well  as  spiritual  matters.  This  proposition  had  not  hitherto 
been  explicitly  advanced,  and  it  was  now  too  late  to  advance 
it  Philip  replied  by  a  short  letter  in  the  rudest  language, 
and  ordered  his  bulls  to  be  publicly  burned  at  Paris.  Deter- 
mined, however,  to  show  the  real  strength  of  his  opposition, 
he  summoned  representatives  from  the  three  orders  of  his 
kingdom.  This  is  commonly  reckoned  the  first  assembly  of 
the  States  General.  The  nobility  and  commons  disclaimed 
with  firmness  the  temporal  authority  of  the  pope,  and  con- 
veyed their  sentiments  to  Rome  through  letters  addressed  to 
the  college  of  cardinals.  The  clergy  endeavored  to  steer  a 
middle  course,  and  were  reluctant  to  enter  into  an  engage- 
ment not  to  obey  the  pope's  summons;  yet  they  did  not 
hesitate  unequivocally  to  deny  his  temporal  jurisdiction. 

The  council,  however,  opened  at  Rome ;  and  notwithstand- 
ing the  king's  absolute  prohibition,  many  French  prelates 
held  themselves  bound  to  be  present.  In  this  assembly  Boni- 
face promulgated  his  famous  constitution,  denominated  Unam 
sanctam.  The  church  is  one  body,  he  therein  declares,  and 
has  one  head.  Under  its  command  are  two  swords,  the  one 
spiritual,  and  the  other  temporal ;  that  to  be  used  by  the 
supreme  pontiff  himself;  this  by  kings  and  knights,  by  his 
license  and  at  his  will.  But  the  lesser  sword  must  be  subject 
to  the  greater,  and  the  temporal  to  the  spiritual  authority. 
He  concludes  by  declaring  the  subjection  of  every  human 
being  to  the  see  of  Rome  to  be  an  article  of  necessary  faith.^ 

and  the  editors  of  L^Art  de  T^rifler  les       ^  Uterque  est  in    potestate  ecclesiae, 
BttM  hare  also  rectified  it.  spiritalis  scilicet  gladios  et  materialis 


220 


DISPUTES  OF  BONIFACE  Vm.    Chap.  VU.  Part  II. 


Another  bull  pronounces  all  persons  of  whatever  rank  obliged 
to  appear  when  personally  cited  before  the  audience  or  apos- 
tolical tribunal  at  Rome ;  "  since  such  is  our  pleasure,  who, 
by  divine  permission,  rule  the  world."  Finally,  as  the  rup- 
ture with  Philip  grew  more  evidently  irreconcilable,  and  the 
measures  pursued  by  that  monarch  more  hostile,  he  not  only 
excommunicated  him,  but  offered  the  crown  of  France  to  the 
emperor  Albert  I.  This  arbitrary  transference  of  kingdoms 
was,  like  many  other  pretensions  of  that  age,  an  improvement 
upon  the  right  of  deposing  excommunicated  sovereigns, 
Gregory  VII.  would  not  have  denied  that  a  nation,  released 
by  his  authority  from  its  allegiance,  must  reenter  upon  its 
original  right  of  electing  a  new  sovereign.  But  Martin  IV. 
had  assigned  the  crown  of  Aragon  to  Charles  of  Valois ;  the 
first  instance,  I  think,  of  such  an  usurpation  of  power,  but 
which  was  defended  by  the  homage  of  Peter  II.,  who  had 
rendered  his  kingdom  feudally  dependent,  like  Naples,  upon 
the  Holy  See.^  Albert  felt  no  eagerness  to  realize  the  liberal 
promises  of  Boniface ;  who  was  on  the  point  of  issuing  a  bull 
absolving  the  subjects  of  Philip  from  their  allegiance,  and 
declaring  his  forfeiture,  when  a  very  unexpected  circumstance 
interrupted  all  his  projects. 

It  is  not  surprising,  when  we  consider  how  unaccustomed 
men  were  in  those  ages  to  disentangle  the  artful  sophisms, 
and  detect  the  falsehoods  in  point  of  fact,  whereon  the  papal 
supremacy  had  been  established,  that  the  king  of  France 
should  not  have  altogether  pursued  the  course  most  becoming 
his  dignity  and  the  goodness  of  his  cause.  He  gave  too  much 
the  air  of  a  personal  quarrel  with  Boniface  to  what  should 
have  been  a  resolute  opposition  to  the  despotism  of  Rome. 


Sed  is  quidem  pro  ecclesiSl,  iUe  yero  ab 
eoclesii  exercendus :  ille  sacerdotis,  is 
manu  regum  ac  railitum,  sed  ad  nutum 
et  patientiam  sacerdotis.  Oportet  autem 
gladium  esse  sub  gladio,  et  temporalem 
auctoritatem  spiritali  subjici  potestati. 
Porro  subesse  Romano  pontifici  omni 
humanse  creaturae  declarainus,  dicimus, 
deflnimus  et  pronunciamus  omnlno  esse 
de  necessitate  fidei.  Extravagant.  1.  i. 
tit.  viii.  c.  1. 

1  Innocent  IV.  had,  however,  in  1245, 
appointed  one  Bolon,  brother  to  Sancho 
II.,  king  of  Portugal,  to  be  a  sort  of  co- 
adjutor in  the  government  of  that  king- 
dom, enjoining  the  barons  to  honor  him 
M  their  sovereign,  at  the  same  time  de- 
eUuing  ttxat  he  did  not  intend  to  deprive 


the  king  or  his  lawful  issue,  if  he  should 
have  anj,  of  the  kingdom.  But  this  warn 
founded  on  the  request  of  the  Portuguese 
nobility  themselves,  who  were  dissatis- 
fied with  Sancho's  administration.  Sext. 
Decretal.  1.  i.  tit.  viii.  c.  2.  Art  de  veri- 
fier les  Dates,  t.  i.  p.  778. 

Boniface  invested  James  II.  of  Aragon 
with  the  crown  of  Sardinia,  over  which, 
however,  the  see  of  Rome  had  always 
pretended  to  a  superiority  by  virtue  ot 
the  concession  (probably  spurious)  of 
Louis  the  Debonair.  He  promised  Fred- 
eric  king  of  Sicily  the  empire  of  Con- 
stantinople, which,  I  suppose,  was  not  a 
fief  of  the  Holy  See.  Qiannone,  1.  ni. 
c.  8. 


£ccxj».  Power.      DECLINE  OF  THE  PAPACY. 


221 


Accordingly,  in  an  assembly  of  his  states  at  Paris,  he  pre- 
ferred virulent  charges  against  the  pope,  denying  him  to  have 
been  legitimately  elected,  imputing  to  him  various  heresies, 
and  ultimately  appeaUng  to  a  general  council  and  a  lawful 
head  of  the  church.  These  measures  were  not  very  happily 
planned;  and  experience  had  always  shown  that  Europe 
would  not  submit  to  change  the  common  chief  of  her  religion 
for  the  purposes  of  a  single  sovereign.  But  Philip  succeeded 
in  an  attempt  apparently  more  bold  and  singular.  Nogaret, 
a  minister  who  had  taken  an  active  share  in  all  the  proceed- 
ings against  Boniface,  was  secretly  despatched  into  Italy,  and, 
joining  with  some  of  the  Colonna  family,  proscribed  as  Ghib- 
elins,  and  rancorously  persecuted  by  the  pope,  arrested  him 
at  Anagnia,  a  town  in  the  neighborhood  of  Rome,  to  which 
he  had  gone  without  guards.  This  violent  action  was  not, 
one  would  imagine,  calculated  to  place  the  king  in  an  advan- 
tageous light ;  yet  it  led  accidentally  to  a  favorable  termination 
of  his  dispute.  Boniface  was  soon  rescued  by  the  inhabitants 
of  Anagnia ;  but  rage  brought  on  a  fever  which  ended  in  his 
death ;  and  the  first  act  of  his  successor,  Benedict  XI.,  was 
to  reconcile  the  king  of  France  to  the  Holy  See.* 

The  sensible  decline  of  the  papacy  is  to  be  dated  from  the 
pontificate  of  Boniface  VIII.,  who  had  strained  its  authority 
to  a  higher  pitch  than  any  of  his  predecessors.  There  is  a 
spell  wrought  by  uninterrupted  good  fortune,  which  captivates 
men's  understanding,  and  persuades  them,  against  reasoning 
and  analogy,  that  violent  power  is  immortal  and  irresistible. 
The  spell  is  broken  by  the  first  change  of  success.  We  have 
seen  the  working  and  the  dissipation  of  this  charm  with  a 
rapidity  to  which  the  events  of  former  times  bear  as  remote 
a  relation  as  the  gradual  processes  of  nature  to  her  deluges 
and  her  volcanoes.  In  tracing  the  papal  empire  over  man- 
kind we  have  no  such  marked  and  definite  crisis  of  revolution. 
But  slowly,  like  the  retreat  of  waters,  or  the  stealthy  pace  of 
old  age,  that  extraordinary  power  over  human  opinion  has 
been  subsiding  for  five  centuries.  I  have  already  observed 
that  the  symptoms  of  internal  decay  may  be  traced  further 
back.  But  as  the  retrocession  of  the  Roman  terminus  under 
Adrian  gave  the  first  overt  proof  of  decline  in  the  ambitious 
energies  of  that  empire,  so  the  tacit  submission  of  the  suc- 

^ » Velly,  Hist,  de  France,  t.  rii.  p.  109-258 ;  Crevier,  Hist,  de  I'Uniyerait*  de 
Paris,  t.  11.  p.  170,  &c. 


222 


CONTEST  OF  POPES     Chap.  VII.  Pabt  IL 


EccLBS.  PowBR.      WITH  LOUIS  OF  BAVARIA. 


223 


% 


cessors  of  Boniface  VIII.  to  the  king  of  France  might  have 
been  hailed  by  Europe  as  a  token  that  their  influence  was  be- 
ginning to  abate.  Imprisoned,  insulted,  deprived  eventually 
of  life  by  the  violence  of  Philip,  a  prince  excommunicated, 
and  who  had  gone  all  lengths  in  def3ring  and  despising  the 
papal  jurisdiction,  Boniface  had  every  claim  to  be  avenged 
by  the  inheritors  of  the  same  spiritual  dominion.  When 
Benedict  XI.  rescinded  the  bulls  of  his  predecessor,  and  ad- 
mitted Philip  the  Fair  to  conmiunion,  without  insisting  on 
any  concessions,  he  acted  perhaps  prudently,  but  gave  a  fatal 
blow  to  the  temporal  authority  of  Rome. 

Benedict  XI.  lived  but  a  few  months,  and  his  successor 

Clement  V.,  at  the  instigation,  as  is  commonly  sup- 
pa^Iourt  posed,  of  the  king  of  France,  by  whose  influence 
A!/im°'    ^®  ^^  ^^^^  elected,  took  the  extraordinary  step 

of  removing  the  papal  chair  to  Avignon.  In  this 
city  it  remained  for  more  than  seventy  years ;  a  period  which 
Petrarch  and  other  writers  of  Italy  compare  to  that  of  the 
Babylonish  captivity.  The  majority  of  the  cardinals  was 
always  French,  and  the  popes  were  uniformly  of  the  same 
nation.  Timidly  dependent  upon  the  court  of  France,  they 
neglected  the  interests  and  lost  the  affections  of  Italy.  Rome, 
forsaken  by  her  sovereign,  nearly  forgot  her  allegiance ;  what 
remained  of  papal  authority  in  the  ecclesiastical  territories 
was  exercised  by  cardinal  legates,  little  to  the  honor  or  ad- 
vantage of  the  Holy  See.  Yet  the  series  of  Avignon  pontiffs 
were  far  from  insensible  to  Italian  politics.  These  occupied, 
on  the  contrary,  the  greater  part  of  their  attention.  But 
engaging  in  them  from  motives  too  manifestly  selfish,  and 
being  regarded  as  a  sort  of  foreigners  from  birth  and  resi- 
dence, they  aggravated  that  unpopularity  and  bad  reputation 
which  from  various  other  causes  attached  itself  to  their  court. 
Though  none  of  the  supreme  pontiffs  after  Boniface  Vm. 

ventured  upon  such  explicit  assumptions  of  a  gen- 
S^jS'iith  eral  jurisdiction  over  sovereigns  by  divine  right  as 
Ba^tfSf        he  had  made  in  his  controversy  with  Philip,  they 

maintained  one  memorable  struggle  for  temporal 
power  against  the  emperor  Louis  of  Bavaria.  Maxims 
long  boldly  repeated  without  contradiction,  and  engrafted 
upon  the  canon  law,  passed  almost  for  articles  of  faith  among 
the  clergy  and  those  who  trusted  in  them ;  and  in  despite  of  all 
ancient  authorities,  Clement  V.  laid  it  down  that  the  popes, 


having  transferred  the  Roman  empire  from  the  Greeks  to 
the  Grermans,  and  delegated  the  right  of  nominating  an  em- 
peror to  certain  electors,  still  reserved  the  prerogative  of 
approving  the  choice,  and  of  receiving  from  its  subject  upon 
his  coronation  an  oath  of  fealty  and  obedience.^  This  had  a 
regard  to  Henry  VII.,  who  denied  that  his  oath  bore  any 
such  interpretation,  and  whose  measures,  much  to  the  alarm  of 
the  court  of  Avignon,  were  directed  towards  the  restoration 
of  his  imperial  rights  in  Italy.  Among  other  things,  he  con- 
ferred the  rank  of  vicar  of  the  empire  upon  Matteo  Visconti, 
lord  of  Milan.  The  popes  had  for  some  time  pretended  to 
possess  that  vicariate,  during  a  vacancy  of  the  empire ;  and 
after  Henry's  death  insisted  upon  Visconti*s  surrender  of  the 
title.  Several  circumstances,  lor  which  I  refer  to  the  political 
historians  of  Italy,  produced  a  war  between  the  pope's  legate 
and  the  Visconti  family.  The  emperor  Louis  sent  assistance 
to  the  latter,  as  heads  of  the  Ghibelin  or  imperial  party. 
This  interference  cost  him  above  twenty  years  of  trouble. 
John  XXIL,  a  man  as  passionate  and  ambitious  as  Boniface 
hbnself,  immediately  published  a  bull  in  which  he  asserted 
the  right  of  administering  the  empire  during  its  vacancy 
(even  in  Germany,  as  it  seems  from  the  generality  of  his 
expression),  as  well  as  of  deciding  in  a  doubtful  choice  of 
the  electors,  to  appertain  to  the  Holy  See ;  and  commanded 
Louis  to  lay  down  his  pretended  authority  until  the  supreme 
jurisdiction  should  determine  upon  his  election.  Louis's 
election  had  indeed  been  questionable ;  but  that  controversy 
was  already  settled  in  the  field  of  Muhldorf,  where  he  had 
obtained  a  victory  over  his  competitor  the  duke  of  Austria 
nor  had  the  pope  ever  interfered  to  appease  a  civil  war  dui> 
ing  several  years  that  Germany  had  been  internally  distracted 
by  the  dispute.  The  emperor,  not  yielding  to  this 
peremptory  order,  was  exconmiunicated ;  his  vas-  ^'^' 
sals  were  absolved  from  their  oath  of  fealty,  and  all  treaties 
of  alliance  between  him  and  foreign  princes  annulled.     Ger- 


1  Romani  principes,  &e Romano 

pontiflci,  a  quo  approbationem  personsB 
ad  imperialU  celsitudinis  apicem  assu- 
mendflB,  necnon  unctionem,  consecratio- 
nem  et  imperii  coronam  accipiunt,  sua 
•ubmittere  capita  non  reput&runt  indlg- 
nnm,  Mqu«  illi  et  eidem  ecclesia?,  quae  a 
Qnecifl  imperium  transtulit  in  Germanos, 
•i  a  qu&  ad  certoe  eorum  principes  jus  et 


potestas  cligendi  regem,  in  imperatorem 
postmodum  promoyendum,  pertinet,  ad> 
stringere  yinculo  juramenti,  &c.  Cle- 
ment. 1.  ii.  t.  ix.  The  terms  of  the  oath, 
as  recited  in  this  constitution,  do  not 
warrant  the  pope's  interpretation,  but 
imply  only  that  the  emperor  shall  be  the 
advocate  or  defender  of  the  church. 


224 


RESISTANCE  TO  POPES.     Chap.  VH.  Part  H. 


EccLXS.  PowBB.    RAPACITY  OF  AVIGNON  POPES. 


225 


many,  however,  remained  firm ;  and  if  Louis  himself  had 
manifested  more  decision  of  mind  and  uniformity  in  his  con- 
duct, the  court  of  Avignon  must  have  signally  failed  in  a 
contest  from  which  it  did  not  in  fact  come  out  very  successful. 
But  while  at  one  time  he  went  intemperate  lengths  against 
John  XXII.,  publishing  scandalous  accusations  in  an  assem- 
bly of  the  citizens  of  Rome,  and  causing  a  Franciscan  friar 
to  be  chosen  in  his  room,  after  an  irregular  sentence  of  dep- 
osition, he  was  always  anxious  to  negotiate  terms  of  accom 
modation,  to  give  up  his  own  active  partisans,  and  to  make 
concessions   the   most  derogatory  to  his  independence  and 
dignity.     From  John  indeed  he  had  nothing  to  expect ;  but 
Benedict  XII.  would  gladly  have  been  reconciled,  if  he  had 
not  feared  the  kings  of  France  and  Naples,  political  ad- 
versaries of  the  emperor,  who  kept  the  Avignon  popes  in  a 
sort  of  servitude.     His  successor,  Clement  VI.,  inherited  the 
implacable  animosity  of  John  XXII.  towards  Louis,  who  died 
without  obtaining  the  absolution  he  had  long  abjectly  solicited.^ 
Though  the  want  of  firmness  in  this  emperor's  character 
gave  sometimes  a  momentary  triumph  to  the  popes, 
Stencf  to"    it  is  evident  that  their  authority  lost  ground  during 
papal  usur-    ^jjg  continuance  of  this  struggle.     Their  right  of 
pation3.         confirming  imperial  elections  was  expressly  denied 
by  a  diet  held  at  Frankfort  in  1338,  which  established  as  a 
fundamental  principle  that  the  imperial   dignity  depended 
upon  God  alone,  and  that  whoever  should  be  chosen  by  a 
majority  of  the  electors  became  immediately  both  king  and 
emperor,  with  all  prerogatives  of  that  station,  and  did  not 
require  the  approbation  of  the  pope.^    This  law,  confinned 
as  it  was  by  subsequent  usage,  emancipated  the  German 
empire,  which  was  immediately  concerned  in  opposing  the 
papal  claims.     But  some  who  were  actively  engaged  in  these 
transactions   took   more   extensive  views,  and  assailed  the 
whole  edifice  of  temporal  power  which  the  Roman  see  had 


^  Schmidt,  Hist,  des  Allemands,  t.  iv. 
p.  446-536,  seems  the  best  modem  au- 
thority for  this  contest  between  the  em- 
pire and  papacy.  See  also  StruTias,  Corp. 
Hist.  Qerman.  p.  591. 

2  Quod  imperialis  dignitas  et  potestaa 
Immediate  ex  solo  Deo,  et  quod  de  jure 
et  imperii  consuetudine  antiquitiis  appro- 
bati  postquam  aliquis  eligitur  in  impera- 
torem  sive  regem  ab  electoribus  imperii 
eoncorditer,  yel  majori  parte  eorundem, 


statim  ex  bo14  electione  est  rex  rerus  et 
imperator  Romanorum  censendus  et  no- 
minandus.  et  eidem  debet  ab  omnibus 
imperie  suojectis  obediri,  et  adminlstrandi 
jura  imperii,  ot  caetera  faciendi,  quae  ad 
imperatorem  verum  pertinent,  plenariam 
habet  potestatcm,  nee  papae  sire  sedis 
apostolicae  aut  alicujus  alterius  approba- 
tione,  conflrmatione,  auctoritate  indiget 
Tel  censensu.    Schmidt,  p.  513. 


been  constructing  for  more  than  two  centuries.  Several  men 
of  learning,  among  whom  Dante,  Ockham,  and  Marsilius  of 
Padua  are  the  most  conspicuous,  investigated  the  foundations 
of  this  superstructure,  and  exposed  their  insufficiency.^  Lit- 
erature, too  long  the  passive  handmaid  of  spiritual  despotism, 
began  to  assert  her  nobler  birthright  of  ministering  to  liberty 
and  truth.  Though  the  writings  of  these  opponents  of  Rome 
are  not  always  reasoned  upon  very  solid  principles,  they  at 
least  taught  mankind  to  scrutinize  what  had  been  received 
with  implicit  respect,  and  prepared  the  way  for  more  philo- 
sophical discussions.  About  this  time  a  new  class  of  enemies 
bad  unexpectedly  risen  up  against  the  rulers  of  the  church. 
These  were  a  part  of  the  Franciscan  order,  who  had  seceded 
from  the  main  body  on  account  of  alleged  deviations  from 
the  rigor  of  their  primitive  rule.  Their  schism  was  chiefly 
founded  upon  a  quibble  about  the  right  of  property  in  things 
consumable,  which  they  maintained  to  be  incompatible  with 
the  absolute  poverty  prescribed  to  them.  This  frivolous 
sophistry  was  united  with  the  wildest  fanatacism ;  and  as  John 
XXII.  attempted  to  repress  their  follies  by  a  cruel  persecu- 
tion, they  proclaimed  aloud  the  corruption  of  the  church,  fixed 
the  name  of  Antichrist  upon  the  papacy,  and  warmly  sup- 
ported the  emperor  Louis  throughout  all  his  contention  with 
the  Holy  See.» 

Meanwhile  the  popes  who  sat  at  Avignon  continued  to  in- 
vade with  surprising  rapaciousness  the  patronage  g.     .t  ^ 
and  revenues  of  the  church.      The  mandats  or  At^ou 
letters  directing  a  particular  clerk  to  be  preferred  p°p*'- 
seem  to  have  given  place  in  a  great  degree  to  the  more 
effectual  method  of  appropriating  benefices  by  reservation  or 
provision,  which  was  carried  to  an  enormous  extent  in  the 
fourteenth  century.     John  XXII.,  the  most  insatiate  of  pon- 
tiffs, reserved  to  himself  all  the  bishoprics  in  Christendom.' 


JQiannone,  I.  xxii.  c.  8.  Schmidt, 
t  Ti.  p.  152.  Dante  was  dead  before 
these  eyents,  but  his  principles  were  the 
Mne.  Ockham  had  already  exerted  his 
talents  in  the  same  cause  by  writing,  in 
behalf  of  Philip  IV.,  against  Boniface,  a 
dialogue  between  a  knight  and  a  clerk  on 
the  temporal  supremacy  of  the  church. 
This  is  published  among  other  tracts  of 
the  same  class  in  Qoldastus,  Monarchia 
Imperii,  p.  13.  This  dialogue  is  trans- 
lated entire  in  the  Songe  du  Vergier,  a 


VOL.  U. 


IS 


mere  celebrated  performance,  ascribed  to 
Raoul  de  Presles  under  Charles  V. 

*  The  schism  of  the  rigid  Franciscans 
or  Fratricclli  is  one  of  the  most  singular 
parts  of  ecclesiastical  history,  and  had  a 
material  tendency  both  to  depress  the 
temporal  authority  of  the  papacy,  and  to 
pave  the  way  for  the  Reformation.  It  is 
fully  treated  by  Mosheim,  cent.  13  and 
14,  and  by  Crevier,  Hist,  de  P  University 
de  Paris,  t.  ii.  p.  233-264.  &c. 

3  Fleury,  Institutions,  &c^t.  i.  p.  988i; 
F.  Paul  on  Benefices,  c  SI. 


I 


iiii 


226  RAPACITY  OF  AVIGNON  POPES.    Ciiap.  VH.  Paw  H. 

Benedict  XH.  assumed  the  privilege  for  his  own  life  of  ^s- 
posin^*  of  all  benefices  vacant  by  cession,  depnvation,  or 
toansfation.     Clement  VI.  naturally  thought  that  his  title  was 
equaUy  good  with  his  predecessor's,  and  continued  the  same 
ricrht  for  his  own  time;  which  soon  became  a  permanent 
nfle  of  the   Roman    chancery.^      Hence    the    appointment 
of  a  prelate  to  a  rich  bishopric  was  generally  but  the  first 
link  m  a  chain  of  translation  which  the  pope  could  regulate 
according  to  his  interest     Another  capital  innovation  was 
made  by  John  XXII.  in  the  establishment  of  the  famous  tax 
called  annates,  or  first  fruits  of  ecclesiastical  benefices,  which 
he  imposed  for  his  own  benefit     These   were  one  year's 
value,  estimated  according  to  a  fixed  rate  in  the  books  of  the 
Roman  chancery,  and  payable  to  the  papal  collectors  through- 
out Europe.*    Various  other  devices  were  invented  to  obtain 
money,  which  these  degenerate  popes,  abandoning  the  ma^ 
nificent  schemes  of  their  predecessors,  were  content  to  seek 
as  their  principal  object     John  XXII.  is  said  to  have  accu- 
mulated  an  almost  incredible  treasure,  exaggerated  perhaps 
by  the  ill-will  of  his  contemporaries  ;'  but  it  may  be  doubted 
whether  even  his  avarice  reflected  greater  dishonor  on  the 
church  than  the  licentious  profuseness  of  Clement  VI.* 

These  exactions  were  too  much  encouraged  by  the  kings 
of  France,  who  participated  in  the  plunder,  or  at  least  re- 
quired the  mutual  assistance  of  the  popes  for  their  own  im- 
posts on  the  clergy.  John  XXII.  obtained  leave  of  Charles 
the  Fair  to  levy  a  tenth  of  ecclesiastical  revenues;*  and 
Clement  VI.,  in  return,  granted  two  tenths  to  Philip  of 
Valois  for  the  expenses  of  his  war.  A  similar  tax  was 
raised  by  the  same  authority  towards  the  ransom  of  John.* 


EcoLES.  Power.    RAPACITY  OF  AVIGNON  POPES. 


227 


Lenfant,    Concile   de   Constance,  t.   tt 
p.  133. 

so.  Villani  puts  this  at  26,000.000  of 
florins,  which  It  is  hardly  possible  to 
belieye.  The  Italians  were  credulous 
enough  to  listen  to  any  report  against 
the  popes  of  Avignon.  1.  xi.  c.  20.  Gian- 
none,  1.  xzii.  c.  8. 

4  For  the  corruption  of  morals  at  Arif- 


1  F.  Paul,c.  88.  Translations  of  bishops 
had  been  made  by  the  authority  of  the 
metropolitan  till  Innocent  III.  reserved 
this  prerogative  to  the  Holy  See.  De 
Marca,  1.  vi.  c.  8.  ^^^    ^ 

1  F.  Paul,  c.  38 ;  Fleury,  p.  424 ;  De 
Marca,  1.  vi.  c.  10  ;  Pasquier,  1.  lii.  c.  28. 
The  popes  had  long  been  in  the  habit  of 

receiving   a    pecuniary    gratuity    when -^  - 

they  granted  the  palUum  to  an  arch-  non  during  the  secession,  see  De  »aae. 
bUhop,  though  this  was  reprehended  by  Vie  de  Petrarque,  t.  i.  p.  <0,  and  seveimi 
strict  men,  and  even  condemned  by 
themselves.  De  Marca,  ibid.  It  is  no- 
ticed as  a  remarkable  thing  of  Innocent 
IV.  that  he  gave  the  pall  to  a  Qerman 
archbishop  without  accepting  anything. 
Schmidt,  t.  iv.  p.  172.  The  original  and 
nature  of  annates  is  copiously  treated  in 


other  passages.  .    .    «  .  . 

»  Continuator  Gul.  de  Nangi8,in  Spici- 
legio  d'Achery,  t.  ili.  p.  86,  (folio  edition.) 
Ita  miseram  ecclesiam,  says  this  monk, 
unus  tondet,  alter  excoriat. 

A  Fleury,   Institut.    au    Droit    ecclem 
astique,  t.  U.  p.  246.    Villatet,  t.  ix 


These  were  contributions  for  national  purposes  unconnected 
with  religion,  which  the  popes  had  never  before  pretended  to 
impose,  and  which  the  king  might  properly  have  levied  with 
the  consent  of  his  clergy,  according  to  the  practice  of  Eng- 
land.    But  that  consent  might  not  always  be  obtained  with 
ease,  and  it  seemed  a  more  expeditious  method  to  call  in  the 
authority  of  the  pope.   A  manlier  spirit  was  displayed  by  our 
ancestors.     It  was  the  boast  of  England  to  have  placed  the 
first  legal  barrier  to  the  usurpations  of  Rome,  if  we  except 
the  insulated  Pragmatic  Sanction  of  St.  Louis,  from  which 
the  practice  of  succeeding  ages  in  France  entirely  deviated. 
The  English  barons  had,  in  a  letter  addressed  to  Boniface 
VIIL,  absolutely  disclaimed   his  temporal  supremacy  over 
their  crown,  which  he  had  attempted  to  set  up  by  intermed- 
dling in  the  quarrel  of  Scotland.*    This  letter,  it  is  remarka- 
ble, is  nearly  coincident  in  point  of  time  with  that  of  the 
French  nobility ;  and  the  two  combined  may  be  considered 
as  a  joint  protestation  of  both  kingdoms,  and  a  testimony  to 
the  general  sentiment  among  the  superior  ranks  of  the  laity. 
A  very  few  years  afterwards,  the  parliament  of   Carlisle 
wrote  a  strong  remonstrance  to  Clement  V.  against  the  sys- 
tem of  provisions  and  other  extortions,  including  that  of  first 
fruits,  which  it  was  rumored,  they  say,  he  was  meditating  to 
demand.^     But  the  court  of  Avignon  was  not  to  be  moved 
by  remonstrances ;  and  the  feeble  administration  of  Edward 
II.  gave  way  to  ecclesiastical  usurpations  at  home  as  well  a 
abroad.*     His  magnanimous  son  took  a  bolder  line.     After 
complaining  ineffectually  to  Clement  VI.  of  the  enormous 
abuse  which  reserved  ahnost  all  English  benefices   to  the 
pope,  and  generally  for  the  benefit  of  aliens,*  he  passed  in 
1350  the  famous  statute  of  provisors.     This  act,  reciting  one 
supposed  to  have  been  made  at  the  parliament  of  Carlisle, 
which,  however,  does  not  appear,*  and  complaining  in  strong 


p.  431.  It  became  a  regular  practice  for 
the  king  to  obtain  the  pope's  consent  to 
lay  a  tax  on  his  clergy,  though  he  some- 
times applied  first  to  themselves.  Oar- 
nier,  t.  xx.  p.  141. 
i^^raier,  t.  ii.  p.  873.    CoUier,  vol.  i. 

«  Rotuli  PariLimenti,  vol.  i.  p.  204. 
This  passage,  hastily  read,  has  led  Collier 
and  other  English  writers,  such  as  Henry 
and  Blackstone,  into  the  supposition  that 
annates  were  imposed  by  Clement  V. 
But  the  concurrent  testimony  of  foreign 
ftathors  refers  thi«  tax  to  John  XXII.  aa 


the  canon  law  also  shows.  Extravagant. 
Communes,  1.  ili.  tit.  ii.  c.  11. 

s  The  statute  caUed  Articuli  cleri,  in 
1316,  was  directed  rather  towards  con- 
firming than  limiting  the  clerical  immu- 
nity in  criminal  cases. 

«  Collier,  p.  646. 

s  It  is  singular  that  Sir  E.  Coke  should 
assert  that  this  act  recites  and  is  founded 
upon  the  statute  35  £.  I.,  De  asporta- 
tis  religiosorum  (2  Inst.  580);  whereas 
there  is  not  the  least  resemblance  in 
the  words,  and  very  little,  if  any,  in  the 
substance.    Blackstone,  in  consequence, 


m 


228  RETURN  OF  POPES  TO  ROME.    Chap.  VH.  Part  It 

language  of  the  mischief  sustained  through  continual  reser- 
vations of  benefices,  enacts  that  all  elections  and  collations 
shall  be  free,  according  to  law,  and  that,  m  case  any  provi- 
sion or  reservation  should  be  made  by  the  court  of  Rome, 
the  kincr  should  for  that  turn  have  the  collation  ot  such  a 
benefice?  if  it  be  of   ecclesiatical   election   or   patronage. 
This  devolution  to  the  crown,  which  seems  a  little  arbitrary, 
was  the  only  remedy  that  could  be  effectual  against  the  c^- 
nivance  and  timidity  of  chapters  and  spiritual  patrons.     We 
cannot  assert  that  a  statute  so  nobly  planned  was  executed 
with  equal   steadiness.      Sometimes  by  royal  dispensation, 
sometimes  by  neglect  or  evasion,  the  papal  bulls  of  provision 
were  still  obeyed,  though  fresh  laws  were  enacted  to  the 
same  effect  as  the  former.    It  was  found  on  examination  m 
1367  that  some  clerks  enjoyed  more  than  twenty  benefices 
by  the  pope's  dispensation.'^     And  the  parliaments  both  of 
tWs  and  of  Richard  II.'s  reign  invariably  complain  of  the 
disregard  shown  to  the  statutes  of  provisors.    This  led  to 
other  measures,  which  I  shall  presently  mention. 

The  residence  of  the  popes  at  Avignon  gave  very  general 
offence  to  Europe,  and  they  could  not  themselves 
SJrJ'      avoid  perceiving  the  disadvantage  of  absence  from 
*°°'«-  their  proper  diocese,  the  city  of  St.  I'eter,  tne 

source   of    all   their    claims  to   sovereign  authority.      But 
Rome,  so  long  abandoned,  offered  but  an  inhospitable  recep- 
tion:   Urban   V.  returned  to   Avignon,  after   a   short   ex- 
periment of  the  capital;  and  it  was  not  till  1376  that  the 
^omise,  often  repeated  and  long  delayed,  of  restoring  the 
papal  chair  to  the  metropolis  of  Christendom,  was  ultimate- 
ly fulfilled   by  Gregory  XI.      His  death,  which  happened 
soon  afterwards,  prevented,  it  is  said,  a  second  flight  that  he 
was  preparing.    This  was  followed  by  the  great  schism,  one 
of  the  most  remarkable   events  in  ecclesiastical 
SJrJf     history.  It  is  a  difficult  and  by  no  meims  an  int^r- 
Urban  VI.      estin<»  question  to  determine  the  validity  ot  tnat 
T^.''''"'''''  contested    election    which    distracted    the    Latin 
A.D.1377.       church   for  so   many  years.      All  contemporary 

mistakea  the  nature  of  that  act  of  Ed-  17  E.  HI.  (Rot.  Pari,  t .  li .   J-^J;.^ 

Wl  I  ,  aid  supposes  it  to  hare  been  hard  to  df  We :  and  perhaps  tho^t^ 

made  a^lnst  pa^l  proyisions,  to  which  examine  this  point  '^l  ,^*J«  J^^ ''iSSJ 

I   do    not   percd^e   eTen   an   allusion,  between  wilftil   suppression  and  wlllUl 

Whether  any  such  statute  was    really  interpolation. 

made  in  the  Carlisle  parliament  of  85  i  25  E.  III.  stot.  0. 

B.  I.,  as  is  asserted  both  in  25  E.  in.  «  CoUier,  p.  668. 
and  la  the  roll  of  another  parliament. 


£ccLE8.  Power.    CONTESTED  PAPAL  ELECTION. 


229 


testimonies  are  subject  to  the  suspicion  of  partiality  in  a  cause 
where  no  one  was  permitted  to  be  neutral.     In  one  fact  how- 
ever there  is  a  common  agreement,  that  the  cardinals,  of 
whom  the  majority  were  French,  having  assembled  in  con- 
clave, for  the  election  of  a  successor  to  Gregory  XI.,  were 
disturbed  by  a  tumultuous  populace,  who   demanded   with 
menaces  a  Roman,  or  at  least  an  Italian,  pope.     This  tumult 
appears  to  have  been  sufficiently  violent  to  excuse,  and  in 
fact    did    produce,  a  considerable   degree  of    intimidation. 
After  some    time  the  cardinals    made  choice  of  the  arch- 
bishop of  Bari,  a  Neapolitan,  who  assumed  the  name  of 
Urban  VI.    His  election  satisfied  the  populace,  and  tranquil- 
lity was  restored.     The  cardinals  announced  their  choice  to 
the  absent  members  of  their  college,  and  behaved  towards 
Urban  as  their  pope  for  several  weeks.     But  his  uncommon 
harshness  of  temper  giving  them  offence,  they  withdrew  to  a 
neighboring  town,  and,  protesting  that  his  election  had  been 
compelled  by  the  violence  of  the  Roman  populace,  annulled 
the  whole  proceeding,  and  chose  one  of  their  own  number, 
who  took  the  pontifical  name  of  Clement  VII.     Such  are  the 
leading  circumstances  which  produced  the  famous  schism. 
Constraint  is  so  destructive  of  the  essence  of  election,  that 
suffrages  given  through  actual  intimidation  ought,  I  think,  to 
be  held  invalid,  even  without  minutely  inquiring  whether 
the  degree  of  illegal  force  was  such  as  might  reasonably 
overcome  the  constancy  of  a  firm  mind.     It  is  improbable 
that  the  free  votes  of  the  cardinals  would  have  been  be- 
stowed on  the  archbishop  of  Bari;   and  I  should  not  feel 
much  hesitation  in  pronouncing  his  election  to  have  been 
void.     But  the  sacred  college  unquestionably  did  not  use  the 
earliest  opportunity  of  protesting  against  the  violence  they 
had  suffered ;  and  we  may  infer  almost  with  certainty,  that, 
if  Urban*s  conduct  had  been  more  acceptable  to  that  body, 
the  world  would  have  heard  little  of  the  transient  riot  at  his 
election.     This  however  opens  a  delicate  question  in  juris- 
prudence ;  namely,  under  what  circumstances  acts,  not  only 
irregular,  but  substantially  invalid,  are  capable  of  receiving 
a  retroactive  confirmation  by  the  acquiescence  and  acknowl- 
edgment of  parties  concerned  to  oppose  them.     And  upon 
this,  I  conceive,  the  great  problem  of   legitimacy  between 
Urban  and  Clement  will  be  found  to  depend.* 

»I«nfant  has  collected  all  the  oripnal    of  his  Concile  de  Pise.    No  positive  d»> 
Mttmonies  on  both  sides  in  the  first  book    cisiou  has  ever  been  made  on  the  subject, 


230 


THE  GREAT  SCfflSM.    Chap.  VH.  Part  U. 


!ili 


l« 


Whatever  posterity  may  have  judged  about  the  preten- 
The  Great      sioDs   of   thcsc    Competitors,   they  at  that    tmie 
BohUm.         shared  the  obedience  of  Europe  m  nearly  equal 
proportions.     Urban  remained  at  Rome ;  Clement  resumed 
Uie  station  of  Avignon.     To  the  former  adhered  Italy,  the 
Empire,  England,  and  the  nations  of  the  north;  the  latter 
retained  in  his  allegiance  France,  Spain,  Scotland,  and  bicily. 
Fortunately  for  the  church,  no  question  of  rehgious  taith  in- 
termixed itself  with  this  schism  ;  nor  did  any  other  impedi- 
ment  to  reunion  exist  than  the  obstinacy  and  selfishness  ot 
the  contending  parties.     As  it  was  impossible  to  come  to  any 
agreement  on  the  original  merits,  there  seemed  to  be  no 
means  of  healing  the  wound  but  by  the  abdication  of  both 
popes  and  a  fresh  undisputed  election.     This  was  the  general 
wish  of    Europe,  but   urged  with    particular  zeal    by  the 
court  of  France,  and,  above  all,  by  the  university  of  Tans, 
which  esteems  this  period  the  most  honorable  in  her  annals. 
The  cardinals  however  of  neither  obedience  would  recede  so 
far  from  their  party  as  to  suspend  the  election  of  a  successor 
upon  a  vacancy  of  the  pontificate,  which  would  have  at  least 
removed  one  half  of  the  obstacle.     The  Roman  conclave 
accordingly  placed  three  pontiffs  successively,  Boniface  IX., 
Innocent  VI.,  and  Gregory  XII.,  in  the  seat  of  Urban  VI.; 
and  the  cardinals  at  Avignon,  upon  the  death  of  Clement  in 
1394,  elected  Benedict  XIII.  (Peter  de  Luna),  famous  tor 
his  inflexible  obstinacy  in  prolonging  the  schism.     He  re- 
peatedly promised  to  sacrifice  his  dignity  for  the  sake  of 
union.     But  there  was  no  subterfuge  to  which  this  cratly 
pontiff  had  not  recourse  in  order  to  avoid  compliance  with  his 
word,  though  importuned,  threatened,  and  even  besieged  m  his 
palace  at  Avignon.     Fatigued  by  his  evasions,  France  with- 
drew her  obedience,  and  the  Gallican  church  continued  for  a 
few  years  without  acknowledging  any  supreme  head.     But 
this  step,  which  was  rather  the  measure  of  the  university 
of  Paris  than  of  the  nation,  it  seemed  advisable  to  retract; 
and  Benedict  was  again  obeyed,  though  France  continued  to 
urge  his  resignation.     A  second  subtraction  of  obedience,  or 
at  least  declaration  of  neutrality,  was  resolved  upon,  as  pre- 
paratory to  the  convocation  of  a  general  council.     On  the 

but  the  Roman  popes  are  numbered  In  gitimacy  of  Urban;  the  »«nch  at  mo«t 

the  commonly  receired  list,  and  those  of  intimate  that  Clement's  pretenaionB  wew 

Avignon  are  not.     The  modern  Italian  not  to  be  wholly  r^cted. 
writers  express  no  doubt  about  the  le- 


EccLES.  Power.   COUNCILS  OF  PISA  AND  CONSTANCK      231 


other  hand,  those  who  sat  at  Rome  displayed  not  less  insin- 
cerity. Gregory  XII.  bound  himself  by  oath  on  his  ae- 
cession  to  abdicate  when  it  should  appear  necessary.  But 
while  these  rivals  were  loading  each  other  with  the  mutual 
reproach  of  schism,  they  drew  on  themselves  the  suspicion  of 
at  least  a  virtual  collusion  in  order  to  retain  their  respective 
stations.  At  length  the  cardinals  of  both  parties,  wearied 
with  so  much  dissimulation,  deserted  their  masters,  and  sum- 
moned a  general  council  to  meet  at  Pisa.^ 

The  council  assembled  at  Pisa  deposed  both  Gregory  and 
Benedict,  without  deciding  in  any  respect  as  to  c^uncu  of 
their  pretensions,  and  elected  Alexander  V.  by  its  Pis», 
own  supreme  authority.  This  authority,  however,  ^•"-  ^^*^ 
was  not  universally  recognized ;  the  schism,  instead  of  being 
healed,  became  more  desperate  ;  for  as  Spain  adhered  firm- 
ly to  Benedict,  and  Gregory  was  not  without  supporters, 
there  were  now  three  contending  pontiffs  in  the  church.  A 
general  council  was  still,  however,  the  favorite  and  indeed 
the  sole  remedy ;  and  John  XXIII.,  successor  of  of  Constance, 
Alexander  V.,  was  reluctantly  prevailed  upon,  or  ^•»-  i*i*; 
perhaps  trepanned,  into  convoking  one  to  meet  at  Constance. 
In  this  celebrated  assembly  he  was  himself  deposed  ;  a  sen- 
tence which  he  incurred  by  that  tenacious  clinging  to  his  dig- 
nity, after  repeated  promises  to  abdicate,  which  had  already 
proved  fatal  to  his  competitors.  The  deposition  of  John, 
confessedly  a  legitimate  pope,  may  strike  us  as  an  extraor- 
dinary measure.  But,  besides  the  opportunity  it  might  afford 
of  restoring  union,  the  council  found  a  pretext  for  this  sen- 
tence in  his  enormous  vices,  which  indeed  they  seem  to  have 
taken  upon  common  fame  without  any  judicial  process.  The 
true  motive,  however,  of  their  proceedings  against  him  was 
a  desire  to  make  a  signal  display  of  a  new  system  which  had 
rapidly  gained  ground,  and  which  I  may  venture  to  call  the 
whig  principles  of  the  catholic  church.  A  great  question 
was  at  issue,  whether  the  polity  of  that  establishment  should 
be  an  absolute  or  an  exceedingly  limited  monarchy.  The  papal 
tyranny,  long  endured  and  still  increasing,  had  excited  an 
active  spirit  of  reformation  which  the  most  distinguished 
ecclesiastics  of  France  and  other  countries  encouraged.  They 
recurred,  as  far  as  their  knowledge  allowed,  to  a  more  primi- 

1  Vlllaret;  Lenfcnt,  Concile  de  Pise;  Crevier,  Hist    de  I'UniTersit*  de  Pari*, 
tUi. 


I 


232 


COUNCIL  OF  CONSTANCE.    Chap.  VH.  Pam  IL 


EccuES.  PowKB.       COUNCIL  OF  CONSTANCE. 


233 


tive  discipline  than  the  canon  law,  and  elevated  the  suprema- 
cy of  general  councils.  But  in  the  formation  of  these  they 
did  not  scruple  to  introduce  material  innovations.  The 
bishops  have  usually  been  considered  the  sole  members  of 
ecclesiastical  assemblies.  At  Constance,  however,  sat  and 
voted  not  only  the  chiefs  of  monasteries,  but  the  ambassadors 
of  all  Christian  princes,  the  deputies  of  universities,  with 
a  multitude  of  inferior  theologians,  and  even  doctors  of  law.* 
These  were  naturally  accessible  to  the  pride  of  sudden  eleva- 
tion, which  enabled  them  to  control  the  strong,  and  humiliate 
the  lofty.  In  addition  to  this  the  adversaries  of  the  court 
of  Rome  carried  another  not  less  important  innovation.  The 
Italian  bishops,  almost  universally  in  the  papal  interests, 
were  so  numerous  that,  if  suffrages  had  been  taken  by  the 
head,  their  preponderance  would  have  impeded  any  meas- 
ures of  transalpine  nations  towards  reformation.  It  was  de- 
termined, therefore,  that  the  council  should  divide  itself 
into  four  nations,  the  Italian,  the  German,  the  French,  and 
the  English,  each  with  equal  rights  ;  and  that,  every  proposi- 
tion having  been  separately  discussed,  the  majority  of  the 
four  should  prevail.^  This  revolutionary  spirit  was  very  un- 
acceptable to  the  cardinals,  who  submitted  reluctantly,  and 
with  a  determination,  that  did  not  prove  altogether  unavail- 
ing, to  save  their  papal  monarchy  by  a  dexterous  policy. 
They  could  not,  however,  prevent  the  famous  resolutions  of 
the  fourth  and  fifth  sessions,  which  declare  that  the  council 
has  received,  by  divine  right,  an  authority  to  which  every 
rank,  even  the  papal,  is  obliged  to  submit,  in  matters  of  faith, 
in  the  extirpation  of  the  present  schism,  and  in  the  reforma- 
tion of  the  church  both  in  its  head  and  its  members ;  and 
that  every  person,  even  a  pope,  who  shall  obstinately  refuse 

1  Len&nt,  Concile  de  Constance,  t.  i.  sition  the  immeasurable  pedigrees  of  Ire- 
p.  107  (edit.  1727).  CreTier,  t.  ill.  p.  405.  land.  Joseph  of  Arimathea,  who  planted 
It  was  agreed  that  the  ambassadors  could  Christianity  and  his  stick  at  Glastonbury, 
not  vote  upon  articles  of  faith,  but  only  did  his  best  to  help  the  cause.  The  recent 
on  questions  relating  to  the  settlement  victory  of  Azincourt,  I  am  inclined  to 
of  the  church.  But  the  second  order  of  think,  had  more  weight  with  the  council, 
ecclesiastics  were  allowed  to  vote  gener-  Len&nt,  t.  ii.  p.  46. 

*Uy>  At  a  time  when  a  very  different  spirit 

2  This  separation  of  England,  as  a  co-  prevailed,  the  English  bishops  under 
equal  limb  of  the  council,  gave  great  Henry  II.  and  Henry  III.  had  claimed 
umbrage  to  the  French,  who  maintained  as  a  right  that  no  more  than  four  of  their 
that,  like  Denmark  and  Sweden,  it  ought  number  should  be  summoned  to  a  general 
to  have  been  reckoned  along  with  €ier-  council.  Hoveden.  p.  320  ;  Carte,  vol.  iL 
many.  The  English  deputies  came  down  p.  84.  This  was  like  boroughs  praying 
with  a  profusion  of  authorities  to  prove  to  be  releued  from  sending  members  to 
the  antiquity  of  their   monarchy,  for  parliament. 

which  they  did  not  fidl  to  pat  in  reqvd- 


to  obey  that  council,  or  any  other  lawfully  assembled,  is  lia- 
ble to  such  punishment  as  shall  be  necessary.^  These  de- 
crees are  the  great  pillars  of  that  moderate  theory  with 
respect  to  the  papal  authority  which  distinguished  the  Galil- 
ean church,  and  is  embraced,  I  presume,  by  almost  all  lay- 
men and  the  major  part  of  ecclesiastics  on  this  side  of  the 
Alps.*  They  embarrass  the  more  popish  churchmen,  as  the 
Revolution  does  our  English  tories ;  some  boldly  impugn  the 
authority  of  the  council  of  Constance,  while  others  chicane 
upon  the  interpretation  of  its  decrees.  Their  practical  im- 
portance is  not,  indeed,  direct ;  universal  councils  exist  only 
in  possibility ;  but  the  acknowledgment  of  a  possible  author- 
ity paramount  to  the  see  of  Rome  has  contributed,  among 
other  means,  to  check  its  usurpations. 

The  purpose  for  which  these  general  councils  had  been 
required,  next  to  that  of  healing  the  schism,  was  the  refor- 
mation of  abuses.  All  the  rapacious  exactions,  all  the  scan- 
dalous venality  of  which  Europe  had  complained,  while 
unquestioned  pontiffs  ruled  at  Avignon,  appeared  light  in 
comparison  of  the  practices  of  both  rivals  during  the  schism. 
Tenths  repeatedly  levied  upon  the  clergy,  annates  rigorously 
exacted  and  enhanced  by  new  valuations,  fees  annexed  to  the 
complicated  formalities  of  the  papal  chancery,  were  the 
means  by  which  each  half  of  the  church  was  compelled  to 
reimburse  its  chief  for  the  subtraction  of  the  other's  obedi- 
ence. Boniface  IX.,  one  of  the  Roman  line,  whose  fame  is 
a  little  worse  than  that  of  his  antagonists,  made  a  gross  traffic 
of  his  patronage ;  selling  the  privileges  of  exemption  from 
ordinary  jurisdiction,  of  holding  benefices  in  commendam, 
and  other  dispensations  invented  for  the  benefit  of  the  Holy 
See.'  Nothing  had  been  attempted  at  Pisa  towards  reforma- 
tion. At  Constance  the  majority  were  ardent  and  sincere ; 
the  representatives  of  the  French,  German,  and  English 
churches  met  with  a  determined  and,  as  we  have  seen,  not 
always  unsuccessful  resolution  to  assert  their  ecclesiastical 
liberties.  They  appointed  a  committee  of  reformation,  whose 
recommendations,  if  carried  into  effect,  would  have  annihi- 
lated almost  entirely  that  artfully  constructed  machinery  by 

1  Id.  p.  164.    Crevier,  t.  iii.  p.  417.  exceedingly  different  from  what  it  was 

*  This  was  written  in  1816.    The  pres-    in  the  last  two  centuries.    [1847.] 
•nt  state  of  opinion  among  those  who       3  Len&nt,  Hist,  du  Concile  de  Pise, 
belong  to  the  Qallican  church  ha«  become    passim;    Crevier;     Villaret;    Schmidt; 

Collier. 


234 


COUNCIL  OF  BASLK    Chap.  Vn.  Pabt.  n. 


ECCLBS.  POWKB. 


COUNCIL  OF  BASLE. 


235 


J 


which  Rome  had  absorbed  so  much  of  the  revenues  and 
patronage  of  the  church.  But  men,  interested  in  perpetuat- 
ing these  abuses,  especially  the  cardinals,  improved  the  ad- 
vantages which  a  skilful  government  always  enjoys  in  playing 
against  a  popular  assembly.  They  availed  themselves  of  the 
jealousies  arising  out  of  the  division  of  the  council  into  na- 
tions, which  exterior  political  circumstances  had  enhanced. 
France,  then  at  war  with  England,  whose  pretensions  to  be 
counted  as  a  fourth  nation  she  had  warmly  disputed,  and  not 
well  disposed  towards  the  emperor  Sigisraund,  joined  with 
the  Italians  against  the  English  and  German  members  of  the 
council  in  a  matter  of  the  utmost  importance,  the  immediate 
election  of  a  pope  before  the  articles  of  reformation  should 
be  finally  concluded.  These  two  nations,  in  return,  united 
with  the  Italians  to  choose  the  cardinal  Colonna,  against  the 
advice  of  the  French  divines,  who  objected  to  any  member 
of  the  sacred  college.  The  court  of  Rome  were  gainers  in 
both  questions.  Martin  V.,  the  new  pope,  soon  evinced  his 
determination  to  elude  any  substantial  reform.  After  pub- 
lishing a  few  constitutions  tending  to  redress  some  of  the 
abuses  that  had  arisen  during  the  schism,  he  contrived  to 
make  separate  conventions  with  the  several  nations,  and  as 
soon  as  possible  dissolved  the  council.^ 

By  one  of  the  decrees  passed  at  Constance,  another  gen- 
eral council  was  to  be  assembled  in  five  years,  a  second  at 
the  end  of  seven  more,  and  from  that  time  a  similar  repre- 
sentation of  the  church  was  to  meet  every  ten  years.  Mar- 
tin V.  accordingly  convoked  a  council  at  Pavia,  which,  on 
account  of  the  plague,  was  transferred  to  Siena ;  but  nothing 
of  importance  was  transacted  by  this  assembly.^  That  which 
of  Basle,  he  Summoned  seven  years  afterwards  to  the  city 
A.i>.  1433.  Qf  Basle  had  very  different  results.  The  pope, 
dying  before  the  meeting  of  this  council,  was  succeeded  by 
Eugenius  TV.,  who,  anticipating  the  spirit  of  its  discussions, 
attempted  to  crush  its  independence  in  the  outset,  by  trans- 
ferring the  place  of  session  to  an  Italian  city.  No  point  was 
reckoned  so  material  in  the  contest  between  the  popes  and 
reformers  as  whether  a  council  should  sit  in  Italy  or  beyond 

1  Lenfant,  Goncile  de  Constance.    The  good  sketch  of  the  council,  and  Schmidt 

copiousness  as  well  as  impartiality  of  (Hist.  desAllemande8,t.  t.)  is  worthy  of 

this  work  justly  renders  it  an  almost  ex-  attention. 

clnsive   authority.     Crevier    (Hist,    de  *  Lenfant,  Querre  des  Hussites,  t.  i.  p. 

I'Uniyersiti  de  Paris,  t.  iu.)  has  giyen  a  223. 


the  Alps.     The  council  of  Basle  began,  as  it  proceeded,  in 
open  enmity  to  the  court  of  Rome.     Eugenius,  after  several 
years  had  elapsed  in  more  or  less  hostile  discussions,  exerted 
his  prerogative  of  removing  the  assembly  to  Ferrara,  and 
from  thence  to  Florence.     For  this  he  had  a  specious  pretext 
in  the  negotiation,  then  apparently  tending  to  a  prosperous 
issue,  for  the  reunion  of  the  Greek  church ;  a  triumph,  how- 
ever transitory,  of  which  his  council  at  Florence  obtained  the 
glory.     On  the  other  hand,  the  assembly  of  Basle,  though 
much  weakened  by  the  defection  of  those  who  adhered  to 
Eugenius,  entered  into  compacts  with  the  Bohemian  insur- 
gents, more  essential  to  the  interests  of  the  church  than  any 
union  with  the  Greeks,  and  completed  the  work  begun  at 
Constance   by  abolishing  the   annates,  the  reservations  of 
benefices,  and  other  abuses  of  papal  authority.     In  this  it 
received  the  approbation  of  most  princes;  but  when,  pro- 
voked by  the  endeavors  of  the  pope  to  frustrate  its  decrees, 
it  proceeded  so  far  as  to  suspend  and  even  to  depose  him, 
neither   France   nor    Grermany   concurred  in  the  sentence. 
Even  the  council  of  Constance  had  not  absolutely  asserted  a 
right  of  deposing  a  lawful  pope,  except  in  case  of  heresy, 
though  their  conduct  towards  John  could  not  otherwise  be 
justified.*     This  question  indeed  of  ecclesiastical  public  law 
seems  to  be  still  undecided.     The  fathers  of   Basle  acted 
however  with   greater  intrepidity  than  discretion,  and,  not 
perhaps  sensible  of  the  change  that  was  taking  place  in  pub- 
He  opinion,  raised  Amadeus,  a  retired  duke  of  Savoy,  to  the 
pontifical  dignity  by  the  name  of  Felix  V.     They  thus  re- 
newed the  schism,  and  divided  the  obedience  of  the  catholic 
church  for  a  few  years.     The  empire,  however,  as  well  as 
France,  observed  a  singular  and  not  very  consistent  neutral- 
ity ;  respecting  Eugenius  as  a  lawful  pope,  and  the  assembly 
at  Basle  as  a  general  council.     England  warmly  supported 
Eugenius,  and  even  adhered  to   his   council  at   Florence; 
Aragon  and  some  countries  of  smaller  note  acknowledged 


*  The  counoil  of  Basle  endeavored  to 
eyade  this  difficulty  by  declaring  Eu- 
genius a  relapsed  heretic.  Lenfant, 
Guerre  des  Hussites,  t.  u.  p.  98.  But  as 
the  church  could  discover  no  heresy  in 
W«  disagreement  with  that  assembly, 
the  sentence  of  deposition  gained  little 
strength  by  this  previous  decision.  The 
bishops  were  unwilling  to  take  this  vio- 


lent step  against  Eugenius;  but  the 
minor  theologians,  the  democracy  of  the 
Catholic  church,  whose  right  of  suffrage 
seems  rather  an  anomalous  infringe- 
ment of  episcopal  authority,  pressed  it 
with  much  heat  and  rashness.  See  a 
curious  passage  on  this  subject  in  a 
speech  of  the  cardinal  of  Aries.  Lenfant. 
t.  ii.  n.  225. 


236 


UNIVERSAL  COUNCILS.    Chap.  VU.  Paot  IL 


EccLES.  Power. 


UNIVERSAL  COUNCILS. 


237 


Felix.  But  the  partisans  of  Basle  became  every  year 
weaker ;  and  Nicholas  V.,  the  successor  of  Eugenius,  found 
no  great  difficulty  in  obtaining  the  cession  of  Felix,  and  ter- 
minating this  schism.  This  victory  of  the  court  of  Rome 
over  the  council  of  Basle  nearly  counterbalanced  the  disad- 
vantageous events  at  Constance,  and  put  an  end  to  the  project 
of  fixing  permanent  Hmitations  upon  the  head  of  the  church 
by  means  of  general  councils.  Though  the  decree  that  pre- 
scribed the  convocation  of  a  council  every  ten  years  was  still 
unrepealed,  no  absolute  monarchs  have  ever  more  dreaded 
to  meet  the  representatives  of  their  people,  than  the  Roman 
pontiffs  have  abhorred  the  name  of  those  ecclesiastical  synods : 
once  alone,  and  that  with  the  utmost  reluctance,  has  the 
cathohc  church  been  convoked  since  the  council  of  Basle; 
but  the  famous  assembly  to  which  I  allude  does  not  fall 
within  the  scope  of  my  present  undertaking.^ 

It  is  a  natural  subject  of  speculation,  what  would  have 
been  the  effects  of  these  universal  councils,  which  were  so 
popular  in  the  fifteenth  century,  if  the  decree  passed  at  Con- 
stance for  their  periodical  assembly  had  been  regularly  ob- 
served. Many  catholic  writers,  of  the  moderate  or  cisaJpine 
school,  have  lamented  their  disuse,  and  ascribed  to  it  that 
irreparable  breach  which  the  Reformation  has  made  in  the 
fabric  of  their  church.  But  there  is  almost  an  absurdity  in 
conceiving  their  permanent  existence.  What  chemistry  could 
have  kept  united  such  heterogeneous  masses,  furnished  with 
every  principle  of  mutual  repulsion  ?  Even  in  early  times, 
when  councils,  though  nominally  general,  were  composed  of 
the  subjects  of  the  Roman  empire,  they  had  been  marked  by 
violence  and  contradiction :  what  then  could  have  been  ex- 
pected from  the  delegates  of  independent  kingdoms,  whose 
ecclesiastical  polity,  whatever  may  be  said  of  the  spiritual 
unity  of  the  church,  had  long  been  far  too  intimately  blended 
with  that  of  the  state  to  admit  of  any  general  control  without 
its  assent?  Nor,  beyond  the  zeal,  unquestionably  sincere, 
which  animated  their  members,  especially  at  Basle,  for  the 
abolition  of  papal  abuses,  is  there  anything  to  praise  in  their 
conduct,  or  to  regret  in  their  cessation.     The  statesman  who 

1  There  is  not,  I  believe,  any  sufficient  its  transactions  with  his  history  of  the 

history  of  the  council  of  Basle.    Lenfant  Uussite  war,  which  is  commonly  quoted 

designed  to  write  it  from  the  original  under  the  title  of  History  of  the  Council 

acts,  but,  finding  his  health  decline,  in-  of  Basle.     Schmidt,  Creyier,  Villaret,  nn 

tennixed  some  rather  imperfect  notices  of  still  my  other  authorities. 


dreaded  the  encroachments  of  priests  upon  the  civil  govern- 
ment, the  Christian  who  panted  to  see  his  rights  and  faith 
purified  from  the  corruption  of  ages,  found  no  hope  of  im- 
provement in  these  councils.  They  took  upon  themselves  the 
pretensions  of  the  popes  whom  they  attempted  to  supersede. 
By  a  decree  of  the  fathers  at  Constance,  all  persons,  includ- 
ing princes,  who  should  oppose  any  obstacle  to  a  journey 
undertaken  by  the  emperor  Sigismund,  in  order  to  obtain  the 
cession  of  Benedict,  are  declared  excommunicated,  and  de- 
prived of  their  dignities,  whether  secular  or  ecclesiastical.* 
Their  condemnation  of  Huss  and  Jerome  of  Prague,  and 
the  scandalous  breach  of  faith  which  they  induced  Sigismund 
to  commit  on  that  occasion,  are  notorious.  But  perhaps  it  is 
not  equally  so  that  this  celebrated  assembly  recognized  by  a 
solemn  decree  the  flagitious  principle  which  it  had  practised, 
declaring  that  Huss  was  unworthy,  through  his  obstinate  ad- 
herence to  heresy,  of  any  privilege ;  nor  ought  any  faith  or 
promise  to  be  kept  with  him,  by  natural,  divine,  or  human 
law,  to  the  prejudice  of  the  catholic  religion.^  It  will  be  easy 
to  estimate  the  claims  of  this  congress  of  theologians  to  our 
veneration,  and  to  weigh  the  retrenchment  of  a  few  abuses 
against  the  formal  sanction  of  an  atrocious  maxim. 

It  was  not,  however,  necessary  for  any  government  of 
tolerable  energy  to  seek  the  reform  of  those  abuses  which 
affected  the  independence  of  national  churches,  and  the  integ- 


1  Len&nt,  t.  i.  p  439. 

>  Nee  aliqua  sibi  fides  ant  promissio. 
de  jure  naturali,  divino,  et  humano,  fuerit 
in  prejudicium  Catholicae  fidei  obser- 
▼anda.     Lenfant,  t.  i.  p.  491. 

This  proposition  is  the  great  disgrace 
of  the  council  in  the  afEur  of  Huss.  But 
the  Tiolation  of  his  safe-conduct  being  a 
fiunouserent  in  ecclesiastical  history,  and 
which  has  been  very  much  disputed  with 
some  degree  of  erroneous  statement  on 
both  sides,  it  may  be  proper  to  give  briefly 
an  impartial  summary.  1.  Huss  came 
to  Constance  with  a  safe-oonduct  of  the 
emperor  very  loosely  worded,  and  not 
directed  to  any  individuals.  Lenfant, 
t.  i.  p.  59.  2.  This  pass  however  was 
binding  upon  the  emperor  himself,  and 
was  so  considered  by  him,  when  he  re- 
monstrated against  the  arrest  of  Uuss. 
Id.  p.  73,  83.  3.  It  was  not  binding  on 
the  council,  who  possessed  no  temporal 
power,  but  had  a  right  to  decide  upon 
the  question  of  heresy.  4.  It  is  not 
manifest  by  what  civil  authority  IIuss 
was  arrested,  nor  can  I  determine  how 


for  the  imperial  safe-conduct  was  a  legal 
protection  within  the  city  of  Constance. 
5.  Sigismund  was  persuaded  to  acquiesce 
in  the  capital  punishment  of  Huss,  and 
even  to  make  it  his  own  act  (Lenfant, 
p.  409);  by  which  he  manifestly  broke 
his  engagement.  6.  It  is  evident  that  in 
this  he  acted  by^  the  advice  and  sanction 
of  the  council,  who  thus  became  acces- 
sory to  the  guilt  of  his  treachery. 

The  great  moral  to  be  drawn  from  the 
story  of  John  Huss's  condemnation  is, 
that  no  breach  of  faith  can  be  excused  by 
our  opinion  of  ill  desert  in  the  party,  or 
by  a  narrow  interpretation  of  our  own 
engagements.  Every  capitulation  ought 
to  be  construed  favorably  for  the 
weaker  side.  In  such  cases  it  is  emphat- 
ically true  that,  if  the  letter  killeth,  the 
spirit  should  give  life. 

Gerson,  the  most  eminent  theologian 
of  liis  age,  and  the  coryphaeus  of  the 
party  that  opposed  the  transalpine  prin< 
ciples,  was  deeply  concerned  in  this  atro- 
cious business.    Crevier,  p.  432 


238 


UNIVERSAL  COUNCILS.    Chap.  VH.  Pabt  II, 


EocLBS.  PowKB.       INFLUENCE  OF  WICLIFF. 


239 


f 


i 


rity  of  their  regular  discipline,  at  the  hands  of  a  general 
council.     Whatever  difficulty  there  might  be  in  overturning 
the  principles  founded  on  the  decretals  of  Isidore,  and  sanc- 
tioned by  the  prescription  of  many  centuries,  the  more  flagrant 
encroachments  of  papal  tyranny  were  fresh  innovations,  some 
within  the  actual  generation,  others  easily  to  be  traced  up, 
and  continually  disputed.     The  principal  European  nations 
determined,  with  different  degrees  indeed  of  energy,  to  make 
a  stand  against  the  despotism  of  Rome.     In  this  resistance 
England  was  not  only  the  first  engaged,  but  the  most  consist- 
ent ;  her  free  parliament  preventing,  as  far  as  the  times  per- 
mitted, that  wavering  policy  to  which  a  court  is  liable.     We 
have  already  seen  that  a  foundation  was  laid  in  the  statute  of 
provisors  under  Edward  III.     In  the  next  reign  many  other 
measures  tending  to  repress  the  interference  of  Rome  were 
adopted,  especially  the   great  statute  of  pi-aemunire,  which 
subjects  all  persons  bringing  papal  bulls  for  translation  of 
bishops  and  other  enumerated  purposes  into  the  kingdom  to 
the  penalties  of  forfeiture  and  perpetual  imprisonment.*    This 
act  received,  and  probably  was  designed  to  receive,  a  larger 
interpretation  than  its  language  appears  to  warrant.     Com- 
bined with  the  statute  of  provisors,  it  put  a  stop  to  the  pope's 
usurpation  of  patronage,  which  had  impoverished  the  church 
and  kingdom  of  England  for  nearly  two  centuries.     Several 
attempts  were  made  to  overthrow  these  enactments ;  the  first 
parliament  of  Henry  IV.  gave  a  very  large  power  to  the  king 
over  the  statute  of  provisors,  enabling  him  even  to  annul  it  at 
his  pleasure.*    This,  however,  does  not  appear  in  the  statute- 
book.     Henry  indeed,  like  his  predecessors,  exercised  rather 
largely  his  prerogative  of  dispensing  with  the  law  against 
papal  provisions ;  a  prerogative  which,  as  to  this  point,  was 
itself  taken  away  by  an  act  of  his  own,  and  another  of  his 
son  Henry  V.*     But  the  statute  always  stood  unrepealed ; 
and  it  is  a  satisfactory  proof  of  the  ecclesiastical  supremacy 
of  the  legislature  that  in  the  concordat  made  by  Martin  V.  at 
the  council  of  Constance  with  the  English  nation  we  find  no 
mention  of  reservation  of  benefices,  of  annates,  and  the  other 


its  iep«l.  Collier,  p.  668.  Chlcheley 
did  all  in  his  power ;  but  the  commonfl 
»  7  H.  IV.  c.  8;  8  H.  V.  c.  4.  Martin  were  always  Inexorable  on  this  head,  p. 
v.  published  an  angry  bull  against  the  686 ;  and  the  archbishop  even  incurred 
"  execrable  statute  "  of  pramunire  ;  en-  MarUn'sreBentment  by  It.  Wilkins,  Con- 
joining-archbishop  Chicheley  to  procure    cilia,  t.  iU.  p.  488- 


>  16  Ric.  n.  0.  6. 

*  Rot.  Pari.  vol.  Ui.  p.  428. 

»7H.  IV.c.  8;  8H.  V.C.4. 


principal  grievances  of  that  age  ;^  our  ancestors  disdaining  to 
accept  by  compromise  with  the  pope  any  modification  or  even 
confirmation  of  their  statute  law.  They  had  already  restrained 
another  flagrant  abuse,  the  increase  of  first  fruits  by  Boniface 
IX. ;  an  act  of  Henry  IV.  forbidding  any  greater  sum  to  be 
paid  on  that  account  than  had  been  formerly  accustomed.*^ 

It  will  appear  evident  to  every  person  acquainted  with  the 
contemporary  historians,  and  the  proceedings  of  parliament, 
that,  besides  partaking  in  the  general  resentment  of  Europe 
against  the  papal  court,  England  was  under  the  influence  c' 
influence  of  a  pecuhar  hostility  to  the  clergy,  aris-  wiciiff's 
ing  from  the  dissemination  of  the  principles  of  *®°®^' 
Wicliff.®  All  ecclesiastical  possessions  were  marked  for 
spoliation  by  the  system  of  this  reformer ;  and  the  house  of 
commons  more  than  once  endeavored  to  carry  it  into  effect, 
pressing  Henry  IV.  to  seize  the  temporalities  of  the  church 
for  public  exigencies.*  This  recommendation,  besides  its 
injustice,  was  not  hkely  to  move  Henry,  whose  policy  had 
been  to  sustain  the  prelacy  against  their  new  adversaries. 
Ecclesiastical  jurisdiction  was  kept  in  better  control  than 
formerly  by  the  judges  of  common  law,  who,  through  rather 
a  strained  construction  of  the  statute  of  praemunire,  extended 
its  penalties  to  the  spiritual  courts  when  they  transgressed 
their  limits.*  The  privilege  of  clergy  in  criminal  cases  still 
remained ;  but  it  was  acknowledged  not  to  comprehend  high 
treason.® 


1  Lenfant,  t.  ii.  p.  444. 

«  6H.  IV.  c.l. 

'  See,  among  many  other  passages,  the 
articles  exhibited  by  the  Lollards  to  par- 
liament against  the  clergy  in  1394,  Col- 
lier gives  the  substance  of  them,  and  they 
are  noticed  by  Henry  ;  but  they  are  at 
full  length  in  Willdns,  t.  iii.  p.  m. 

4  Walslngham,  p.  371,  879;  Rot.  Pari. 
11  H.  IV.  vol.  iii.  p.  645.  The  remarkable 
circumstances  detailed  by  Walsingham 
in  the  former  passage  are  not  corrolx)- 
rated  by  anything  in  the  records.  But  a£ 
it  is  unlikely  that  so  particular  a  narra- 
tive should  have  no  foundation,  Hume 
has  plausibly  conjectured  that  the  roll 
hM  been  wilfully  mutilated.  As  this 
raspicion  occurs  in  other  instances,  it 
would  be  desirable  to  ascertain,  by  ex- 
amination of  the  original  rolls,  whether 
they  bear  any  external  marks  of  injury. 
The  mutilators,  however,  if  such  there 
were,  have  left  a  great  deal.  The  rolls  of 
Henry  IV.  and  V.'s  parliaments  are  quite 
fUl  of  petitions  against  the  clergy. 


6  3  Inst.  p.  121 ;  ColUer,  vol.  i.  p.  668. 

•  2  Inst.  p.  634 ;  where  several  in- 
stances of  priests  executed  for  coining 
and  other  treasons  are  adduced.  And 
this  may  also  be  inferred  from  25  E.  III. 
Stat.  3,  c.  4  ;  and  from  4  H.  IV.  c.  3.  In- 
deed the  benefit  of  clergy  has  never 
been  taken  away  by  statute  from  high 
treason.  This  renders  it  improbable  that 
chief  justice  Gascoyne  should,  as  Carte 
tells  us,  vol.  ii.  p.  664,  have  refused  to 
try  archbishop  Scrope  for  treason,  on 
the  ground  that  no  one  could  lawfully 
sit  in  judgment  on  a  bishop  for  his  life. 
Whether  he  might  have  declined  to  try 
him  as  a  peer  is  another  question.  The 
pope  excommunicated  all  who  were  con- 
cerned in  Scrope's  death,  and  it  cost 
Henry  a  large  sum  to  obtain  absolution. 
But  Boniface  IX.  was  no  arbiter  of  the 
English  law.  Edward  IV.  granted  a 
strange  charter  to  the  clergy,  not  only 
dispensing  with  the  statutes  of  prse- 
munire,  but  absolutely  exempting  them 
from  temporal  jurisdiction  in  cases  of 


240     CONCORDATS  OF  ASCHAFFENBURG.  Chap.  VH.  Part  H. 


ECCLBS.  PowKB.       PAPAL  ENCROACHMENTS. 


241 


1; 


Germany,  as  well  as  England,  was  disappointed  of  her  hopes 
of  general  reformation  by  the  Italian  party  at  Constance  ;  but 
she  did  not  supply  the  want  of  the  council's  decrees  with  suf- 
ficient decision.    A  concordat  with  Martin  V.  left  the  pope  in 
Concordate     posscssion  of  too  great  a  part  of  his  recent  usurpa- 
of  ^°chaf-      tions.*     This,  however,  was  repugnant  to  the  spirit 
fenburg.        ^^  Germany,  which  called  for  a  more  thorough 
reform  with  all  the  national  roughness  and  honesty.     The 
diet  of  Mentz,  during  the  continuance  of  the  council  of  Basle, 
adopted  all  those  regulations  hostile  to  the  papal  interests 
which  occasioned  the  deadly  quarrel  between  that  assembly 
and  the  court  of  Rome.'     But  the  German  empire  was  be- 
trayed by  Frederic  III.,  and  deceived  by  an  accomplished  but 
profligate   statesman,  his  secretary  -3Eneas  Sylvius.    Fresh 
concordats,  settled  at  Aschaffenburg  in  1448,  nearly  upon  a 
footing  of  those  concluded  with  Martin  V.,  surrendered  great 
part  of  the  independence  for  which  Germany  had  contended. 
The  pope  retained  his  annates,  or  at  least  a  sort  of  tax  in 
their  place ;  and  instead  of  reserving  benefices  arbitrarily,  he 
obtained  the  positive  right  of  collation  during  six  alternate 
months  of  every  year.     Episcopal  elections  were  freely  re- 
stored to  the  chapters,  except  in  case  of  translation,  when  the 
pope  still  continued  to  nominate ;  as  he  did  also  if  any  person, 
canonically  unfit,  were  presented  to  him  for  confirmation.' 
Such  is  the  concordat  of  Aschaffenburg,  by  which  the  catholic 
principalities  of  the  empire   have   always   been   governed, 
though  reluctantly  acquiescing  in  its  disadvantageous  provis- 
ions.    Rome,  for  the  remainder  of  the  fifteenth  century,  not 
satisfied  with  the  terms  she  had  imposed,  is  said  to  have  con- 
tinually encroached  upon  the  right  of  election.*     But  she 
purchased  too  dearly  her  triumph  over   the  weakness  of 
Frederic  III.,  and  the  Hundred   Grievances  of  Germany, 
presented  to  Adrian  VI.  by  the  diet  of  Nuremberg  in  1522, 


treason  as  well  as  felony.  T^lkins,  Coa- 
cUia,  t.  iii.  p.  683 ;  Collier,  p.  678.  This, 
however,  being  an  illegal  grant,  took  no 
effect,  at  least  after  his  death. 

1  Lenfant,  t.  ii.  p.  428;  Schmidt,  t.  T. 
p.  131. 
3  Schmidt,  t.  t.  p.  221 ;  Lenfant. 
s  Schmidt,  t.  r.  p.  250 ;  t.  vi.  p.  94, 
&c.  He  ODserves  that  there  is  three 
times  as  much  money  at  present  as  in 
the  fifteenth  century :  if  therefore  the 
annates  are  now  felt  as  a  burden,  what 
must  they  have  been?  p.  113.    To  this 


Rome  would  answer,  If  the  annates 
were  but  sufficient  for  the  pope's  main- 
tenance at  that  time,  what  must  they  be 
now? 

«  Schmidt,  p.  98 ;  iEneas  Sylrius,  Eptet. 
369  and  371 ;  and  De  Moribus  German- 
orum,  p.  1041,  1061.  Several  little  dis- 
putes with  the  pope  indicate  the  spirit 
that  was  fermenting  in  Germany  through- 
out the  fifteenth  century.  But  this  is 
the  proper  subject  of  a  more  detailed 
ecclesiastical  history,  and  should  form  an 
introducUon  to  that  of  the  Reformation* 


manifested  the  working  of  a  long-treasured  resentment,  that 
had  made  straight  the  path  before  the  Saxon  reformer. 

I  have  already  taken  notice  that  the  Castilian  church  waa 
in  the  first  ages  of  that  monarchy  nearly  inde- 
pendent of  Rome.  But  after  many  gradual  en-  ^^i^lata 
croachments  the  code  of  laws  promulgated  by  01  church  of 
Alfonso  X.  had  incorporated  a  great  part  of  the  ^**'^^®' 
decretals,  and  thus  given  the  papal  jurisprudence  an  author- 
ity which  it  nowhere  else  possessed  in  national  tribunals.^ 
That  richly  endowed  hierarchy  was  a  tempting  spoil.  The 
popes  filled  up  its  benefices  by  means  of  expectatives  and 
reserves  with  their  own  Italian  dependents.  We  find  the 
cortes  of  Palencia  in  1388  complaining  that  strangers  are 
beneficed  in  Castile,  through  which  the  churches  are  ill  sup- 
plied, and  native  scholars  cannot  be  provided,  and  requesting 
the  king  to  take  such  measures  in  relation  to  this  as  the 
kings  of  France,  Aragon,  and  Navarre,  who  do  not  permit 
any  but  natives  to  hold  benefices  in  their  kingdoms.  The 
king  answered  to  this  petition  that  he  would  use  his  en- 
deavors to  that  end.^  And  this  is  expressed  with  greater 
warmth  by  a  cortes  of  1473,  who  declare  it  to  be  the  custom 
of  all  Christian  nations  that  foreigners  should  not  be  pro- 
moted to  benefices,  urgmg  the  discouragement  of  native 
learning,  the  decay  of  charity,  the  bad  performance  of  relig- 
ious rites,  and  other  evils  arising  from  the  non-residence  of 
beneficed  priests,  and  request  the  kmg  to  notify  to  the  court 
of  Rome  that  no  expectative  or  provision  in  favor  of  foreign- 
ers can  be  received  in  future.'  This  petition  seems  to  have 
passed  into  a  law ;  but  I  am  ignorant  of  the  consequences. 
Spain  certainly  took  an  active  part  in  restraining  the  abuses 
of  pontifical  authority  at  the  councils  of  Constance  and 
Basle  ;  to  which  I  might  add  the  name  of  Trent,  if  that  as- 
sembly were  not  beyond  my  province. 

France,  dissatisfied  with  the  abortive  termination  of  her 
exertions  during  the  schism,  rejected  the  concor-  Qj,g^^  ^ 
dat  offered  by  Martin  V.,  which  held  out  but  a  papal  au- 
promise  of  imperfect  reformation.*     She  suffered  r^ncj/" 
in  consequence  the  papal  exactions  for  some  years, 
till  the  decrees  of  the  council  of  Basle  prompted  her  to  more 

» Marina,  Ensayo  Historico-Critico,  o.       »  Teoria  de  las  Cortes,  t.  il.  p.  864; 
^V r*^-  Mariana,  Hist.  Hispan.  1.  xix.  0. 1. 

*  W.    Teoria  de  las  Cortes,  t.  iii.  p.  126.       *  Villaret,  t.  xv.  p.  126. 


VOL.  U. 


16 


242 


CHEC5KS  ON  PAPAL      Chap.  VH.  Part  H. 


vigorous  efforts  for  independence,  and  Charles  VII.  enacted 
the  famous  Pragmatic  Sanction  of  Bourges.^    This  has  been 
deemed  a  sort  of  Magna  Charta  of  the  GaUican  church ;  for 
though  the  law  was  speedily  abrogated,  its  principle  has  re- 
main°  d  fixed  as  the  basis  of  ecclesiastical  liberties.     By  the 
Pragmatic  Sanction  a  general  council  was  declared  superior 
to  the  pope ;  elections  of  bishops  were  made  free  from  all 
control;  mandats  or  grants  in  expectancy,  and  reservations 
of  benefices,  were  taken  away;  first  fruits  were  abolished. 
This  defalcation  of  wealth,  which  had  now  become  dearer 
than  power,  could  not  be  patiently  borne  at  Rome.     Pius  II., 
the  same  JEneas  Sylvius  who  had  sold  himself  to  oppose  the 
council  of  Basle,  in  whose  service  he  had  been  originally  dis- 
tmguished,  used  every  endeavor  to  procure  the  repeal  of  this 
ordnance.     With  Charles  VII.  he  had  no  success;  but  Louis 
XI.,  partly  out  of  blind  hatred  to  his  father's  memory,  partly 
from  a  delusive  expectation  that  the  pope  would  support  the 
Angevin  faction  in  Naples,  repealed  the  Pragmatic   Sanc- 
tion.^   This  may  be  added  to  other  proofs  that  Louis  XI., 
even  according  to  the  measures  of  worldly  wisdom,  was  not  a 
wise  politician.     His  people  judged  from  better  feelings ;  the 
parliament  of  Paris  constantly  refused  to  enregister  the  rev- 
ocation of  that  favorite  law,  and  it  continued  in  many  re- 
spects to  be  acted  upon  until  the  reign  of  Francis  I.*     At  the 
States  General  of  Tours,  in  1484,  Uie  inferior  clergy,  second- 
ed by  the  two  other  orders,  earnestly  requested  that  the 
Pragmatic  Sanction  might   be   confirmed;  but  the  prelates 
were  timid  or  corrupt,  and  the  regent  Anne  was  unwilling  to 
risk  a  quarrel  with  the  Holy  See.*    This  unsettled  state  con- 
tinued, the  Pragmatic  Sanction  neither  quite  enforced  nor 
quite  repealed,   till    Francis   I.,  having   accommodated  the 
differences  of  his  predecessor  with  Bome,  agreed  upon  a  final 
concordat  with  Leo  X.,  the  treaty  that  subsisted  for  almost 
three   centuries  between  the  papacy  and  the  kingdom  of 
France.*    Instead  of  capitular  election  or  papal  provision,  a 
new  method  was  devised  for  filling  the  vacancies  of  episcopal 
sees.    The  king  was  to  nominate  a  fit  person,  whom  the 


1  Idem,  p.  268 ;  Hist,  da  Droit  Poblie 
Sccl66.  Francois,  t.  ii.  p.  234;  Fleury, 
Institutions  au  Droit ;  CreTier,  t.  ir.  p. 
100  ;  Pa.squier,  Recherches  de  la  France, 
I.  Ui.  c.  27. 

>ViUaret,  and  Gamier,  t.  xtl.;  Cre- 
Tkr,  t.  W.  p.  256,  274. 


a  Gamier,  t.  xri.  p.  432;  t.  xjVi.  Pj 
222  et  aUbi.    Crerier,  t.  It.  p.  818  n 

«  Gamier,  t.  xix.  p.  216  and  821. 

6  Gamier,  t.  xxiii.  p.  161;  Hist,  dti 
Droit  Public  Bccl*8.  Fr.  t.  ii.  p.  248; 
Fleury.  Institutions  au  Droit,  t.  i.  p.  107. 


EccLW.  Power.       AUTHORITY  IN  FRANCE. 


243 


pope  was  to  collate.     The  one  obtained  an  essential  patron- 
age, the  other  preserved  his  theoretical  supremacy.    Annates 
were  restored  to  the  pope  ;  a  concession  of  great  importance. 
He  gave  up  his  indefinite  prerogative  of  reserving  benefices 
and  received  only  a  small  stipulated  patronage.  °This  con- 
vention met  with  strenuous  opposition  in  France  ;  the  parlia- 
ment of  Paris  yielded  only  to  force ;  the  university  hardly 
stopped  short  of  sedition ;  the  zealous  Gallicans  have  ever 
since  deplored  it,  as  a  fatal  wound  to  their  liberties.     There 
is  much  exaggeration  in  this,  as  far  as  the  relation  of  the 
GaUican  church  to  Rome  is  concerned ;  but  the  royal  nomina- 
tion to  bishoprics  impaired  of  course  the  independence  of  the 
hierarchy.      Whether  this  prerogative  of  the  crown  were 
upon  the  whole  beneficial  to  France,  is  a  problem  that  I  can- 
not affect  to  solve ;  in  this  country  there  seems  little  doubt 
that  capitular  elections,  which  the  statute  of  Henry  VIII.  has 
reduced  to  a  name,  would  long  since  have  degenerated  into 
the  corruption  of  close  boroughs ;  but  the  circumstances  of 
the  GaUican  establishment  may  not  have  been  entirely  simi- 
lar, and  the  question  opens  a  variety  of  considerations  that 
do  not  belong  to  my  present  subject. 

From  the  principles  established  during  the  schism,  and  in 
the  Pragmatic  Sanction  of  Bourges,  arose  the  far- 
famed  liberties  of  the  Gallican  church,  which  hon-  tlt^Qm^n 
orably  distinguished  her  from  other  members  of  <^*^«~^- 
the  Roman  communion.     These  have  been  referred  by  French 
writers  to  a  much  earlier  era ;  but  except  so  far  as  that  country 
participated  in  the  ancient  ecclesiastical  independence  of  all 
Europe,  before  the  papal  encroachments  had  subverted  it,  I 
do  not  see  that  they  can  be  properly  traced  above   the 
fifteenth  century.     Nor  had  they  acquired  even  at  the  expi- 
ration of  that  age  the  precision  and  consistency  which  was 
given  in  later  times  by  the  constant  spirit  of  the  parliaments 
and  universities,  as  well  as  by  the  best  ecclesiastical  authors, 
with  little  assistance  from  the  crown,  whict,  except  in  a  few 
periods  of  disagreement  with  Rome,  has  rather  been  disposed 
to  restrain  the  more   zealous   Gallicans.     These   liberties, 
therefore,  do  not  strictly  fell  within  my  limits ;  and  it  will  be 
sufficient  to  observe  that  they  depended  upon  two  maxims : 
one,  that  the  pope  does  not  possess  any  direct  or  indirect 
temporal  authority ;  the  other,  that  his  spiritual  jurisdiction 
can  only  be  exercised  in  conformity  with  such  parts  of  the 


i1 


244  ECCLESIASTICAL  JURISDICTION  Chap.  TO.  Part  H. 

canon  law  as   are   received  by  the  kingdom   of   Frjmce. 
Hence  the  Gallican  church  rejected  a  great  part  of  the  Sex 
and   Clementines,  and  paid  Utile  regard  to  modern   papal 
Cls,  which  in  fact  obtained  validity  only  by  the  kmg^s  ap- 

^"^The  Pontifical  usurpations  which  were  thus  restrained,  af- 
fected,  at  least  in  their  direct  operation,  rather  the 
EcciesiMti-     church  than  the  state  ;  and  temporal  governments 
Sition  ?;.      would  only  have  been  half  emancipated,  if  their 
.trained.        national  hierarchies  had  preserved  their  enormous 
iurisdiction.'    England,  in  this  also,  began  the  work,  and 
bad  made  a  considerable  progress,  while  the  mistaken  piety 
or  pohcy  of  Louis  IX.  and  his  successors  had  laid  France 
open  to  vast  encroachments.     The  first  method  adopted  m 
order  to  check  them  was  rude  enough ;  by  seizing  the  bishop  s 
effects  when  he  exceeded  his  jurisdiction.'    This  jurisdiction, 
accordinor  to  the  construction  of  churchmen,  became  perpetu- 
ally larger :  even  the  reforming  council  of  Constance  give  an 
enumeration  of  ecclesiastical  causes  far  beyond  the  limits 
acknowledged  in  England,  or  perhaps  in  France.*     But  the 
parliament  of  Paris,   irfstituted   in   1304,  gradually  estab- 
Hshed  a  paramount  authority  over  ecclesiastical  as  well  as 
civil  tribunals.     Their  progress  was  indeed  very  slow.     At  a 
famous  assembly  in  1329,  before  Philip  of  Valois,  his  advo- 
cate-general,  Peter  de  Cugnieres,  pronounced  a  long  harangue 


ECCLES.  POWEB. 


BESTRAINED. 


245 


1  Fleury,  Institutions  au  Droit,  t.  it.  p. 
226,  &c.,  and  Discours  aur  lea  Libert6«  de 
I'Eglise  Qallicane.  Tiie  last  editors  of 
this  dissertation  go  for  beyond  Fleury, 
and  perhaps  reach  the  utmost  point  in 
limiting  the  papal  authority  which  a 
sincere  member  of  that  communion  can 
attain.    See  notes,  p.  417  and  445. 

a  It  ought  always  to  be  remembered 
that  ecclesiastical,  and  not  merely  papal, 
encroachments    are  what  cItU  govern- 
ments and  the  laity  in  general  have  had 
to   resist;    a   point   which   some   very 
xealous   opposers  of  Rome   have   been 
willing  to  keep  out  of  sight.    The  latter 
arose  out  of  the  former,  and  perhaps  were 
in  some  respects  less  objectionable.     But 
the  true  enemy  is  what  are  called  High- 
church  principles;  be  they  mtuntained 
by  a  pope,  a  bishop,  or    a    presbyter. 
Thus  archbishop  Stratford  writes  to  Ed- 
ward III.:    Duo   sunt,  quibus  princi- 
paliter  regitur  mundus,  sacra  pontiflcalis 
auctoritas,  et  regalis  ordinata  potestas  : 
In  quibus  est  pondus  tanto  gravius  et 


Bublimius  sacerdotum,  quanto  et  de  regl. 

bus  illi  in  divino  redditurl  sunt  examine 

rationem  ;  et  ideo  scire  debet  regla  celsi- 

tudo  ex  illorum  vos  dependere  judicio, 

non  illos  ad  vestram  dirigi  posse  volun- 

tatem.    Wilkins,  ConciUa,  t.  ii.  p.  663. 

This  amazing  impudence  towards  such  a 

prince  as  Edward  did  not  succeed ;  but  it 

is  interesting  to  follow  the  track  of  the 

star   which   was  now   rather  receding, 

though  still  fierce. 

»  De  Marca,  De  Concordanu4, 1.  it.  c. 

18. 

4  De  Marca,  De  Concordantii,  1.  iv. 
c.  15 ;  Lenfant,  Cone,  de  Constance,  t.  ii. 
p.  831.  De  Marca,  1.  iv.  c.  15,  gijesus 
passjiRcs  from  one  Durandus  about  Iduy, 
complaining  that  the  lay  judges  invaded 
ecclesiastical  jurisdiction,  and  reckoning 
the  cases  subject  to  the  latter,  under 
which  he  Includes  feudal  and  criminal 
causes  in  some  circumstances,  and  also 
those  in  which  the  temporal  judge*  aw 
in  doubt ;  si  quid  ambiguum  inter  judi- 
ces  sseculares  oriatur. 


against  the  excesses  of  spiritual  jurisdiction.  This  is  a 
curious  illustration  of  that  branch  of  legal  and  ecclesiastical 
history.  It  was  answered  at  large  by  some  bishops,  and  the 
king  did  not  venture  to  take  any  active  measures  at  that  time.* 
Several  regulations  were,  however,  made  in  the  fourteenth 
century,  which  took  away  the  ecclesiastical  cognizance  of 
adultery,  of  the  execution  of  testaments,  and  other  causes 
which  had  been  claimed  by  the  clergy.^  Their  immunity  in 
criminal  matters  was  straitened  by  the  introduction  of  privi- 
ledged  cases,  to  which  it  did  not  extend ;  such  as  treason, 
murder,  robbery,  and  other  heinous  offences.*  The  parlia- 
ment began  to  exercise  a  judicial  control  over  episcopal 
courts.  It  was  not,  however,  till  the  beginning  of  the  six- 
teenth century,  according  to  the  best  writers,  that  it  devised 
its  famous  form  of  procedure,  the  "appeal  because  of  abuse."* 
This,  in  the  course  of  time,  and  through  the  decline  of  eccle- 
siastical power,  not  only  proved  an  effectual  barrier  against 
encroachments  of  spiritual  jurisdiction,  but  drew  back  again 
to  the  lay  court  the  greater  part  of  those  causes  which  by 
prescription,  and  indeed  by  law,  had  appertained  to  a  different 
cognizance.  Thus  testamentary,  and  even,  in  a  great  degree, 
matrimonial  causes  were  decided  by  the  parliament ;  and  in 
many  other  matters  that  body,  being  the  judge  of  its  own 
competence,  narrowed,  by  means  of  the  appeal  because  of 
abuse,  the  boundaries  of  the  opposite  jurisdiction.*  This 
remedial  process  appears  to  have  been  more  extensively  ap- 
plied than  our  English  writ  of  prohibition.  The  latter  merely 
restrains  the  interference  of  the  ecclesiastical  courts  in  matters 
which  the  law  has  not  committed  to  them.  But  the  parlia- 
ment of  Paris  considered  itself,  I  apprehend,  as  conservator 
of  the  liberties  and  discipline  of  the  Gallican  church ;  and 
interposed  the  appeal  because  of  abuse,  whenever  the  spir- 
itual court,  even  in  its  proper  province,  transgressed  the 
canonical  rules  by  which  it  ought  to  be  governed.® 


»  VeUy,  t.  viil.  p.  234  ;  Fleury,  Insti- 
totions,  t.  ii.  p.  12;  Hist,  du  Droit  Eccles. 
Franc,  t.  ii.  p.  86. 

»  Villaret,  t.  xi.  p.  182. 

'  Fleury,  Institutions  au  Droit,  t.  ii.  p. 
138.  In  the  famous  case  of  Balue,  a 
bishop  and  cardinal,  whom  Louis  XI.  de- 
tected in  a  treasonable  intrigue,  it  was 
contended  by  the  king  that  he  had  a  right 
to  punish  him  capitally.  Du  Clos,  Vie 
de  Louis  XI.  t.  i.  p.  422*;  Gamier,  Hist, 
de  Prance,  t.  xvii.  p.  330.  Balue  was 
eonflned  for  many  years  in  a  small  iron 


cage,  which  till  lately  was  shown  in  the 
castle  of  Loches. 

4  Pasquier,  1.  ill.  c.  83;  Hist,  du  Droit 
Eccles.  Francois,  t.  11.  p.  119 ;  Fleury, 
Institutions  au  Droit  Eccles  Francois,  t. 
ii.  p.  221 ;  De  Marca,  De  Concordantii 
Sacerdotii  et  Imperii,  I.  iv.  c.  19.  The 
last  author  seems  to  carry  it  rather 
higher. 

6  Fleury,  Institutions,  t.  ii.  p.  42,  &c. 

0  Do  Marca,  De  Concordantia,  1.  iv.  c. 
9  ;  Fleury,  t.  ii.  p.  224.  In  Spain,  even 
now,  says  De  Marca,  bishops  or  clerka 


246 


DECLINE  OF  PAPAL      Chap.  VII.  Pabt  IL 


While  the  bishops  of  Rome  were  losing  their  general  in- 
DeeUne  of  Auence  ovcr  Europe,  they  did  not  gain  more  esli- 
papai  influ-  mation  in  Italy.  It  is  indeed  a  problem  of  some 
ence  in  Italy.  ^j}^^.yi^y^  whether  they  derived  any  substantial  ad- 
vantage from  their  temporal  principality.  For  the  last  three 
centuries  it  has  certainly  been  conducive  to  the  maintenance 
of  their  spiritual  supremacy,  which,  in  the  complicated  re- 
lations of  policy,  might  have  been  endangered  by  their 
becoming  the  subjects  of  any  particular  sovereign.  But  I 
doubt  whether  their  real  authority  over  Christendom  in  the 
middle  ages  was  not  better  preserved  by  a  state  of  nominal 
dependence  upon  the  empire,  without  much  effective  control 
on  one  side,  or  many  temptations  to  woridly  ambition  on  the 
other.  That  covetousness  of  temporal  sway  which,  having 
long  prompted  their  measures  of  usurpation  and  forgery, 
seemed,  from  the  time  of  Innocent  III.  and  Nicholas  III.,  to 
reap  its  gratification,  impaired  the  more  essential  parts  of  the 
papal  authority.  In  the  fourteenth  and  fifteenth  centuries 
the  popes  degraded  their  character  by  too  much  anxiety  about 
the  politics  of  Italy.  The  veil  woven  by  religious  awe  was 
rent  asunder,  and  the  features  of  ordinary  ambition  appeared 
without  disguise.  For  it  was  no  longer  that  magnificent  and 
original  system  of  spiritual  power  which  made  Gregory  VII., 
even  in  exile,  a  rival  of  the  emperor,  which  held  forth  re- 
dress where  the  law  could  not  protect,  and  punishment  where 
it  could  not  chastise,  which  fell  in  sometimes  with  supersti- 
tious feeling,  and  sometimes  with  political  interest.  Many 
might  believe  that  the  pope  could  depose  a  schismatic  prince, 
who  were  disgusted  at  his  attacking  an  unoffending  neighbor. 
As  the  cupidity  of  the  clergy  in  regard  to  worldly  estate  had 
lowered  their  character  everywhere,  so  the  similar  conduct  of 
their  head  undermined  the  respect  felt  for  him  in  Italy.  The 
censures  of  the  church,  those  excommunications  and  inter- 
dicts which  had  made  Europe  tremble,  became  gradually  des- 
picable as  well  as  odious  when  they  were  lavished  in  every 
squabble  for  territory  which  the  pope  was  pleased  to  make 
his  own.^     Even  the  crusades,  which  had  already  been  tried 


not  obeying  royal  mandates  that  inhibit 
the  ezcesaes  of  ecclesiastical  courts  are 
expelled  from  the  klDgdom  and  deprired 
of  the  rights  of  denizenship. 

1  In  1290  Pisa  was  put  under  an  inter- 
(Uct  for  haying  conferred  the  signiory 
on  the  count  of  Modtefeltro  ;  and  he  was 
ordered,  on  pain  of  excommunication,  to 


lay  down  the  goremment  within  a  month. 
Muratori  ad  ann.  A  curious  style  for  the 
pope  to  adopt  towards  a  free  city  I  Six 
years  before  the  Yenetiaus  had  been  in- 
terdicted because  they  would  not  allow 
their  galleys  to  be  hired  by  the  king  of 
Naples.  But  it  would  be  almott  encUfltf 
to  quote  eTery  instance. 


ECCLBS.  POWEB. 


INFLUENCE  IN  ITALY. 


247 


against  the  heretics  of  Languedoc,  were  now  preached  against 
all  who  espoused  a  different  party  from  the  Roman  see  in  the 
quarrels  of  Italy.  Such  were  those  directed  at  Frederic  II., 
at  Manfred,  and  at  Matteo  Visconti,  accompanied  by  the 
usual  bribery,  indulgences,  and  remission  of  sins.  The  papal 
interdicts  of  the  fourteenth  century  wore  a  different  complex- 
ion from  those  of  former  times.  Though  tremendous  to 
the  imagination,  they  had  hitherto  been  confined  to  spiritual 
effects,  or  to  such  as  were  connected  with  religion,  as  the 
prohibition  of  marriage  and  sepulture.  But  Clement  V.,  on 
account  of  an  attack  made  by  the  Venetians  upon  Ferrara 
in  1309,  proclaimed  the  whole  people  infamous,  and  incapa- 
ble for  three  generations  of  any  office,  their  goods,  in  every 
part  of  the  world,  subject  to  confiscation,  and  every  Venetian, 
wherever  he  might  be  found,  liable  to  be  reduced  into  slave- 
ry.* A  bull  in  the  same  terms  was  published  by  Gregory 
XI.  in  1376  against  the  Florentines. 

From  the  termination  of  the  schism,  as  the  popes  found 
their  ambition  thwarted  beyond  the  Alps,  it  was  diverted 
more  and  more  towards  schemes  of  temporal  sovereignty. 
In  these  we  do  not  perceive  that  consistent  policy  which 
remarkably  actuated  their  conduct  as  supreme  heads  of  the 
church.  Men  generally  advanced  in  years,  and  bom  of  noble 
Italian  families,  made  the  papacy  subservient  to  the  elevation 
of  their  kindred,  or  to  the  interests  of  a  local  faction.  For 
such  ends  they  mingled  in  the  dark  conspiracies  of  that  bad  age, 
distinguished  only  by  the  more  scandalous  turpitude  of  their 
vices  from  the  petty  tyrants  and  intriguers  with  whom  they 
were  engaged.  In  the  latter  part  of  the  fifteenth  century, 
when  all  favorable  prejudices  were  worn  away,  those  who 
occupied  the  most  conspicuous  station  in  Europe  disgraced 
their  name  by  more  notorious  profligacy  than  could  be  paral- 
leled in  the  darkest  age  that  had  preceded ;  and  at  the  mo- 
ment beyond  which  this  work  is  not  carried,  the  invasion  of 
Italy  by  Charles  VIII.,  I  must  leave  the  pontifical  throne  in 
the  possession  of  Alexander  VI. 

It  has  been  my  object  in  the  present  chapter  to  bring 
within  the  compass  of  a  few  hours*  perusal  the  substance  of 
a  great  and  interesting  branch  of  history ;  not  certainly  with 
such  extensive  reach  of  learning  as  the  subject  might  require, 


1  Mttiatori. 


248  DECLINE  OF  PAPAL  INFUENCE.  Chap.  VIL  Part  IL 

but  from  sources  of  unquestioned  credibility.     Unconscioui 
of  any  partiaUties  that  could  give  an  oblique  bias  to  my 
mind,  I  have  not  been  very  soUcitous  to  avoid  offence  where 
offence  is  so  easUy  taken.     Yet  there  is  one  misinterpreta- 
tion of  my  meaning  which  I  would  gladly  obviate.     I  hav€ 
not  designed,  in  exhibiting  without  disguise  the  usurpationi 
of  Rome  during  the  middle  ages,  to  furnish  materials  for 
unjust   prejudice  or  unfounded  distrust.      It  is  an  advan 
tageous  circumstance  for  the  philosophical  inquirer  into  the 
history  of  ecclesiastical  dominion,  that,  as  it  spreads  itself 
over  the  vast  extent  of  fifteen  centuries,  the  dependence  of 
events  upon  general  causes,  rather  than  on  transitory  combi 
nations  or  the  character  of  individuals,  is  made  more  evident, 
and  the  future  more  probably  foretold  from  a  consideration 
of  the  past,  than  we  are  apt  to  find  in  political  history.     Five 
centuries  have  now  elapsed,  during  every  one  of  which  the 
authority  of  the  Roman  see  has  successively  declined.   Slowly 
and  silently  receding  from  their  claims  to  temporal  power, 
the  pontiffs  hardly  protect  their  dilapidated  citadel  from  the 
revolutionary  concussions  of  modem  times,  the  rapacity  of 
governments,  and  the  growing  averseness  to  ecclesiastical 
influence.     But  if,  thus  bearded  by  unmannerly  and  threat- 
ening  innovation,  they  should  occasionally  forget  that  cautious 
policy  which  necessity  has  prescribed,  if  they  should  attempt 
(an  unavailing  expedient !)  to  revive  institutions  which  can 
be  no  longer  operative,  or  principles  that  have  died  away, 
their  defensive  efforts  will  not  be  unnatural,  nor  ought  to 
excite  either  indignation  or  alarm.     A  cahn,  comprehensive 
study  of  ecclesiastical  history,  not  in  such  scraps  and  frag- 
ments as  the  ordinary  partisans  of  our  ephemeral  literature 
obtrude  upon  us,  is  perhaps  the  best  antidote  to  extravagant 
apprehensions.     Those  who  know  what  Rome  has  once  been 
are  best  able  to  appreciate  what  she  is ;  those  who  have  seen 
the  thunderbolt  in  the  hands  of  the  Gregories  and  the  Inno- 
cents will  hardly  be  intimidated  at  the  sallies  of  decrepitude 
the  impotent  dart  of  Priam  amidst  the  crackling  ruins  ot 
Troy.* 

1  It  ta  again  to  be  remembered  that  this  paragraph  was  written  in  1816. 


Notes  to  Chap.  YU. 


TITHES. 


249 


NOTES  TO  CHAPTER  VH. 


Note  I.    Page  142. 

This  grant  is  recorded  in  two  charters  differing  materially 
from  each  other ;  the  first  transcribed  in  Ingulfus*s  History 
of  Croyland,  and  dated  at  Winchester  on  the  Nones  of  No- 
vember, 855 ;  the  second  extant  in  two  chartularies,  and 
bearing  date  at  Wilton,  April  22,  854.  This  is  marked  by 
Mr.  Kemble  as  spurious  (Codex  Ang.-Sax.  Diplom.  ii.  52) ; 
and  the  authority  of  Ingulfus  is  not  sufficient  to  support  the 
first  The  fact,  however,  that  Ethelwolf  made  some  great 
and  general  donation  to  the  church  rests  on  the  authority  of 
Asser,  whom  later  writers  have  principally  copied.  His 
words  are,  —  "  Eodem  quoque  anno  [855]  Adelwolfus  vener- 
abilis,  rex  Occidentalium  Saxonum,  decimam  totius  regni  sui 
partem  ab  omni  regali  servitio  et  tributo  liberavit,  et  in  sem* 
pitemo  grafio  in  cruce  Christi,  pro  redemptione  animae  suae 
et  antecessorum  suorum,  Uni  et  Trino  Deo  immolavit." 
(Gale,  XV.  Script,  iii.  156.) 

It  is  really  difficult  to  infer  anything  from  such  a  passage ; 
but  whatever  the  writer  may  have  meant,  or  whatever  truth 
there  may  be  in  his  story,  it  seems  impossible  to  strain  his 
words  into  a  grant  of  tithes.  The  charter  in  Ingulfus  rather 
leads  to  suppose,  but  that  in  the  Codex  Diplomaticus  deci- 
sively proves,  that  the  grant  conveyed  a  tenth  part  of  the 
land,  and  not  of  its  produce.  Sir  F.  Palgrave,  by  quoting 
only  the  latter  charter,  renders  Selden's  Hypothesis,  that  the 
general  right  to  tithes  dates  from  this  concession  of  Ethel- 
wolf,  even  more  untenable  than  it  is.  Certainly  the  charter 
copied  by  Ingulfus,  which  Sir  F.  Palgrave  passes  in  silence, 
does  grant  "  decimam  partem  bonorum ; "  that  is,  I  presume, 
of  chattels,  which,  as  far  as  it  goes,  implies  a  tithe ;  while  the 
words  applicable  to  land  are  so  obscure  and  apparently  cor- 
rupt, that  Selden  might  be  warranted  in  giving  them  the 


250 


EDWY  AND  ELGIVA. 


C^OTXS  TO 


Chap.  VII. 


DEWY  AND  ELGIVA. 


251 


like  construction.  Both  charters  probably  are  spurious ;  but 
there  may  have  been  an  extensive  grant  to  the  church,  not 
only  of  immunity  from  the  trinoda  necessitas,  which  they 
express,  but  of  actual  possessions.  Since,  however,  it  must 
have  been  impracticable  to  endow  the  church  with  a  tenth 
part  of  appropriated  lands,  it  might  possibly  be  conjectured 
that  she  took  a  tenth  part  of  the  produce,  either  as  a  compo- 
sition, or  until  means  should  be  found  of  putting  her  in 
possession  of  the  soil.  And  although,  according  to  the  no- 
tions of  those  times,  the  actual  property  might  be  more 
desirable,  it  is  plain  to  us  that  a  tithe  of  the  produce  was 
of  much  greater  value  than  the  same  proportion  of  the  land 
itself. 

Note  II.    Page  153. 

Two  living  writers  of  the  Roman  Catholic  communion.  Dr. 
Milner,  in  his  History  of  Winchester,  and  Dr.  Lingard,  in 
his  Antiquities  of  the  Anglo-Saxon  Church,  contend  that 
Elgiva,  whom  some  protestant  historians  are  willing  to  repre- 
sent as  the  queen  of  Edwy,  was  but  his  mistress ;  and  seem 
inclined  to  justify  the  conduct  of  Odo  and  Dunstan  towards 
this   unfortunate   couple.     They  are  unquestionably  so  far 
right,  that  few,  if  any,  of  those  writers  who  have  been  quoted 
as  authorities  in  respect  of  this  story  speak  of  the  lady  as  a 
queen  or  lawful  wife.     I  must  therefore  strongly  reprobate  the 
conduct  of  Dr.  Henry,  who,  calling  Elgiva  queen,  and  assert- 
ing that  she  was  married,  refers,  at  the  bottom  of  his  page, 
to  WiUiam  of  Malmsbury  and  other  chroniclers,  who  give  a 
totally  opposite  account ;  especially  as  he  does  not  intimate, 
by  a  single  expression,  that  the  nature  of  her  connection  with 
the  king  was  equivocal.     Such  a  practice,  when  it  proceeds, 
as  I  fear  it  did  in  this  instance,  not  from  oversight,  but  from 
prejudice,  is  a  glaring  violation  of  historical  integrity,  and 
tends  to  render  the  use  of  references,  that  great  improvement 
of  modern  history,  a  sort  of  fraud  upon  the  reader.     The 
subject,  since  the  first  publication  of  these  volumes,  has  been 
discussed  by  Dr.  Lingard  in  his  histories  both  of  England 
and  of  the  Anglo-Saxon  Church,  by  the  Edinburgh  reviewer 
of  that  history,  vol.  xlii.   (Mr.  Allen),  and  by  other  late 
writers,     Mr.  Allen  has  also  given  a  short  dissertation  on 
the  subject,  in  the  second  edition  of  his  Inquiry  into  the 


Royal  Prerogative,  posthumously  published.  It  must  ever 
be  impossible,  unless  unknown  documents  are  brought  to 
hght,  to  clear  up  aU  the  facts  of  this  litigated  story.  But 
though  some  protestant  writers,  as  I  have  said,  in  maintain- 
ing the  matrimonial  connection  of  Edwy  and  Elgiva,  quote 
authorities  who  give  a  different  color  to  it,  there  is  a  pre- 
sumption of  the  marriage  from  a  passage  of  the  Saxon 
Chronicle,  ad.  958  (wanting  in  Gibson's  edition,  but  dis- 
covered by  Mr.  Turner,  and  now  restored  to  its  place  by  JMr. 
Petrie)  which  distmctly  says  that  archbishop  Odo  sep^ted 
Edwy  the  king  and  Elgiva  because  they  were  too  nearly 

i^Tt  n  *  T  '^"'"I^'"  ^'^^'^^  P"^^^^^^  t^^^t  «he  was  queen, 
though  Dr.  Lmgard  seems  to  hesitate.  This  passage  was 
written  as  early  as  any  other  which  we  have  on  the  subject, 
and  in  a  more  placid  and  truthful  tone. 
^^h  ^Tv^'  ho^vever,  of  Elgiva  will  be  out  of  all  pos- 
sible  doubt,  if  we  can  depend  on  a  document,  being  a  refer- 
ence  to  a  charter,  in  the  Cotton  library  (Claudius,  B.  vi.). 
wherein  she  appears  as  a  witness.     Turner  says  of  this,-! 

Had  the  charter  even  been  forged,  the  monks  would  hkve 
taken  care  that  the  names  appended  were  correct."  This 
Dr.  Lingard  inexcusably  calls  "confessing  that  the  instru- 
ment  is  of  very  doubtful  authenticity." 

The  Edinburgh  reviewer,  who  had  seen  the  manuscript, 
beheves  it  genuine,  and  gives  an  account  of  it.  Mr.  Kemble 
ha^  pnnted  It  without  mark  of  spuriousness.     (Cod.  Diplom. 

K^w\'^\t  V'  .}y^^  document  we  have  the  names  of 
^Ifgifu,  the  kings  wife,  and  of  ^thelgifu,  the  king's  wife's 
mother.  The  signatures  are  merely  recited,  so  that  the 
document  itself  cannot  be  properly  styled  a  charter  ;  but  we 
are  only  concerned  with  the  testimony  it  bears  to  the  exist- 
ence ot  the  queen  Elgiva  and  her  mother. 

If  this  charter,  thus  recited,  is  established,  we  advance  a 
step,  so  as  to  prove  the  existence  of  a  mother  and  daughter 
bearing  nearly  the  same  names,  and  such  names  as  appar^ 
ently  imply  royal  blood,  the  latter  being  married  to  Edwy. 
Ihis  would  tend  to  corroborate  the  coronation  story,  divestrng 
it  ot  the  gross  exaggerations  of  the  monkish  biographers  and 
their  followers.  It  might  be  supposed  that  the  young  king, 
httle  more  than  a  boy,  retired  from  the  drunken  revelry  of 
ms  courtiers  to  converse,  and  perhaps  romp,  with  his  cousin 
and  her  mother;   that  Dunstan  audaciously  broke  m  upon 


fij 


« 


252 


EDWY  AND  ELGIVA. 


Notes  to 


Chap.  Vn. 


him,  and  tbrced  him  hack  to  the  banquet ;  that  both  he  and 
the  ladies  resented  this  insolence  as  it  deserved,  and  drove  the 
monk  into  exile  ;  and  that  the  marriage  took  place. 

It  is  more  difficult  to  deal  with  the  story  originally  related 
by  the  biographer  of  Odo,  that  after  his  marriage  Edwy 
carried  off  a  woman  with  whom  he  lived,  and  whom  Odo 
seized  and  sent  out  of  the  kingdom.  This  lady  is  called  by 
Eadmer  una  de  praescriptis  mulieribus ;  whence  Dr.  Lingard 
assumes  her  to  have  been  Ethelgiva,  the  queen's  mother. 
This  was  in  his  History  of  England  (i.  517) ;  but  in  the 
second  edition  of  the  Antiquities  of  the  Anglo-Saxon  Church 
he  is  far  less  confident  than  either  in  the  first  edition  of  that 
work  or  in  his  History.  In  fact,  he  plainly  confesses  that 
nothing  can  be  clearly  made  out  beyond  the  circumstances  of 
the  coronation. 

Although  the  writers  before  the  conquest  do   not  bear 
witness  to  the  cruelties  exercised  on  some  woman  connected 
with  the  king,  either  as  queen  or  mistress,  at  Gloucester,  yet 
the  subsequent  authorities  of  Eadmer,  Osbern,  and  Malms- 
bury  may  lead  us  to  believe  that  there  was  truth  in  the  main 
facts,  though  we  cannot  be  certain  that  the  person  so  treated 
was  the  queen  Elgiva.     If  indeed  their  accounts  are  accurate, 
it  seems  at  first  that  they  do  not  agree  with  their  predeces- 
sors ;  for  they  represent  the  lady  as  being  in  the  king's  com- 
pany up  to  his  flight  from  the  insurgents :  — "  Regem  cum 
adultera  fugitantem  persequi  non  desistunt."     But  though  we 
read  in  the  Saxon  Chronicle  that  Odo  divorced  Edwy  and 
Elgiva,  we  are  not  sure  that  they  submitted  to  the  sentence. 
It  is  therefore  possible  that  she  was  with  him  in  this  disas- 
trous flight,  and,  having  fallen  into  the  hands  of  the  pursuers, 
was  put  to  death  at  Gloucester.     True  it  is  that  her  prox- 
imity of  blood  to  the  king  would  not  warrant  Osbern  to  call 
her  adultera;    but  bad  names  cost  nothing.     Malmsbury's 
words   look   more   hke  it,  if  we  might   supply  something, 
«  proximo  cognatam  invadens  uxorem  [cujusdam  ?]  ejus  forma 
deperibat ; "  but  as  they  stand  in  his  text,  they  defy  my  scanty 
knowledge  of  the  Latin  tongue.     On  the  whole,  however,  no 
reliance  is  to  be  placed  on  very  passionate  and  late  authori- 
ties.   What  is  manifest  alone  is,  that  a  young  king  was  per- 
secuted  and  dethroned  by  the  insolence  of  monkery  excitmg 
a  superstitious  people  against  him. 


PRIMACY  OF  ROME. 


Note  III.     Page  153. 


253 


I  AM  induced,  by  further  study,  to  modify  what  is  said  in 
the  text  with  respect  to  the  well-known  passages  in  Irenseus 
and  Cyprian.  The  former  assigns,  indeed,  a  considerable 
weight  to  the  Church  of  Rome,  simply  as  testimony  to  apos- 
tohcal  teaching ;  but  tliis  is  plainly  not  limited  to  the  bishop 
of  that  city,  nor  is  he  personally  mentioned.  It  is  therefore 
an  argument,  and  no  slight  one,  against  the  pretended  su- 
premacy rather  than  the  contrary. 

The  authority  of  Cyprian  is  not,  perhaps,  much  more  to 
«ie  purpose.     For  the  only  words  in  his  treatise  De  Unitate 
Ecclesiae  which  assert  any  authority  in  the  chair  of  St.  Peter, 
or  indeed  connect  Rome  with  Peter  at  all,  are  interpolations, 
not  found  m  the  best  manuscripts  or  in  the  oldest  editions. 
They  are  printed  within  brackets  in  the  best  modem  ones. 
(See  James  on  Corruptions  of  Scripture  in  the  Church  of 
Rome,  1612.)     True  it  is,  however,  that,  in  his  Epistle  to 
Cornelius  bishop  of  Rome,  Cyprian  speaks  of  "  Petri  cathe- 
dram,  atque  ecclesiam  principalem  unde  unitas  sacerdotahs 
exorta  est."     (Epist.  lix.  in  edit.  Lip.  1838 ;  Iv.  in  Baluze 
and  others.)     And  in  another  he  exhorts  Stephen,  successor 
of  Cornelius,  to  write  a  letter  to  the  bishops  of  Gaul,  that 
they  should  depose  Marcian  of  Aries  for  adhering  to  the  No- 
vatian  heresy.     (Epist.  Ixviii.  or  Ixvii.)     This  is  said  to  be 
found  in  very  few  manuscripts.     Yet  it  seems  too  long,  and 
not  sufficiently  to  the  purpose,  for  a  popish  forgery.     AH 
bishops  of  the  catholic  church  assumed  a  right  of  interference 
with  each  other  by  admonition ;  and  it  is  not  entirely  clear 
from  the  language  that  Cyprian  meant  anything  more  authori- 
tative ;  though  I  incline,  on  the  whole,  to  believe  that,  when 
on  good  terms  with  the  see  of  Rome,  he  recognized  in  her  a 
kind  of  primacy  derived  from  that  of  St.  Peter. 

The  case,  nevertheless,  became  very  different  when  she 
was  no  longer  of  his  mind.  In  a  nice  question  which  arose, 
during  the  pontificate  of  this  very  Stephen,  as  to  the  re- 
baptism  of  those^to  whom  the  rite  had  been  administered  by 
heretics,  the  bishop  of  Rome  took  the  negative  side ;  while 
Cyprian,  with  the  utmost  vehemence,  maintained  the  contrary. 
Then  we  find  no  more  honeyed  phrases  about  the  principal 
church  and  the  succession  to  Peter,  but  a  very  different  style : 
**  Cur  in  tantum  Stephani,  fratris  nostri,  obstinatio  dura  pro- 


254 


PKIMACY  OF  ROME.    Notes  to  Chap.  Vn. 


rupit?"  (Epist  Ixxiv.)  And  a  correspondent  of  Cyprian, 
doubtless  a  bishop,  Firmilianus  by  name,  uses  more  violent 
lan<ruage :  —  "Audacia  et  insolentia  ejus  — aperta  et  mam- 
festo  Stephani  stultitia  — de  episcopatus  sui  loco  glonatur,  et 
Be  successionem  Petri  tenere  contendit."  (Epist.  Ixxv.)  Cy- 
prian proceeded  to  summon  a  council  of  the  African  bishops, 
who  met,  seventy-eight  in  number,  at  Carthage.  They  all 
agreed  to  condemn  heretical  baptism  as  absolutely  mvalid. 
Cyprian  addressed  them,  requesting  that  they  would  use  full 
liberty,  not  without  a  manifest  reflection  on  the  pretensions  of 

Rome : "  Neque  enim  quisquam  nostrum  episcopum  se  esse 

episcoporum  constituit,  aut  tyrannico  terrore  ad  obsequendi 
necessitatem  coUegas  suos  adigit,  quando  habeat  omnis  epis- 
copus  pro  licentia  libertatis  et  potestatis  suae  arbitrium  pro- 
prium,  tamque  judicari  ab  alio  non  possit,  quam  nee  ipse 
potest  alterum  judicare."  We  have  here  an  allusion  to  what 
Tertullian  had  called  horrenda  vox,  "episcopus  episcoporum; 
manifestly  intimating  that  the  see  of  Rome  had  begun  to 
assert  a  superiority  and  right  of  control,  by  the  beginnmg  of 
the  third  century,  but  at  the  same  time  that  it  was  not  gener- 
ally endured.  Probably  the  notion  of  their  superior  author- 
ity, as  witnesses  of  the  faith,  grew  up  in  the  Church  of 
Rome  very  early ;  and  when  Victor,  towards  the  end  of  the 
second  century,  excommunicated  the  churches  of  Asia  for  a 
difference  as  to  the  time  of  keeping  Easter,  we  see  the  ger- 
mination of  that  usurpation,  that  tyranny,  that  uncharitable- 
ness,  which  reached  its  cuhninating  point  in  the  centre  of  the 
mediaeval  period. 


Chap.  VO.  ANGLO-SAXON  CONSTITUTION. 


255* 


CHAPTER   Vin. 

THE    CONSTITUTIONAL    HISTORY   OP   ENGLAND. 


PART  L 


^tL^S?lwa-3Mer'lV"t 'xh^^L^^  Anglo-Saxon  HiHtory  -  Succession  to 
System  -  DivS'7nto°'HunSr;iI^  Countf  cS?^^^ 

No  unbiassed  observer,  who  derives  pleasure  from  the  wel- 
tare  of  his  species,  can  fail  to  consider  the  long  and  uninter- 
ruptedly mcreasing  prosperity  of  England  as  the  most  beau- 
tiful phenomenon  in  the  history  of  mankind.     Climates  more 
propitious  may  impart  more  largely  the  mere  enjoyments  of 
existence;   but  m  no  other  region  have  the  benefits  that 
pohtical  institutions  can  confer  been  diffused  over  so  extend- 
ed a  population  ;  nor  have  any  people  so  well  reconciled  the 
discordant  elements  of  wealth,  order,  and  liberty.     These  ad- 
vantages are  surely  not  owing  to  the  soU  of  this  island,  nor  to 
the  latitude  m  which  it  is  plaeed,  but  to  the  spirit  of  its  laws, 
trom  which,  through  various  means,  the  characteristic  inde- 
pendence and  mdustriousness  of  our  nation  have  been  de- 
rived.    The  constitution,  therefore,  of  England  must  be  to 
inquisitive  men  of  all  countries,  far  more  to  ourselves,  an  ob- 
ject of  superior  interest;  distinguished  especially,  as  it  is 
trom  all  free  governments  of  powerful  nations  which  history 
has  recorded,  by  its  manifesting,  after  the  lapse  of  several  cen- 
turies, not  merely  no  symptom  of  irretrievable  decay,  but  a 
more  expansive  energy.     Comparing  long  periods  of  time, 
It  may  be  justly  asserted  that  the  administration  of  govern- 
ment has  progressively  become  more  equitable,  and  the  privi- 
leges  of  the  subject  more  secure ;  and,  though  it  would  be  both 
presumptuous  and  unwise  to  express  an  unlimited  confidence 
as  to  the  durability  of  liberties  which  owe  their  greatest 
security  to  the  constant  suspicion  of  the  people,  yet,  if  we  cahnly 


256 


SKETCH  OF 


Chap.  VDI.  Past  I. 


reflect  on  the  present  aspect  of  this  country,  it  will  probably 
appear  that  whatever  perils  may  threaten  our  constitution  are 
rather  from  circumstances  altogether  unconnected  with  it 
than  from  any  intrinsic  defects  of  its  own.  It  will  be  the 
object  of  the  ensuing  chapter  to  trace  the  gradujd  formation 
of  this  system  of  government.  Such  an  investigation,  im- 
partially  conducted,  will  detect  errors  diametrically  opposite  ; 
those  intended  to  impose  on  the  populace,  which,  on  account 
of  theii-  palpable  absurdity  and  the  ill  faith  with  which  they 
are  usually  proposed,  I  have  seldom  thought  it  worth  while 
directly  to  repeh;  and  those  which  better  informed  persons 
are  apt  to  entertain,  caught  from  transient  reading  and  the 
misrepresentations  of  late  historians,  but  easily  refuted  by 
the  genuine  testimony  of  ancient  times. 

The  seven  very  unequal  kingdoms  of  the  Saxon  Heptar- 
chy, formed    successively   out   of    the    countries 
AngT^Saxon  wrestcd  from  the  Britons,  were  originaUy  inde- 
history.         pendent  of  each  other.     Several  times,  however, 
a  powerful  sovereign  acquired  a  preponderating    influence 
over  his  neighbors,  marked  perhaps  by  the  payment  of  trib- 
ute.    Seven  are  enumerated  by  Bede  as  having  thus  reigned 
over  the  whole  of  Britain;  an  expression  which  must  be  very 
loosely  interpreted.!    Three  kingdoms  became  at  length  pre- 
dominant—those of  Wessex,  Mercia,  and  Northumberland. 
The  first  rendered  tributary  the  small  estates  of  the  South- 
East,  and  the  second  that  of  the  Eastern  Angles.     But  Eg- 
bert king  of  Wessex  not  only  incorporated  with  his  own 
monarchy  the  dependent  kingdoms  of  Kent  and  Essex,  but 
obtained  an  acknowledgment  of  his  superiority  from  Mercia 
and  Northumberland ;  the  latter  of  which,  though  the  most 
extensive  of  any  Anglo-Saxon  state,  was  too  much  weakened 
by  its  internal  divisions  to  offer  any  resistance.*     Still,  how- 
ever, the  kingdoms  of  Mercia,  East  Anglia,  and  Northum- 
berland remained  under  their  ancient  Une  of  sovereigns ;  nor 
did  either  Egbert  or  his  five  immediate  successors  assume  the 
title  of  any  other  crown  than  Wessex.' 

The  destruction  of  those  minor  states  was  reserved  for  a 
different  enemy.    About  the  end  of  the  eighth  century  the 


l[NOTBl.]    p    ^^^' 

-  Chronicon  Saxonicum,  p.  70. 

3  Alfred  denominates  himself  in  his 
will  Occidentalium  Saxorum  rex;  and 
ABseriuB  neyer  gives  him  any  other  name. 


But  his  son  Edward  the  Elder  takes  the 
title  of  Rex  Anglorum  on  his  coins.  Vid. 
Numismata  Anglo-Saxon,  in  Hickea'a 
Thesaurus,  toI.  il. 


Ekoush  Const.        ANGLO-SAXON  HISTOEr.  257 

command  of  thp  bpq  if  «•«.  i      .    country.     By  their 

Dart   J  nr.    •  1     i    '      '^^  ^^y  ^^^  them  to  harass  every 
Br  Lin    Z  str     ^T"'^"?  ^"^^   ^^  ^^te^t  of  coasIS 

the  ancient  possessore.  ^^^^  ''"'"S'"  »!»» 

hen,  so  --'iesfn,insX%il%S^„X^ZT^:;^t 
have  prevented  the  entire  conquest  of  EnllL*"    Y^Thf 

the  invaders,  :;ifd:„°irt^d1^^^^^^^ 

and  Northumberland;"  a  name  terribryT~iv^'^f  tf^ 

3r°rt£'ririteir''?V^^^^^^^^^ 

successors  ot  Alfred,  pursued  the  course  of  victory,  and 

new*tnd^TteI'SnT8u?;ecL'^^^^  SS^'r'^  P^^*'^^"  that  can  iUustrate 

refer  to  Mr.  Turner's    hSoW  orthe  2^^^i^  ''°T^  ^"  ^«  f^^^*!- 

Anglo-Saxons,  in  which  TaluZblj'wi?!  Chr^^fea'7"99^"«^"^^»-  »'  ^i 

VOL.  n.                                  17  *  Chronicon  Saxon.  pasBim. 


258  SUCCESSION  TO  THE  CROWN.    Chap.  VUI.  Past  I. 

not  only  rendered  the  English  monarchy  coextensive  with 
the  present  limits  of  England,  but  asserted  at  least  a  suprem- 
acy over  the  bordering  nations.^  Yet  even  Edgar,  the  most 
powerful  of  the  Anglo-Saxon  kings,  did  not  venture  to  inter- 
fere with  the  legal  customs  of  his  Danish  subjects.* 

Under  this  prince,  whose  rare  fortune  as  well  as  judicious 
conduct  procured  him  the  surname  of  Peaceable,  the  king- 
dom appears  to  have  reached  its  zenith  of  prosperity.  But 
his  premature  death  changed  the  scene.  The  minority  and 
feeble  character  of  Ethelred  II.  provoked  fresh  incursions 
of  our  enemies  beyond  the  German  Sea,  A  long  series  of 
disasters,  and  the  inexplicable  treason  of  those  to  whom  the 
public  safety  was  intrusted,  overthrew  the  Saxon  line,  and 
established  Canute  of  Denmark  upon  the  throne. 

The  character  of  the  Scandinavian  nations  was  in  some 
measure  changed  from  what  it  had  been  during  their  first 
invasions.   They  had  embraced  the  Christian  faith ;  they  were 
consolidated  into  great  kingdoms  ;  they  had  lost  some  of  th^t 
predatory  and  ferocious  spirit  which  a  religion  invented,  as  it 
seemed,  for  pirates  had  stimulated.    Those,  too,  who  had  long 
been  settled  in  England  became  gradually  more  assimilated 
to  the  natives,  whose  laws  and  language  were  not  radically 
different  from  their  own.     Hence  the  accession  of  a  Danish 
Ime  of  kings  produced  neither  any  evil  nor  any  sensible 
change  of  polity.     But  the  English  still  outnumbered  their 
conquerors,  and  eagerly  returned,  when  an  opportunity  ar- 
rived, to  the  ancient  stock.     Edward  the  Confessor,  notwith- 
standing his  Norman  favorites,  was  endeared  by  the  mildness 
of  his  character  to  the  English  nation,  and  subsequent  mise- 
ries gave  a  kind  of  posthumous  credit  to  a  reign  not  eminent 
either  for  good  fortune  or  wise  government. 

In  a  stage  of  civilization  so  little  advanced  as  that  of  the 
Succession  to  ^Anglo-Saxons,  and  under  circumstances  of  such 
the  crown,  inccssaut  peril,  the  fortunes  of  a  nation  chiefly  de- 
pend upon  the  wisdom  and  valor  of  its  sovereigns.  No  free 
people,  therefore,  would  intrust  their  safety  to  blind  chance, 
and  permit  an  uniform  observance  of  hereditary  succession 
to  prevail  against  strong  public  expediency.     Accordingly, 

1  [N0T«  n.1   i> .  33  6  .  It  Beemi  now  to  b«  ascertained,  by  the 

«  WilWn"  Le&«  Anglo-Saxon,  p.  83.  comparison  of  dlalecte,  that  thelnhab. 

In  1064,  aft^r  a  revolt  of  the  Northum-  Itants  from  the  Humb*^.  9f  *'  ^' yj! 

briana,  Edward  the  Confessor  renewed  Tyne,  to  the  Firth  of  Forth,  wer«  chlenj 

the  laws  of  Canute.    Chronic.  Saxon.  Danes. 


English  Const.    SUCCESSION  TO  THE  CROWN.  259 

die  Saxons,  like  most  other  European  nations,  while  thev 
limited  the  inheritance  of  the  crown  exclusively  to  one  royi 

thT^lJ ;i,  A  .^V'^''^''^^'^^  ^'^^^^^^"  ^^  Carte,  that 
the  rule  of  the  Anglo-Saxon  monarchy  was  "lineal  a^att 
succession,  the  blood  of  the  second  son  having  rrtht^ntil 
the  extinction  of  that  of  the  eldest."  ^  Unquestionab  vX 
eldest  son  of  the  last  king,  being  of  full  age?  andT^^^^^^ 
festly  incompetent,  wa^  his  natural  and  probable  succeTstr. 
nor  IS  It  perhaps  certain  that  he  always  waited  for  an  elS 
to  take  upon  himself  the  rights  of  sovereignty,  alfhouSe 
ceremony  of  coronation,  according  to  the  ancient  form,  appe^ 

sTbstltifn  nfT^^^'  ^u.\^  "'^"^^  ^^S  ^  ^«d  '^^  ^^ificial 
substitution  of  a  regency,  which  stricter  notions  of  hereditary 

nght  have  mtroduced,  had  never  occurred  to  so  rude  a^3 

Thus,  not  to  mention  those  instances  which  the  obscurrtimes 

of  the  Heptorchy  exhibit,  Etheh-ed  I.,  as  some  sTbut  ^r! 

ISL  K^t  u  ^^f?'  ""  ^''  testament,  dilates  upon  his  own 
fatle,  which  he  builds  upon  a  triple  foundation,  the  wiU  of^ 
father,  the  compact  of  his  brother  Ethelred,  and  the  cotem 

lllllT  ^^r  ""'^^'^'^    ^  ^™^^  ^y ^^tion  t^  the  g^v 
ernment  of  an  infant  seems  to  have  rendered  Athelstan,  f  J. 

Te  t^h  ?f!?  ''^^''^  illegitimacy,  the  public  choice  upoL 
^e  death  of  Edward  the  Elder.  Thus,  to^,  the  sons  of  eSu 
mund  I.  were  postponed  to  their  uncle  Edred,  and   a^Sn 

^ngland  if  this  exclusion  of  infants  had  always  obtained. 

DrincToT  '''.  '"""^  ''  ^'-^  *^^  '^y^  family '/antedl^^t 
pnnce  of  mature  years  to  prevent  the  crown  from  resting 
upon  the  head  of  a  child;*  and  hence  the  minorities  of  Ed! 
ward  II  and  Etheh-ed  II.  led  to  misfortunes  which  ofer- 
^helmed  for  a  time  both  the  house  of  Cerdic  and  the  English 

The   Anglo-Saxon  monarchy,  during  its  earlier  period, 

mhe'rVu^pe^Sctf  ^^^'^"'^  ""^'^^  ^       f^^^^  ^ita  Alf^,  Appendix. 

'  Chronicon  Saxon  n  90     Rn«,*  ..«-  Accordinjf  to  the  historian  of  Ram- 

that  EtheiwoidTiho  jtt^pt^TiSL  Sa^;°;;Lfh^°ir''^'^,"^ .^^'^ pj*^^ 

an  insurrecUon  against  Mwaii  ^  S^Ih/^«'.  *"?  ^°  "*>''**>  °o' being 
BIder,  was  son  of  EXll^rt  The  Saxon  hI^^h'  fufficient  to  give  him  a  cl«5 
Chronkle  oi^y   calta  22*  ^^^^,    J^ght^unng  in&ncy.  8  Gale,  XV.  Script. 


nil 


260  PROVINCIAL  GOVERNORS.    Chaf.  VHI.  Pabt  L 

,   seems  to  have  suffered  but  little  from  that  insubor- 
^vTncSi^'    dination  among  the  superior  nobility  which  ended 
goremow.      j^    dismembering    the    empire  of  Charlemagne. 
Such  kincrs  as  Alfred  and  Athelstan  were  not  likely  to  permit 
it.    Andihe  EngUsh  counties,  each  under  its  own  alderman, 
were  not  of  a  size  to  encourage  the  usurpations  of  their  gov- 
emors.     But  when  the  whole  kingdom  was  subdued,  there 
arose,  unfortunately,  a  fashion  of  intrusting  great  provinces 
to  the  administration  of  a  single  earl.    Notwiths^nding  their 
union,  Mercia,  Northumberiand,  and  Ea^t  Anglia  were  re- 
garded  in  some  degree  as  distinct  parts  of  the  monarchy.    A 
difference  of  laws,  though  probably  but  sligh^  kept  up  this 
separation.     Alfred  governed  Mercia  by  the  hands  of  a  no- 
bleman who  had  married  his  daughter  Ethelfleda ;  and    hat 
lady  after  her  husband's  death  held  the  reins  with  a  masculine 
energy  till  her  own,  when  her  brother  Edward  took  the  prov- 
ince into  his  immediate  command.^     But  from  the  era  of 
Edward  II.'s  succession  the  provincial  governors  began  to 
overpower  the  royal  authority,  as  they  had  done  upon  the 
content.     England  under  this  prince  was  not  far  removed 
from  the  condition  of  France  under  Charles  the  Bald.     In 
the  time  of  Edward  the  Confessor  the  whole  kingdom  seems 
to  have  been  divided  among  five  earis,^  three  of  whom  were 
Godwin  and  his  sons  Harold  and  Tostig.     It  cannot  be  won- 
dered  at  that  the  royal  line  was  soon  supplanted  by  the  most 
powerful  and  popular  of  these  leaders,  a  prince  well  worthy 
to  have  founded  a  new  dynasty,  if  his  eminent  qualities  had 
not  yielded  to  those  of  a  still  more  illustrious  enemy. 

There  were  but  two  denominations  of  persons  above  the 
class  of  servitude,  Thanes  and  Ceoris ;  the  owners 
Khan^  and  the  cultivators  of  land,  or  rather  perhaps,  as  a 
•Qdceoria.  ^^^^  accurato  distinction,  the  gentry  and  the  inte- 
rior people.  Among  all  the  northern  nations,  as  is  well  known, 
the  weregild,  or  compensation  for  murder,  was  the  standard 
measure  of  the  gradations  of  society.  In  the  Anglo-Saxon 
laws  we  find  two  ranks  of  freeholders  ;  the  first,  called  Kings 
Thanes,  whose  lives  were  valued  at  1200  shillmgs ;  the  second 


m 


*  Chronicon  Saxon- 

«The  word  earl  (eorl)  meant  origl- 
oally  a  man  of  noblo  birth,  as  opposed  to 
(be  ceorl.  It  was  not  a  title  of  office  till 
tlw  eleventh  century,  when  it  was  used 
93  synonymous  to  alderman,  Itr  a  goT- 


ernor  of  a  county  or  proTince,  Aftet 
the  conquest  it  superseded  altopether 
the  more  ancient  title.  Selden^s  Titles 
of  Honor,  Tol.  iii.  p.  638  (edit.  Wilklns), 
and  Anglo-Saxon  writings  peusim. 


English  Const.    CONDITION  OF  THE  CEORLS.  261 

of  inferior  degree,  whose  composition  was  half  that  sum.' 
That  of  a  ceori  was  200  shillings.  The  nature  of  this  distinc- 
tion  between  royal  and  lesser  thanes  is  very  obscure:  and  I 
shall  have  something  more  to  say  of  it  presently.  However 
the  thanes  m  general,  or  Anglo-Saxon  gentry,  must  have  been 
very  numerous.  A  law  of  Ethelred  directs  the  sheriff  to 
take  twelve  of  the  chief  thanes  in  every  hundred,  as  his 
^sessors  on  the  bench  of  justice.^  And  from  Domesday  Book 
we  may  collect  that  they  had  formed  a  pretty  large  class,  at 
le^t  in  some  counties,  under  Edward  the  Confessor.^ 

Eaid  SoH^ir'^'''''  ?/  u^'  ^^"  "^  ^  ^^^^^  ^^^'  ^'  t^  been 
Eaid,  200  shillings.    If  this  proportion  to  the  value  condition  of 

01  a  thane  points  out  the  subordination  of  ranks  '»»e  ceoris. 
It  certainly  does  not  exhibit  the  lower  freemen  in  a  state  of 
comp  ete  abasement.     The  ceori  was  not  bound,  at  least  uni- 
versally, to  the  land  which  he  cultivated  -  he  was  occasionaUy 
cal  ed  upon  to  bear  arms  for  the  public  safety  j^  he  was  pro- 
tected  against  personal  injuries,  or  trespasses  on  his  land;« 
he  was  capable  of  property,  and  of  the  privileges  which  it 
conferred.   If  he  came  to  possess  five  hydes  of  land  (or  about 
600  acres)  with  a  church  and  mansion  of  his  own,  he  was 
entitled  to  the  name  and  rights  of  a  thane.^     And  if  by  own- 
ing five  hydes  of  land  he  became  a  thane,  it  is  plain  that  he 
might  possess  a  less  quantity  without  reaching  that  rank. 
There  were,  therefore,  ceoris  with  land  of  their  own,  and 
ceoris  without  land  of  their  own;  ceoris  who  might  commend 
themselves  to  what  lord  they  pleased,  and  ceoris  who  could 
not  quit  the  land  on  which  they  lived,  owing  various  services 
to  the  lord  of  the  manor,  but  always  freemen,  and  capable  of 
becoming  gentlemen.* 


I  l^'^^'^.^'J*-  *0'  *3'  ^.  72, 101. 
'  Id.  p.  117. 

3  Domesday  Book  having  been  com- 
piled by  different  sets  of  commissioners, 
their  language  has  sometimes  varied  in 
descnbiiig  the  same  class  of  persons. 
The  liberi  homines,  of  whom  we  find  con- 
tinual mention  in  some  counties,  were 
perhaps  not  different  from  the  thaini, 
who  occur  in  other  places.  But  this 
subject  is  very  obscure  ;  and  a  clear  ap- 
prehension of  the  classes  of  society  men- 
tioned in  Domesday  seems  at  present 
unattainable. 

«  I*ges  Alfredi,  c.  83,  in  Wilkins. 
ihis  text  is  not  unequivocal ;  and  I  con- 
fess that  a  law  of  Ina  (c.  39)  has  rather 
»  contrary  appearance.    But  the  condi- 


tion of  all  ceoris  need  not  be  supposed  to 
have  been  the  same ;  and  in  the  latter 
period  this  can  be  shown  to  have  been 
subject  to  much  diversity. 
6  Leges  Inae,  c.  61,  ilid. 
•  Leges  Alflredi,  c.  81,  36. 
^  Leges  Athelstani,  ibid.  p.  70,  71. 
8  It  is  said  in  the  Introduction  to  the 
Supplementary  Records   of  Domesday, 
which  I  quote  from  Cooper's  Account  of 
Public  Records  (i.  223),  that  the  word 
commendatio   is  confined  to   the   three 
counties  in  the  second  volume  of  Domes- 
day, except  that  it  occurs  twice  in  the 
Inquisitio  Eliensis  for  Cambridgeshire. 
But,  if  this  particular  word  does  not  oc- 
cur, we  have  the  sense,  in  "  ire  cum  terra 
ubi  voluerit,"  or  "  quaerere  dominum 


262  CONDITION  OF  THE  CEORLS.    Chap.  VIII.  Pabt  u 

Some  might  be  inclined  to  suspect  that  the  ceorls  were 
gliding  more  and  more  towards  a  state  of  servitude  before  the 
conquest.^     The  natural  tendency  of  such  times  of  rapine, 
with  the  analogy  of  a  similar  change  in  France,  leads  to  this 
conjecture.    But  there  seems  to  be  no  proof  of  it ;  and  the  pas- 
sages which  recognize  the  capacity  of  a  ceorl  to  become  a 
thane  are  found  in  the  later  period  of  Anglo-Saxon  law.    Nor 
can  it  be  shown,  as  I  apprehend,  by  any  authority  earHer  than 
that  of  Glanvil,  whose  treatise  was  written  about  1180,  that 
the  peasantry  of  England  were  reduced  to  that  extreme  de- 
basement which   our  law-books  call  villenage ;   a  condition 
which  left  them  no  civil  rights  with  respect  to  their  lord. 
For,  by  the  laws  of  William  the  Conqueror,  there  was  still  a 
composition  fixed  for  the  murder  of  a  villein  or  ceorl,  the 
strongest  proof  of  his  being,  as  it  was  called,  law-worthy,  and 
possessing  a  rank,  however  subordinate,  in  political  society. 
And  this  composition  was  due  to  his  kindred,  not  to  the  lord.* 
Indeed,  it  seems  positively  declared  in  another  passage  that 
the  cultivators,  though  bound  to  remain  upon  the  land,  were 
only  subject  to  certain  services.*    Again,  the  treatise  denomi- 
nated the  Laws  of  Henry  I.,  which,  though  not  deserving 
that  appellation,  must  be  considered  as  a  contemporary  docu- 
ment, expressly  mentions  the  twyhinder  or  villein  as  a  freeman.* 
Nobody  can  doubt  that  the  mllani  and  bordarii  of  Domesday 
Book,  who  are  always  distinguished  from  the  serfs  of  the  de- 
mesne, were  the  ceorls  of  Anglo-Saxon  law.    And  I  presume 
that  the  socmen,  who  so  frequently  occur  in   that  record, 
though  far  more  in  some  counties  than  in  others,  were  ceorls 
more* fortunate  than  the  rest,  who  by  purchase  had  acquired 
freeholds,  or  by  prescription  and  the  indulgence  of  their  lords 
had  obtained  such  a  property  in  the  outlands  allotted  to  them 
that  they  could  not  be  removed,  and  in  many  instances  might 
dispose  of  them  at  pleasure.     They  are  the  root  of  a  noble 
plant,  the  free  socage  tenants,  or  English  yeomanry,  whose 
independence  has  stamped  with  peculiar  features  both  oui 
constitution  and  our  national  character.* 

Beneath  the  ceorls  in  political  estimation  were  the  con 

ubl  voltierit,"  which  meet  our  eyes  per-    those  of  his  predec^r  Edward,  thejr 


petuaUy  in  the  first  volume  of  Domeaday 
The  difference  of  phrases  in  this  record 
must,  in  great  measure,  be  attributed  to 
that  of  the  persons  employed. 

»  If  the  laws  that  bear  the  name  of    Wilkins. 
William  are,  as  is  generally  supposed,       »  [NoitHI.]   />.35  8 


were  already  annexed  to  the  soil.  p.  236. 
«  Wilkins,  p.  221. 

3  Id.  p.  225.  _    . 

4  Leges,  Uenr.    I.    3.  70  and  76,  ia 


EVGUSH  C02fST. 


BRITISH  NATIVES. 


263 


quered  natives  of  Britain.     In  a  war  so  long  and  British 
80  obstinately  maintained  as  that  of  the  Britons  ^^^^ 
against  their  invaders,  it  is  natural  to  conclude  that  in  a  great 
part  of  the  country  the  original  inhabitants  were  ahnost  ex- 
Urpated,  and  that  the  remainder  were  reduced  into  servitude. 
This,  till  lately,  has  been  the  concurrent  opinion  of  our  anti- 
quaries ;  and,  with  some  qualification,  I  do  not  see  why  it 
should  not  still  be  received.*     In  every  kingdom  of  the  con- 
^nent  which  was  formed  by  the  northern  nations  out  of  the 
Koman  empire,  the  Latin  language  preserved  its  superiority, 
and  has  much  more  been  corrupted  through  ignorance  and 
want  of  a  standard,  than  intermingled  with  their  original 
Idiom.     But  our  own  language  is,  and  has  been  from  the 
earhest  times  after  the  Saxon  conquest,  essentiaUy  Teutonic, 
and  of  the  most  obvious  affinity  to  those  dialects  which  are 
spoken  in  Denmark  and  Lower  Saxony.     With  such  as  are 
extravagant  enough  to  controvert  so  evident  a  truth  it  is  idle 
to  contend ;  and  those  who  believe  great  part  of  our  language 
to  be  borrowed  from  the  Welsh  may  doubtless  infer  that  grSt 
part  of  our  population  is  derived  from  the  same  source.^    If 
we  look  through  the  subsistmg  Anglo-Saxon  records,  there  is 
not  very  frequent  mention  of  British  subjects.     But  some 
undoubtedly  there  were  in  a  state  of  freedom,  and  possessed 
of  landed  estate.    A  Welshman  (that  is,  a  Briton)  who  held 


si  to  mention  a  partial 


>  [Note  IV.] 

*  It  is  but  jus 
exception,  according  to  a   considerable 
authority,  to  what  has  been  said  in  the 
text  as  to  the  absence  of  British  roots  in 
the  EnglLsh  language ;  though  it  can  but 
slightly  affect    the  general  proposition. 
Mr.   Kemble    remarks    the  number  of 
minute  distinctions,    in    describing  the 
local  features  of  a  country,  which  abound 
in  the  Anglo-Saxon  charters,  and  thediffl- 
culticH  which  occur  in  their  explanation. 
One  of  these  relates  to  the  language  it- 
self.   "  It  cannot  be  doubtful  that  local 
names,  and  those  devoted  to  distinguish 
the  natural  features  of  a  country,  possess 
an  inherent  Titality,  which  even  the  ur- 
gency of  conquest  is  frequently  unable 
to  destroy.    A  race  is  rarely  so  entirely 
removed  as  not  to  form  an  integral,  al- 
though subordinate,  part  of  the  new  state 
based  upon  its  ruins ;  and  in  the  case 
where  the  cultivator  continues  to  be  oc- 
cupied with  the  soil,  a  change  of  master 
will  not  necessarily  lead  to  the  abandon- 
ment of  the  names  by  which   the  land 
llMlf,  and  the  instruments  or  r  ''^'ocsses 


of  labor  are  designated.    On  the  con- 
trary, the  conquering  race  ar«  apt  to 
adopt  these  names  from  the  conquered : 
and  thus,  after  the  lapse  of  twelve  cen- 
turies and  innumerable  civil  convulsions. 
the  principal  words  of  the  class  described 
yet    prevail    in    the    language   of    our 
people,  and  partially  in  our  literature. 
Many,  then,  of  the  words  which  we  seek 
in  vain  in  the  Anglo-Saxon  dictionaries, 
are,  in  fact,  to  be  sought  in  those  of  the 
Cymri,  from   whose  practice  they  were 
adopted  by  the  victorious  Saxons,  in  all 
parts  of  the  country  ;  and  they  are  not 
Anglo-Saxon,  but  Welsh  (i.  e.  foreign, 
Wylisc),    very     frequently    unmodified 
either  in   meaning  or    pronunciation." 
Preface  to  Codex  Diplom.  vol.  iii.  p.  15. 
Though  this   bears  intrinsic  marks  of 
probability,  it  is  yet  remarkable  that,  in 
a  long  list    of  descriptive  words  which 
immediately  follows,  there  are  not  six 
for  which  Mr.  Kemble  suggests  a  Cam- 
brian root :  and  of  these  some,  such  as 
comb,  a  valley,  belong  to   parts  of  Eng- 
land where  the  British  long  kept  their 
ground 


264 


THE  WITENAGEMOT.       Chap.  VIII.  Part  L 


£kgush  Const. 


JUDICIAL  POWER. 


265 


I 


'if 


* 


five  hydes  was  raised,  like  a  ceorl,  to  the  dignity  of  thane.* 
In  the  composition,  however,  for  their  Uves,  and  consequently 
in  their  rank  in  society,  they  were  inferior  to  the 
®^^**'  meanest  Saxon  freemen.     The  slaves,  who  were 

frequently  the  objects  of  legislation,  rather  for  the  purpose 
of  ascertaining  their  punishment  than  of  securing  their  rights, 
may  be  presumed,  at  least  in  early  times,  to  have  been  part 
of  the  conquered  Britons.  For  though  his  own  crimes,  or 
the  tyranny  of  others,  might  possibly  reduce  a  Saxon  ceorl 
to  this  condition,^  it  is  inconceivable  that  the  lowest  of  those 
who  won  England  with  their  swords  should  in  the  establish- 
ment of  the  new  kingdoms  have  been  left  destitute  of  per- 
sonal liberty. 

The  great  council  by  which  an  Anglo-Saxon  king  was 
The  witen-  guided  in  all  the  main  acts  of  government  bore  the 
agexnot.  appellation  of  Witenagemot,  or  the  assembly  of 
the  wise  men.  All  their  laws  express  the  assent  of  this 
council ;  and  there  are  instances  where  grants  made  without 
its  concurrence  have  been  revoked.  It  was  composed  of 
prelates  and  abbots,  of  the  aldermen  of  shires,  and,  as  it  is 
generally  expressed,  of  the  noble  and  wise  men  of  the  king- 
dom.* Whether  the  lesser  thanes,  or  inferior  proprietors  of 
lands,  were  entitled  to  a  place  in  the  national  council,  as 
they  certainly  were  in  the  shiregemot,  or  county-court,  is  not 
easily  to  be  decided.  Many  writers  have  concluded,  f-om  a 
passage  in  the  History  of  Ely,  that  no  one,  however  nobly 
bom,  could  sit  in  the  witenagemot,  so  late  at  least  as  the  reign 
of  Edward  the  Confessor,  unless  he  possessed  forty  hydes  of 
land,  or  about  five  thousand  acres.*  But  the  passage  in 
question  does  not  unequivocally  relate  to  the  witenagemot ; 
and  being  vaguely  worded  by  an  ignorant  monk,  who  perhaps 
had  never  gone  beyond  his  fens,  ought  not  to  be  assumed  as 
an  incontrovertible  testimony.  Certainly  so  very  high  a 
quahfication  cannot  be  supposed  to  have  been  requisite  in  the 
kingdoms  of  the  Heptarchy ;  nor  do  we  find  any  collateral 
evidence  to  confirm  the  hypothesis.  If,  however,  all  the  body 
of  thanes  or  freeholders  were  admissible  to  the  witenagemot, 
it  is  unlikely  that  the  privilege  should  have  been  fully  exer- 
cised.   Very  few,  I  believe,  at  present  imagine  that  there 


1  LegM  Ime,  p.  18;  Leg.  Athelat.  p.  71. 
*  Leges  InsB,  c.  24. 

>L^s    Aaglo-Sazon.      In    Wilkins, 
pMsim. 


*  Quoniam  ille  quAdragint&  hydarum 
terrsc  domiQium  miuime  obtineret,  licet 
nobilis  esset,  inter  proceres  tunc  numer- 
ari  non  potuit.    3  Qale,  p.  518. 


was  any  representative  system  in  that  age;  much  less  that 
the  ceorls  or  mfenor  freemen  had  the  smallest  share  in  the 
deliberations  of  the  national  assembly.  Every  argument 
which  a  spint  of  controversy  once  pressed  into  this  service 
has  long  since  been  victoriously  refuted.' 

It  has  been  justly  remarked  by  Hume,  that,  among  a  peo- 
pie  who  hved  in  so  simple  a  manner  as  these  j„«eia, 
Anglo-haxons,  the  judicial  power  is  always  of  p"""- 
ZZ  f"'f1"^°««  than  the  legislative.    The  liberties  of 

BM^A'^r^^f^^^^'^-^'^^^'^^y  ««<='"-«<^'  °«t  to  their 
swords  and  their  free  spirits,  by  the  inestimable  right  of 

fn  in'^n  7''  '^^<=r'°^  ^"''^  ■■>  their  own  county-courts 
«hm!i  "  "^  ^^'t'  ^^^'°S  '"^'^^^  the  conquest,  and  con! 
tnbuted  m  no  small  degree  to  fix  the  liberties  of  EnMand 
upon  a  broad  and  popular  basis,  by  limiting  the  feudal'aris- 

S'c?Son~'°"  ^°  '■°"°^'"="  '''  ^'-^  of  the 
^    The  division  of  the  kingdom  into  counties,  and  of  these 
into  hundreds  and  decennaries,  for  the  purpose  of  ^.        f 
administering  justice,  was  not  peculiar  to  England.  SXnti^; 
m  the  early  laws  of  France  and  Lombardv  fre-  *^"°<^?». 
quent  mention  is  made  of  the  hundred-court,  and  ^-ss!' 
now  and  then  of  those  petty  village-magistrates  who  in  En- 
land  were  called  tything-men.    It  ha^  been  usual  to  ascribe  the 
establishment  of  this  system  among  our  Saxon  ancestry 
Alfred  upon  the  authority  of  Ingulfus,  a  writer  contemporaiy 
with  the  conquest.     But  neither  the  biographer  of  Alfred 

t^ZT r^'.'"''''^''^  ^^^^  "^  '^^'  prince,  bear  testimony 
to  the  facL     With  respect  indeed  to  the  division  of  counties^ 

tW  t!^  g^7f  ^°?e°t  by  aldermen  and  sheriff's,  it  is  certain 
that  both  existed  long  before  his  time;  ^  and  the  utmost  that 
can  be  supposed  is,  that  he  might  in  some  instances  have 
ascertamed  an  unsettled  boundary.     There  does  not  seem  to 

'[NotbV.]  ^.  SS3. 

'8,  is  well  aa  the  alderman 


J  Counties,  _    _   ,„,  a.uerman 

who  presided  over  them,  are  mentioned 
in  the  laws  of  Ina,  c.  86. 

For  the  division  of  counties,  which 
were  not  always  formed  in  the  same  aire 
?i°J  ^itr'**^  same  plan,  see  Palgrave,  i. 
no.  We  do  not  know  much  about  the 
Inland  counties  in  general ;  those  on  the 
ooasta  aro  in  general  larger,  and  are 
mentioned  in  history.  All  we  can  say 
Is,  that  they  all  existed  at  the  conquest 
••  at  present.    The  hundred  is  supposed 


by  Sir  H.  Ellis,  on  the  authority  of  an 
ancient  record,  to  have  consisted  of  an 
hundred  hydes  of  land,  cultivated  and 
waste  tjiken  together.  Introduction  to 
Domesday,  i.  185.  But  this  implies 
equality  of  size,  which  is  evidently  not 
the  case.  A  passage  in  the  Dialogus  de 
Scaccario  (p.  31)  is  conclusive :  —  Hyda  a 
pnmitiva  institutione  in  centum  acris 
constat:  hundredus  est  ex  hydarum  ali- 
quot centenariis,  sed  non  determinatis  ; 
quidam  «nim  ex  pluribus,  quidam  ex 
paucionbus  hydis  conatat. 


266 


JUDICIAL  DIVISION.     Chap.  VUl.  Part  I. 


I 


be  equal  evidence  a3  to  the  antiquity  of  the  minor  divisions. 
Hundreds,  I  think,  are  first  mentioned  in  a  law  of  Edgar, 
and  tythings  in  one  of  Canute.*  But  as  Alfred,  it  must  be 
remembered,  was  never  master  of  more  than  half  the  king- 
dom, the  complete  distribution  of  England  into  these  districts 
cannot,  upon  any  supposition,  be  referred  to  him. 

There  is,  indeed,  a  circumstance  observable  in  this  division 
which  seems  to  indicate  that  it  could  not  have  taken  place  at 
one  time,  nor  upon  one  system ;  I  mean  the  extreme  inequal- 
ity of  hundreds  in  different  parts  of  England.  Whether 
the  name  be  conceived  to  refer  to  the  number  of  free  fami- 
lies, or  of  landholders,  or  of  petty  vills,  forming  so  many  asso- 
ciations of  mutual  assurance  or  frank-pledge,  one  can  hardly 
doubt  that,  when  the  term  was  first  applied,  a  hundred  of  one 
or  other  of  these  were  comprised,  at  an  average  reckoning, 
within  the  district  But  it  is  impossible  to  reconcile  the  vary- 
ing size  of  hundreds  to  any  single  hypothesis.  The  county 
of  Sussex  contains  sixty-five,  that  of  Dorset  forty-three ; 
while  Yorkshire  has  only  twenty-six,  and  Lancashire  but  six. 
No  difference  of  population,  though  the  south  of  England 
was  undoubtedly  far  the  best  peopled,  can  be  conceived  to 
account  for  so  prodigious  a  disparity.  I  know  of  no  better 
solution  than  that  the  divisions  of  the  north,  properly  called 
wapentakes,^  were  planned  upon  a  different  system,  and  ob- 
tained the  denomination  of  hundreds  incorrectly  after  the 
union  of  all  England  under  a  single  sovereign. 

Assuming,  therefore,  the  name  and  partition  of  hundreds 
to  have  originated  in  the  southern  counties,  it  will  rather,  I 
think,  appear  probable  that  they  contained  only  an  hundred 
free  families,  including  the  ceorls  as  well  as  their  landlords. 
If  we  suppose  none  but  the  latter  to  have  been  numbered, 
we  should  find  six  thousand  thanes  in  Kent,  and  six  thousand 
five  hundred  in  Sussex ;  a  reckoning  totally  inconsistent  with 
any  probable  estimate.*  But  though  we  have  little  direct 
testimony  as  to  the  population  of  those  times,  there  is  one 
passage  which  falls  in  very  sufficiently  with  the  former  sup- 
position. Bede  says  that  the  kingdom  of  the  South  Saxons, 
comprehending  Surrey  as  well  as  Sussex,  contained  seven 


I  WUkins,  pp.  87,  136.    The  former, 
however,  refers  to  them  as  an  ancient 
institution  :  quseratur  centnriae  conven- 
tu9,  sicut  antea  institutum  erat. 

«  Legea  Edwardi  Confess,  c.  33. 


3  It  would  be  easy  to  mention  par- 
ticular hundreds  in  these  counties  so 
small  as  to  render  this  supposition  quite 
ridiculous. 


toOLisH  COMST.  THE  COUNTY-COURT.  267 

8.x  y-five  hundreds,  which  comes  at  least  close  enough  to  prove 
tha  free  fam.hes,  rather  than  proprietors,  were  the  subjTct 
of  that  numeration.    And  this  is  the  interpretation  of  Du 

fsSttr " "  *"  *^  ^""^"^  '*"'*  ^-°-  o'  '•>- 

in  iT""'  ''"'•  A^'  ^T  ^"""^^  notwithstanding  a  passage 

vt Sn™'^"'^''  "^  ^i"""'^  "■«  Confessor,'  ^hetherX 

ma  1  El     hP"'''''""^  ^"^  j"'"'^''^'  ■"'^gi^t-^y  oyer  his 

Mtt  con^^tl.       •'"*''  ""T  P™'''''*'^'  ""'«  <^'«"''''«"'  from  a 

aenommation  of  office  is  preserved.  The  court  of  the  hun- 
dred was  held,  as  on  the  continent,  by  iu  o,vn  centen^ufor 
hundred-man,  more  often  called  alderman,  and,  °n  ^1^0°- 
man  Umes  bailiff  or  constable,  but  under' the  'sher^ff^  ?X 

And  n  t  T^'f'c*"^*"  ^'^'  *"  '^^"^'  t°"™  and  leet 
And  m  the  Anglo-Saxon  age  it  was  a  court  of  justice  for 
suitors  w.,hm  the  hundred,  though  it  could  not  eiecute  Z 
process  beyond  that  limit.  It  afso  punished  slroffence^ 
and  was  mtrusted  with  the  "view  of  frank-pledge,"  a«id  the 
mamtenance  of  the  great  police  of  mutual  surety.  I^some 
««es,  that  IS,  when  the  hundred  was  competent  to  render 
judgment  u  seems  that  the  county-court  could  only  exewise 

^nr'St  ^r"'"'""/"'  '4'  '^  "eht  in  theV^tri! 
S  ...  I-  '^"'■'^  "^  '"""   ^^^  ^'^"er  and  more  cele- 
»Tif  M  ,,'■''<•'""'?  ^^niPo^ed  of  far  more  conspicuous  judges 
and  held  before  the  bishop  and  the  earl,  beci^ue  the  real  ^-' 
b.er  of  important  suits;  and  the  court-leet  fell  almost  entireTy 
into  disuse  as  a  cml  jurisdiction,  contenting  itself  with  pu^ 
^hing  pet^  offences  and  keeping  up  a  local  police.'    It  w^ 
however,  to  the  county-court  that  an  EnWish  free-  r     . 
man  chiefly  looked  for  the  maintenance  o^fhis  civil  «o™tr 
nghts.     In  this  assembly,  held  twice  in  the   year   by  the 
bishop  and  the  alderman,'  or,  in  his  absence,  the  sheriff  the 
oath  of  allegiance  was  administered  to  all  frUmen,  Ses 
of  the  peace  were  inquired  into,  crimes  were  in^estS 

»[N0TE  VI.l  ?^„?  had  aldermen  from  time  immemo- 

»  The  alderian  was  the  hiehe^t  raTik    t^L.^I^^        conquest  the  title  seems 

after  the  royal  famil^tTwhiSfhfsoLt    ^tiS^!^'''^^''^'^'^^'^'^^^^'^^^'^^ 


268 


THE  COUNTY-COUET.    Chap.  Vm.  Pakt  L 


Emoush  Const. 


THE  COUNTY-COURT. 


269 


and  claims  were  determined.  I  assign  all  these  functions  to 
the  county-court  upon  the  supposition  that  no  other  subsisted 
during  the  Saxon  times,  and  that  the  separation  of  the 
sheriff's  tourn  for  criminal  junsdiction  had  not  yet  taken 
place ;  which,  however,  I  cannot  pretend  to  determine.^ 
A  very  ancient  Saxon  instrument,  recording  a  suit  in  the 
county-court  under  the  reign  of  Canute,  has  been 
coun^-  published  by  Hickes,  and  may  be  deemed  worthy 
'^^''  of  a  literal  translation  in  this  place.     "  It  is  made 

known  by  this  writing  that  in  the  shiregemot  (county-court) 
held  at  Agelnothes-stane  (Aylston  in  Herefordshire)  in  the 
reign  of  Canute  there  sat  Athelstan  the  bishop,  and  Ranig 
the  alderman,  and  Edwin  his  son,  and  Leofwin  Wulfig's  son ; 
and  Thurkil  the  White  and  Tofig  came  there  on  the  king's 
business ;  and  there  were  Bryning  the  sheriff,  and  Athel- 
weard  of  Frome,  and  Leofwin  of  Frome,  and  Goodric  of 
Stoke,  and  all  the  thanes  of  Herefordshire.  Then  came  to 
the  mote  Edwin  son  of  Enneawne,  and  sued  his  mother  for 
some  lands,  called  Weolintun  and  Cyrdeslea.  Then  the 
bishop  asked  who  would  answer  for  his  mother.  Then  an- 
swered Thurkil  the  White,  and  said  that  he  would,  if  he 
knew  the  facts,  which  he  did  not  Then  were  seen  in  the 
mote  three  thanes,  that  belonged  to  Feligly  (Fawley,  five 
miles  from  Aylston),  Leofwin  of  Frome,  -^gelwig  the  Red, 
and  Thinsig  Staegthman ;  and  they  went  to  her,  and  inquired 
what  she  had  to  say  about  the  lands  which  her  son  claimed. 
She  said  that  she  had  no  land  which  belonged  to  him,  and  fell 
into  a  noble  passion  against  her  son,  and,  calling  for  Leofleda 
her  kinswoman,  the  wife  of  Thurkil,  thus  spake  to  her  before 
them :  *  This  is  Leofleda  my  kinswoman,  to  whom  I  give  my 
lands,  money,  clothes,  and  whatever  I  possess  after  my  life : ' 
and  this  said,  she  thus  spake  to  the  thanes :  *  Behave  like 
thanes,  and  declare  my  message  to  all  the  good  men  in  the 
mote,  and  tell  them  to  whom  I  have  given  my  lands 
and  all  my  possessions,  and  nothing  to  my  son  ; '  and  bade 
them  be  witnesses  to  this.  And  thus  they  did,  rode  to  the 
mote,  and  told  all  the  good  men  what  she  had  enjoined  them. 
j  Then  Thurkil  the  White  addressed  the  mote,  and  requested 
I  all  the  thanes  to  let  his  wife  have  the  lands  which  her  kins- 
'  woman  had  given  her ;  and  thus  they  did,  and  Thurkil  rode 

1  Thh  point  is  obscure ;  but  I  do  not    tin^ish  the  ciril  from  the  criminal  tri* 
perceiye  Uiat  the  Anglo-Saxon  laws  dis-    bunal. 


"h^    I 


to  the  church  of  St.  Ethelbert,  with  the  leave  and  witness  of  1  ^^ '/» ^  ^"h  - 
ail   the  people,  and   had   this   inserted   in  a   book  in  the  (  ^^^^^^-7 
church."  1  "^  \   ^.  ,^,a{^J^ 

It  may  be  presumed  from  the  appeal  made  to  the  thanes 
present  at  the  county-court,  and  is  confirmed  by  other  ancient 
authonties,^  that  all  of  them,  and  they  alone,  to  the  exclusion 
of  inferior  freemen,  were  the  judges  of  civil  controversies. 
1  he  latter  mdeed  were  called  upon  to  attend  its  meetings,  or, 
m  the  language  of  our  present  law,  were  suitors  to  the  court 

nJlli  7??  ^T^  ^^  u^  ^^'^''^'     ^"^  ^^'  ^'^  «"  account  of 
other  duties,  the  oath  of  allegiance  which  they  were  to  take, 

or  the  frank-pledges  into  which  they  were  to  enter,  not  ii^ 
order  to  exercise  any  judicial  power ;  unless  we  conceive  that 
the  disputes  of  the  ceorls  were  decided  by  judges  of  their 
own  rank.  It  is  more  important  to  remark  the  crude  state 
of  legal  process  and  inquiry  which  this  instrument  denotes. 
Without  any  regular  method  of  instituting  or  conducting 
causes,  the  county-court  seems  to  have  had  nothing  to  recom- 
mend  it  but,  what  indeed  is  no  trifling  matter,  fts  security 
from  corruption  and  tyranny ;  and  in  the  practical  jurispru- 
dence of  our  Saxon  ancestors,  even  at  the  beginning  of 
the  eleventh  century,  we  perceive  no  advance  of  civility  and 

hnnlf  T..  'irf^'"  V^'''  ^^^'^  '^^^Se  progenitors  on  the 
banks  of  the  Elbe.  No  appeal  could  be  made  to  the  royal 
hibunal,  unless  justice  was  denied  in  the  county-court.' 
Ihis  was  the  great  constitutional  judicature  in  all  questions 
of  civil  right.  In  another  instrument,  published  by  Hickes, 
of  the^e  of  Ethelred  II.,  the  tenant  of  lands  which  were 
claimed  m  the  kings  court  refused  to  submit  to  the  decree  of 
that  tribunal,  without  a  regular  trial  in  the  county ;  which 
was  accordingly  granted.*  There  were,  however,  royal 
judges,  who,  either  by  way  of  appeal  from  the  lower  courts, 
or  m  excepted  cases,  formed  a  paramount  judicature ;  but 


»  nickes,  Dlflsertatio  Epistolaris,  p.  4. 
In  Thesaurus  Antiquitatum  Septentrion 
TOI.  Id.     '« Before  the  Conquest,"  says 
Gurdon    (on    Courts-Baron,     p.    589), 

grants  were  enrolled  in  the  shire-book 
In  public  shire-mote,  after  proclamation 
made  for  any  to  come  in  that  could  claim 
the  lands  conveyed  ;  and  this  waa  as  ir- 
reversible as  the  modern  fine  with  proc- 
lamations, or  recovery."  This  may  be 
■o;  but  the  county-court  has  at  least 
long  ceased  to  be  a  court  of  record  :  and 
cm  would  ask  for  proof  of  the  assertion. 


The  book  kept  in  the  chureh  of  St 
Ethelbert,  wherein  Thurkil  is  said  to 
have  inserted  the  proceedings  of  th« 
county -court,  may  or  may  not  have  been 
a  public  record. 

I  Id.  p.  3.  Leges  Henr.  Pruni,  c  29. 
,ol^^^  Eadgari,  p.  77;  Canuti,  p. 
136;  Hennci  Primi,  c.  34.  I  quote  the 
latter  freely  as  Anglo-Saxon,  though 
posterior  to  the  conquest;  their  spirit 
being  perfectly  of  the  former  period. 

*  Dissertatio  Epistolaris,  p.  6. 


270 


TRIAL  BY  JUBY.        Chap.  VHI.  Part  I. 


EvGLxsH  Const. 


TRIAL  BY  JUBY. 


271 


I 


how  their  court  was  composed  under  the  Anglo-Saxon  sover- 
eigns I  do  not  pretend  to  assert.^ 

It  had  been  a  prevailing  opinion  that  trial  by  jury  may  be 
Trial  by  referred  to  the  Anglo-Saxon  age,  and  common 
i»«y-  tradition  has  ascribed  it  to  the  wisdom  of  Alfred. 

In  such  an  historical  deduction  of  the  English  government  as 
I  have  attempted,  an  institution  so  peculiarly  characteristic 
deserves  every  attention  to  its  origin ;  and  I  shall,  therefore, 
produce  the  evidence  which  has  been  supposed  to  bear  upon 
this  most  eminent  part  of  our  judicial  system.  The  first  text 
of  the  Saxon  laws  which  may  appear  to  have  such  a  mean- 
ing is  in  those  of  Alfred.  "  If  any  one  accuse  a  king's  thane 
of°homicide,  if  he  dare  to  purge  himself  (ladian),  let  him  do 
it  along  with  twelve  king's  thanes."  "  If  any  one  accuse  a 
thane  of  less  rank  (laessa  maga)  than  a  king's  thane,  let  him 
purge  himself  along  with  eleven  of  his  equals,  and  one  king's 
thane."  2  This  law,  which  Nicholson  contends  to  mean  noth- 
ing but  trial  by  jury,  has  been  referred  by  Hickes  to  that 
ancient  usage  of  compurgation,  where  the  accused  sustained 
his  own  oath  by  those  of  a  number  of  his  friends,  who 
pledged  their  knowledge,  or  at  least  their  belief,  of  his  inno- 


cence. 


8 


In  the  canons  of  the  Northumbrian  clergy  we  read  as  fol- 
lows :  "  If  a  king's  thane  deny  this  (the  practice  of  heathen 
superstitions),  let  twelve  be  appointed  for  him,  and  let  him  take 
twelve  of  his  kindred  (or  equals,  maga)  and  twelve  British 
strangers  ;  and  if  he  fail,  then  let  him  pay  for  his  breach  of 
law  twelve  half-marcs :  If  a  landholder  (or  lesser  thane) 
deny  the  charge,  let  as  many  of  his  equals  and  as  many 
strangers  be  taken  as  for  a  royal  thane ;  and  if  he  fail,  let 
him  pay  six  half-marcs :  If  a  ceorl  deny  it,  let  as  many  of 
his  equals  and  as  many  strangers  be  taken  for  him  as  for  the 
others ;  and  if  he  fail,  let  him  pay  twelve  one  for  his  breach 
of  law."*     It  is  difficult  at  first  sight  to  imagine  that  these 


1  Madox,  History  of  the  Exchequer, 
p.  (55  will  not  admit  the  existence  of  any 
court  analogous  to  the  Curia  Regis 
before  '.he  conquest;  all  pleas  being 
determined  in  the  county.  There  are, 
however,  several  instances  of  decisions 
before  the  king;  and  in  some  cases  it 
seems  that  the  witena^mot  had  a  judi- 
cial authority.  Leges  Canutl,  p.  135, 136; 
BUst.  Eliensis,  p.  469;  Ghron.  Sax.  p. 
109.    In  the  L^  Hear.  I.  c.  10,  the 


limits  of  the  royal  and  local  jurisdictions 
are  defined,  as  to  criminal  matters,  and 
seem  to  have  been  little  changed  since 
the  reign  of  Canute,  p.  186  [1818J. 
[NOTK  VIT.l 
«  Leges  Alfredi,  p.  47.  ^     , 

8  Nicholson,  Prefetio  ad  Leges  Anglo- 
Saxon.;   WilkinsH,   p.  10;  Hickes,  Dis- 
sertatio  Epistolaris. 
4  Wilkins,  p.  100. 


thirty-six  so  selected  were   merely  compurgators,   since   it 
seems  absurd  that  the  judge  should  name  indifferent  persons, 
who  without  inquiry  were  to  make  oath  of  a  party's  inno- 
cence.    Some   have   therefore   conceived  that,  in   this  and 
other  instances   where   compurgators   are   mentioned,  they 
were  virtually  jurors,  who,  before  attesting  the  facts,  were  to 
inform  their  consciences  by  investigating  them.     There  are 
however  passages  in  the  Saxon  laws  nearly  parallel  to  that 
just  quoted,  which  seem  incompatible  with  this  interpreta- 
tion.    Thus,  by  a  law  of  Athelstan,  if  any  one  claimed  a  stray 
ox  as  his  own,  five  of  his  neighbors  were  to  be  assigned,  of 
whom  one  was  to  maintain  the  claimant's  oath.^     Perhaps 
the  principle  of  these  regulations,  and  indeed  of  the  whole 
law  of  compurgation,  is  to  be  found  in  that  stress  laid  upon 
general  character  which  pervades  the  Anglo-Saxon  jurispru- 
dence.    A  man  of  ill  reputation  was  compelled  to  under^ro  a 
tnple  ordeal,  in  cases  where  a  single  one  sufficed  for  persons 
ot  credit ;  a  provision  rather  inconsistent  with  the  trust  in  a 
miraculous  interposition  of  Providence  which  was  the  basis 
ot  that  superstition.     And  the  law  of  frank-pledge  proceeded 
upon  the  maxim  that  the  best  guarantee  of  every  man's  obe- 
dience to  the  government  was  to  be  sought  in  the  confidence 
ot  his  neighbors.     Hence,  while  some  compurgators  were  to 
be  chosen  by  the  sheriff,  to  avoid  partiality  and  collusion,  it 
was  still  intended  that  they  should  be  residents  of  the  vicin- 
age, witnesses  of  the  defendant's  previous  hfe,  and  competent 
to  esbmate  the  probability  of  his  exculpatory  oath.      For 
the    British    strangers,  in    the    canon   quoted   above,  were 
certainly  the  original  natives,  more  intermingled  with  their 
conquerors,  probably,  in  the  provinces  north  of  the  Humber 
than  elsewhere,  and  still  denominated  strangers,  as  the  dis- 
tmction  of  races  was  not  done  away. 

^  If  in  this  instance  we  do  not  feel  ourselves  wan-anted  to 
infer  the  existence  of  trial  by  jury,  still  less  shaU  we  find 
even  an  analogy  to  it  in  an  article  of  the  treaty  between 
England  and  Wales  during  the  reign  of  Ethelred  H. 
Twelve  persons  skilled  in  the  law,  six  English  and  six 
Welsh,  shall  instruct  the  natives  of  each  country,  on  pain  of 
forfeiting  their  possessions,  if,  except  through  ignorance,  they 
give  false  information."  ^  This  is  obviously  but  a  regulation 
mtended  to  settle  disputes  among  the  Welsh  and  English,  to 

»  I/5ge»  AthelfltanI,  p.  68  i  Leges  Ethelredi,  p.  126. 


272 


TRIAL  BY  JURY.         Chap.  VUI.  Pakt  I 


which  their  ignorance  of  each  other's  customs  might  give 

rise. 

By  a  law  of  the  same  prince,  a  court  was  to  be  held  in 
every  wapentake,  where  the  sheriff  and  twelve  principal 
thanes  should  swear  that  they  would  neither  acquit  any 
criminal  nor  convict  any  innocent  person.*  It  seems  more 
probable  that  these  thanes  were  permanent  assessors  to  the 
sheriff,  like  the  scabini  so  frequently  mentioned  m  the  early 
laws  of  France  and  Italy,  than  jurors  indiscriminately  selected. 
This  passage,  however,  is  stronger  than  those  which  have 
been  already  adduced ;  and  it  may  be  thought,  perhaps,  with 
justice,  that  at  least  the  seeds  of  our  present  form  of  trial 
are  discoverable  in  it.  In  the  History  of  Ely  we  twice  read 
of  pleas  held  before  twentv-four  judges  in  the  court  of  Cam- 
bridge ;  which  seems  to  nave  been  formed  out  of  several 
neighboring  hundreds.'* 

But  the  nearest  approach  to  a  regular  jury  which  has 
been  preserved  in  our  scanty  memorials  of  the  Anglo-Saxon 
age  occurs  in  the  history  of  the  monastery  of  Ramsey.  A 
controversy  relating  to  lands  between  that  society  and  a  cer- 
tain nobleman  was  brought  into  the  county-court,  when  each 
party  was  heard  in  his  own  behalf.  After  this  commence- 
ment, on  account  probably  of  the  length  and  difficulty  of  the 
investigation,  it  was  referred  by  the  court  to  thirty-six  thanes, 
equally  chosen  by  both  sides."  And  here  we  begin  to  per- 
ceive the  manner  in  which  those  tumultuous  assemblies,  the 
mixed  body  of  freeholders  in  their  county-court,  slid  gradu- 
ally into  a  more  steady  and  more  diligent  tribunal.  But  this 
was  not  the  work  of  a  single  age.  In  the  Conqueror's  reign 
we  find  a  proceeding  very  similar  to  the  case  of  Ramsey,  in 
which  the  suit  has  been  commenced  in  the  county-court,  be- 
fore it  was  found  expedient  to  remit  it  to  a  select  body  of 
freeholders.  In  the  reign  of  William  Rufus,  and  down  to 
that  of  Henry  II.,  when  the  trial  of  writs  of  right  by  the 
grand  assize  was  introduced,  Hickes  has  discovered  other  in- 
stances of  the  original  usage.*  The  language  of  Domesday 
Book  lends  some  confirmation  to  its  existence  at  the  time  of 
that  survey ;  and  even  our  common  legal  expression  of  trial 
by  the  country  seems  to  be  derived  from  a  period  when  the 
form  was  literally  popular. 

»  Leges  Ethelredi,  p.  117.  •  Hist.  Ramsey,  Id.  p.  416. 

*  Uiat.  EUensis,  in  Gale's  Scriptores       <  Hickesii  Dissertatio  Epistolaris,  p.  88, 
iii.  p.  471  and  478.  86. 


XVOLXSH  Const.       LAW  OF  FRANK-PLEDGE. 


273 


In  comparmg  the  various  passages  which  I  have  quoted  it 
IS  impossible  not  to  be  struck  with  the  preference  given  to 
twelve,  or  some  multiple  of  it,  in  fixing  the  number  either  of 
judges  or  compurgators.     This  was  not  peculiar  to  England. 
Spelman  has  produced  several  instances  of  it  in  the  early 
German  laws.     And  that  number  seems  to  have  been  re- 
garded with  equal  veneration  in  Scandinavia.'     It  is  very 
immaterial  from  what  caprice  or  superstition  this  predilection 
arose.     But  its  general  prevalence  shows  that,  in  searchin^r 
for  the  origin  of  trial  by  jury,  we  cannot  rely  for  a  moment 
upon  any  analogy  which  the  mere  number  affords.     I  am  in- 
duced to  make  this  observation,  because  some  of  the  pas- 
sages which  have  been  aUeged  by  eminent  men  for  the  pur- 
pose of  estabHshing  the  existence  of  that  institution  before 
the  conquest  seem  to  have  little  else  to  support  them.^ 

There  is  certainly  no  part  of  the  Anglo-Saxon  polity  which 
has  attracted  so  much  the  notice  of  modem  times 
as  the  law  of  frank-pledge,  or  mutual  responsi- feUk? 
bility  of  the  members  of  a  tything  for  each  other's  p^®*^' 
abiding  the  course  of  justice.     This,  like  the  distribution  of 
hundreds  and  tythings  themselves,  and  like  trial  by  jury,  has 
been  generaUy  attributed  to  Alfred ;  and  of  this,  I  suspect, 
we  must  also  deprive  him.    It  is  not  surprising  that  the  great 
services  of  Alfred  to  his  people  m  peace  and  in  war  should 
have  led  posterity  to  ascribe  every  institution,  of  which  the 
beginning  was  obscure,  to  his  contrivance,  till  his  fame  has 
become  ahnost  as  fabulous  in  legislation  as  that  of  Arthur  in 
arms.     The  English  nation  redeemed  from  servitude,  and 
their  name  from  extinction ;  the  lamp  of  learning  refreshed, 
when  scarce  a  glimmer  was  visible ;  the  watchful  observance 
of  justice  and  public  order;  these  are  the  genuine  praises  of 
Alfred,  and  entitle  him  to  the  rank  he  has  always  held  in 
men's  esteem,  as  the  best  and  greatest  of  English  kings.    But 
of  his  legislation  there  is  little  that  can  be  asserted  with  suffi- 
cient evidence ;  the  laws  of  his  time  that  remain  are  neither 
numerous  nor  particularly  interesting;  and  a  loose  report  of 
late  writers  is  not  sufficient  to  prove  that  he  compiled  a  dom- 
boc,  or  general  code  for  the  government  of  his  kingdom. 
An  ingenious  and  philosophical  writer  has  endeavored  to 

>BpAman'8  Glossary,  roc.  Jurat*;  Du    rol.  xxxl.  p.  115— a  most  leariMd  and 
Ottge,  TOO.  Nembda;  Sdinb.  BeTiow,    elaborate  essaj.  ^^  ^ 

«  [NOTB  vm.i 
TOL.  n.  13 


274 


LAW  OF  FRANK-PLEDGE.    Chaf.  Vm.  Pabt  L 


Engush  Const.      LAW  OF  FRANK-PLEDGE. 


275 


♦'^ 


found  the  law  of  frank-pledge  upon  one  of  those  general  prin- 
ciples to  which  he  always  loves  to  recur.     "  If  we  look  upon 
a  tything,"  he  says,  "  as  regularly  composed  of  ten  families, 
this  branch  of  its  police  will  appear  in  the  highest  degree 
artificial  and  singular ;  but  if  we  consider  that  society  as  of 
the  same  extent  with  a  town  or  village,  we  shall  find  that 
such  a  regulation  is  conformable  to  the  general  usage  of  bar- 
barous nations,  and  is  founded  upon  their  common  notions  of 
justice."^    A  variety  of  instances  are  then  brought  forward, 
drawn  from  the  customs  of  almost  every  part  of  the  world, 
wherein  the  inhabitants  of  a  district  have  been  made  answer- 
able for  crimes  and  injuries  imputed  to  one  of  them.     But 
none  of  these  fully  resemble  the  Saxon  institution  of  which 
we  are  treating.     They  relate  either  to  the  right  of  reprisals, 
exercised  with  respect  to  the  subjects  of  foreign  countries,  or 
to  the  indemnification  exacted  from  the  district,  as  in  our 
modem  statutes  which  give  an  action  in  certain  cases  of  fel- 
ony against  the  hundred,  for  crimes  which  its  internal  police 
was  supposed  capable  of  preventing.     In  the  Irish  custom, 
indeed,  which  bound  the  head  of  a  sept  to  bring  forward  every 
one  of  his  kindred  who  should  be  charged  with  any  heinous 
crime,  we  certainly  perceive  a  strong  analogy  to  the  Saxon 
law,  not  as  it  latterly  subsisted,  but  under  one  of  its  prior 
modifications.     For  I  think  that  something  of  a  gradual  pro- 
gression may  be  traced  to  the  history  of  this  famous  police, 
by  following  the  indications  afforded  by  those  laws  through 
which  alone  we  become  acquainted  with  its  existence. 

The  Saxons  brought  with  them  from  their  original  forests 
at  least  as  much  roughness  as  any  of  the  nations  which  over- 
turned the  Boman  empire ;  and  their  long  struggle  with  the 
Britons  could  not  contribute  to  polish  their  manners.    The 
royal  authority  was  weak ;  and  little  had  been  learned  of  that 
regular  system  of  government  which  the  Franks  and  Lom- 
bards had  acquired  from  the  provincial  Romans,  among  whom 
they  were  mingled.     No  people  were  so  much  addicted  to 
robbery,  to  riotous  frays,  and  to  feuds  arising  out  of  family 
revenge,  as  the  Anglo-Saxons.    Their  statutes  are  filled  witli 
complaints  that  the  public  peace  was  openly  violated,  and 
with  penalties  which  seem  by  their  repetition  to  have  been 
disregarded-     The  vengeance   taken  by  the  kindred  of  a 
murdered  man  was  a,  sacred  right,  which  no  law  ventured  to 

1  Miliaria  tbe  Engliflh  GoT«mment,  toI.  i.  p.  189. 


forbid,  though  it  was  limited  by  those  which  established  a 
composition,  and  by  those  which  protected  the  family  of  the 
murderer  from  their  resentment.  Even  the  author  of  the  laws 
ascribed  to  the  Confessor  speaks  of  this  family  warfare  where 
the  composition  had  not  been  paid,  as  perfectly  lawful.'^  But 
the  law  of  composition  tended  probably  to  increase  the  num- 
ber of  crimes.  Though  the  sums  imposed  were  sometimes 
heavy,  men  paid  them  with  the  help  of  their  relations,  or 
entered  into  voluntary  associations,  the  purposes  whereof 
might  often  be  laudable,  but  which  were  certainly  susceptible 
of  this  kind  of  abuse.  And  many  led  a  life  of  rapine,  form- 
ing large  parties  of  ruffians,  who  committed  murder  and 
robbery  with  little  dread  of  punishment. 

Against  this  disorderly  condition  of  society,  the  wisdom  of 
our  English  kings,  with  the  assistance  of  their  great  councils, 
was  employed  in  devising  remedies,  which  ultimately  grew 
up  into  a  peculiar  system.  No  man  could  leave  the  shire  to 
which  he  belonged  without  the  permission  of  its  alderman.* 
No  man  could  be  without  a  lord,  on  whom  he  depended; 
though  he  might  quit  his  present  patron,  it  was  under  the 
condition  of  engaging  himself  to  another.  If  he  failed  in 
this,  his  kindred  were  bound  to  present  him  in  the  county- 
court,  and  to  name  a  lord  for  him  themselves.  Unless  this 
were  done,  he  might  be  seized  by  any  one  who  met  him  as  a 
robber.  Hence,  notwithstanding  the  personal  liberty  of  the 
peasants,  it  was  not  very  practicable  for  one  of  them  to  quit 
his  place  of  residence.  A  stranger  guest  could  not  be  received 
more  than  two  nights  as  such ;  on  the  third  the  host  became 
responsible  for  his  inmate's  conduct* 

The  peculiar  system  of  frank-pledges  seems  to  have  passed 
through  the  following  very  gradual  stages.  At  first  an  accused 
person  was  obliged  to  find  bail  for  standing  his  trial.'  At  a 
subsequent  period  his  relations  were  caUed  upon  to  become 
sureties  for  payment  of  the  composition  and  other  fines  to 
which  he  was  liable.^  They  were  even  subject  to  be  im- 
prisoned until  payment  was  made,  and  this  imprisonment  was 
commutable  for  a  certain  sum  of  money.     The  next  stage 


1  Parentibufl  occIb!  flat  emendatio,  Tel 
gaerra  eorum  portetur.  WilkiM,  p.  199. 
This,  like  many  other  parts  of  that 
vpurioQB  treatise,  appears  to  hare  been 
taken  from  some  older  laws,  or  at  least 
traditions.    I  do  not  conceiTe  that  thia 


prirate  rerenge  was   tolerated  by  law 
after  the  conquest. 

«  Leges  Alfred!,  c.  88. 

»  Leges  Athelstani,  p.  56. 

«  L^  Edwardi  Confess,  p.  202. 

*  Leges  Lotharii  [regis  Cantii],  p  8. 

•  Leges  Edwardi  Senioris,  p.  68. 


276 


LAW  OF  FRANK-PLEDGE.     Chap.  Vin.  Pabt  L 


was  to  make  persons  already  convicted,  or  of  suspicious  re- 
pute, give  sureties  for  their  future  behavior.*  It  is  not  till 
the  reign  of  Edgar  that  we  find  the  first  general  law,  which 
places  every  man  in  the  condition  of  the  guilty  or  suspected, 
and  compels  him  to  find  a  surety,  who  shall  be  responsible 
for  his  appearance  when  judicially  summoned.*  This  is  per- 
petually repeated  and  eiJorced  in  later  statutes,  during  his 
reign  and  that  of  Ethelred.  Finally,  the  laws  of  Canute 
declare  the  necessity  of  belonging  to  some  hundred  and  tyth- 
ing,  as  well  as  of  providing  sureties;'  and  it  may,  perhaps, 
be  inferred  that  the  custom  of  rendering  every  member  of  a 
tything  answerable  for  the  appearance  of  all  the  rest,  as  it 
existed  after  the  conquest,  is  as  old  as  the  reign  of  this  Danish 
monarch. 

It  is  by  no  means  an  accurate  notion  which  the  writer  to 
whom  I  have  already  adverted  has  conceived  that  "  the  mem- 
bers of  every  tything  were  responsible  for  the  conduct  of  one 
another ;  and  that  the  society,  or  their  leader,  might  be  pros- 
ecuted and  compelled  to  make  reparation  for  an  injury  com- 
mitted by  any  individual."     Upon  this  false  apprehension  of 
the  nature  of  frank-pledges  the  whole  of  his  analogical  rea- 
soning is  founded.    It  is  indeed  an  error  very  current  in 
popular  treatises,  and  which  might  plead  the  authority  of 
some  whose  professional  learning  should  have  saved  them 
from  so  obvious  a  misstatement.     But  in  fact  the  members  of 
a  tything  were  no  more  than  perpetual  bail  for  each  other. 
**The  greatest  security  of  the  public  order  (says  the  laws 
ascribed  to  the  Confessor)  is  that  every  man  must  bind  him- 
self to  one  of  those  societies  which  die  English  in  general 
call  freeborgs,  and  the  people  of  Yorkshire  ten  men's  tale.*** 
This  consisted  in  the  responsibility  of  ten  men,  each  for  the 
other,  throughout  every  village  in  the  kingdom ;  so  that,  if 
one  of  the  ten  committed  any  fault,  the  nine  should  produce 
him  in  justice ;  where  he  should  make  reparation  by  his  own 
property  or  by  personal  punishment.    If  he  fled  from  justice, 
a  mode  was  provided  according  to  which  the  tything  might 
clear  themselves  firom  participation  in  his  crime  or  escape ;  in 
default  of  such  exculpation,  and  the  malefactor's  estate  prov- 
ing deficient,  they  were  compelled  to  make  good  the  penalty. 
And  it  is  equally  manifest,  from  every  other  passage  in  which 


1  Lages  Athelstani,  p.  67,  o.  6, 7,  8 
*  LagwEadgari.p.TS. 


>  Leges  Canati,  p.  187. 

«  Leges  Edwardi,  In  WilkinB,  p.  901. 


EirousH  Ck>iisT. 


FEUDAL  TENURES. 


277 


mention  is  made  of  this  ancient  institution,'  that  the  obligation 
of  the  tything  was  merely  that  of  permanent  bail,  responsible 
only  indirecdy  for  the  good  behavior  of  their  members. 

Every  freeman  above  the  age  of  twelve  ytars  was  required 
to  be  enrolled  in  some  tything.*  In  order  to  enforce  this 
essential  part  of  police,  the  courts  of  the  tourn  and  leet  were 
erected,  or  rather  perhaps  separated  from  that  of  the  county. 
The  periodical  meetings  of  these,  whose  duty  it  was  to  inquire 
into  the  state  of  tythings,  whence  they  were  called  the  view 
of  frank-pledge,  are  regulated  in  Magna  Charta.  But  this 
custom,  which  seems  to  have  been  in  full  vigor  when  Brac- 
ton  wrote,  and  is  enforced  by  a  statute  of  Edward  II.,  gradu- 
ally died  away  in  succeeding  times.*  According  to  the  laws 
ascribed  to  the  Confessor,  which  are  perhaps  of  insufficient 
authority  to  ^x  the  existence  of  any  usage  before  the  Con- 
quest, lords  who  possessed  a  baronial  jurisdiction  were  per- 
mitted to  keep  their  military  tenants  and  the  servants  of 
their  household  under  their  own  peculiar  frank-pledge.*^  Nor 
was  any  freeholder,  in  the  age  of  Bracton,  bound  to  be  en- 
rolled in  a  tything.* 

It  remains  only,  before  we  conclude  this  sketch  of  the 
Aiiglo-Saxon  system,  to  consider  the  once  famous  Feudal  ten- 
question  respecting   the   establishment  of  feudal  ^^^  whether 
tenures   in  England    before  the  Conquest.     The  the°c?nl^**" 
position  asserted  by  Sir  Henry  Spelman  in  his  *"®^'- 


1  Leges  Canuti,  p.  136. 

*  Stat.  18  E.  n.  Traces  of  the  actual 
▼few  of  frank-pledge  appear  in  Cornwall 
as  late  as  the  10th  of  Henry  VI.  Rot. 
Parliam.  yol.  It.  p.  403.  And  indeed 
Selden  tells  us  (Janus  Anglorum,  t.  ii. 

E.  993)  that  it  was  not  quite  obsolete  in 
is  time.  The  form  may,  for  aught  I 
know,  be  kept  up  in  some  parts  of  Eng- 
land at  this  day.  For  some  reason  which 
I  cannot  explain,  the  distribution  by 
tens  was  changed  into  one  by  dozens. 
Briton,  c.  29,  and  Stat.  18  E.  U. 
«  p.  202. 

*  Sir  P  Palgrave,  who  does  not  admit 
the  application  of  some  of  the  laws  cited 
In  the  text,  says  :  '•  At  some  period, 
towards  the  close  of  the  Anglo-Saxon 
monarchy,  the  free-pledge  was  certainly 
established  in  the  greater  part  of  Wessex 
and  Mercia,  though,  even  there,  some 
special  exceptions  existed.  The  system 
was  developed  between  the  accession  of 
Canute  and  the  demise  of  the  Conqueror ; 
and  it  is  not  improbable  but  that  the 
Normans  completed  what  the  Danes  had 
bcKon."    Yol.ii.  p.  123 


It  is  very  remarkable  that  there  is  no 
appearance  of  the  frank-pledge  in  that 
part  of  England  which  had  formed  the 
kingdom  of  Northumberland.  Vol.  i.  p. 
202.  This  indeed  contradicts  a  passage, 
quoted  in  the  text  from  the  laws  ox 
Edward  the  Confessor,  which  Sir  F.  P. 
suspects  to  be  interpolated.  But  we  find 
a  presentment  by  the  county  of  West- 
moreland in  20  Ed.  I.: — Comitatus 
recordatur  quod  nulla  Englescheria  pre- 
sentatur  in  comitatu  isto,  nee  murdrum, 
nee  est  aliqua  decenna  neo  visus  ftanc- 
plegii  nee  manupastus  in  comitatu  isto, 
nee  unquam  fuit  in  partibus  borealibus 
citra  Trentam.  Ibidem.  ^'  It  is  impos- 
sible to  speak  positively  to  a  negative 
proposition;  and  in  the  vast  mass  of 
these  most  valuable  records,  all  of  which 
are  still  unindexed,  some  entry  relating 
to  the  collective  frank-pledge  may  be 
concealed.  Yet,  from  their  general  tenor. 
I  doubt  whether  any  will  be  discovered." 
The  immense  knowledge  of  records  pos- 
sessed by  Sir  F.  P.  gives  the  highcsl 
weight  to  his  judgment. 


278 


FEUDAL  TENURES.      Chap.  VHI.  Pabt  L 


Glossary,  that  lands  were  not  held  feudally  before  that  penod, 
having  been  denied  by  the  Irish  judges  in  the  great  case  of 
tenures,  he  was  compeUed  to  draw  up  his  treatise  on  Feuds, 
in  which  it  is  more  fully  maintained  Several  other  writers, 
especiaUy  Hickes,  Madox,  and  Sir  Martm  Wright,  have 
taken  the  same  side.  But  names  equally  respectable  might 
be  thrown  into  the  opposite  scale;  and  I  think  the  prevaihng 
bias  of  modern  antiquaries  is  in  favor  of  at  least  a  modified 
affirmative  as  to  this  question.  ..  .j  4 

Lands  are  commonly   supposed    to  have  been  divided, 
among  the  Anglo-Saxons,  into  bocland  and  folkland.     The 
former  was  held  in  full  propriety,  and  might  be  conveyed  by 
boo  or  written  grant ;  the  latter  was  occupied  by  the  common 
people,  yielding  rent  or  other  service,  and  perhaps  without 
Ly  estate  in  the  land,  but  at  the  pleasure  of  the  owner. 
These  two  species  of  tenure  might  be  compared  to  freehold 
and  copyhold,  if  the  latter  had  retained  its  original  depend- 
ence  upon  the  wiU  of  the  lord.^     Bocland  was  devisable  by 
will;  it  was  equally  shared  among  the  children;  it  was  capa- 
ble  of  being  entailed  by  the  person  under  whose  grant  it  was 
originally  taken;  and  in  case  of  a  treacherous  or  cowardly 
desertion  from  the  army  it  was  forfeited  to  the  crown.^     But 
a  different  theory,  at  least  as  to  the  nature  of  folkland,  has 
lately  been  maintained  by  writers  of  very  great  authority. 
It  is  an  improbable,  and  even  extravagant  supposition,  that 
aU  these  hereditary  estates  of  the  Anglo-Saxon  freeholders 
were  originally  parcels  of  the  royal  demesne,  and  conse- 
quently  that  the  king  was  once  the  sole  propnetor  m  his 
kingdom.      Whatever  partitions  were  made  upon  the  con- 
quest of  a  British  province,  we  may  be  sure  that  the  shares 
of  the  army  were  coeval  with  those  of  the  general.     The 
great  mass  of  Saxon  property  could  not  have  been  held  by 
actual  beneficiary  grants  from  the  crown.     However,  the 
royal  demesnes  were  undoubtedly  very  extensive.     They 
continued  to  be  so,  even  in  the  time  of  the  Confessor,  aRer 


1  This  supposition  may  plead  the 
great  authorities  of  Somner  and  Lye,  the 
Anglo-Saxon  lexicographers,  and  appears 
to  me  far  more  probable  than  the  theory 
Of  Sir  John  Dalrymple,  in  his  Essay  on 
Feudal  Property,  or  that  of  the  author  of 
%  discourse  on  the  Bocland  and  Folkland 
of  the  Saxons,  1775,  whose  name,  I  think, 
was  Ibbetson.  The  first  of  these  sup- 
pOMS  bocland  to  haye  been  feudal,  and 


folkland  alodial;  the  second  Ukat  folk- 
land  for  feudal.  I  cannot  satisfy  myseu 
whether  thainland  and  reyeland,  which 
occur  sometimes  in  Domesday  Book, 
merely  correspond  with  the  other  two 
denominations.  _.      .    .      , 

2  Wilkins,  p.  48, 145.  The  latter  law 
is  copied  f^m  one  of  Charlemagne'i 
Capitularies.    Baluze,  p.  767. 

8  [NoTB  IX.] 


EvGLisH  Const. 


FEUDAL  TENURES. 


279 


the  donations  of  his  predecessors.  And  several  instruments 
granting  lands  to  individuals,  besides  those  in  favor  of  the 
church,  are  extant.  These  are  generally  couched  in  that 
style  of  full  and  unconditional  conveyance  which  is  observa- 
ble in  all  such  charters  of  the  same  age  upon  the  continent. 
Some  exceptions,  however,  occur ;  the  lands  bequeathed  by 
Alfred  to  certain  of  his  nobles  were  to  return  to  his  family 
in  default  of  male  heirs ;  and  Hickes  is  of  opinion  that  the 
royal  consent,  which  seems  to  have  been  required  for  the 
testamentary  disposition  of  some  estates,  was  necessary  on 
account  of  their  beneficiary  tenure.^ 

All  the  freehold  lands  of  England,  except  some  of  those 
belonging  to  the  church,  were  subject  to  three  great  public 
burdens :  military  service  in  the  king's  expeditions,  or  at 
least  in  defensive  war,*  the  repair  of  bridges,  and  that  of 
royal  fortresses.  These  obligations,  and  especiaUy  the  first, 
have  been  sometimes  thought  to  denote  a  feudal  tenure. 
There  is,  however,  a  confusion  into  which  we  may  fall  by 
not  sufficiently  discriminating  the  rights  of  a  king  as  chief 
lord  of  his  vassals,  and  as  sovereign  of  his  subjects.  In 
every  country  the  supreme  power  is  entitled  to  use  the  arm 
of  each  citizen  in  the  public  defence.  The  usage  of  all  na- 
tions agrees  with  common  reason  in  establishing  this  great 
principle.  There  is  nothing  therefore  peculiarly  feudal  in 
this  military  service  of  landholders ;  it  was  due  from  the 
alodial  proprietors  upon  the  continent ;  it  was  derived  &om 
their  German  ancestors ;  it  had  been  fixed,  probably,  by  the 
legislatures  of  the  Heptarchy  upon  the  first  settlement  in 
Britain. 

It  is  material,  however,  to  observe  that  a  thane  forfeited 
his  hereditary  freehold  by  misconduct  in  battle :  a  penalty 
more  severe  than  was  inflicted  upon  alodial  proprietors  on  the 
continent.  We  even  find  in  the  earliest  Saxon  laws  that  the 
sithcundman,  who  seems  to  have  corresponded  to  the  inferior 
thane  of  later  times,  forfeited  his  land  by  neglect  of  attend- 
ance in  war ;  for  which  an  alodialist  in  France  would  only 
have  paid  his  heribanmmi,  or  penalty.'    Nevertheless,  as  the 


1  Dissertatio  Epistolarls,  p.  60.  Saxon  freeholder  had  to  render  was  of 

*  This    duty  is    by  some    expressed  the  latter  kind. 

rata  expeditio  ;  by  others,  hoetis   pro-  >  Leges  Inae,  p.  23 ;  Du  Oange,  too. 

pnlsio,  which  seems  to  make  no  small  Heribannum.      By  the  laws  of  Oannte, 

difference.    But,  unfortunately,  most  of  p.  135,  a  fine  only  was  imposed  for  thif 

Um  military  seryice   which  an   Anglo-  offence. 


280 


FEUDAL  TENURES.        Chap.  Vm.  Pabt  L 


Enousb  Const. 


FEUDAL  TENURES. 


281 


policy  of  different  states  may  enforce  the  duties  of  subjects 
by  more  or  less  severe  sanctions,  I  do  not  know  that  a  law  of 
forfeiture  in  such  cases  is  to  be  considered  as  positively  im- 
plying a  feudal  tenure. 

But  a  much  stronger  presumption  is  afforded  by  passages 
that  indicate  a  mutual  relation  of  lord  and  vassal  among  the 
free  proprietors.     The  most  powerful  subjects  have  not  a 
natural  right  to  the  service  of  other  freemen.     But  in  the 
laws  enacted  during  the  Heptarchy  we  find  that  the  sithcund- 
man,  or  petty  gentleman,  might  be  dependent  on  a  superior 
lord.^     This  is  more  distinctly  expressed  in  some  ecclesiasti- 
cal canons,  apparently  of  the  tenth  century,  which  distinguish 
the  king's  thane  from  the  landholder,  who  depended  upon  a 
lord.2   Other  proofs  of  this  might  be  brought  from  the  Anglo- 
Saxon  laws.'    It  is  not,  however,  sufficient  to  prove  a  mutual 
relation  between  the  higher  and  lower  order  of  gentry,  in 
order  to  establish  the  existence  of  feudal  tenures.     For  this 
relation  was  often  personal,  as  I  have  mentioned  more  fully 
in  another  place,  and  bore  the  name  of  commendation.    And 
no  nation  was  so  rigorous  as  the  English  in  compelling  every 
man,  from  the  king's  thane  to  the  ceorl,  to  place  himself 
under  a  lawful  superior.     Hence  the  question  is  not  to  be 
hastily  decided  on  the  credit  of  a  few  passages  that  express 
this  gradation  of  dependence ;  feudal  vassalage,  the  object  of 
our  inquiry,  being  of  a  real,  not  a  personal  nature,  and  result- 
ing entirely  from  the  tenure  of  particular  lands.     But  it  is 
not  unlikely  that  the  personal  relation  of  client,  if  I  may  use 
that  word,  might  in  a  multitude  of  cases  be  changed  into  that 
of  vassal.    -Ajid  certainly  many  of  the  motives  which  oper- 
ated in  France  to  produce  a  very  general  commutation  of 
alodial  into  feudal  tenure  might  have  a  similar  influence  in 
England,  where  the  disorderly  condition  of  society  made  it 
the  interest  of  every  man  to  obtain  the  protection  of  some 
potent  lord. 

The  word  thane  corresponds  in  its  derivation  to  vassal ;  and 
the  latter  term  is  used  by  Asserius,  the  contemporary  biog- 
rapher of  Alfred,  in  speaking  of  the  nobles  of  that  prince.* 

1  Leges  In»,  p.  10, 23.  objects  to  the  authenticity  of  a  charter 

*  Wilkins,  p.  101.  ascribed  to  Edgar,  because  it  containi 
»  p.  71, 144,  145.                                       the  word  Vassallus,  "  quam  i  Nortman- 

*  Alfredus  cum  paucis  Buis  nobilibus    nis  Angli  habuerunt."  Dissertatio  Epia- 
et  etiam  cum  quibusdam  militibus  ei    tol.  p.  7. 

Vassallis.  p.  166.    Nobiles  Vassali   8u-       The  word  vassallus  occurs  not  only  in 
mertunensis  pa^,  p.  167.    Yet  Hickes    the  suspicious  charter  of  Cenulf,  quoted 


In  their  attendance,  too,  upon  the  royal  court,  and  the  fidelity 
which  was  expected  from  them,  the  king's  thanes  seem  ex- 
actiy  to  have  resembled  that  class  of  followers  who,  under 
different  appellations,  were  the  guards  as  well  as  courtiers 
of  the  Frank  and  Lombard  sovereigns.  But  I  have  remark- 
ed that  the  word  thane  is  not  applied  to  the  whole  body  of  gen- 
try in  the  more  ancient  laws,  where  the  word  eorl  is  opposed 
to  the  ceorl  or  roturier,  and  that  of  sithcundman  ^  to  the  royal 
thane.  It  would  be  too  much  to  infer,  from  the  extension  of 
this  latter  word  to  a  large  class  of  persons,  that  we  should  in- 
terpret  it  with  a  close  attention  to  etymology,  a  very  uncer- 
tain guide  in  almost  all  investigations. 

For  the  age  immediately  preceding  the  Norman  invasion 
we  cannot  have  recourse  to  a  better  authority  than  Domes- 
day Book.  That  incomparable  record  contains  the  names  of 
every  tenant,  and  the  conditions  of  his  tenure,  under  the  Con- 
fessor, as  well  as  at  the  time  of  its  compilation,  and  seems  to 
give  little  countenance  to  the  notion  that  a  radical  change  in 
the  system  of  our  laws  had  been  effected  during  the  interval. 
In  ahnost  every  page  we  meet  with  tenants  either  of  the 
crown  or  of  other  lords,  denommated  thanes,  freeholders  (hberi 
homines),  or  socagers  (socmanni).  Some  of  these,  it  is  stated, 
might  sell  their  lands  to  whom  they  pleased ;  others  were  re- 
stricted from  alienation.  Some,  as  it  is  expressed,  might  go 
with  their  lands  whither  tiiey  would ;  by  which  I  understand 
the  right  of  commending  themselves  to  any  patron  of  their 
choice.  These  of  course  could  not  be  feudal  tenants  in  any 
proper  notion  of  that  term.  Others  could  not  depart  from  the 
lord  whom  they  served ;  not,  certainly,  that  they  were  per- 
sonally bound  to  the  soil,  but  that,  so  long  as  they  retained  it, 
the  seigniory  of  the  superior  could  hot  be  defeated.^     But  I 


in  a  subsequent  note,  but  in  one  a.d.  952 
(Codex  Diplomat,  ii.  303),  to  which  I 
was  led  by  Mr.  Spence  (Equitable  Ju- 
risdiction, d.  44),  who  quotes  another 
from  p.  323,  which  is  probably  a  mis- 
print ;  but  I  have  found  one  of  Edgar, 
A.D.  967.  Cod.  Diplomat,  iii.  U.  I  think 
that  Mr.  Spence,  in  the  ninth  and  tenth 
chapters  of  his  learned  work,  has  too 
much  blended  the  Anglo-Saxon  man  of 
a  lord  with  the  continental  vassal ;  which 
is  a  petitio  principii.  Certainly  the  word 
was  of  rare  use  in  England;  and  the 
authenticity  of  Asserius,  whom  I  have 
uuoted  as  a  contemporary  biographer  of 
ilfiwd,  which  is  the  common  opinion, 


has  been  called  in  question  by  Mr. 
Wright,  who  refers  that  Life  to  the  age 
of  the  Conquest.  Archaeologia,  vol  ttjt. 

1  WUkins,  p.  3,  7,  23,  &c. 

*  It  sometimes  weakens  a  proposition, 
which  is  capable  of  innumerable  proofs, 
to  take  a  very  few  at  random  ;  yet  the 
following  casual  specimens  will  illustrate 
the  common  language  of  Domesday 
Book. 

Haec  tria  maneria  tenuit  Ulveya  tern* 
pore  regis  Edwardi  et  potidt  ire  cum 
terri  qu6  volebat.  p,  85. 

Toti  emit  earn  T.  R.  E.  (temp,  regis 
Edwardi)  de  ecclesil  Malmsburiensi  ad 
setatem  trium  hominum;  et  infhi  haao 


282 


FEUDAL  TENURES.       Chap.  Vm.  Pabt  L 


Ehoush  Cosbt, 


FEUDAL  TENURES. 


283 


i 


am  not  aware  that  military  service  is  specified  in  any  in- 
stance to  be  due  from  one  of  these  tenants ;  though  it  is  diffi- 
cult to  speak  as  to  a  negative  proposition  of  this  kind  with 
any  confidence. 

No  direct  evidence  appears  as  to  the  ceremony  of  homage 
or  the  oath  of  fealty  before  the  Conquest.     The  feudal  ex- 
action of  aid  in  certain  prescribed  cases  seems  to  have  been 
unknown.     Still  less  could  those  of  wardship  and  marriage 
prevail,  which  were  no  general  parts  of  the  great  feudal  sys- 
tem.    The  English  lawyers,  through  an  imperfect  acquaint- 
ance with  the  history  of  feuds  upon  the  continent,  have  treat- 
ed these  unjust  innovations  as  if  they  had  formed  essential 
parts  of  the  system,  and  sprung  naturally  from  the  relation 
between  lord  and  vassal.     And,  with  reference  to  the  pres- 
ent question.  Sir  Henry  Spelman  has  certainly  laid  too  much 
stress  upon  them  in  concluding  that  feudal  tenures  did  not 
exist  among  the  Anglo-Saxons,  because  their  lands  were  not 
in  ward,  nor  their  persons  sold  in  marriage.     But  I  cannot 
equally  concur  with  this  eminent  person  in  denying  the  ex- 
istence of  reliefs  during  the  same  period.     If  the  heriot, 
which  is  first  mentioned  in  the  time  of  Edgar  ^  (though  it 
may  probably  have  been  an  established  custom  long  before), 
were  not  identical  with  the  relief,  it  bore  at  least  a  very 
strong  analogy  to  it.     A  charter  of  Ethelred's  interprets  one 
word  by  the  other.^    In  the  laws  of  William,  which  reenact 
those  of  Canute  concerning  heriots,  the  term  relief  is  em- 
ployed as   synonymous.'    Though  the  heriot  was  in  later 
times  paid  in  chattels,  the  relief  in  money,  it  is  equally  true 
that  originally  the  law  fixed  a  sum  of  money  in  certain  cases 
for  the  heriot,  and  a  chattel  for  the  relief.     And  the  most 
plausible  distinction  alleged  by  Spelman,  that  the  heriot  is  by 
law  due  from  the  personal  estate,  but  the  relief  from  the  heir, 
seems  hardly  applicable  to  that  remote  age,  when  the  law 
of  succession  as  to  real  and  personal  estate  was  not  dif 
ferent. 

It  has  been  shown  in  another  place  how  the  right  of  ter- 


tenninum  poterat  ire  com  eft  ad  quern 
Tellet  dominum.    p.  72. 

Tres  Angli  tenuerunt  Darneford  T. 
R.  £.  et  non  poterant  ab  ecclesii 
Mparari.  Duo  ex  lis  reddebant  y.  soU- 
dos,  et  tertius  serriebat  dcut  Thainufl. 
p.  68. 

Ha8  terras  qui  tenuerunt  T.  R.  £.  qu6 


Toluerunt  ire  poterunt,  prster  unum 
Beric  Tocatum,  qui  in  Ragendal  tenuit 
iii  canicataa  terrse  ;  sed  non  poterat  cum 
e3i  alicubl  recedere.  p.  235. 

1  Selden's  Works,  Tol.  ii.  p.  1620. 

3  Hist.  Ramseienfl.  p.  490. 

s  Leges  Canuti,  p.  Ii4;  Leges  Qw 
lielmi,  p.  223. 


ritorial  jurisdiction  was  generally,  and  at  last  inseparablj, 
connected  with  feudal  tenure.     Of  this  right  we  meet  fre- 
quent instances  in  the  laws  and  records  of  the  Anglo-Saxons, 
though  not  in  those  of  an  early  date.     A  charter  of  Edred 
grants  to  the  monastery  of  Croyland,  soc,  sac,  toll  team,  and 
infangthef :  words  which  generally  went  together  in  the  de- 
scription of  these  privileges,  and  signify  the  right  of  holding 
a  court  to  which  all  freemen  of  the  territory  should  repair,  of 
deciding  pleas  therein,  as  well  as  of  imposing  amercements 
according  to  law,  of  taking  tolls  upon  the  sale  of  goods,  and 
of  punishing  capitally  a  thief  taken  in  the  fact  within  the 
limits  of  the  manor.^    Another  charter  from  the  Confessor 
grants  to  the  abbey  of  Ramsey  similar  rights  over  all  who 
were  suitors  to  the  sheriff^s  court,  subject  to  military  service, 
and  capable  of  landed  possessions ;  that  is,  as  I  conceive,  all 
who  were  not  in  servitude.*^*     By  a  law  of  Ethehred,  none  but 
the  king  could  have  jurisdiction  over  a  royal  thane.'    And 
Domesday  Book  is  full  of  decisive  proofs  that  the  English 
lords  had  their  courts  wherein  they  rendered  justice  to  their 
suitors,  like  the  continental  nobility:    privileges  which  are 
noticed  with  great  precision  in  that  record,  as  part  of  the 
statistical  survey.     For  the  right  of  jurisdiction  at  a  time 
when  punishments  were  almost  wholly  pecuniary  was  a  mat- 
ter of  property,  and  sought  from  motives  of  rapacity  as  well 
as  pride. 

Whether  therefore  the  law  of  feudal  tenures  can  be  said 
to  have  existed  in  England  before  the  Conquest  must  be  left 
to  every  reader's  determination.  Perhaps  any  attempt  to 
decide  it  positively  would  end  in  a  verbal  dispute.  In  trac- 
ing the  history  of  every  political  institution,  three  things  are 
to  be  considered,  the  principle,  the  form,  and  the  name.    The 


1  Ingulftu,  p.  35.  I  do  not  pretend  to 
amert  the  authenticity  of  these  charters, 
which  at  all  erents  are  nearly  as  oid  as 
the  Conquest.  Hicks  calls  most  of  them 
in  question.  Dissert.  Epist.  p.  66.  But 
some  later  antiquaries  seem  to  hare  been 
more  favorable.  Archseologia,  toI.  xviii. 
p.  49 ;  NouTeau  Trait6  de  Diplomatiaue. 
t.  i.  p.  348. 

*  Hist.  Ramsey,  p.  454. 

*  p.  118.  Tliis  is  the  earliest  allusion, 
If  I  am  not  mistaken,  to  territorial  juris- 
diction in  the  Saxon  laws.  Probably  it 
was  not  frequent  till  near  the  end  of  the 
tenth  century. 


Mr.  Eemble  is  of  opinion  that  the 
words  granting  territorial  jurisdiction  do 
not  occur  in  any  genuine  charter  before 
the  Confessor.  Codex  Diplom.  i.  48. 
They  are  of  constant  occurrence  in  those 
of  the  first  Norman  reigns.  But  the 
Normans  did  not  understand  them,  and 
the  words  are  often  misspelled.  He 
thinks,  therefore,  that  the  rights  were 
older  than  the  Conquest,  and  accounts 
for  the  rare  mention  of  them  by  the 
somewhat  unsatisfactory  suppoflition  that 
they  were  so  inherent  in  the  possession 
of  land  as  not  to  require  particular  no- 
tice. See  Spence,  Equit.  Juris,  pp.  64, 68 


284 


FEUDAL  TENURES.      Chap.  YIH.  Pabt  L 


i 


last  will  probably  not  be  found  in  any  genuine  Anglo-Saxon 
record.^  Of  the  form  or  the  peculiar  ceremonies  and  mci- 
dents  of  a  regular  fief,  there  is  some,  though  not  much,  ap- 
pearance. But  those  who  reflect  upon  the  dependence  m 
which  free  and  even  noble  tenants  held  their  estates  of  other 
subjects,  and  upon  the  privileges  of  territorial  jurisdiction, 
will,  I  think,  perceive  much  of  the  intrinsic  character  ot  the 
feudal  relation,  though  in  a  less  mature  and  systematic  shape 
than  it  assumed  after  the  Norman  conquest." 


1  Feodum  twice  occurs  In  the  testa- 
nient  of  Alfred ;  but  it  does  not  appear 
to  be  used  in  its  proper  sense,  nor  do  I 
apprehend  that  instrument  to  have  been 
originally  written  in  Latin.  It  was 
much  more  consonant  to  Alfred's  prac- 
tice to  employ  his  own  language. 

a  It  will  probably  be  never  disputed 
again  that  lands  were  granted  by  a  mili- 
tary tenure  before  the  Conquest.    Thus, 
besides  the  proofs  in  the  text,  in  the 
laws  of  Canute  (c.  78) :  —  "  And  the  man 
who  shall  flee  from  his  lord  or  from  his 
comrade  by  reason  of  his  cowardice,  be  it 
in  the  shipfyrd,  be  it  in  the  landfyrd, 
let  him  forfeit  all  he  owns,  and  his  own 
life ;  and  let  the  lord  seize  liis  posses- 
sions, and  his  land  which  he  previously 
gave  him ;  and  if  he  have  bScland.  let 
that  go  into  the  king's  hands."    Ancient 
Laws,  p.  180.      And  we  read  of  lands 
called  /Uafordsffifu,  lord's  gift.     Leges 
Ethelred  I.,  Ancient  Laws,  p.  126.    But 
these  were  not  always  feudal,  or  even 
hereditary ;  they  were  what  was  called 
on  the  continent  praestariae,  granted  for 
life  or  for  a  certain  term ;  and  this,  as 
it  appears   to  me,  may  have  been  the 
proper  meaning  of  the  term  Isen-lands. 
But  the  general  tenure  of  lands  was 


still  alodial.  T«dni  lex  est,  says  a  cu- 
rious document  on  the  rights,  that  u 
obligations,  of  different  ranks,  publish- 
ed by  Mr.  Thorpe,  — ut  sit  dignus  rec- 
titudine  testament!  sui  (his  boc-rightes 
toyrthey  that  is,  perhaps,  bound  to  the 
duties  unplied  by  the  deed  which  creates 
his  estates),  — et  ut  ita  faciat  pro  terri 
sua,  scilicet  expeditionem  burhbotam  et 
brigbotam.  Et  de  multis  terris  majuB 
landirectum  exsurgit  ad  bannum  regis, 
&c.  p.  186.  Here  we  find  the  weU- 
known  trinoda  necessitas  of  alodial  land, 
with  other  contingent  liabilities  imposed 
by  grant  or  usage.* 

We  may  probably  not  err  very  much 
In  supposing  that  the  state  of  tenures  In 
England  under  Canute  or  the  Confessor 
was  a  good  deal  like  those  in  France 
under  Charlemagne  or  Charles  the  Bald,— 
an  alodial  trunk  with  numerous  branches 
of  feudal  benefice  grafted  into  it.  But 
the  conversion  of  the  one  mode  of  tenurw 
into  the  other,  so  frequent  in  France, 
does  not  appear  by  evidence  to  have  pre 
vailed  on  this  side  of  the  channel. 

I  will  only  add  here  that  Mr.  Spence, 
an  authority  of  great  weight,  maintains  a 
more  complete  establishment  of  the  feudal 
polity  before  the  Conquest  than  I  hare 


•  Mr.  Kemble  has  printed  a  charter  of  Cenulf  «"«  «1M«"^,J°  *^%^^y  °i 

Abinirdon  in  820,  without  the  asterisk  of  spunousness  (Codex  Diplom.  1.  ZW),  ana 

ffiuoted  byS  r  F  Palgrave  (vol.  i.  p.  16§)  in  proof  of  military  tenures.    The  ex- 

prlsln,how/veTexpeditTnem^um  £xo6ieciv. vassalliset  '^^'^J'^!;''^^^^' 

seems  not  a  Uttle  against  its  authenticity.    The  former  has  observed  that  the  testa- 

S4Sr  dScumentTbefore  the  Conquest,  made  by  men  who  ^^^^  «°d"  *  "Xthat 

Srd,  wntain  a  clause  of  great  interest ;  namely,  an  earnest  P/fy^'^ff  *?« '^.'f^Sed 

hewill  permit  the  will  to  stand  according  to  the  disposition  of  the  testator  f°"P^^ 

Sot  unf?^^ently  with  a  legacy  to  hhn  on  condition  of  hs  so  doing,  or  to  some 

person  of  influence  about  him  for  intercession  on  the  t««*»'f  «  ^^f  ^J'     ^^l^.^J^* 

he  infers  that,  -  as  no  man  supplicates  for  that  which  he  is  of  his  own  rij^t  «^ 

titled  to  enjoy,  it  appears  as  if  these  great  vassals  of  the  ci^wn  ^  °°«J5  ,?^TS 

of  deposing  li  theiJ  lands  and  chattels  but  as  the  king  might  PJ^mit ;  and  in  the 

strict  construction  of  the  bond  between  the  king  and  them,  *" '^at  th^piined  in 

to  service  must  be  taken  to  fall  into  his  hands  after  their  death."    Int'^"^^"^^^^ 

Cod.  Dip.  p.  111.    This  inference  seems  hardly  borne  P'lt  by  the  premises .  a  man 

might  sometimes  be  reduced  to  suppUcate  a  superior  for  that  which  he  had  a  ngn» 

tee^K>y. 


ElOLisH  Const. 


FEUDAL  TENURES. 


285 


done.  p.  48.  This  Is  a  subject  on  which 
it  is  hard  to  lay  down  a  definite  line. 
But  I  must  protest  against  my  learned 
ftiend's  derivation  of  the  feudal  system 
firom  "  the  aristocratic  principle  that  pre- 
railed  In  the  Roman  dominions  while  the 
republic  endured,  and  which  was  incor- 

K rated  with  the  principles  of  despotism 
troduced  during  the  empire."     It  ii 


because  the  aristocratic  principle  couli 
not  be  incorporated  with  that  of  despot- 
ism, that  I  conceive  the  feudal  system  to 
have  been  incapable  of  development, 
whatever  inchoate  rudiments  of  it  may 
be  traced,  until  a  powerful  territorial 
aristocracy  had  rendered  despotism  no 
longer  possible.    [1847.] 


386 


CONQUEST  OF  ENGLAND   Chap.  VIH.  Taxi  JL 


EvGLisH  Const. 


BY  WILLIAM. 


287 


PART  n. 

THE  ANGLO-NORMAN   CONSTITUTION. 

Th^AMlo-NonnanCoMtltution-Catwea  of  the  Conquest  -  Policy  and  C^»f*«; 
of  ^^K^  i^nny  -  IntToduction  of  Feudal  Serrices  -  Diflerence  between 
toe  FeSSl  Qo^erSiutJ  of  France  and  EngUnd -Causes  of '»»«  ^' ^^^q^^'. 
SeflJst  Norman  Kings  -  Arbitrary  Character  of  ^^t''  Q°^«JJ'"^°'i;^?'£* 
Suncll- Resistance  of  the  Barons  to  John -Magna  Charta-ts  principal  Ar- 
tiJSS  -  ReSTof  Henry  III.  -  The  Constitution  acquires  a  more  hberal  Character 
-yidicWystem  of  the  Anglo-Nonnans  -  Curia  Regis  Exchequer,  f^^-^ 
tablishment  of  the  Common  Law  -  its  Effect  in  fixing  the  ConsUtution  -  Remark* 
on  the  Limitation  of  AristocraUcal  Privileges  In  England. 

It  is  deemed  by  William  of  Malmsbury  an  extraordinary 
work  of  Providence  that  the  English  should  have 
B^SSSS  b^    given  up  all  for  lost  after  the  battle  of  Hastings, 
William.        where  only  a  small  though  brave  army  had  per- 
ished.*   It  was  indeed  the  conquest  of  a  great  kingdom  by 
the  prince  of  a  single  province,  an  event  not  easily  paralleled, 
where  the  vanquished  were  htUe,  if  at  aU,  less  courageous 
than  their  enemies,  and  where  no  domestic  factions  exposed 
the  country  to  an  invader.    Yet  William   was  so  advan- 
tageously  situated,  that  his  success  seems  neither  unaccount- 
able nor  any  matter  of  discredit  to  the  English  nation.     The 
heir  of  the  house  of  Cerdic  had  been  ah-eady  set  aside  at  the 
election  of  Harold;  and  his  youth,  joined  to  a  me^ocnty  of 
understanding  which  excited  neither  esteem  nor  fear,  gave 
no  encouragement  to  the  scheme  of  placing  hun  upon  the 
throne  in  those  moments  of  imminent  peril  which  followed 
the  batde  of  Hastings.    England  was  pecuharly  destitute  ot 
crreat  men.     The  weak  reigns  of  Ethelred  and  Edward  had 
rendered  the  government  a  mere  oligarchy,  and  reduced  the 

1  Mahnsbury,  p.  53.    And  Henry  of  atte"»P*»  ««  ^^T*'  *i*.ti^'f*Sdn'3? 

Huntingdon   savs   emphaticaUy,  Mille-  treated    by    WilUam   with   a    K»naneH8 

toS^fwii^too^e^^to  anno  gratia,  which  could  only  ^^7\lZt^"^to^h. 

perfecit  domStor  Deus  de  gente  An-  contempt  o^;*'*-.  "°^er«^ndlng,  for^e 

riorum    quod    diu    cogitaverat.      Gentl  was  not  wanting  m  courage      He  bj»me 

Samque  Normannorum  aspewB  et  callldsB  the  Intimate  friend  «f  ««      *     «U  M 

mdidit  eos  ad  exterminandum.  p.  210.  Normandy,  whose  fo't"°«''.  "  '•"  •* 

•  £dgar,  after  one  or  two  ineffectual  character,  much  resembled  his  own. 


nobility  into  the  state  of  retainers  to  a  few  leading  houses, 
the  representatives  of  which  were  every  way  unequal  to  meet 
such  an  enemy  as  the  duke  of  Normandy.  If  indeed  the 
concurrent  testimony  of  historians  does  not  exaggerate  his 
forces,  it  may  be  doubted  whether  England  possessed  military 
resources  sufficient  to  have  resisted  so  numerous  and  well- 
appointed  an  army.^ 

This  forlorn  state  of  the  country  induced,  if  it  did  not  jus- 
tify, the  measure  of  tendering  the  crown  to  William,  which 
he  had  a  pretext  or  title  to  claim,  arising  from  the  intentions, 
perhaps  the  promise,  perhaps  even  the  testament  of  Edward, 
which  had  more  weight  in  those  times  than  it  deserved,  and 
was  at  least  better  than  the  naked  title  of  conquest.  And 
this,  supported  by  an  oath  exactly  similar  to  that  taken  by  the 
Anglo-Saxon  kings,  and  by  the  assent  of  the  multitude,  Eng- 
lish as  well  as  Normans,  on  the  day  of  his  coronation,  gave  as 
much  appearance  of  a  regular  succession  as  the  circumstances 
of  the  times  would  permit.  Those  who  yielded  to  such  cir- 
cumstances could  not  foresee,  and  were  unwilling  to  anticipate, 


»  It  has  been  suggested,  in  the  second 
Report  of  a  Committee  of  the   Lords' 
House  on  the  Dignity  of  a  Peer,  to  which 
I  shall  have  much  recourse  in  the  follow- 
ing pages,*  that  "  the  facility  with  which 
the  Conquest  had  been  achieved  seems 
to  hare  been,  in  part,  the  consequence  of 
defects  in  the  Saxon  institutions,  and  of 
the  want  of  a  military  force  similar  to 
that  which  had  then  been  established  in 
Normandy,  and  in  some  other  parts  of 
the  continent  of  Europe.      The  adven- 
turers in  the  army  of  William  were  of 
those  countries  in  which  such  a  military 
••tablishment  had  prevailed."  p.  24.    It 
cannot  be  said,  I  think,  that  there  were 
any  manifest  defects  in  the  Saxon  insti- 
tutions, so  far  as  related  to  the  defence 
of  the  country  against  invasion.    It  was 
part  of  the  trinoda  necessitas,  to  which 
•U  alodial  landholders  were  bound.    Nor 


is  it  quite  accurate  to  speak  of  a  military 
force  then  established  in  Normandy,  or 
anywhere  else.    We  apply  these  words  to 
a  permanent  body  always  under  arms. 
This  was  no  attribute  of  feudal  tenure, 
however  the  frequency  of  war,  general  or 
private,  may  have  inured  the  tenants  by 
military  service  to  a  more  habitual  dis- 
cipline than  the  thanes  of  England  ever 
knew.      The  adventurers  in    William's 
army  were  from  various  countries,  and 
most  of  them,  doubtless,  had  served  be- 
fore, but  whether  as  hired  mercenaries 
or  no  we  have  probably  not  sufficient 
means  of  determining.    The  practice  of 
hiring  troops  does  not  attract  the  notice 
of  historians,  I  believe,  in  so  early  an  age. 
We  need  not,  however,  resort  to  this  con- 
jecture,  since    history   sufficiently  ex- 
plains the  success  of  William. 


•This  Report  I  generaUy  quote  from  that  printed  in  1819:  but  in  1829  it  was 
If,?ll''n^  iJl  A  ^?"^^?^^o.}^  ^  ^^  ^^  *^'  *^«««  ^e"  occasioned  by  the  stric- 
SE^fn/^hi/,'^"*"'."'  '**!.^'''  ^°^"°*''  °^  **^«  Edinburgh  Review,  not  more  remart 
llf5«!l.  ?  r^°f  ""*  acuteness  than  their  severity  on  the  Report.    The  cor- 

rSi«u;L?/^M°K'  »^  chiefly  confined  to  errors  of  names,  datesj^and  others  of 
a  Bhnllar  kind,  which  no  doubt  had  been  copiously  pointed  out.  kut  it  has  not 
appean^d  to  me  that  the  Lords'  Committee  have  altered,  in  any  considerable  deeree 
i^l'^r^T"  ""^'"^  *f*  "^^'r*'  anhnadverte.  'it  was^hardly,  indeed,  to^ 
J2?^^i5  '»»«  "uPPOsed  compiler  of  the  Report,  the  late  Lo^  Redwdale. 
havhig  taken  up  his  own  line  of  opinion,  would  abandon  it  on  the  suggestioM 
ii?^  ^iT  '^°°^"»e°^'  tt^o^Kli  extremely  able,  and  often,  in  the  eyes  of  many, 
SSgp  "*  certainly  not  couched  in  the  most  conciUatory  or  respwtftai 


288 


TYRANNY  OF  WILLIAM  L   Chap.  VHl.  Part  IL 


the  bitterness  of  that  servitude  which  TTiUiam  and  his  Nor- 
man followers  were  to  bring  upon  their  country. 

The  commencement  of  his  administration  was  tolerably 
equitable.  Though  many  confiscations  took  place, 
^flwT*''"'  in  order  to  gratify  the  Norman  army,  yet  the  mass 
moderate.  ^^  property  was  left  in  the  hands  of  its  former  pos- 
sessors. Oflaces  of  high  trust  were  bestowed  upon  EngHsh- 
men,  even  upon  those  whose  family  renown  might  have  raised 
the  most  aspiring  thoughts.^  But  partly  through  the  inso- 
lence and  injustice  of  Wilham's  Norman  vassals, 
mo^tifJSi.  partly  through  the  suspiciousness  natural  to  a  man 
^^^'  conscious  of  having  overturned  the  national  govern- 

ment, his  yoke  soon  became  more  heavy.  The  Enghsh  were 
oppressed  ;  they  rebelled,  were  subdued,  and  oppressed  again. 
All  their  rismgs  were  without  concert,  and  desperate ;  they 
wanted  men  fit  to  head  them,  and  fortresses  to  sustain  their 
revolt.^  After  a  very  few  years  they  sank  in  despair,  and 
yielded  for  a  century  to  the  indignities  of  a  comparatively 
small  body  of  strangers  without  a  single  tumult.  So  possible 
is  it  for  a  nation  to  be  kept  m  permanent  servitude,  even  with- 
out losing  its  reputation  for  individual  courage,  or  its  desire 

of  freedom!* 

The  tyranny  of  William  displayed  less  of  passion  or  mso- 


1   Orderictis  Vitalls,   p.  620  (in   Da 
Chesne,  Hist.  Norm.  Script.). 

t  Ordericus  notices  the  want  of  castles 
in  England  as  one  reason  why  rebel- 
lions were  easily  quelled,  p.  611.    Fail- 
ing in  their  attempts  at  a  generous  re- 
ristance,  the  English  endearored  to  get 
rid  of  their  enemies  by  assassination,  to 
which  many  Normans  became  victims. 
William  therefore  enacted  that  in  every 
case  of  murder,  which  strictly  meant  the 
killing  of  any  one  by  an  unknown  hand, 
the  hundred  should  be  liable  in  a  fine, 
unless  they  could  prove  the  person  mur- 
dered to  be  an  Englishman.    This  was 
tried  by  an  inquest,  upon  what  was  called 
a  presentment  of  Englishry.    But  from 
the  reign  of  Henry  n.,  the  two  nations 
having   been  very  much  intermingled, 
this  inquiry,  as  we  learn  from  the  Dia- 
logue de  Scaccario,  p.  26,  ceased  ;  and  in 
every  case  of  a  freeman  murdered  by  per- 
sons unknown  the  hundred  was  fined. 
See  however  Bracton,  1.  ill.  c.  16. 

>  The  brave  resistance  of  Hereward  in 
the  lens  of  Lincoln  and  Cambridge  is  well 
told  by  M.  Thierry,  from  Ingulfus  and 
(}aimar.  ConquSte  d'Anglet.  par  les 
Vonnands,  vol.  U.  p.  168.    Turner  had 


given  it  in  some  detail  from  the  former. 
Hereward  ultimately  made  his  peace  with 
William,  and  recovered  his  estate.     Ac- 
cording to  Ingulfus,  he  died  peaceably, 
and  was  buried  at  Croyland;  according 
to  Gaimar,  he  was  assassinated  in  his 
house  by  some  Normans.    The  latter  ac- 
count is  confirmed  by  an  early  chronicler, 
from  whom  an  extract  is  given  by  Mr. 
Wright.   A  more  detailed  memoir  of  Here- 
ward (De  Qestis  Herewardi  Saxonis)  is 
found  in  the  chartulary  of  Swaffham  Ab- 
bey, now  preserved  in  Peterborough  Ca- 
thedral, and  said  to  be  as  old  as  the 
twelfth  century.    Mr.  Wright  published 
it  in  1838,  from  a  copy  in  the  library  of 
Trinity  CoUege,  Cambridge.    If  the  au 
thor  is  to  be  believed,  he  had  conversed 
with  some  companions  of  Hereward.  But 
such  testimony  is  often  feigned  by  the 
medijBval  semiromancers.    Though  the 
writer  appears  to  affect  a  different  origin, 
he  is  too  full  of  Anglo-Saxon  sympathies 
to  be  disguised  ;  and  in  feet,  he  has  evi 
dently  borrowed  greatly  from  exaggerated 
legends,  perhaps  metrical,  current  among 
the  English,  as  to  the  early  life  of  Here- 
ward, to  which  Ingulfus.  or  whoever  per- 
sonated him,  cursorily  alludes. 


English  Const.       TYKANNY  OF  WILLIAM  L 


289 


lence  than  of  that  indifference  about  human  suffering  which 
distinguishes  a  cold  and  far-sighted  statesman.     Impressed  by 
the  frequent  risings  of  the  English  at  the  commencement  of 
his  reign,  and  by  the  recollection,  as  one  historian  observes 
that  the  mild  government  of  Canute  had  only  ended  in  the 
expulsion  of  the  Danish  line,^  he  formed  the  scheme  of  rivet- 
ing such  fetters  upon  the  conquered  nation,  that  all  resistance 
should  become  impracticable.     Those  who  had  obtained  hon- 
orable  offices  were  successively  deprived  of  them :  even  the 
bishops  and  abbots  of  English  birth  were  deposed;  ^  a  stretch 
of  power  very  singular  in  that  age.     Morcar,  one  of  the  most 
lUus^ious  Enghsh,  suffered  perpetual  imprisonment.     Wal- 
theofl^a  man  of  equally  conspicuous  birth,  lost  his  head  upon 
a  scaffold  by  a  very  harsh  if  not  iniquitous  sentence.     It  was 
so  rare  m  those  times  to  inflict  judicially  any  capital  punish- 
ment  upon  persons  of  such  rank,  that  his  death  seems  to  have 
produced  more  indignation  and  despair  in  England  than  any 
single  circumstance.     The  name  of  Englishman  was  turned 
mto  a  reproach.     None  of  that  race  for  a  hundred  years  were 
raised  to  any  dignity  in  the  state  or  church.^    Their  lanorua<re 


1  Malmsbury,  p.  104. 

«  Hoveden,  p.  463.     This   was  done 
with  the  concurrence  and  sanction  of  the 
pope,  Alexander  II.,  so  that  the  stretch 
of  power  was  by  Rome  rather  than  by 
William.    It  must  pass  for  a  gross  vio- 
lation of  ecclesiastical  as  well  as  of  na- 
tional rights,  and  Lanfranc  cannot   be 
reckoned,    notwithstanding   his    distin- 
guished name,  as  any  better  than  an  in- 
trusive bishop.    He  showed  his  arrogant 
scorn  of  the  English  nation  in  another 
and   rather  a  singular  manner.     They 
were  excessively  proud  of  their  national 
saints,  some  of  whom  were  little  known, 
T?  11  ^^°^  barbarous  names  disgusted 
Italian  ears.    Angli  inter  quos  vivimus, 
saJd  the  foreign  priests,  quosdam  sibi  iu- 
stituexunt  sanctos,  quorum  incerta  sunt 
merita.    This  might  be  true  enough :  but 
the  same  measure  should  have  been  met- 

edit.  1830.  The  Norman  bishops,  and 
the  primate  especially,  set  themselves  to 
disparage,  and  in  fact  to  dispossess,  St. 
Aldhelm,  St.  Elfig,  and,  for  aught  we 
know,  St.  Swithin,  St.  Werburg,  St.  Ebb, 
and  St.  Alphage;  names,  it  must  be 
owned, 

"That  would   have  made  Quintilian 
stare  and  gasp." 

^«  ™ay  JuJge  what  the  eminent  native 
Of  Pavia  thought  of  such  a  hagiology. 
VOL.  II.  Id 


The  English  church  found  herself,  as  it 
were,  with  an  attainted  peerage.     But 
the  calender  withstood  these  innovations. 
Mr.  Turner,  in  his  usual  spirit  of  pane- 
gyric, says,  — '-He  (William)  made  im- 
portant    changes    among    the   English 
clergy  ;  he  caused  Stigand  and  others  to 
be  deposed,  and  he  fiUed  their  places 
with  men  from  Normandy  and  France, 
vrho  were  distinguished  by  the  characters 
of  piety,  decorous  morals,  and  a  love  of 
hterature.    This  measure  was  an  impor- 
tant addition  to  the  civilization  of  the 
island,"  &c.    Hist,  of  England,  vol.  i.  p. 
104.    Admitting  this  to  be  partly  true, 
though  he  would  have  found  by  no  means 
so  favorable  an  account  of  the  Norman 
prelates  in  Ordericus  Vitalis,  if  he  had 
read  a  few  pages  beyond  the  passages  to 
which  he  refers,  is  it  consonant  to  his- 
torical justice  that  a  violent  act,  like  the 
deposition  of  almost  all  the  Anglo-Saxon 
hierarchy,  should  be  spoken  of  in  a  tone 
of  praise,  which  the  whole  tenor  of  the 
paragraph  conveys? 

5  Becket  is  said  to  have  been  the  firs 
Englishman  who  reached  any  consider 
able  dignity.  Lord  Lyttelton's  Hist,  of 
Henry  II.  vol.  ii.  p.  22.  And  Eadmer 
declares  that  Henry  I.  would  not  phice 
a  single  Englishman  at  the  head  of  a  mon- 
astery. Si  Anglus  erat,  nulla  virtus,  ut 
honore  aliquo  dignus  judicaretur,  eum 
poterat  adjuvare.  p.  110. 


It 


290 


TYRANNY  OF  WILLIAM  L    Chap.  Vm.  Pabt  XL 


Ehoj-ish  Const.      TYRANNY  OF  WILLIAM  L 


and  the  characters  in  which  it  was  written  were  rejected  as 
barbarous;  in  all  schools,  if  we  trust  an  authority  often  quoted, 
children  were  taught  French,  and  the  laws  were  administered 
in  no  other  tongue.^  It  is  well  known  that  this  use  of  French 
in  all  legal  proceedings  lasted  till  the  reign  of  Edward  III. 
Several  English  nobles,  desperate  of  the  fortunes  of  their 
country,  sought  refuge  in  the  court  of  Constantinople,  and  ap- 
proved their  valor  in  the  wars  of  Alexius  against  another 
Norman  conqueror,  scarcely  less  celebrated  than  their  own, 
Robert  Guiscard.  Under  the  name  of  Varangians,  those  true 
and  faithful  supporters  of  the  Byzantine  empire  preserved  to 
its  dissolution  their  ancient  Saxon  idiom.' 

An  extensive  spoliation  of  property  accompanied  these 
revolutions.  It  appears  by  the  great  national  survey  of 
Domesday  Book,  completed  near  the  close  of  the  Ck)nqueror's 
reign,*  that  the  tenants  in  capite  of  the  crown  were  generally 


1  Ingulfas,  p.  61.  Tan  turn  tuuc  An- 
glicos  abominati  sunt,  ut  quantocunque 
merito  poUerent,  de  dignitatibus  repelle- 
bantur;  et  multo  minus  habiles  alieni- 
genie  de  quicunque  alii  natione,  quae 
Bub  coelo  est,  extitissent,  gratanter  assu- 
merentur.  Ipsum  etiam  idioma  tantum 
abhorrcbant,  quod  leges  terrao,  statu taque 
Anglicorum  legum  lingu3k  Qallic&  trac- 
tarentur ;  et  pueris  etiam  in  scholia  prin- 
cipia  literarum  grammatica  Gallic^,  ac 
non  Anglice  traderentur ;  modus  etiam 
scribencU  Anglicus  omitteretur,  et  modus 
Qallicus  in  chartis  et  in  libris  omnibus 
admitteretur. 

But  the  passage  in  Ingulfus,  quoted 
in  support  of  this    position,  has  been 
placed   by  Sir  F.  Palgrave  among  the 
proo&  that  we  have  a  forgery  of  the  four- 
teenth century  in  that  historian,  the  fJEUsts 
being  in  absolute  contradiction  to  him. 
"  Before  the  reign  of  Henry  III.  we  can- 
not discover  a  deed  or  law  drawn  or  com- 
poFed  in  French.     Instead  of  prohibiting 
the  English  language,  it  was  employed 
by  the  Conqueror  and  his  successors  in 
their  charters  until  the  reign  of  Henry 
II.,  when  it  wa«  superseded,  not  by  the 
French,  but  by  the  Latin  language,  which 
had  been  gradually  gaining  or  rather  re- 
gaining ground."     Edinb.  Rev.  xxxiv. 
262.    ''The  I^tin  language   had  given 
way  in  a  great  measure,  from  the  time  of 
Canute,  to  the  vernacular  Anglo-Saxon. 
Several  charters  in  the  latter  language 
occur  before ;  but  for  fifty  years  ending 
with  the  Conquest,  out  of  254  (published 
in  the  fourth  volume  of  the  Codex  Dip- 
lomaticus),  137  are  in  Anglo-Saxon,  and 
only  117  in  Latin."    Kemble's  Preface, 
jp.  6. 


If  I  have  rightly  translated,  in  the  text 
of  Ingulfus,  leges  tractarentur  by  admin- 
istered, the  falsehood  is  manifest;  sinc« 
the  laws  were  administered  In  the  county 
and  hundred  courts,  and  certainly  not 
there  in  French.  I  really  do  not  per- 
ceive how  this  passage  could  have  been 
written  by  Ingulfus,  who  must  have 
known  the  truth ;  at  all  events,  his  testi- 
mony must  be  worth  little  on  any  sub- 
ject,'if  he  could  so  palpably  misrepresent 
a  matter  of  public  notoriety.  The  sup- 
position of  entire  forgery  is  one  which  we 
should  not  admit  without  full  proof; 
but,  in  this  instance,  there  are  perhaps 
fewer  difficulties  on  this  side  than  on 
that  of  authenticity. 

«  Gibbon,  vol.  x.  p.  223.  No  writer, 
except  perhaps  the  Saxon  Chronicler,  is 
go  full  of  William's  tyranny  as  Ordericui 
VitaUs.  See  particularly  p.  607,  512, 
614,  621,  523,  in  Du  Chesne,  Hist.  Norm. 
Script.  Ordericus  waa  an  Englishman, 
but  passed  at  ten  years  old,  a.d.  1084, 
into  Normandy,  where  he  became  pro- 
fessed in  the  monastery  of  £u.  Ibid.  p. 
924. 

•  The  r^ularity  of  the  course  adopted 
when  this  record  was  compiled  is  very 
remarkable;  and  affords  a  satisfactory 
proof  that  the  business  of  the  government 
was  well  conducted,  and  with  much  less 
rudeness  than  is  usually  supposed.  The 
commissioners  were  furnished  with  in- 
terrogatories, upon  which  they  examined 
the  jurors  of  tlie  shire  and  hundred,  and 
also  such  otker  witnesMS  as  they  thought 
expedient. 

Hie  subseribitur  inqnisicio  terrarum 
quomodo  Barones  Reges  inquirunt,  vide- 
licet, per  sacramentum  vioeeomitifl  SciiM 


291 


foreigners.     Undoubtedly  there  were  a  few  left  in  almost 
every  county  who  still  enjoyed  the  estates  which  they  held 
under  Edward  the  Confessor,  free  from  any  superiority  but 
that  of  the  crown,  and  were  denominated,  as  in  former  times, 
the  king's  thanes.^     Cospatric,  son  perhaps  of  one  of  that 
name  who  had  possessed  the  earldom  of  Northumberland 
held  forty-one  manors  in  Yorkshire,  though  many  of  them  are 
stated  m  Domesday  to  be  waste.     But  inferior  freeholders 
were  much  less  disturbed  in  their  estates  than  the  higher  class 
Brady  maintains  that  the  English  had  suffered  universally  a 
deprivation  of  their  lands.     But  the  valuable  labors  of  Sir 
Henry  Ellis,  m  presenting  us  with  a  complete   analysis  of 
Domesday  Book,  afford  an  opportunity,  by  his  list  of  mesne 
tenants  at  the  time  of  the  survey,  to  form  some  approximation 
to  the  relative  numbers  of  English  and  foreigners  holdinff 
manors  under  the  immediate  vassals  of  the  crown.     The  bai^ 
tismal  names  (there  are  rarely  any  others)  are  not  always 
conclusive ;  but  on  the  whole,  we  learn  by  a  little  practice  to 
distinguish  the  Norman  from  the  Anglo-Saxon.     It  would  be 
manifest,  by  running  the  eye  over  some  pages  of  this  list,  how 
considerably  mistaken  is  the  supposition  that  few  of  English 
birth  held  entire  manors.     Though  I  will  not  now  affirm  or 
deny  that  they  were  a  majority,  they  form  a  large  proportion 
of  nearly  8000  mesn^  tenante,^  who  are  summed  up  by  the 
dihgence  of  Sir  Henry  Ellis.     And  we  may  presume  that 
«iey  were  in  a  very  much  greater  proportion   among  the 
hberi  homines,"  who  held  lands,  subject  only  to  free  services, 
seldom  or  never  very  burdensome.    It  may  be  added  that 


et  omnium  Baronum  et  eorum  Franci- 
genarumet  tocius  centuriatus  — presbi- 
teri  prajpositi  VI  villani  uniuscujusque 
riUae   [sicj.— Delude   quomodo   vocatur 
mansio,  quis  tenuit  eam  tempore  R^ 
Edwardiy  quis  modo  tenet,  quot  hid», 
quot  carrucatae  in  domino  quot  homines, 
quot   villani,  quot   cotarii,  quot  servi, 
quot  liberi  homines,  quot  sochemanni, 
quantum  silvae,  quantum   prati,    quot 
pMcuorum,  quot  molidenae,  quot  piscinse, 
quantum  est  additum  vel  ablatum,  quan- 
tum vaJebat  totum  simul ;  et  quantum 
modo  ;  quantum  ibi  quisque  liber  homo 
Tel  sochemanus  habuit  vel  habet.    Hoc 
totum  tripliciter,  scilicet  tempore  Regis 
^wardi;   et   quando    Rex  Willielmus 
aedit ;  et  quomodo  sit  modo,  et  si  plus 
potest  haberi  quam  habeatur.    Isti  ho- 
mines juraverunt  (then  follow  the  names). 
Inquisitio  ElienaiB,  p.  497.    Palgrave,  ii. 


1  Brady,     whose    unfairness    always 
keeps    pace  with   his  abiUty,  pretend* 
that  all  these  were  menial  officers  of  the 
king's  household.    But  notwithstanding 
the  difficulty  of  disproving  these  gratui- 
tous  suppositions,  it  is  pretty  certain 
that  many  of  the  English  proprietors  in 
Domesday  could  not  have  been  of  this 
description.     See  p.  99,  153,  218,  219, 
and  other  places.     The  question,  how- 
ever, was  not  worth  a  battle,  though  it 
makes  a  figure  in  the  controversy  of 
Normans    and  Anti-Normans,  between 
Dugdale  and  Brady  on  the  one  side,  and 
Tyrrell,    Petyt,    and   Attwood    on    the 
other. 

'  Ellis's  Introduction  to  Domesday, 
vol.  ti.  p.  811.  "  The  tenants  in  capite, 
including  ecclesiastical  corporations, 
amounted  scarcely  to  1400:  the  ondcr- 
tenants  were  7871." 


292 


TYRANNY  OF  WILLIAM  I.    Chap.  Vm.  Part  H. 


many  Normans,  as  we  learn  from  history,  married  English 
heiresses,  rendered  so  frequently,  no  doubt,  by  the  vio  ent 
deaths  of  their  fathers  and  brothers,  but  sUU  transmittmg 
ancient  rights,  as  well  as  native  blood,  to  their  posterity. 

This  micrht  induce  us  to  suspect  that,  great  as  the  spohation 
must  appe^  in  modem  times,  and  almost  completely  as  the 
nation  was  excluded  from  civil  power  in  the  commonwealth, 
there  is  some  exaggeration  in  the  language  of  those  writers 
who  represent  them  as  universally  reduced  to  a  state  of  penury 
and  servitude.     And  this  suspicion  may  be  in  Bome  degree 
iust.     Yet  these  writers,  and  especially  the  most  H^nglish  m 
feeling  of  them  all,  M.  Thierry,  are  warranted  by  the  language 
of  contemporary  authorities.     An  important  passage  in  the 
Dialogus  de  Scaccario,  written  towards  the  end  of  Henry 
ni.*s  reign,  tends  greatly  to  diminish  the  favorable  impres- 
sion which  the  Saxon  names  of  so  many  mesne  tenants  in 
Domesday  Book  would  create.     If  we  may  trust  Gervase  ot 
Tilbury,  author  of  this  little  treatise,  the  estates  of  those  who 
had  borne   arms   against  William  were   alone   confiscated ; 
though  the  others  were  subjected  to  the  feudal  superiority  ot 
a  Norman  lord.     But  when  these  lords  abused  their  power 
to  dispossess  the  native  tenants,  a  clamor  was  raised  by  the 
English,  and  complaint  made  to  the  king ;  by  whom  it  was 
ordered  (if  we  rightly  understand  a  passage  not  devoid  ot 
obscurity)  that  the  tenant  might  make  a  bargain  with  his  lord, 
80  as  to  secure  himself  in  possession ;  but  that  none  ot  the 
English  should  have  any  right  of  succession,  a  fresh  agree- 
ment with  the  lord  being  required  on  every  change  of  tenancy. 
The  Latin  words  wiU  be  found  below.*  This,  as  here  expressed, 


1  Poflt  regnl  conquisitionem,  post  jus- 
tarn  rebellium  subversionem,  cum  rex 
Ipse  regisque  proceres  loca  nova  perlus- 
trarent,  facta  est  inquisitio  diUgens,  qui 
fuerunt  qui  contra  regem  in  bello  dimi- 
cantcs  per  fugam   se  salvaverant.    His 
omnibus  et  item  hseredibus  eorum  qui 
in  bello  occubuerant,  spes  omnia  terra- 
rum  et  fundorum  atque  redituum  quos 
ante  possederant,  pweclusa  est ;  magnum 
namque  reputabant  frui  vitffi  beneflcio 
sub  inimicis.    Verum  qui  Tocati  ad  bel- 
lum  necdum  convenerant,  vel  familiari- 
bus  Tel  quibuslibet  necessariis  occupati 
negotiis  non  interfuerant,  cum   tractu 
temporis  devotis  obsequiis  gratiam  do- 
minorum  possedissent  sine  spe  succes- 
nonis,  filii  tantum  pro  voluptate  [sic.  to- 
lantate?]   tamen  dominorum    possidere 
Meperunt  succedente  Tero  tempore  cum 


dominis  suis  odiosi  passim  a  possessioni- 
bus   pellerentur,  nee  esset  qui   ablati* 
restituerit,  communis    indigenarum   ad 
regem   perrenit   querimonia,  quasi   sic 
omnibus  exosl  et  rebus  spoliatis  ad  alien- 
igenas  transire  cogerentur.  Comniunicato 
tantum  super  his  consilio^  decretum  est, 
ut    quod   a    dominis    svus   exigentibus 
mentis    interveniente  pactione  legitima 
poterant  obtinere,  illis  inviolabilirf  jure 
concederentur  ;  ca;terum  uutem  nomine 
successionis  a  temporibus  subactae  gent)« 
nihil  sibi  vindicareut.   ...   Sic  igitur 
quisquis  de  gcnte   subacta   fundos  Tel 
aliquid    hujusraodl   pa>*didet,  non  qurd 
ratione    successionis    deberi    sibi    vide- 
batur,  adeptus  est;  sed  quod  solummodo 
meritis  sui8  exigentibus,  rel  allqua  pac- 
tione interreniente,  obtinuit.    Dial,  d* 
Scaccario,  c.  10. 


English  Const.       TYRANNY  OF  WILLIAM  L 


293 


suggests  something  like  an  uncertain  relief  at  the  lord's  will, 
and  paints  the  condition  of  the  English  tenant  as  wretchedly 
dependent  But  an  instrument  pubhshed  by  Spelman,  and 
which  will  be  found  in  Wilkins,  Leg.  Ang.  Sax.  p.  287,  gives  a 
more  favorable  view,  and  asserts  that  William  permitted  those 
who  had  taken  no  part  against  him  to  retain  their  lands; 
though  it  appears  by  the  very  same  record  that  the  Normans 
did  not  much  regard  the  royal  precept 

But  whatever  may  have  been  the  legal  condition  of  the 
English  mesne  tenant,  by  knight-service  or  socage,  (for  the 
case  of  villeins  is  of  course  not  here  considered,)  during  the 
first  two  Norman  reigns,  it  seems  evident  that  he  was  protected 
by  the  charter  of  Henry  I.  in  the  hereditary  possession  of  his 
lands,  subject  only  to  a  "  lawful  and  just  rehef  towards  his 
lord."     For  this  charter  is  addressed  to  all  the  liege  men  of 
the  crown,  "French  and  English ;"  and  purports  to  aboHsh  all 
the  evil  customs  by  which  the  kingdom  had  been  oppressed, 
extending  to  the  tenants  of  the  barons  as  well  as  those  of  the 
crown.     We  cannot  reasonably  construe  the  language  in  the 
Dialogue  of  the  Exchequer,  as  if  in  that  late  age  the  English 
tenant  had  no  estate  of  fee-simple.     If  this  had  been  the 
case,  there  could  not  have  been  the  difficulty,  which  he  men- 
tions in  another  place,  of  distinguishing  among  freemen  or 
freeholders  (liberi   homines)    the   Norman   blood   from   the 
Englishman,   which   frequent   intermarriage   had  produced. 
He  must,  we  are  led  to  think,  either  have  copied  some  other 
writer,  or  made  a  careless  and  faulty  statement  of  his  own. 
But,  at  the  present,  we  are  only  considering  the  state  of  the 
English  in  the  reign  of  the  Conqueror.     And  here  we  have, 
on  the  one  hand,  a  manifest  proof  frohi  the  Domesday  record 
that  they  retained  the  usufruct,  in  a  very  great  measure,  of 
the  land ;  and  on  the  other,  the  strong  testimony  of  contem- 
porary historians  to  the  spoliation  and  oppression  which  they 
endured.     It  seems  on  the  whole  most  probable  that,  notwith- 
standing innumerable  acts  of  tyranny,  and  a  general  exposure 
to  contumely  and  insolence,  they  did  in  fact  possess  what  they 
are  recorded  to  have  possessed  by  the  Norman  Commission- 
ers of  1085. 

The  vast  extent  of  the  Norman  estates  in  capite  is  apt  to 
deceive  us.  In  reading  of  a  baron  who  held  forty  or  fifty  or 
one  hundred  manors,  we  are  prone  to  fancy  his  wealth  some- 
thing like  what  a  similar  estate  would  produce  at  this  day. 


294  TYRANNY  OF  WILLIAM  I.    Chap.  VHI.  Part  IL 

But  if  we  look  at  the  next  words,  we  shaU  contiiiually  find 
that  some  one  else  held  of  him  •,  and  this  was  a  holding  by 
knight's  service,  subject  to  feudal  incidents  no  doubt,  but  not 
leaving  the  seigniory  very  lucrative,  or  givmg  any  nght  ot 
possessory  ownership  over  the  land.    The  real  possessions 
of  the  tenant  of  a  manor,  whether  holding  in  chief  or  not, 
consisted  in  the  demesne  lands,  the  produce  of  which  he  ob- 
tained  without  cost  by  the  labor  of  the  villems,  and  m  what- 
ever other  payments  they  might  be  bound  to  make  m  money 
or  kind.     It  will  be  remembered,  what  has  been  more  than 
once  inculcated,  that  at  this  time  the  villani  and  bordarii,  that 
is,  ceorls,  were  not  like  the  viUeins  of  Bracton  and  Littleton, 
destitute  of  rights  m  their  property ;  their  condition  was  tend- 
ing to  the  lower  stage,  and  with  a  Norman  lord  they  were  m 
much  danger  of  oppression ;  but  they  were  "law-worthy,   they 
had  a  civil  status  (to  pass  from  one  technical  style  to  another), 
for  a  century  after  the  Conquest 

Yet  I  would  not  extenuate  the  calamities  of  this  great 
revolution,  true  though  it  be  that  much  good  was  brought  out 
of  them,  and  <hat  we  owe  no  trifling  part  of  what  inspires 
self-esteem  to  the  Norman  element  of  our  population  and  our 
polity.     England  passed  under  the  yoke ;    she  endured  the 
arrogance  of  foreign  conquerors ;  her  children,  even  though 
then-  loss  in  revenue  may  have  been  exaggerated,  and  stiU  it 
was  enormous,  became  a  lower  race,  not  called  to  the  coun- 
cils of  their  sovereign,  not  sharing  his  trust  or  his  bounty. 
They  were  in  A  far  different  condition  from  the  provincial 
Romans  after  the  conquest  of  Gaul,  even  if,  which  is  hardly 
possible  to  determine,  their  actual  deprivation  of  lands  should 
have  been  less  extensive.    For  not  only  they  did  not  for  sev- 
eral reigns  occupy  the  honorable  stations  which  sometimes 
fell  to  the  lot  of  the  Roman  subject  of  Clovis  or  Alanc,  but 
they  had  a  great  deal  more  freedom  and  importance  to  lose. 
Nor  had  they  a  protecting  church  to  mitigate  barbarous  su- 
periority;  their  bishops  were  degraded  and  in  exile;   the 
footstep  of  the  invader  was  at  their  altars ;  their  monasteries 
were   plundered,  and    the   native    monks  insulted.      Rome 
herself  looked  with  little  favor  on  a  church  which  had  pre- 
served some  measure  of  independence.     Strange  contrast  to 
the  triumphant  episcopate  of  the  Merovingian  kings ! 

I  The  oppression  of  the  EngUsh  (luring    described    bj    *^e„  N°™°  ,  "^'jJ^S 
the  first  reigns  after  the  Conquest  is  fully    themselTes,  aa  weU   a»   bj  Uw   ts«xo» 


Eroluh  Const.    DEVASTATION  OF  YORKSHIRE. 


295 


Besides  the  severities  exercised  upon  the  English  after 
ftvery  insurrection,  two  instances  of  William's  un- 
Bparing  cruelty  are  well  known,  the  devastation  of  ^^'SS£» 
Yorkshire  and  of  the  New  Forest.    In  the  former  *^<*  New 
which  had  the  tyrant's  plea,  necessity,  for  its  pre-  ^°"^*' 
text,  an  invasion  being  threatened  from  Denmark,  the  whole 
country  between  the  Tyne  and  the  Humber  was  laid  so  des- 
olate, that  for  nine  years  afterwards  there  was  not  an  inhab- 
ited village,  and  hardly  an  inhabitant,  left ;  the  wasting  of 
this  district  having  been  followed  by  a  famine,  which  swept 
away  the   whole   population.^     That  of   the  New  Forest 
though  undoubtedly  less  calamitous  in  its  effects,  seems  even 
more  monstrous  from  the  frivolousness  of  the  cause.*    He 
afforested  several  other  tracts.     And  these  favorite  demesnes 
of  the  Norman  kings  were  protected  by  a  system  of  iniqui- 
tous and  cruel  regulations,  called  the  Forest  Laws,  which  it 
became  afterwards  a  great  object  with  the  assertors  of  liber- 
ty to  correct.     The  penalty  for  killing  a  stag  or  a  boar  was 
loss  of  eyes ;   for  William  loved  the  great  game,  says  the 
Saxon  Chronicle,  as  if  he  had  been  then-  father.^ 

A  more  general  proof  of  the  ruinous  oppression  of  William 
the  Conqueror  may  be  deduced  fi-om  the  comparative  condi- 


Chronicle.  Their  testimonies  are  well 
collected  by  M.  Thierry,  in  the  second 
Tolume  of  his  raluable  history. 

1  Malmsbury,  p.  103;  Hoveden,  p.  451: 
Orderic.  Vitalis,  p.  514.  The  desolation 
of  Yorkshire  continued  in  Malmsbury's 
time,  sixty  or  seventy  years  afterwards ; 
nudum  omnium  solum  usque  ad  hoc 
etiam  tempus. 

*  Malmsbury,  p.  111. 

'  Chron.  Saxon,  p.  191.  M.  Thierry 
conjectures  that  these  severe  regulations 
had  a  deeper  motive  than  the  mere  pres- 
ervation of  game,  and  were  intended  to 
prevent  the  English  from  assembling  in 
arms  on  pretence  of  the  chase.  Vol.  ii. 
p.  267.  But  perhaps  this  is  not  neces- 
Bary.  We  know  that  a  disproportionate 
aeverity  has  often  guarded  the  beasts  and 
birds  of  chase  from  depredation. 

Allen  admits  (Edinburgh  Rer.  xxvi. 
855)  that  the  forest-lawa  seem  to  have 
toeen  enacted  by  the  king's  sole  author- 
ity ;  or,  as  we  may  rather  say,  that  they 
were  considered  as  a  part  of  his  preroga- 
tlre.  The  royal  forests  were  protected 
by  extraordinary  penalties  even  before 
the  Conquest.  "  The  royal  forests  were 
part  of  the  demesne  of  the  crown.  They 
ven  not  included  in  the  territorial  divis- 


ions of  the  kingdom,  civil  or  ecclesiaa. 
tical,  nor  governed  by  the  ordinary  courts 
of  law,  but  were  set  apart  for  the  recrea- 
tion and  diversion  of  the  king,  as  waste 
lands,  which  he  might  use  and  dispose  of 
at  pleasure."  "Forestae,"  says  Sir  Henry 
Spelman,  "  nee  villas  propria  accepere, 
nee  parochias,  nee  de  corpore  alicigus 
comitatus  vel  episcopatils  habitse  sunt. 
sed  extraneum  quiddam  et  feris  datum, 
ferino  jure,  non  civili,  non  municipal! 
fruebantur;   regeni  in  omnibus  agnos- 
centes  dominum  unicum  et  ex  arbitrio 
disponentem."    Mr.  Allen  quotes  after- 
wards  a    passage   from    the    '  Dialogus 
de  Scaccario,'  which  indicates  the  pecu- 
liarity of  the  forest-laws.     "  Forestarum 
ratio,  poena  quoque  vel  absolutio  delin- 
quentium  in  eas,  sive  pecuniaria  fuerik 
sive  corporalis,  seorsim  ab  aliis  regni  ju- 
diciis  secernitur,  et  solius  regis  arbitrio, 
vel  cujuslibet  familiaris  ad  hoc  specialiter 
deputati    subjicitur.      Legibus    quidem 
propriis  subsistit;   quas  non  communi 
regni  jure,  sed  voluntaria  principum  in- 
stitutione  subnixas  dicunt."    The  forests 
were,  to  use  a  word  in  rather  an  op- 
posite sense  to  the  usual,  an  oasis  of 
despotism  in  the  midst  of  the  old  ooni' 
monlaw 


296  BICHES  OF  WILLIAM  L     Chap.  VIH.  Part.  IL 

tion  of  the  English  towns  in  the  reign  of  Edward 
£i^?uiItioii  the  Confessor,  and  at  the  compilation  of  Domesday. 
from  Domes-  j^^  i]^q  fonncr  epoch  there  were  in  York  1607  in- 
^  *  habited  houses,  at  the  latter  967 ;  at  the  former 
there  were  in  Oxford  721,  at  the  latter  243  ;  of  172  houses 
in  Dorchester,  100  were  destroyed;  of  243  in  Derby,  103; 
of  487  in  Chester,  205.  Some  other  towns  had  suffered  less, 
but  scarcely  any  one  fails  to  exhibit  marks  of  a  decayed 
population.  As  to  the  relative  numbers  of  the  peasantry 
and  value  of  lands  at  these  two  periods,  it  would  not  be  easy 
to  assert  anything  without  a  laborious  examination  of  Domes- 
day Book.^ 

The  demesne  lands  of  the  crown,  extensive  and  scattered 
Domains  of  ovcr  cvcry  county,  were  abundantly  sufficient  to 
the  crown,  support  its  dignity  and  magnificence  ;  *  and  William, 
far  from  wasting  this  revenue  by  prodigal  grants,  took  care  to 
let  them  at  the  highest  rate  to  farm,  little  caring  how  much  the 
cultivators  were  racked  by  his  tenants.'  Yet  his  exactions, 
both  feudal  and  in  the  way  of  tallage  from  his  burgesses  and 
the  tenants  of  his  vassals,  were  almost  as  violent  as  his  confisca- 
tions. No  source  of  income  was  neglected  by  him,  or  indeed 
by  his  successors,  however  trifling,  unjust,  or  unreasonable. 
Riches  of  ^^  revenues,  if  we  could  trust  Ordericus  Vitalis, 
the  Con-  amounted  to  1060/.  a  day.  This,  in  mere  weight 
queror.         ^£  gj^^^j.^  ^^^i^  y^^  ^^^al  to  nearly  1,200,000/.  a 

year  at  present.  But  the  arithmetical  statements  of  these 
writers  are  not  implicitly  to  be  relied  upon.  He  left  at  his 
death  a  treasure  of  60,000/,  which,  in  conformity  to  his  dy- 
ing request,  his  successor  distributed  among  the  church  and 
poor  of  the  kingdom,  as  a  feeble  expiation  of  the  crimes  by 
which  it  had  been  accumulated ;  *  an  act  of  disinterestedness 
which  seems  to  prove  that  Rufus,  amidst  all  his  vices,  was  not 
destitute  of  better  feelings  than  historians  have  ascribed 
to  him.  It  might  appear  that  William  had  little  use  for  his 
extorted  wealth.  By  the  feudal  constitution,  as  established 
during  his  reign,  he  commanded  the  service  of  a  vast  army 


EnousH  Const.    FEUDAL  SYSTEM  ESTABLISHED. 


297 


1  The  population  recorded  In  Domes- 
day is  about  283,000;  which,  in  round 
numbers,  allowing  for  women  and  chil- 
dren, may  be  called  about  a  million. 
ElUs's  Introduction  to  Domesday,  vol.  ii. 
p.  611. 

3  They  consisted  of  1^2  manors. 
Lyttelton's  Henry  II.  vol.  ii.  p.  288. 


3  Chron.  Saxon,  p.  188. 

*  Huntingdon,  p.  871.  Ordericaf 
Vitalis  puts  a  long  penitential  speech 
into  William's  mouth  on  his  death-bed. 
p.  66.  Though  this  may  be  his  iuTen 
tion,  yet  facts  seem  to  show  the  com' 
puDction  of  the  tyrant's  conscience. 


at  its  own  expense,  either  for  domestic  or  continental  war- 
fare.    But  this  was  not  sufficient  for  his  purpose ;  ms  merce- 
like  other  tyrants,  he  put  greater  trust  in  merce-  ^*^y  '^°°p«- 
nary  obedience.    Some  of  his  predecessors  had  kept  bodies  of 
Danish  troops  in  pay ;  partly  to  be  secure  against  their  hos- 
tility, partly  from  the  convenience  of  a  regular  army,  and 
the  love  which  princes  bear  to  it.     But  William  carried  this 
to  a  much  greater  length.      He  had  always  stipendiary  sol- 
liers  at  his  command.     Indeed  his  army  at  the  Conquest 
could  not  have  been  swollen  to  such  numbers  by  any  other 
means.     They  were  drawn,  by  the  allurement  of  high  pay, 
not  from  France  and  Brittany  alone,  but  Flanders,  Germany, 
and  even  Spain.     When  Canute  of  Denmark  threatened  an 
invasion  in  1085,  WiUiam,  too  conscious  of  his  own  tyranny 
to  use  the  arms  of  his  English  subjects,  collected  a  merce- 
nary force  so  vast,  that  men  wondered,  says  the  Saxon  Chron- 
icler, how  the  country  could  maintain  it.      This  he  quar- 
tered upon  the  people,  according  to  the  proportion  of  their 
estates.^ 

^    Whatever  may  be  thought  of  the  Anglo-Saxon  tenures,  it 
IS  certain  that  those  of  the  feudal  system  were  j.    ^ 
thoroughly  established  in  England  under  the  Con-  tem'Steb"' 
queror.      It  has  been  observed,  in  another  part  of  ^^^^' 
this  work,  that  the  rights,  or  feudal  incidents,  of  wardship  and 
marriage  were  more  common  in  England   and  Normandy 
than  in  the  rest  of  France.     They  certainly  did  not  exist  in 
the  former  before  the  Conquest ;  but  whether  they  were  an- 
cient customs  of  the  latter  cannot  be  ascertained,  unless  we 
had  more  incontestable  records  of  its  early  jurisprudence. 
For  the  Great  Customary  of  Normandy  is  a  compilation  as 
late  as  the  reign  of  Richai-d  Coeur-de-Lion,  when  the  laws  of 
England  might  have  passed  into  a  country  so  long  and  inti- 
mately connected  with  it.    But  there  appears  reason  to  think 
that  the  seizure  of  the  lands  in  wardship,  the  selling  of  the 
heiress  in  marriage,  were  originally  deemed  rather  acts  of 
violence  than  conformable  to  law.     For  Henry  I.'s  charter 
expressly  promises  that  the  mother,  or  next  of  kin,  shall  have 
the  custody  of  the  lands  as  well  as  person  of  the  heir.^    And 
as  the  charter  of  Henry  II.  refers  to  and  confirms  that  of  his 

1  Chron.  Saxon,  p.  185;  Ingulfus,  p.  essedebebit;  et  prsecipio  ut  baronesmei 

4  rp  s.  isi.  similiter    se    contineant    erei    Alios  vel 

»  TerrsB  et  liberorum  custos  ent  sive  filias    vcl    uxores    hominum    meorum. 

oxer,  sive  aUus  propinquorum,  qui  Justus  Leges  Anglo-Saxonic»,  p.  234. 


298    PRESERVATION  OF  PUBLIC  PEACE.  Chap.  Vm.  Pabt  H 

grandfather,  it  seems  to  follow  that  what  is  called  guar- 
dianship in  chivalry  had  not  yet  been  established.  At  least 
it  is  not  till  the  assize  of  Clarendon,  confirmed  at  Northamp- 
ton in  1176,^  that  the  custody  of  the  heir  is  clearly  reserved 
to  the  lord.  With  respect  to  the  right  of  consenting  to  the 
marriage  of  a  female  vassal,  it  seems  to  have  been,  as  I  have 
elsewhere  observed,  pretty  general  in  feudal  tenures.  But 
the  sale  of  her  person  in  marriage,  or  the  exaction  of  a  sum 
of  money  in  lieu  of  this  scandalous  tyranny,  was  only  the  law 
of  England,  and  was  not  perhaps  fuUy  authorized  as  such  till 
the  statute  of  Merton  in  1236. 

One  innovation  made  by  William  upon  the  feudal  law  is 
very  deserving  of  attention.  By  the  leading  principle  of  feuds, 
an  oath  of  fealty  was  due  from  the  vassal  to  the  lord  of  whom 
he  immediately  held  his  land,  and  to  no  other.  The  king  of 
France,  long  liler  this  period,  had  no  feudal  and  scarcely  any 
royal  authority  over  the  tenants  of  his  own  vassals.  But 
William  received  at  Salisbury,  in  1085,  the  fealty  of  all  land- 
holders in  England,  both  those  who  held  in  chief,  and  their 
tenants ;  ^  thus  breaking  in  upon  the  feudal  compact  in  its 
most  essential  attribute,  the  exclusive  dependence  of  a  vassal 
upon  his  lord.  And  this  may  be  reckoned  among  the  several 
causes  which  prevented  the  continental  notions  of  indepen- 
dence upon  the  crown  from  ever  taking  root  among  the  Eng- 
lish aristocracy. 

The  best  measure  of  WiUiam  was  the  establishment  of  pub- 
_^  lie  peace.     He  permitted  no  rapine  but  his  owti. 

of  pubuc  The  feuds  of  private  revenge,  the  lawlessness  of 
P***^®'  robbery,  were  repressed.     A  girl  laden  with  gold, 

if  we  believe  some  ancient  writers,  might  have  passed  safely 
through  the  kingdom.*  But  this  was  the  tranquillity  of  an 
imperious  and  vigilant  despotism,  the  degree  of  which  may  be 
measured  by  these  effects,  in  which  no  improvement  of  civili- 
zation had  any  share.     There  is  assuredly  nothing  to  wonder 


English  Coitst. 


FEUDAL  POLICY. 


299 


1  Leges  Anglo-Saxonicae,  p.  330. 

3  Chron.  Saxon,  p.  187.  The  oath  of 
allegiance  or  fealty,  for  they  were  in 
Bpirit  the  same,  had  been  due  to  the  king 
l]«fore  the  Conquest;  we  find  it  among 
the  laws  of  Edmund.  Allen's  Inquiry, 
p.  68.  It  was  not,  therefore,  likely  that 
WiUiam  would  surrender  such  a  tie  upon 
his  subjects.  But  it  had  also  been  usual 
in  France  under  Charlema^e,  and  per- 
haps later. 


s  Chron.  Saxon,  p.  190;  M.  Paris,  p.  10. 
I  will  not  omit  one  other  circumstance, 
apparently  praiseworthy,  which  Oderi- 
cus  mentions  of  William,  that  he  tried 
to  learn  English,  in  order  to  render 
justice  by  understanding  every  man's 
complaint,  but  failed  on  account  of  hifl 
advanced  age.  p.  620.  This  was  in  th« 
early  part  of  his  reign,  before  the  reluc- 
tance of  the  English  to  submit  had  ex- 
asperated his  disposition. 


at  m  the  detestation  with  which  the  English  long  regarded 
the  memory  of  this  tyrant.^     Some  advantages  undoubtedly 
m  the  course  of  human  affairs,  eventually  sprang  from  the 
Norman  conquest     The  invaders,  though  without  perhaps 
any  mtnnsic  superiority  in  social  virtues  over  the  native  Eng- 
lish, degraded  and  barbarous  as  these  are  represented  to  us, 
had  at  least  that  exterior  polish  of  courteous  and  chivalric 
manners,  and  that  taste  for  refinement  and  magnificence,  which 
serve  to  elevate  a  people  from  mere  savage  rudeness.    Their 
buildings,  sacred  as  well  as  domestic,  became  more  substantial 
and  elegant.     The  learning  of  the  clergy,  the  only  class  to 
whom  that  word  could  at  all  be  applicable,  became  infinitely 
more  respectable  in  a  short  time  after  the  Conquest.     And 
though  this  may  by  some  be  ascribed  to  the  general  improve- 
ments of  Europe  m  that  pomt  during  the  twelfth  centun^,  yet 
1  think  It  was  partly  owing  to  the  more  free  intercourse  Tdth 
J?  ranee,  and  the  closer  dependence  upon  Rome,  which  that 
revolution  produced.     This  circumstance  was,  however,  of  no 
great  moment  to  the  EngHsh  of  those  times,  whose  happiness 
could  hardly  be  effected  by  the  theological  reputation  of  Lan- 
franc  and  Anselm.     Perhaps  the  chief  benefit  which  the  na- 
tives of  that  generation  derived  from  the  government  of  Wil- 
liam  and  his  successors,  next  to  that  of  a  more  vigilant  poUce, 
was  the  security  they  found  from  invasion  on  the  side  of  Den- 
m^k  and  Norway.     The  high  reputation  of  the  Conqueror 
and  his  sons,  with  the  regular  organization  of  a  feudal  militia, 
deterred  those  predatory  armies  which  had  brought  such  re- 
peated calamity  on  England  in  former  times. 

The  system  of  feudal  poUcy,  though  derived  to  England 
trom  a  French  source,  bore  a  very  different  ap- 
pearance  in  the  two  countries.     France,  for  about  ^SZTti.. 
two  centuries  after  the  house  of  Capet  had  usurped  f«"?*i  po^- 
the  throne  of  Chariemagne's  posterity,  could  hardly  S.d\nS^' 
be  deemed  a  regular  confederacy,  much  less  an  ^''*°'^- 
entire  monarchy.     But  in  England  a  government,  feudal  in- 
deed m  Its  form,  but  arbitrary  in  its  exercise,  not  only  main- 
tained subordination,  but  almost  extinguished  liberty.    Several 
causes  seem  to  have  conspired  towards  this  radical  difference. 
in  the  first  place,  a  kingdom  comparatively  smaU  is  much 
more  easily  kept  under  control  than  one  of  vast  extent.     And 

»  W.  Malmsb.  Pnef.  ad  1.  iii. 


300 


FEUDAL  POUCY.       Chap.  VIU.  Tabi  U. 


the  fiefs  of  Anglo-Norman  barons  after  the  Conquest  were 
far  less  considerable,  even  relatively  to  the  size  of  the  two 
countries,  than  those  of  France.     The  earl  of  Chester  held, 
indeed,   almost  all  that  county ;  *   the  earl  of  Shrewsbury, 
nearly  the  whole  of  Salop.     But  these  domains  bore  no  com- 
parison with  the  dukedom  of  Guienne,  or  the  county  of  Tou- 
louse.    In  general,  the  lordships  of  William's  barons,  whether 
this  were  owing  to  policy  or  accident,  were  exceedingly  dis- 
persed.    Robert  earl  of  Moreton,  for  example,  the  most  richly 
endowed  of  his  followers,  enjoyed  248  manors  in  Cornwall, 
54  in  Sussex,  196  m  Yorkshire,  99  in  Northamptonshire,  be- 
sides many  in  other  counties.'^     Estates  so  disjoined,  however 
immense  in  their  aggregate,  were  ill  calculated  for  supporting 
a  rebellion.     It  is  observed  by  Madox  that  the  knight's  fees 
of  almost  every  barony  were  scattered  over  various  counties. 
In  the  next  place,  these  bai'onial  fiefs  were  held  under  an 
actual  derivation  from  the  crown.    The  great  vassals  of  France 
had  usurped  their  dominions  before  the  accession  of  Hugh 
Capet,   and  barely   submitted   to  his   nominal  sovereignty. 
They  never  intended  to  yield  the  feudal  tributes  of  relief  and 
aid,  nor  did  some  of  them  even  acknowledge  the  supremacy 
of  his  royal  jurisdiction.     But  the  Conqueror  and  his  succes- 
sors imposed  what  conditions  they  would  upon  a  set  of  barons 
who  owed  all  to  their  grants ;  and  as  mankind's  notions  of  right 
are  generally  founded  upon  prescription,  these  peers  grew 
accustomed  to  endure  many  burdens,  reluctantly  indeed,  but 
without  that  feeling  of  injury  which  would  have  resisted  an 
attempt  to  unpose  them  upon  the  vassals  of  the  French  crown. 
For  the  same  reasons  the  barons  of  England  were  regularly 
summoned  to  the  great  council,  and  by  their  attendance  in  it, 
and  concurrence  in  the  measures  which  were  there  resolved 
upon,  a  compactness  and  unity  of  interest  was  given  to  the 
monarchy  which  was  entirely  wanting  in  that  of  France. 

We  may  add  to  the  circumstances  that  rendered  the  crown 
powerful  during  the  first  century  after  the  Conquest,  an 


1  This  was,  upon  the  whole,  more 
like  a  great  French  fief  than  any  English 
earldom.  Hugh  de  Abrincis,  nephew  of 
William  I.,  had  barons  of  his  own,  one 
of  whom  held  forty-six  and  another  thirty 
manors.  Chester  was  first  called  a 
county -palatine  under  Henry  II. ;  but  it 
previously  possessed  all  regalian  rights 
of  jurisdiction.    After  the  forfeitures  of 


the  house  of  Montgomery,  it  acquired 
all  the  country  between  the  Mersey  and 
Ribble.  Several  eminent  men  inherited 
the  earldom ;  but  upon  the  death  of  the 
most  distinguished,  Ranulf,  in  1232,  it 
fell  into  a  female  line,  and  soon  escheated 
to  the  crown.  Dugdale's  Baronage,  p.  45 
Lyttelton's  Henry  II.,  vol.  ii.  p.  218. 
3  Dugdale's  Baronage,  p.  25. 


Ckoluh  Const. 


NORMAN  TYRANNY. 


301 


extreme  antipathy  of  the  native  English  towajrd^ 
their  invaders.  Both  William  Rufus  and  Henry  I.  E^gSi  to 
made  use  of  the  former  to  strengthen  themselves  ^°'^^^' 
against  the  attempts  of  their  brother  Robert ;  though  ther 
forgot  their  promises  to  the  English  after  attaining  their  ob- 
ject.* A  fact  mentioned  by  Ordericus  Vitalis  illustrates  the 
advantage  which  the  government  found  in  this  national  ani- 
mosity. During  the  siege  of  Bridgenorth,  a  town  belonging 
to  Robert  de  Belesme,  one  of  the  most  turbulent  and  powerful 
of  the  Norman  barons,  by  Henry  I.  in  1102,  the  rest  of  the 
nobility  deliberated  together,  and  came  to  the  conclusion  that 
if  the  king  could  expel  so  distinguished  a  subject,  he  would  be 
able  to  treat  them  all  as  his  servants.  They  endeavored 
^erefore  to  bring  about  a  treaty ;  but  the  English  part  of 
Henry's  army,  hating  Robert  de  Belesme  as  a  Norman,  urged 
the  king  to  proceed  with  the  siege ;  which  he  did,  and  took 
the  castle.2 

Unrestrained,  therefore,  comparatively  speaking,  by  the 
aristocratic  principles  which  influenced  other  feudal 
countries,  the  administration  acquired  a  tone  of  Se^San 
ngor  and  arbitrariness  under  William  the   Con- ^°^®"^®°** 
queror,  which,  though  sometimes  perhaps  a  little  mitigated, 
<hd  not  cease  during  a  century  and  a  half.      For  the  first 
three  reigns  we  must   have  recourse  to  historians ;  whose 
language,  though    vague,  and  perhaps  exaggerated,  is   too 
unitorm  and  impressive  to  leave  a  doubt  of  the  tyrannical 
character  of  the  government.     The  intolerable  exactions  of 
tribute,  the  rapine  of  purveyance,  the  iniquity  of  royal  courts, 
are  contmuaUy  in  their  mouths.     «  God  sees  the  wretched 
people, '  says  the  Saxon  Chronicler, "  most  unjustly  oppressed  • 
first  they  are  despoiled  of  their  possessions,  then  butchered! 
This  was  a  grievous  year  (1124).     Whoever  had  any  prop- 
erty lost  it  by  heavy  taxes  and  unjust  decrees. "  »    The  same 
ancient  chronicle,  which  appears  to  have  been  continued  from 
time  to  time  in  the  abbey  of  Peterborough,  frequently  utters 
similar  notes  of  lamentation. 

From  the  reign  of  Stephen,  the  miseries  of  which  are  not 
to  my  immediate  purpose,  so  far  as  they  proceeded  from 

HoZ;J^n°i?i'"^*^i,P-  ^  **'  ^^\^-    P°^«'  "'^^ri  miseria,  says   Roger   de 

t  f>1f?^hL«^H    -r^-  ^"°°-  P-i^*-  Ho^eden,  quam    sustinuit  iUo   tfmnorJ 

*  Uu  thesne,  Script.  Norman,  n.  807  frirp  ann    iinQi  *«— «  a      i  lempore 

•  Chron    Saion    n    99«      v«i.  ?   -i  ^  ^*    °^'  ^^^^  ^^^  Anglorum  proptez 
^aroD.  s>axon.  p.  ^8.     Non  facile  regias  exactiones.    p.  470 


302 


NORMAN  EXACTIONS.    Chap.  VHI.  Pabt  IL 


Enolish  Const. 


GENERAL  TAXES. 


303 


anarchy  and  intestine  war,*  we  are  able  to  trace 
It!  exactions,  ^j^^  character  of  government  by  existing  records.' 
These,  digested  by  the  industrious  Madox  into  his  History 
of  the  Exchequer,  gives  us  far  more  insight  into  the  spirit 
of  the  constitution,  if  we  may  use  such  a  word,  than  aU  our 
monkish   chronicles.     It   was  not   a   sanguinary   despotism. 
Henry  II.  was  a  prince  of  remarkable  clemency ;  and  none 
of  the  Conqueror's  successors  were  as  grossly  tyrannical  as 
himself.     But  the  system  of  rapacious  extortion  from  their 
subjects  prevailed  to  a  degree  which  we  should  rather  ex- 
pect to   find   among  eastern  slaves   than  that  high-spirited 
race  of  Normandy  whose  renown  then  filled  Europe  and 
Asia.     The  right  of  wardship  was  abused  by  selling  the  heir 
and  his  land  to  the  highest  bidder.     That  of  marriage  was 
carried  to   a    still   grosser  excess.     The  kings  of  France 
indeed  claimed  the  prerogative  of  forbidding  the  marriage 
of  their  vassals'  daughters  to  such  persons  as  they  thought 
unfriendly  or  dangerous  to  themselves ;  but  I  am  not  aware 
that  they  ever  compelled  them  to  marry,  much  less  that  they 
turned  this  attribute  of  sovereignty  into  a  means  of  revenue. 
But  in  England,  women  and  even  men,  simply  as  tenants  in 
chief,  and  not  as  wards,  fined  to  the  crown  for  leave  to  marry 
whom  they  would,  or  not  to  be  compelled  to  marry   any 
other.*     Towns  not  only  fined  for  original  grants  of  fran- 
chises, but  for  repeated  confirmations.     The  Jews  paid  ex- 
orbitant sums  for  every  common  right  of  mankind,  for  pro- 
tection, for  justice.     In  return  they  were  sustained  against 
their  Christian  debtors  in  demands  of  usury,  which  supersti- 
tion and  tyranny  rendered  enormous.*     Men  fined  for  the 
king's  good-will ;  or  that  he  would  remit  his  anger ;  or  to 
have  his  mediation  with  their  adversaries.     Many  fines  seem 
as  it  were  imposed  in  sport,  if  we  look  to  the  cause ;  though 

1  The  following  simple  picture  of  that 
reign  from  the  Saxon  Chronicle  may  be 
worth  inserting.    *'  The  nobles  and  bish- 
ops built  castles,  and  filled  them  with 
deviUiih  and  wicked  men,  and  oppressed 
the  people,  cruelly  torturing  men  for 
their  money.    They  imposed  taxes  upon 
towns,  and,  when  they  had  exhausted 
them  of  everything,  set  them   on  fire. 
You  might  travel  a  day,  and  not  find  one 
man  living  in  a  town,  nor  any  land  in 
eultivation.    Never  did  the  country  suf- 
fer greater  evils.    If  two  or  three  men 
were  seen  riding  up  to  a  town,  all  its  in- 
hftbitants  left  i^  taking  them  for  plunder- 


ers. And  this  lasted,  growing 
and  worse,  throughout  Stephen's  reign. 
Men  said  openly  that  Christ  and  his 
saints  were  asleep."    p.  239. 

»  The  earliest  record  in  the  Pipe-offlce 
is  that  which  Madox,  in  conformity  to 
the  usage  of  others,  cites  by  the  name  of 
Magnum  Rotulum  quinto  Stephani.  But 
in  a  particular  dissertation,  subjoined  to 
his  History  of  the  Exchequer,  he  incline*, 
though  not  decisively,  to  refer  thii  rto- 
ord  to  the  reign  of  Henry  I* 

s  Madox,  c.  10. 

4  Id.  c.  7. 


their  extent,  and  the  solemnity  with  which  they  were  recorded, 
prove  the  humor  to  have  been  differently  relished  by  the  two 
parties.  Thus  the  bishop  of  Winchester  paid  a  tun  of  good 
wine  for  not  reminding  the  king  (John)  to  give  a  girdle  to 
the  countess  of  Albemarle ;  and  Robert  de  Vaux  five  best 
palfreys,  that  the  same  king  might  hold  his  peace  about 
Henry  Pinel's  wife.  Another  paid  four  marks  for  leave  to 
eat  (pro  licentia  comedendi).  But  of  all  the  abuses  which 
deformed  the  Anglo-Norman  government,  none  was  so  flagi- 
tious as  the  sale  of  judicial  redress.  The  king,  we  are  often 
told,  is  the  fountain  of  justice ;  but  in  those  ages  it  was  one 
which  gold  alone  could  unseal.  Men  fined  to  have  right 
done  them ;  to  sue  in  a  certain  court ;  to  implead  a  certain 
person  ;  to  have  restitution  of  land  which  they  had  recovered 
at  law.*  From  the  sale  of  that  justice  which  every  citizen 
has  a  right  to  demand,  it  was  an  easy  transition  to  withhold 
or  deny  it.  Fines  were  received  for  the  king's  help  against 
the  adverse  suitor ;  that  is,  for  perversion  of  justice,  or  for 
delay.  Sometimes  they  were  paid  by  opposite  parties,  and, 
of  course,  for  opposite  ends.  These  were  called  counter- 
fines  ;  but  the  money  was  sometimes,  or  as  Lord  Lyttelton 
thinks  invariably,  returned  to  the  unsuccessful  suitor.* 

Among  a  people  imperfectly  civilized  the  most  outrageous 
injustice  towards  individuals  may  pass  without  the  General 
shghtest  notice,  while  in  matters  affecting  the  com-  *ax<»- 
munity  the  powers  of  government  are  exceedingly  controlled. 
It  becomes  therefore  an  important  question  what  prerogative 
these  Norman  king's  were  used  to  exercise  in  raising  money 
and  in  general  legislation.  By  the  prevailing  feudal  customs 
the  lord  was  entitled  to  demand  a  pecuniary  aid  of  his  vas- 
sals in  certain  cases.  These  were,  in  England,  to  make  his 
eldest  son  a  knight,  to  marry  his  eldest  daughter,  and  to  ran- 
som himself  from  captivity.  Accordingly,  when  such  cir- 
cumstances occurred,  aids  were  levied  by  the  crown  upon  its 
tenants,  at  the  rate  of  a  mark  or  a  pound  for  every  knight's 
fee.'    These  aids,  being  strictly  due  in  the  prescribed  cases, 


1  Madox,  c.  12  and  13. 

*  The  most  opposite  instances  of  these 
exactions  are  well  selected  from  Biadox 
by  Hume,  Appendix  II.;  upon  which 
account  I  have  gone  less  into  detail  than 
would  otherwise  have  been  necessary. 

•  The  reasonable  aid  was  fixed  by  the 
•tetute  of  Westminster  I.,  8  Edw.  I., 


c.  86,  at  twenty  shillings  for  every 
knight's  fee,  and  as  much  for  every  201. 
value  of  land  held  by  socage.  The  aid 
pour  faire  fitz  chevalier  might  be  raised 
when  he  entered  into  his  fifteenth  year; 
pour  fille  marier,  when  she  reached  the 
age  of  seven. 


304 


GENERAL  TAXES.       Chap.  VHI.  Part  II. 


English  Const.       RIGHT  OF  LEGISLATION. 


305 


were  taken  without  requiring  the  consent  of  parliament 
Escuage,  which  was  a  commutation  for  the  personal  service 
of  military  tenants  in  war,  having  rather  the  appearance  of 
an  indulgence  than  an  imposition,  might  reasonably  be  levied 
by  the  kmg.^  It  was  not  till  the  charter  of  John  that  escu- 
age became  a  parliamentary  assessment ;  the  custom  of  com- 
muting service  having  then  grown  general,  and  the  rate  of 
commutation  being  variable. 

None  but  military  tenants  could  be  liable  for  escuage ; 
but  the  inferior  subjects  of  the  crown  were  oppressed  by  tal- 
lages.    The  demesne  lands  of  the  king  and  all  royal  towns 
were  liable  to  tallage ;  an  imposition  far  more  rigorous  and 
irregular  than  those  which  fell  upon  the  gentry.     Tallages 
were  continually  raised  upon  different  towns  during  all  the 
Norman  reigns  without  the  consent  of   parliament,   which 
neither  represented  them  nor  cared  for  their  interests.     The 
itinerant  justices  in  their  circuit  usually  set  this  tax.     Some- 
times the  tallage  was  assessed  in  gross  upon  a  town,  and  col- 
lected by  the  burgesses ;  sometimes  individually  at  the  judg- 
ment of  the  justices.     There  was  an  appeal  from  an  exces- 
sive assessment  to  the  barons  of  the  exchequer.    Inferior 
lords  might  tallage  their  o^vn  tenants  and  demesne  towns, 
though  not,  it  seems,  without  the  king's  permission.*     Cus- 
toms°upon  the  import  and  export  of  merchandise,  of  which 
the  prisage  of  wine,  that  is,  a  right  of  taking  two  casks  out 
of  each  vessel,  seems  the  most  material,  were  immemorially 
exacted  by  the  crown.    There  is  no  appearance  that  these 
originated  with  parliament.*     Another  tax,  extending  to  all 
the  lands  of  the  kingdom,  was  Danegeld,  the  ship-money  of 
those  times.     This  name  had  been  originally  given  to  the  tax 
imposed  under  Ethelred  11.,  in  order  to  raise  a  tribute  exact- 
ed by  the  Danes.     It  was  afterwards  applied  to  a  permanent 
contribution  for  the  public  defence  against  the  same  enemies. 
But  after  the   Conquest  this  tax  is  said  to  have  been  only 


1  Pit  interdum,  nt  imminente  yel  in- 
gurgente  in  regnum  bostium  machina- 
tione,  decernat  rex  de  singulis  feodis 
militum  summam  aliquam  solvi,  marcam 
scilicet,  vel  libram  unam ;  unde  militibus 
Btipendia  Tel  donativa  succedant.  Mavult 
enim  princeps  stipendiarios  qulm  do- 
mesticos  bellicis  exponere  casibus.  Ilaec 
itaque  Bumma,  quia  nomine  scutorum 
solTitur,  Bcutagium  nominatur.  Dialogus 


de  Scaccario,  ad  finem.     Madox,  Hist. 
Exchequer,  p.  25  (edit,  in  folio). 

2  Tiie  tenant  in  capita  was  entitled  to 
be  reimbursed  wbat  would  bave  been 
bis  escuage  by  bia  vassals  eren  if  be  per- 
formed personal  service .    Madox,  c.  16. 

3  For  the  important  subject  of  tallages, 
see  Madox,  c.  17. 

*  Madox,  c.  18.  Hale's  Treatise  on 
the  Customs  in  Hargrave's  Tracts,  vol.  i. 
p.  116. 


occasionally  required ;  and  the  latest  instance  on  record  of 
its  payment  is  in  the  20th  of  Henry  n.  Its  imposition 
appears  to  have  been  at  the  king's  discretion.^ 

The  right  of  general  legislation  was  undoubtedly  placed 
in  the  king,  conjointly  with  his  great  council,^  or,  Right  of 
if  the  expression  be  thought  more  proper,  with  legislation. 
their  advice.     So  little  opposition  was  found  in  these  assem- 
blies by  the  early  Norman  kings,  that  they  gratified  their  own 
love  of  pomp,  as  well  as  the  pride  of   their  barons,  by  con- 
sulting them  in  every  important  business.     But  the  limits  o 
legislative  power  were  extremely  indefinite.    New  laws,  lik 
new  taxes,  affecting  the  community,  required  the  sanction  of 
that  assembly  which  was  supposed  to  represent  it ;  but  there 
was  no  security  for  individuals  against  acts  of  prerogative, 
which  we  should  justly  consider  as  most  tyrannical.     Henry 
II.,  the  best  of  these  monarchs,  banished  from  England  the 
relations  and  friends  of  Becket,  to  the  number  of  four  hun- 
dred.    At  another  time  he  sent  over  from  Normandy  an 
injunction,  that  all  the  kindred  of  those  who  obeyed  a  papal 
interdict  should  be  banished,  and  then*  estates  confiscated.* 

The  statutes  of  those  reigns  do  not  exhibit  to  us  many 
provisions  calculated  to  maintain  public  liberty  on 
a  broad  and   general  foundation.     And  although  ch^tew  of 
the  laws  then  enacted  have  not  all  been  preserved,  Norman 
yet  it  is  unlikely  that  any  of  an  extensively  reme-  ^^^' 
dial  nature  should  have  left  no  trace  of  their  existence.     We 
find,  however,  what  has  sometimes  been  called  the  Magna 
Charta  of   William  the   Conqueror,  published    by  Wilkins 
from  a  document  of  considerable  authority.*    We  will,  enjoin, 
and  grant,  says  the  king,  that  all  freemen  of  our  kingdom 
shall  enjoy  their  lands  in  peace,  free  from  all  tallage,  and  from 
every  unjust  exaction,  so  that  nothing  but  their  service  law- 
fully due  to  us  shall  be  demanded  at  their  hands.*    The  laws 


»  Henr.  Huntingdon,  1.  r.  p.  205. 
Dialogus  de  Scaccario,  c.  11.  Madox,  c. 
17.    Lyttolton's  Henry  II.  vol.  ii.  p.  170. 

»  Glanvll,  Prologus  ad  Tractatum  de 

COHHUfitud. 

»  Hoveden,  p.  496.  Lyttelton,  vol.  ii. 
p.  590.  The  latter  says  that  this  edict 
must  have  been  framed  by  the  Icing  with 
the  advice  and  assent  of  his  council. 
But  if  he  means  his  great  council,  I 
cannot  suppose  that  all  the  barons  and 
tenants  in  capite  could  have  been  duly 
lummoned  to  a  council  held,  beyond  seas. 

VOL.  II.  99. 


Some  English  barons  might  doubtless 
have  been  with  the  king,  as  at  Vemeuil 
in  1176,  where  a  mixed  assembly  of 
English  and  French  enacted  laws  for 
both  countries.  Benedict.  Abbas  apu4 
Hume.  So  at  Northampton,  in  1165 
several  Norman  barons  voted;  nor  is 
any  notice  taken  of  this  as  irregular. 
Fitz  Stephen,  ibid.  So  unfixed,  or  rather 
unformed,  were  all  constitutional  prin- 
ciples.   [Note  X.] 

♦  [Note  XI.] 

^  Volomua  etiam^  ac  fixmiter  px3ecipL«. 


^ 


306  LAWS  OF  NORMAN  KINGS-    Chap.  VIU.  Pam  U 

of  the  Conqueror,  found  in  Hoveden,  are  wholly  different 
from  those  in  Ingulfus,  and  are  suspected  not  to  have  escaped 

rn"de:^ble  interpolation.^     I^  ^^  ^7»^,'^t\Knauero" 
ence  is  made  to  this  concession  of  William  the  Conqueror 
in  ^y  subsequent  charter.    A  charter  of  Henry  I.,  the  au- 
Lmfcity  of  which  is  undisputed,  though  it  contains  nothmg 
pec  aly  expressed  but  a  remission  of  unreasonable  rehets 
warfships,and  other  feudal  burdens,^  proceeds  to  declare  that 
he  rivefhis  subjects  the  laws  of  Edward  the  Confessor,  with 
the  mendations  made  by  his  father  w  th  consent  of  his  ba  - 
ons.»     The  charter  of  Stephen  not  only  confirms  that  of  his 
predecessor,  but  adds,  in  fuller  terms  than  Henry  had  used, 
an  exoress  concession  of  the  laws  and  customs  of  Edward. 
Henry  H.  is  silent  about  these,  although  he  repeats  the  con- 
toatin  of  his  grandfather's  charter.'    The  foP  «  ho^'^j;' 
had  be-un  to  look  back  to  a  more  ancient  standard  of  law. 
The  Norman  conquest,  and  all  that  ensued  upon  ",  had  en- 
deared the  memory  of  their  Saxon  government,     l^ ^'^'^ 
ders  were  forgotten,  or,  rather,  were  less  odious  to  a  rude 
nldon  than  the  coercive  justice  by  which  they  were  after- 
Ws  restrained.'      Hence    it  became  the  favorite  cry  to 

firmation  and  amendment  of  Edward'8 
laws  by  the  Conqueror  and  by  the  reign- 
iti'^  kinj?— Qui    non  solum  legem  regis 
Krdwardi    nobis    reddidit,  quam    omnl 
gaudiorum  delectatione  susceplmus,  sed 
beati    patris  ejus  emendationlbus  robo- 
ratam   propriis  institutionibus  honesta- 
Tit.    See  Cooper  on  Public  Records  (vol. 
ii.  p.  423),  in  which  very  useful  collec- 
tion the  whole  fragment   (for  the  first 
time  in  England)  is  published  from  a 
Cottonian   manuscript.     Henry   ceased 
not,  according  to  the  Saxon  Chronicle,  to 
lay  on  many  tributes.    But  it  is  reasona- 
ble to  suppose   that  tallages  on   towns 
and  on  his  demesne  tenants,  at  that  tune 
legal,  were  reckoned  among  them. 

a  A  great  impression  is  said  to  hare 
been  made  on  the  barons  confederated 
again.st  John  by  the  production  of 
Henry  I.'s  charter,  whereof  they  ha4 
been  ignorant.  Matt.  Paris,  p.  212.  But 
this  could  hardly  have  been  the  existing 
charter,  for  reasons  alleged  by  Black- 
stone.    Introduction  to  Blagna  Charta, 

4  ivilklns.  Leges  Anglo-Saxon,  p.  310 

5  Id.  p.  318.  ,  ,  „  «# 
8  The  Saxon  Chronicler  complains  of 

a  witenagemot.  as  he  calls  it.  or  assizes. 

held  at  Leicester  in  im,  where  forty. 

four  thioves  were  hanged,  s  greater  num- 


mns  et  concedlmus,  ut  omnes  liberi  ho- 
mines  totius  raonarchia)  pradicti  regni 
noBtri  habeant  et  teneant  terras  suas  et 
possessiones  suas  ben6,  et  in  pace,  hber6 
ab  omni  exactione  injusU,  et  ah  omm 
tallagio,  ita  quod  nihil  ab  iis  exigatur 
Tel  capiatur,  nisi  servitium  suum  hber- 
um.  quod  de  jure  nobis  facere  debent,  et 
facere  tenentur ;  et  prout  statutam  est 
iis,  et  illis  a  nobis  datum  et  concessum 
jure  haereditario  in  perpetuum  per  com- 
mune concilium  totius  regni  nostri  prse- 

1  Selden,  ad  Eadmcrum.  Hody  (Trea- 
tise on  Convocations,  p.  249)  infers  from 
the  great  alterations  visible  on  the  face 
of  these  laws  that  they  were  altered  from 
the  French  original  by  Glanvil. 

3  Wilkins.  p.  2^.      The  accession  of 
Henry  inspired  hopes  into  the  English 
nation    which  were  not   well    realized. 
His   marriage    with    Matilda,    "of   the 
rightful  English  kin,"  is  mentioned  with 
apparent  pleasure  by  the  Saxon  Chrom- 
cler  under  the  year  1100.    And  in  a  frag- 
ment of  a  Latin  treatise  on  the  English 
laws,  praising  them  with  a  genuine  feel- 
ing, and  probably  written  in  the  earlier 
part  of  Henry's  reign,  the  author  extols 
his    behavior    towards    the    people,  in 
contrast  with   that  of  preceding  times, 
and  bears  explicit  testimony  to  the  con- 


Enolish  Const.    RICHARD  I.'s  CHANCELLOR  DEPOSED.       307 

demand  the  laws  of  Edward  the  Confessor ;  and  the  Normans 
themselves,  as  they  grew  dissatisfied  with  the  royal  adminis- 
tration, fell  into  these  English  sentiments.^  But  what  these 
laws  were,  or  more  properly,  perhaps,  these  customs  subsist- 
ing in  the  Confessor's  age,  was  not  very  distinctly  understood.* 
So  far,  however,  was  clear,  that  the  rigorous  feudal  servitude, 
the  weighty  tributes  upon  poorer  freemen,  had  never  pre- 
vailed before  the  Conquest  In  claiming  the  laws  of  Edward 
the  Confessor,  our  ancestors  meant  but  the  redress  of  griev- 
ances, which  tradition  told  them  had  not  always  existed. 

It  is  highly  probable,  independently  of  the  evidence  sup- 
plied by  the  charters  of  Henry  I.  and  his  two  suc- 
cessors, that  a  sense  of  oppression  had  long  been  fhanceUoV 
stimulating  the  subjects  of  so  arbitrary  a  govern-  deposed  by 
ment,  before  they  gave  any  demonstrations  of  it  *^^  ^"""^"^ 
sufficiently  palpable  to  find  a  place  in  history.     But  there  are 
certainly  no  instances  of  rebellion,  or  even,  as  far  as   we 
know,  of  a  constitutional  resistance  in   parliament,  down  to 
the  reign  of  Richard  I.    The  revolt  of  the  earls  of  Leicester 
and  Norfolk  against  Henry  II.,  which  endangered  his  throne 
and  comprehended  his  children  with  a  large  part  of  his  barons, 
appears  not  to  have  been  founded  even  upon  the  pretext  of 
public  grievances.     Under  Richard  I.  something  more  of  a 
national  spirit  began  to  show  itself.     For  the  king  having 
left  his  chancellor  William  Longchamp  joint  regent  and  justi- 
ciary with  the  bishop  of  Durham  during   his  crusade,  the 
fooUsh  insolence  of  the  former,  who  excluded  his  coadjutor 


f 


ber  than  was  ever  before  known ;  it  was 
said  that  many  suffered  unjustly,  p.  228. 
Mr.  Turner  translates  this  differently; 
but,  as  I  conceive,  without  attending  to 
the  spirit  of  the  context.  Hist,  of  Enel. 
vol.  I.  p.  174.  * 

1  The  distinction  between  the  two 
nations  was  pretty  well  obliterated  at 
the  end  of  Henry  Il.'g  reign,  as  we  learn 
from  the  Dialogue  on  the  Exchequer, 
then  written:  jam  cohabitantibus  An- 
glicis  et  Normannis,  et  alterutrum  ux- 
ores  ducentibus  vel  nubentibus,  sic  per- 
mixtse  sunt  nationes,  ut  vix  discemi 
possit  hodie,  de  liberis  loquor,  quis  An- 
glicus,  quis  Normannus  sit  genere ;  ex- 
ceptis  duntaxat  ascriptltiis  qui  villani 
dicuntur,  quibus  non  est  liberum  obstan- 
tibus  dominis  suis  a  sui  status  conditione 
discedero.  Eapropter  peue  quicunque 
sic  hodie  occisus  reperitur,  ut  murdrum 
punitur,  exceptis  his  quibus  carta  sunt 


ut  dixmus  servilis  conditionis  indicia,  d. 
26.    [Note  XII.]  ^ 

s  Non  quas  tulit,  sed  quas  observa- 
verit,  says  William  of  Malmsbury,  con- 
cerning the  Confessor's  laws.  Those 
bearing  his  name  in  Lambard  and  Wil- 
kins are  evidently  spurious,  though  it 
may  not  be  easy  to  fix  upon  the  time 
when  they  were  forged.  Those  found  in 
Ingulfus,  in  the  French  language,  are 
genuine,  though  translated  from  Latin, 
and  were  confirmed  by  William  the  Con- 
queror. Neither  of  these  collections, 
however,  can  be  thought  to  have  any  re- 
lation to  the  civil  liberty  of  the  subject. 
It  has  been  deemed  more  rational  to  sup- 
pose that  these  longings  for  Edward's 
laws  were  rather  meant  for  a  mild  ad- 
ministration of  government,  free  from 
unjust  Norman  innovations,  than  any 
written  and  definitive  system. 


308 


MAGNA  CHARTA.       Chap.  VHI.  Part  U. 


English  Const. 


MAGNA  CHABTA. 


309 


II 


I 


from  any  share  in  the  administration,  provoked  every  one  of 
the  nobility.  A  convention  of  these,  the  king's  brother 
placing  himself  at  their  head,  passed  a  sentence  of  removal 
and  banishment  upon  the  chancellor.  Though  there  might 
be  reason  to  conceive  that  this  would  not  be  unpleasing  to 
the  king,  who  was  already  apprised  how  much  Longchamp 
had  abused  his  trust,  it  was  a  remarkable  assumption  of  power 
by  that  assembly,  and  the  earliest  authority  for  a  leading 
principle  of  our  constitution,  the  responsibility  of  ministera 
to  parliament. 

Li  the  succeeding  reign  of  John  all  the  rapacious  exactions 
jjagna  u^u^l  ^o  these  Norman  kings  were  not  only  re- 

Charta.         doublcd,   but    mingled    with   other  outrages  of 
tyranny  still  more  intolerable.*    These  too  were  to  be  endured 
at  the  hands  of  a  prince  utterly  contemptible  for  his  folly  and 
cowardice.     One  is  surprised  at  the  forbearance  displayed  by 
the  barons,  till  they  took  up  arms  at  length  in  that  confeder- 
acy which  ended  in  establishing  the  Great  Charter  of  Liber- 
ties.   As  this  was  the  first  effort  towards  a  legal  government, 
so  is  it  beyond  comparison  the  most  important  event  in  our 
history,  except   that  Revolution  without  which  its  benefits 
would  have  been  rapidly  annihilated.     The  constitution  of 
England  has  indeed  no  single  date  from  which  its  duration  is 
to  be  reckoned.     The  institutions  of  positive  law,  the  far 
more  important  changes  which  time  has  wrought  in  the  order 
of  society,  during  six  hundred  years  subsequent  to  the  Great 
Charter,  have  undoubtedly  lessened  its  direct  application  to 
our  present  circumstances.      But  it  is  still  the  keystone  of 
English  liberty.     All  that  has  since  been  obtained  is  little 
more   than  as  confirmation  or  commentary;    and  if  every 
subsequent   law  were  to  be  swept  away,  there  would  still 
remain  the  bold  features  that  distinguish  a  free  from  a  des- 
potic monarchy.     It  has  been  lately  the  fashion  to  depreciate 
the  value  of  Magna  Charta,  as  if  it  had  sprung  from  the 
private  ambition  of  a  few  selfish  barons,  and  redressed  only 
some  feudal  abuses.    It  is  indeed  of  little  importance  by  what 
motives  those  who  obtained  it  were  guided.    The  real  charac- 
ters of  men  most  distinguished  in  the  transactions  of  that 
time  are  not  easily  determined  at  present.     Yet  if  we  bring 

1  In  1207  John  took  a  seventh  of  the  ed.  16&i.    But  his  insults  upon  the  no- 

mo?able8  of  lay  and  spiritual  persons,  bility    in  debauching  their  wives    and 

cuncUsmurmurantibus,  sed  contradicere  daughteM  were,  as  usually  happens,  thfl 

DOn  audentibtts.      Matt.  Paris,  p.  18G,  uiojt  exa^^perattDg  proTocation 


these  ungrateful  suspicions  to  the  test,  they  prove  destitute  of 
all  reasonable  foundation.  An  equal  distribution  of  civil 
rights  to  all  classes  of  freemen  forms  the  peculiar  beauty  of 
the  charter.  In  this  just  solicitude  for  the  people,  and  in  the 
moderation  which  infringed  upon  no  essential  prerogative  of 
the  monarchy,  we  may  perceive  a  liberality  and  patriotism 
very  unlike  the  selfishness  which  is  sometimes  rashly  imputed 
to  those  ancient  barons.  And,  as  far  as  we  are  guided  by 
historical  testimony,  two  great  men,  the  pillars  of  our  church 
and  state,  may  be  considered  as  entitled  beyond  the  rest  to 
the  glory  of  this  monument ;  Stephen  Langton,  archbishop 
of  Canterbury,  and  William  earl  of  Pembroke.  To  their 
temperate  zeal  for  a  legal  government,  England  was  indebted 
during  that  critical  period  for  the  two  greatest  blessings  that 
patriotic  statesmen  could  confer;  the  establishment  of  civil 
liberty  upon  an  immovable  basis,  and  the  preservation  of 
national  independence  under  the  ancient  line  of  sovereigns, 
which  rasher  men  were  about  to  exchange  for  the  dominion 
of  France. 

By  the  Magna  Charta  of  John  reliefs  were  limited  to  a 
certain  sum  according  to  the  i-ank  of  the  tenant,  the  waste 
committed  by  guardians  in  chivalry  restrained,  the  disparage- 
ment in  matrimony  of  female  wards  forbidden,  and  widows 
secured  from  compulsory  marriage.  These  regulations,  ex- 
tending to  the  sub-vassals  of  the  crown,  redressed  the  worst 
grievances  of  every  military  tenant  in  England.  The  fran- 
chises of  the  city  of  London  and  of  all  towns  and  boroughs 
were  declared  inviolable.  The  freedom  of  commerce  was 
guaranteed  to  alien  merchants.  The  Court  of  Common  I*leas, 
instead  of  following  the  king's  person,  was  fixed  at  West- 
minster. The  tyranny  exercised  in  the  neighborhood  of  royal 
forests  met  with  some  check,  which  was  further  enforced  by 
the  Charter  of  Forests  under  Henry  III. 

But  the  essential  clauses  of  Magna  Charta  are  those  which 
protect  the  personal  liberty  and  property  of  all  freemen,  by 
giving  security  from  arbitrary  imprisonment  and  arbitrary 
spoliation.  "  No  freeman  (says  the  29th  chapter  of  Henry 
III.'s  charter,  which,  as  the  existing  law,  I  quote  in  preference 
to  that  of  John,  the  variations  not  being  very  material)  shall 
be  taken  Or  imprisoned,  or  be  disseized  of  his  freehold,  or 
liberties,  or  free  customs,  or  be  outlawed,  or  exiled,  or  any 
otherwise  destroyed ;  nor  will  we  pass  upon  him,  nor  send 


310 


MAGNA  CHARTA.       Chap.  VIII.  Part  H. 


English  Const.    CONSTITUTION  UNDER  HENRY   IH. 


311 


^i 


upon  him,  but  by  lawful  judgment  of  his  peers,  or  by  the  law 
ot  the  land.i     We  will  sell  to  no  man,  we  will  not  deny  or 
delay  to  any  man,  justice  or  right."     It  is  obvious  that  these 
words,  interpreted  by  any  honest  court  of  law,  convey  an 
ample  security  for  the  two  main  rights  of  civil  society,    t  rom 
the  era,  therefore,  of  king  John's  charter,  it  must  have  been 
a  clear  principle  of  our  constitution  that  no  man  can  be  de- 
tained in  prison  without  trial.     Whether  courts  of  justice 
framed  the  writ  of  Habeas  Corpus  in  conformity  to  the  spirit 
of  this  clause,  or  found  it  already  in  their  register,  it  became 
from  that  era  the  right  of  every  subject  to  demand  it.     That 
writ,  rendered  more  actively  remedial  by  the  statute  of  Charles 
II    but  founded  upon  the  broad  basis  of  Magna  Charta,  is 
the  principal  bulwark  of  English  liberty  ;  and  if  ever  tempo- 
rary circumstances,  or  the  doubtful  plea  of  political  necessity, 
shall  lead  men  to  look  on  its  denial  with  apathy,  the  most  dis- 
tinguishing characteristic  of  our  constitution  will  be  effaced. 
As  the  clause  recited  above  protects  the  subject  from  any 
absolute  spoUation  of  his  freehold  rights,  so  others  restrain 
the  excessive  amercements  which  had  im  almost  equally  ruin- 
ous operation.     The  magnitude  of  his  offence,  by  the  14th 
clause  of  Henry  III.'s  charter,  must  be  the  measure  of  his 
fine ;  and  in  every  case  the  contenement  (a  word  expressive 
of  chattels  necessary  to  each  man's  station,  as  the  arms  of  a 
gentleman,  the  merchandise  of  a  trader,  the  plough  and  wag- 
ons of  a  peasant)  was  exempted  from  seizure.     A  provision 
was  made  in  the  charter  of  John  that  no  aid  or  escuage  should 
be  imposed,  except  in  the  three  feudal  cases  of  aid,  without 
consent  of  parliament.     And  this  was  extended  to  aids  paid 
by  the  city  of  London.     But  the  clause  was  omitted  in  the 


1  Nisi    per   legale  judicium    parium 
guorum,  vel  per  legem  terrae.     Several 
explanations  have    been  offered  of   the 
alternative  clause,  which  some  have  re- 
ferred to   judgment  by  default  or  de- 
murrer— others  to  the  process  of  attach- 
ment for  contempt.    Certainly  there  are 
many  legal  procedures  besides  trial  by 
jury,  through  which  a  party's  goods  or 
person  may  be  taken.     But  one  may 
doubt  whether  these  were  in  contempla- 
tion of  the  framers  of  Magna  Charta. 
In  an  entry  of  the  charter  of  1217  by  a 
contemporary  hand,  preserved  in  a  book 
In    the    town-clerk's  office    in   Loudon, 
called  fiiber  Custumarum  et  Regum  an- 
Ciquorum,  a  various  reading,  et  per  legem 


terne,  occurs.  Blackstone's  Chartew, 
p.  42.  And  the  word  vcl  is  so  frequently 
used  for  et,  that  I  am  not  wholly  free 
from  a  suspicion  that  It  was  so  intended 
in  this  phuc.  The  meaning  will  be  that 
no  person  shall  bo  disseized,  &c.,  except 
upon  a  lawful  cause  of  action  or  indict- 
ment found  by  the  verdict  of  a  jury. 
This  really  seems  as  good  as  any  of  the 
disjunctive  interpretations,  but  I  do  not 
offer  it  with  much  confidence. 

But  perhaps  the  best  sense  of  the  dis- 
junctive will  be  perceived  by  remember- 
ing that  judicium  parium  wa<»  generally 
opposed  to  the  combat  or  the  ordeaU 
which  were  equally  Uz  terra. 


three  charters  granted  by  Henry  III.,  though  parliament 
seem  to  have  acted  upon  it  in  most  part  of  his  reign.  It  had, 
however,  no  reference  to  tallages  imposed  upon  towns  without 
their  consent  Fourscore  years  were  yet  to  elapse  before  the 
great  principle  of  parliamentary  taxation  was  explicitly  and 
absolutely  recognized. 

A  law  which  enacts  that  justice  shall  neither  be  sold,  denied, 
nor  delayed,  stamps  with  infamy  that  government  under  which 
it  had  become  necessary.  But  from  the  time  of  the  charter, 
according  to  Madox,  the  disgraceful  perversions  of  right, 
which  are  upon  record  in  the  rolls  of  the  exchequer,  became 
less  frequent.* 

From  this  era  a  new  soul  was  infused  into  the  people  of 
England.  Her  liberties,  at  the  best  long  in  abey-  state  of  the 
ance,  became  a  tangible  possession,  and  those  un^^er  Heniy 
indefinite  aspirations  for  the  laws  of  Edward  the  iii. 
Confessor  were  changed  into  a  steady  regard  for  the  Great 
Charter.  Pass  but  from  the  history  of  Roger  de  Hoveden  to 
that  of  Matthew  Paris,  from  the  second  Henry  to  the  third, 
and  judge  whether  the  victorious  struggle  had  not  excited  an 
energy  of  public  spirit  to  which  the  nation  was  before  a 
stranger.  The  strong  man,  in  the  subUme  language  of  Mil- 
ton, was  aroused  from  sleep,  and  shook  his  invincible  locks. 
Tyranny,  indeed,  and  injustice  will,  by  all  historians  not  abso- 
lutely servile,  be  noted  with  moral  reprobation ;  but  never 
shall  we  find  in  the  English  writers  of  the  twelfth  century 
that  assertion  of  positive  and  national  rights  which  distin- 
guishes those  of  the  next  age,  and  particularly  the  monk  of 
St.  Alban*s.  From  his  prolix  history  we  may  collect  three 
material  propositions  as  to  the  state  of  the  English  constitu- 
tion during  the  long  reign  of  Henry  HI. ;  a  prince  to  whom 
the  epithet  of  worthless  seems  best  applicable;  and  who, 
without  committing  any  flagrant  crimes,  was  at  once  insincere, 
ill-judging,  and  pusillanimous.  The  intervention  of  such  a 
reign  was  a  very  fortunate  circumstance  for  public  liberty, 
w^hich  might  possibly  have  been  crushed  in  its  infancy  if  an 
Edward  had  immediately  succeeded  to  the  throne  of  John. 

1.  The  Great  Charter  was  always  considered  as  a  funda- 
mental law.  But  yet  it  was  supposed  to  acquire  additional 
security  by  frequent  confirmation.      This  it  received,  with 

1  Hist,  of  Exchequer,  c.  12. 


312 


STATE  OF  THE  CONSTITUTION    Chaf.  VIII.  Part  IL 


Ejtgush  Const. 


UNDER  HENRY  IH. 


313 


■  I 

,•1 


some  not  inconsiderable  variation,  in  the  first,  second,  and 
ninth  years  of  Henry's  reign.  The  last  of  these  is  in  our 
present  statute-book,  and  has  never  received  any  alterations ; 
but  Sir  E.  Coke  reckons  thirty-two  instances  wherein  it  has 
been  solemnly  ratified.  Several  of  these  were  during  the 
reign  of  Henry  III.,  and  were  invariably  purchased  by  the 
grant  of  a  subsidy.^  This  prudent  accommodation  of  parlia- 
ment to  the  circumstances  of  their  age  not  only  made  the  law 
itself  appear  more  inviolable,  but  established  that  correspond- 
ence between  supply  and  redress  which  for  some  centuries 
was  the  balance-spring  of  our  constitution.  The  charter, 
indeed,  was  often  grossly  violated  by  their  administration. 
Even  Hubert  de  Burgh,  of  whom  history  speaks  more  favor- 
ably than  of  Henry's  later  favorites,  though  a  faithful  servant 
of  the  crown,  seems,  as  is  too  often  the  case  with  such  men, 
to  have  thought  the  king's  honor  and  interest  concerned  in 
maintaining  an  unlimited  prerogative.*  The  government  was, 
however,  much  worse  administered  after  his  fall.  From  the 
great  difficulty  of  compelling  the  king  to  observe  the  bounda- 
ries of  law,  the  English  clergy,  to  whom  we  are  much  indebted 
for  their  zeal  in  behalf  of  liberty  during  this  reign,  devised 
means  of  binding  his  conscience  and  terrifying  his  imagination 
by  religious  sanctions.  The  solemn  excommunication,  accom- 
panied with  the  most  awful  threats,  pronounced  against  the 
violators  of  Magna  Charta,  is  well  known  from  our  common 
histories.  The  king  was  a  party  to  this  ceremony,  and  swore 
to  observe  the  charter.  But  Henry  III.,  though  a  very  de- 
vout person,  had  his  own  notions  as  to  the  validity  of  an  oath 
that  affected  his  power,  and  indeed  passed  his  life  in  a  series 
of  perjuries.  According  to  the  creed  of  that  age,  a  papal 
dispensation  might  annul  any  prior  engagement ;  and  he  was 
generally  on  sufficiently  good  terms  with  Bome  to  obtain  such 
an  indulgence. 

2.  Though  the  prohibition  of  levying  aids  or  escuages 
without  consent  of  parliament  had  been  omitted  in  all 
Henry's  charters,  yet  neither  one  nor  the  other  seem  in  fact 
to  have  been  exacted  at  discretion  throughout  his  reign.  On 
the  contrary,  the  barons  frequently  refused  the  aids,  or  rather 
subsidies,  which  his  prodigality  was  always  demanding.  In- 
deed it  would  probably  have  been  impossible  for  the  king, 


1  Matt.  Paris,  p.  272 


•  M.  p.  284 


however  frugal,  stripped  as  he  was  of  so  many  lucrative 
though  oppressive  prerogatives  by  the  Great  Charter,  to  sup- 
port the  expenditure  of  government  from  his  own  resources. 
Tallages  on  his  demesnes,  and  especially  on  the  rich  and  ill- 
affected  city  of  London,  he  imposed  without  scruple ;  but  it 
does  not  appear  that  he  ever  pretended  to  a  right  of  gen- 
eral taxation.  We  may  therefore  take  it  for  granted  that 
the  clause  in  John's  charter,  though  not  expressly  renewed, 
was  still  considered  as  of  binding  force.  The  king  was  often 
put  to  great  inconvenience  by  the  refusal  of  supply ;  and  at 
one  time  was  reduced  to  sell  his  plate  and  jewels,  which  the 
citizens  of  London  buyhig,  he  was  provoked  to  exclaim  with 
envious  spite  against  their  riches,  which  he  had  not  been  able 
to  exhaust.* 

3.  The  power  of  granting  money  must  of  course  imply  the 
power  of  withholding  it ;  yet  this  has  sometimes  been  little 
more  than  a  nominal  privilege.  But  in  this  reign  the  Eng- 
lish parliament  exercised  their  right  of  refusal,  or,  what  was 
much  better,  of  conditional  assent.  Great  discontent  was 
expressed  at  the  demand  of  a  subsidy  in  1237  ;  and  the  king 
alleging  that  he  had  expended  a  great  deal  of  money  on  his 
sister's  mai-riage  with  the  emperor,  and  also  upon  his  own, 
the  barons  answered  that  he  had  not  taken  their  advice  in 
those  affairs,  nor  ought  they  to  share  the  punishment  of  acts 
of  imprudence  they  had  not  committed.^  In  1241,  a  subsidy 
having  been  demanded  for  the  war  in  Poitou,  the  barons 
drew  up  a  remonstrance,  enumerating  all  the  grants  they  had 
made  on  former  occasions,  but  always  on  condition  that  the 
imposition  should  not  be  turned  into  precedent.  Their  last 
subsidy,  it  appears,  had  been  paid  into  the  hands  of  four 
barons,  who  were  to  expend  it  at  their  discretion  for  the 
benefit  of  the  king  and  kingdom  ;'  an  early  instance  of  par- 
liamentary control  over  public  expenditure.  On  a  similar 
demand  in  1244  the  king  was  answered  by  complaints  against 
the  violation  of  the  charter,  the  waste  of  former  subsidies, 
and  the  maladministration  of  his  servants.*  Finally  the 
barons  positively  refused  any  money ;  and  he  extorted  1500 

1  M.  Paris,  p.  650.  language  is  particularly  uncourtly :  rex 

2  Quod  haec  omnia  sine  consilio  fide-  cuui  instantissim^,  ne  dicam  impuden- 
llum  suorum  facerat,  nee  debuerant  esse  tissime,  auxilium  pecuniare  ab  lis  iterum 
poenaa  participes.  qui  fuerant  a  culpa  postularet,  toties  laesi  et  illusi,  contra- 
Immunes.    p.  367.  dixcrunt  ei  unanimiter  et  uno  ore  in 

•  M.  Paris,  p.  615.  facie. 

«  Id.  p.  563,  572.     Matthew  Paris's 


♦ 


314  STATE  OF  THE  CONSTITUTION  Chap.  VIH.  Part  H. 

marks  from  the  city  of  London.  Some  years  afterwards 
they  declared  their  readiness  to  burden  themselves  more 
than  ever  if  they  could  secure  the  observance  of  the  charter ; 
and  requested  that  the  justiciary,  chancellor,  and  treasurer 
might  be  appointed  with  consent  of  parliament,  according, 
as  they  asserted,  to  ancient  custom,  and  might  hold  their 
offices  during  good  behavior.^ 

Forty  years  of  mutual  dissatisfaction  had  elapsed,  when  a 
signal  act  of  Henry's  improvidence  brought  on  a  crisis  which 
endangered  his  throne.  Innocent  IV.,  out  of  mere  animosity 
againsi  the  family  of  Frederic  II.,  left  no  means  untried  to 
raise  up  a  competitor  for  the  crown  of  Naples,  which  Man- 
fred had  occupied.  Richard  earl  of  Cornwall  having  been 
prudent  enough  to  decline  this  speculation,  the  pope  offered 
to  support  Henry's  second  son,  prince  Edmund.  Tempted 
by  such  a  prospect,  the  silly  king  involved  himself  in  irre- 
trievable embarrassments  by  prosecuting  an  enterprise  which 
could  not  possibly  be  advantageous  to  England,  and  upon 
which  he  entered  without  the  advice  of  his  parliament.  Des- 
titute himself  of  money,  he  was  compelled  to  throw  the  ex- 
pense of  this  new  crusade  upon  the  pope ;  but  the  assistance 
of  Rome  \vas  never  gratuitous,  and  Henry  actually  pledged 
his  kingdom  for  the  money  which  she  might  expend  in  a  war 
for  her  advantage  and  his  own.^  He  did  not  even  want  the 
effrontery  to  tell  parliament  in  1257,  introducing  his  son 
Edmund  as  king  of  Sicily,  that  they  were  bound  for  the  re- 
payment of  14,000  marks  with  interest.  The  pope  had  also, 
in  furtherance  of  the  Neapolitan  project,  conferred  upon 
Henry  the  tithes  of  all  benefices  in  England,  as  well  as  the 
first  fruits  of  such  as  should  be  vacant.'*  Such  a  concession 
drew  upon  the  king  the  implacable  resentment  of  his  clergy, 
ab-eady  complaining  of  the  cowardice  or  connivance  that  had 


English  Const. 


UNDER  HENRY  m. 


315 


1  De  communi  consilio  regni,  sicut  ab 
antjquo  consuetum  et  justum.  p.  778. 
This  was  not  so  great  an  encroachment 
as  it  may  appear.  Ralph  de  Neville, 
bishop  of  Chichester,  had  been  made 
chancellor  in  1223,  assensu  totius  regni ; 
itaque  scilicet  ut  non  deponereturab  ejus 
sigilli  custodi  nisi  totius  regni  ordi- 
nante  consensu  et  consilio.  p.  266.  Ac- 
cordingly, the  king  demanding  the  great 
seal  from  him  in  1236.  he  refused  to 
give  it  up,  alleging  that,  having  re- 
ceived it  in  the  general  council  of  the 
kingdom  he  could  not  resign  it  without 
the  samt  authority,    p.  863.    And  the 


parliament  of  1248  complained  that  the 
king  had  not  followed  the  steps  of  his 
predecessors  in  appointing  these  three 
great  ofllcers  by  their  consent,  p.  646. 
What  had  been  in  fact  the  practice  of 
former  kings  I  do  not  know;  but  it  is 
not  likely  to  have  been  such  as  they 
represent.  Henry,  however,  had  named 
the  archbishop  of  York  to  the  regency  of 
the  kingdom  during  his  absence  beyond 
seas  in  1242,  de  consilio  omnium  comitum 
et  baronum  nostrorum  et  omnium  fide 
lium  nostrorum.    Rymer,  t.  i.  p.  400 

3  Id.  p.  771. 

3  p.  813 


during  all  his  reign  exposed  them  to  the  shameless  exactions 
of  Rome.  Henry  had  now  indeed  cause  to  regret  his  precip- 
itancy. Alexander  IV.,  the  reigning  pontiff,  threatened 
him  not  only  with  a  revocation  of  the  grant  to  his  son,  but 
with  an  excommunication  and  general  interdict,  if  the  money 
advanced  on  his  account  should  not  be  immediately  repaid  ;  ^ 
and  a  Roman  agent  explained  the  demand  to  a  parliament 
assembled  in  London.  The  sum  required  was  so  enormous, 
we  are  told,  that  it  struck  all  the  hearers  with  astonishment 
and  horror.  The  nobility  of  the  realm  were  indignant  to 
think  that  one  man's  supine  folly  should  thus  bring  them  to 
ruin.*^  Who  can  deny  that  measures  beyond  the  ordinary 
course  of  the  constitution  were  necessary  to  control  so  prodi- 
gal and  injudicious  a  sovereign  ?  Accordingly  the  barons  in- 
sisted tliat  twenty-four  persons  .should  be  nominated,  half  by 
the  king  and  half  by  themselves,  to  reform  the  state  of 
the  kingdom.  Tiiese  were  appointed  on  the  meeting  of  the 
parliament  at  Oxford,  after  a  prorogation. 

The  seven  years  that  followed  are  a  revolutionary  period, 
the  events  of  which  we  do  not  find  satisfactorily  explained 
by  the  historians  of  the  time.*  A  king  divested  of  preroga- 
tives by  his  people  soon  appears  even  to  themselves  an  in- 
jured party.  And,  as  the  baronial  oligarchy  acted  with  that 
arbitrary  temper  which  is  never  pardoned  in  a  government 
that  has  an  air  of  usui-pation  about  it,  the  royalists  began  to 
gain  ground,  chiefly  through  the  defection  of  some  who  had 
joined  in  the  original  limitations  imposed  on  the  crown,  usu- 
ally called  the  provisions  of  Oxford.  An  ambitious  man, 
confident  in  his  talents  and  popularity,  ventured  to  display  too 
marked  a  superiority  above  his  fellows  in  the  same  cause. 
But  neither  his  character  nor  the  battles  of  Lewes  and 
Evesham  fall  strictly  within  the  limits  of  a  constitutional 
history.  It  is  however  important  to  observe,  that,  even  in 
the  moment  of  success,  Henry  III.  did  not  presume  to  revoke 
any  part   of  the    Great    Charter.     His    victory  had  been 


1  Rymcr.t.i.p.  632.  This  inauspicious  ne- 
gotiation for  Sicily,  which  is  not  altogether 
unlike  that  of  James  I.  about  the  Span- 
ish match,  in  its  folly,  bad  success,  and 
the  dissati.sf:iction  it  ooeasioned  at  home, 
receives  a  good  deal  of  illustration  from 
documents  in  llymer-s  collectiou. 

*  Quantitas  pecuniae  ad  tantun  asccn- 
dit  sumniam,  ut  stuporeui  f«iniul  et  hor- 
rarem  in  auribas  geucrarct  auJiuntium. 


Doluit  igitur  nobilitas  regni,  se  unius 
hominis  ita  confundi  supina  simplicitate. 
M.  Paris,  p.  827. 

3  The  nest  account  of  the  provisions  of 
Oxford  in  1260  and  the  circumstances 
connected  with  them  is  found  in  the 
Burton  Annals.  2  Gale,  XV  Scriptores, 
p.  407.  Many  of  these  provisions  were 
afterwards  enacted  in  the  statute  of 
Marlebridge. 


i  <r| 


316        LIMITATIONS  OF  PREROGATIVE.    Chap.  VHI.  Part  IL 

achieved  by  the  arms  of  the  English  nobility,  who  had,  gen- 
erally  speaking,  concurred  in  the  former  measures  agamst  his 
government,  and  whose  opposition  to  the  earl  of  Leicester  s 
usurpation  was  compatible  with  a  steady  attachment  to  con- 
stitutional liberty.^  ,     ,     ,i        u 

The  opinions  of  eminent  lawyers  are  undoubtedly,  where 
Limitations    legislative  or  judicial  authorities  fail,  the  best  evi- 
of  the  pre-     dcncc  that  can  be  adduced  in  constitutional  history. 
3'«^from    It  will  therefore  be  satisfactory  to  select  a  few 
Bracton.        passa^'cs  from   Bracton,  himself  a  judge   at  the 
end  of  Henry  °III.'s  reign,  by  which    the   limitations  of 
prero<rative  by  law  will  clearly  appear  to  have  been  tully 
established.     "The  king,"  says    he,  "must  not  be  subject 
to  any  man,  but  to  Gk)d  and  the  law  ;  for  the  law  makes  him 
kin<r.     Let  the  king  therefore  give  to  the  law  what  the  law 
gives  to  him,  dominion  and  power;  for  there  is  no  king  where 
will,  and  not  law,  bears  rule."  ^    "  The  king  (in  another  place) 
can  do  nothing  on  earth,  being  the  minister  of  God,  but  what 
he  can  do  by  law ;  nor  is  what  is  said  (in  the  Pandects)  any 
objection,  that  whatever  the  prince  pleases  shall  be  law ;  be- 
cause by  the  words  that  follow  in  that  text  it  appears  to 
desi'm  not  any  mere  will  of  the  prince,  but  that  which  is 
established  by  the  advice  of  his  councillors,  the  kin^  giving 
his  authority,  and  deliberation  being  had  upon  it."       This 
passage  is  undoubtedly  a  misrepresentation  of  the  famous  lex 
re<r;a,°which  has  ever  been  interpreted  to  convey  the  unlimit- 
ed''power  of  the  people  to  their  emperors.*     But  the  very 
circumstance  of  so  perverted  a  gloss  put  upon  this  text  is  a 
proof  that  no  other  doctrine  could  be  admitted  in  the  law  of 
England.     In  another  passage  Bracton  reckons  as  superior 
to  the  king,  "  not  only  God  and  the  law,  by  which  he  is  made 
kinc',  but  his  court  of  earls  and  barons  ;  for  the  former  (com- 
ites)  are  so  styled  as  associates  of  the  king,  and  whoever 
has  an  associate  has  a  master ;«  so  that,  if  the  king  were 
without  a  bridle,  that  is,  the  law,  they  ought  to  put  a  bridle 
upon  him."^     Several  other  passages  in  Bracton  might  be 


fivausH  Const. 


LAW  COURTS. 


317 


1  The  Earl  of  Gloucester,  whose  per- 
gonal quarrel  with  Montfort  had  over- 
thrown the  baronial  oligarchy,  wrote  to 
the  king  in  1267,  ut  provisiones  Oxoniae 
teaeri  faciat  per  regnum  suum,  et  ut  pro- 
missa  sibi  apud  Evesham  de  facto  com- 
pleret.    Matt.  Paris,  p.  850. 

2  1.  i.  c.  8. 

*  1.  ill.  c.  9.     Theee  worda  are  nearly 


copied  from  Qlanvil's  introduction  to  his 
treatise. 

4  See  Selden  ad  Fletam,  p.  1046. 

6  This  means,  I  suppose,  that  he  who 
acts  with  the  consent  of  others  must  be 
in  some  degree  restrained  by  them ;  but 
it  is  ill  expressed. 

6  1.  ii.  C.  16. 


produced  to  tho  same  import ;  but  these  are  sufficient  to  de- 
monstrate the  important  fact  that,  however  extensive  or  even 
indefinite  might  be  the  royal  prerogative  in  the  days  of  Henry 
in.,  the  law  was  already  its  superior,  itself  but  made  part  of 
the  law,  and  was  incompetent  to  overthrow  it.^  It  is  true 
that  in  this  very  reign  the  practice  of  dispensing  with  statutes 
by  a  non-obsfcinte  was  introduced,  in  imitation  of  the  papal 
dispensations.*  But  this  prerogative  could  only  be  exerted 
within  certain  limits,  and,  however  pernicious  it  may  be 
justly  thought,  was,  when  thus  understood  and  defined,  not, 
strictly  speaking,  incompatible  with  the  legislative  sovereign- 
ty of  parliament 

In  conformity  with  the  system  of  France  and  other  feudal 
countries,  there  was  one  standing  council,  which  The  King's 
assisted  the  kings  of  England  in  the  collection  and  ^°"^* 
management  of  their  revenue,  the  administration  of  justice 
to  suitors,  and  the  despatch  of  all  public  business.  This  was 
styled  the  King's  Court,  and  held  in  his  palace,  or  wherever 
he  was  personally  present.  It  was  composed  of  the  great 
officers ;  the  chief  justiciary,*  the  chancellor,  the  constable, 


>  Allen  has  pointed  out  that  the  king 
might  have  been  sued  in  his  own  courts, 
like  one  of  his  subjects,  until  the  reign 
of  Edward  I.,  who  introduced  the  me- 
thod of  suing  by  petition  of  right ;  and 
in  the  Year  Book  of  Edward  III.  one 
of  the  judges  says  that  he  has  seen  a 
writ  beginning— PrcEcipe  Henry  regi 
AnglicB.  Bracton,  however,  expressly 
asserts  the  contrary,  as  Mr.  Allen  owns, 
so  that  we  may  reckon  this  rather  doubt- 
ful. Bracton  has  some  remarkable  words 
which  I  have  omitted  to  quote :  after  ho 
has  broadly  asserted  that  the  king  has 
no  superior  but  God,  and  that  no  remedy 
can  be  had  by  law  against  him,  he  pro- 
ceeds :  Nisii  sit  qui  dicat,  quod  univer- 
eltas  regni  et  barouagium  suum  hoc 
facere  debeant  et  possint  in  curia  ipsius 
regis.  By  curia  we  must  here  under- 
stand parlLiment,  and  not  the  law-courts. 

8  M.  Paris,  p.  701. 

5  The  thief  justiciary  was  tho  greatest 
subject  in  England.  Besides  presiding 
in  the  king's  court  and  in  the  Exchequer, 
he  was  originally,  by  virtue  of  his  ofBcc, 
the  regent  of  the  kingdom  during  the 
absence  of  the  sovereign,  which,  till  the 
loss  of  Normandy,  occurred  very  fre- 
quently. Writs,  at  such  times,  ran  in 
his  name,  and  were  tested  by  Iiim. 
Bladox,  Hist,  of  Excheq.  p.  16.  His  ap- 
pointment upon  these  temporary  occa- 
sions was  expressed,  od  custodiendum 


loco  nostro  terram  nostram  Angliss  et 
paccm  regni  nostri ;  and  all  persons  were 
enjoined  to  obey  him  tanquam  justitiario 
nostro.  Rymer,  t.  i.  p.  181.  Sometimes, 
however,  the  king  issued  his  own  writ 
de  ultra  mare.  The  first  time  when  the 
dignity  of  this  office  was  impaired  was  at 
the  death  of  John,  when  the  justiciary, 
Hubert  de  Burgh,  being  besieged  in 
Dover  Castle,  those  who  proclaimed 
Henry  III.  at  Gloucester  constituted  tho 
earl  of  Pembroke  governor  of  the  king 
and  kingdom,  Hubert  still  retaining  his 
office.  This  is  erroneously  stat^  by 
Matthew  Paris,  who  has  misled  Spelman 
in  his  Glossary ;  but  the  truth  appears 
from  Hubert's  answer  to  the  articles  of 
charge  against  him,  and  from  a  record  in 
Madox's  Hist,  of  Exch  c.  21,  note  A 
wherein  the  earl  of  Pembroke  is  named 
rector  regis  et  regni,  and  Hubert  de 
Burgh  justiciary.  In  1241  the  arch- 
bishop of  York  was  appointed  to  the  re- 
gency during  Henry's  absence  in  Poitou, 
without  the  title  of  justiciary.  Rymerj 
t.  i.  p.  410.  Still  the  office  was  so  coa- 
siderable  that  the  barons  who  met  in  the 
Oxford  parliament  of  1258  insisted  that 
the  justiciary  should  be  annually  chosen 
with  their  approbation.  But  the  subse- 
quent successes  of  Henry  prevented  this 
being  established,  and  Edward  I.  discon> 
tinued  the  office  altogether. 


ill 


313  JUSTICES  OF  ASSIZE.    Chap.  VIII.  Part  II 

marshal,  chamberlain,  steward,  and  treasurer,  with  any  others 
whom  the  king  might  appoint.  Of  this  great  court  there 
was  as  it  seemi,  from  the  beginning,  a  particular  branch,  in 
wh k^h  all  matters  relating  to  the  revenue  were  exe^^^^^^^^^^ 
,,  ^  ,  transacted.  This,  though  composed  of  the  same 
J?lS-  persons,  yet,  being  held  in  a  different  part  of  he 
"^^^  palace,  and  for  different  busmess,  was  distmguished 

from  the  king's  court  by  the  name  of  the  Exchequer ;  a  sepa- 
rXn  which^became  complete  when  civil  pleas  were  decided 
and  iudgments  recorded  in  this  second  court. 

Vis  probable  that  in  the  age  next  after  the  Conquest  few 
causes  in  which  the  crown  had  no  interest  were  carried  before 
r  royal  tribunals;  every  man  finding  a  readier  course  of 
justice  in  the  manor  or  county  to  which  he  belonged.^     Bu 
bv  de-rees  this  supreme  jurisdiction  became  more  familiar, 
and  a°  it  seemed  less  liable  to  partiality  or  if  °^f  tion  than 
the  provincial  courts,  suitors  grew  wiUmg  to  submit  to  its 
expenXeness   and    inconvenience.      It   was   obviously  the 
Seres  of  the  king's  court  to  give  such  equity  and  steadi. 
netto  its   decisions   as  might  encourage   this  disposition^ 
Nothincr  could  be  more  advantageous  to  the  king  s  authority, 
nor,  "hat  perhaps  was  more  immediately  regarded,  to  his 
^v^nue,  since  a  fine  was  always  paid  for  leave  to  plead  in 
hi^  court  or  to  remove  thither  a  cause  commenced  below. 
But  bemuse  few,  comparatively  speaking,  could  have  recourse 
to  so  di^ant  a  tribund  as  that  of  the  kings  court,  and  per- 
haps  also  on  account  of  the  attachment  which  the  English 
feU  to  their  ancient  right  of  trial  by  the  neighboring  tree- 
holders,  Hen?y  11.  established  itinerant  justices  to 
JriusScoTof  decide  civil  and  criminal  pleas  within  each  county.' 
assize.  rj^j^jg  excellent  institution  is  referred  by  some  to  tne 

twenty-second  year  of  that  prince;    but   Madox  traces  it 
slveml  years  higher.*     We  have  owed  to  it  the  umformity 


EKGLisn  Const.     COURT  OF  COMMON  PLEAS. 


319 


1  For  much   information   about   the 

Curia  Regis,  and  especially  this  branch 

of  it,  the  student  of  our  constitutional 

history  should  have  recourse  to  Madox  s 

History  of  the  Exchequer,  and    to  the 

Dialcus  de    Scaccario.   written    in  the 

time  of  Henry  II.  by  Richard  bishop  of 

Ely,  thouRh  commonly  ascribed  to  Ger- 

yase  of  Tilbury.     This  treatise  he  will 

find  subjoined  to  Madox's  work.    [Notk 

XIII.] 
t  Qmnia  causa  termiuetur  comitatu, 


Tel  hundredo,  rel  halimoto  socam  haben- 
tlum.    Leges  Henr.  I.  c  9. 

3  Dialogus  de  Scaccario,  p.  do. 

4  Hist,  of  Exchequer,  c.  111.  Lord 
Lyttelton  thinks  that  this  institution 
niy  hare  been  adopted  In  l"»tation  of 
Louis  VI.,  who  half  a  century  before  had 
Introduced  a  similar  regulation  in  hit 
domains.  Hist,  of  Henry  II.  vol.  U. 
n  206.  Justices  In  eyre,  or,  as  we  now 
call  them,  of  a.ssixe,  were  sometimes  com- 
missioned   in   the   reign  of    Henry   I 


of  our  common  law,  which  would  otherwise  have  been  split, 
like  that  of  France,  into  a  multitude  of  local  customs ;  and 
we  still  owe  to  it  the  assurance,  which  is  felt  by  the  poorest 
and  most  remote  inhabitiint  of  England,  that  his  right  is 
weighed  by  the  same  incorrupt  and  acute  understanding 
upon  which  the  decision  of  the  highest  questions  is  reposed. 
The  justice.5  of  assize  seem  originally  to  have  gone  their 
circuits  annually ;  and  as  part  of  their  duty  was  to  set  tallag(;s 
upon  royal  towns,  and  superintend  the  collection  of  the  reve- 
nue, we  may  be  certain  that  there  could  be  no  long  interval. 
This  annual  visitation  was  expressly  confirmed  by  the  twelfth 
section  of  Magna  Charta,  which  provides  also  that  no  assize 
of  novel  disseizin,  or  mort  d'ancestor,  should  be  taken  except 
in  the  shire  where  the  lands  in  controversy  lay.  Hence  this 
clause  stood  opposed  on  the  one  hand  to  the  encroachments 
of  the  king's  court,  which  might  otherwise,  by  drawing  pleas 
of  land  to  itself,  have  defeated  the  suitor's  right  to  a  jury 
from  the  vicinage ;  and  on  the  other,  to  those  of  the  feudal 
aristocracy,  who  hated  any  interference  of  the  crown  to  chas- 
tise their  violations  of  law,  or  control  their  own  jurisdiction. 
Accordingly,  while  the  confederacy  of  barons  against  Henry 
in.  was  in  its  full  power,  an  attempt  was  made  to  prevent 
the  regular  circuits  of  the  judges.^ 

Long  after  the  separation  of  the  exchequer  from  the  king's 
court,  another  branch  was  detached  for  the  decision  rnh    o    t 
of  private  suits.    This  had  its  beginning,  in  Madox's  of  Common 
opinion,  as  early  as  the  reign  of  Richard  I.^     But  ^^^^' 
it  was  completely  established  by  Magna  Charta.     "  Common 
Pleas,"  it  is  said  in  the  fourteenth  clause,  "  shall  not  follow 
our  court,  but  be  held  in  some  certain  place."     Thus  was 
formed  the  Court  of  Common  Bench  at  Westminster,  with 
full,  and,  strictly  speaking,  exclusive  jurisdiction  over  all  civil 
disputes,  where  neither  the  king's  interest,  nor  any  matter 


Hardy's  Introduction  to  Close  Rolls. 
They  do  not  appear  to  have  gone  their 
circuits  regularly  before  22  Hen.  II. 
(1176.) 

1  Justiciaril  regis  AngUse.  qui  dlcuntur 
itlneris.  mlssi  Herfordiam  pro  suo  exe- 
quendo  officio  repelluntur,  ullet^antibus 
his  qui  regi  adversabantur,  ip.sos  contri 
formam  provisionum  Oxonise  nuper  fac- 
tarum  venlsse.  Chron.  Nic.  Trivet.  A.n. 
1260.  I  forget  where  I  found  this  quo- 
UUon. 

t  Hist  of  Exchequer,  c.  19.    Justices 


of  the  bench  are  mentioned  several  yean 
before  Magna  Charta.  But  Madox  thinks 
the  chief  justiciary  of  England  might 
preside  in  the  two  courts,  as  well  as  in 
the  exchequer.  After  the  erection  of  the 
Common  Bench  the  style  of  the  superior 
court  began  to  alter.  It  ceased  by  de- 
gprees  to  be  called  the  king's  court.  Pleaf 
were  said  to  be  held  coram  rege,  or 
coram  rego  ubicunque  fuerit.  And  thus 
the  court  of  king's  bench  was  formed 
out  of  the  renaains  of  the  ancient  curia 
regis. 


320 


ORIGIN  OF  COMMON  LAW.    Chap.  VIII.  Part  U. 


English  Const.      ORIGIN  OF  COMMON  LAW. 


321 


H 
fi 


savoring  of  a  criminal  nature,  was  concerned.  For  of  such 
disputes  neither  the  court  of  king's  bench,  nor  that  of  ex- 
chequer, can  take  cognizance,  except  by  means  of  a  legal 
fiction,  which,  in  the  one  case,  supposes  an  act  of  force,  and, 
in  the  other,  a  debt  to  the  crown. 

The  principal  officers  of  state,  who  had  originally  been 
effective  members  of  the  king's  court,  began  to  withdraw 
from  it,  after  this  separation  into  three  courts  of 
SSoa  *^*  justice,  and  left  their  places  to  regular  lawyers 
^^  though  the  treasurer  and  chancellor  of  the  ex- 

chequer have  still  seats  on  the  equity  side  of  that  court,  a 
vestige  of  its  ancient  constitution.    It  would  indeed  have  been 
difficidt  for  men  bred  in  camps  or  palaces  to  fulfil  the  ordi- 
nary functions  of  judicature  under  such  a  system  of  law  as 
had   grown  up  in  England.     The  rules  of  legal  decision, 
among  a  rude  people,  are  always  very  simple ;  not  serving 
much°to  guide,  far  less  to  control,  the  feelings  of  natural 
equity.     Such  were  those  which  prevailed  among  the  Anglo- 
Saxons;  requiring  no  subtler  intellect,  or  deeper  learning, 
than  the  earl  or  sheriff  at  the  head  of  his  county-court  might 
be  expected  to  possess.     But  a  great  change  was  wrought  in 
about  a  century  after  the  Conquest.     Our  English  lawyers, 
prone  to  magnify  the  antiquity,  like  the  other  merits  of  their 
system,  are  apt  to  carry  up  the  date  of  the  common  law,  till, 
like  the  pedigree  of  an  illustrious  family,  it  loses  itself  in  the 
obscurity  of  ancient  time.     Even  Sir  Matthew  Hale  does  not 
hesitate  to  say  that  its  origin  is  as  undiscoverable  as  that  of 
the  Nile.    But  though  some  features  of  the  common  law  may 
be  distinguishable  in  Saxon  times,  while  our  limited  knowl- 
edge prevents  us  from  assigning  many  of  its  peculiarities  to 
any  determinable  period,  yet  the  general  character  and  most 
essential  parts  of  the  system  were  of  much  later  growth. 
The  laws  of  the  Anglo-Saxon  kings,  Madox  truly  observes, 
are  as  different  from  those  collected  by  Glanvil  as  the  laws 
of  two  different  nations.     The  pecuniary  compositions  for 
crimes,  especially  for  homicide,  which  run  through  the  Anglo- 
Saxon  code  down  to  the  laws  ascribed  to  Henry  I.,*  are  not 
mentioned  by  Glanvil.     Death  seems  to  have  been  the  regu- 
lar punishment  of  murder,  as  well  as  robbery.     Though  the 
investigation  by  means  of  ordeal  was  not  disused  in  his  time, 

I  C  70  murder,  baying  filled  In  the  ordeal  of 

«  A  citiaen  of  London,  siupected  of    cold  water,  wm  Ivangod  by  order  of  Uenry 


yet  trial  by  combat,  of  which  we  find  no  instance  before  the 
Conquest,  was  evidently  preferred.     Under  the  Saxon  gov- 
ernment, suits  appear  to  have  commenced,  even  before  the 
king,  by  verbal  or  written  complaint ;   at  least,  no  trace  re- 
mains of  the  original  writ,  the  foundation  of  our  civil  pro- 
cedure.*     The  descent  of  lands  before  the   Conquest  was 
according  to  the   custom  of  gavelkind,  or  equal  partition 
among  the  children;^  in  the  age  of  Henry  I.  the  eldest  son 
took  the  principal  fief  to  his  own  share  ;*    in  that  of  Glanvil 
he  inherited  all  the  lands  held  by  knight  service ;  but  the  de 
scent  of  socage  lands  depended  on  the  particular  custom  of 
the  estate.     By  the  Saxon  laws,  upon  the  death  of  the  son 
without  issue,  the  father  inherited ;  *  by  our  common  law,  he 
is  absolutely,  and  in  every  case,  excluded.      Lands  were,  in 
general,  devisable  by  testament  before  the  Conquest ;  but  not 
in  the  time  of  Henry  II.,  except  by  particular  custom.    These 
are  sufficient  samples  of  the  differences  between  our  Saxon 
and  Norman  jurisprudence  ;  but  the  distinct  character  of  the 
two  will  strike  more  forcibly  every  one  who  peruses  succes- 
sively the  laws  published  by  Wilkins,  and  the  treatise  ascribed 
to  Glanvil.     The  former  resemble  the  barbaric  codes  of  the 
continent,  and  the  capitularies  of  Charlemagne  and  his  family, 
minute  to  an  excess  in  apportioning  punishments,  but  sparing 
and  indefinite  in  treating  of  civil  rights;   while  the  other, 
copious,  discriminating,  and  technical,  displays  tlie  character- 
istics, as  well  as  unfolds  the  principles,  of  English  law.     It  ia 
difficult  to  assert  anything  decisively  as  to  the  period  between 
the  Conquest  and  the  reign  of  Henry  II.,  which  presents 
fewer  materials  for  legal  history  than  the  preceding  age ;  but 
the  treatise  denominated  the  Laws  of  Henry  I.,,  compiled  at 
the  soonest  about  the  end  of  Stephen's  reign,''  bears  so  much 
of  a  Saxon  character,  that  I  should  be  inclined  to  ascribe  our 
present  common  law  to  a  date,  so  far  as  it  is  capable  of  any 
date,  not  much  antecedent  to  the  publication  of  Glanvil.^    At 


n.,  though  he  offered  500  marks  to  save 
his  life.  Hoveden,  p.  566.  It  appears  as 
If  the  ordeal  were  permitted  to  persons 
already  convicted  by  the  verdict  of  a  jury. 
If  they  escaped  in  this  purgation,  yet,  in 
eases  of  murder,  they  were  banished  the 
realm.  Wilkins,  Leges  Anglo-Saxon,  p. 
880.  Ordeals  were  abolished  about  the 
beginning  of  Henry  III.'s  reign. 


1  Uickes,  Dissert.  Epistol.  p.  8. 
>  Leges  QuUelmi,  p.  225. 
VOL.  II. 


SI 


s  Leges  Henr.  I.  c.  70. 

♦  Ibid. 

&  The  Decretum  of  Gratian  is  quoted  ia 
this  treatise,  which  was  not  published  in 
Italy  till  1151. 

e  Ma4ox,  Hist,  of  Exch.  p.  122,  edit. 
1711.  Lord  Lyttelton,  vol.  ii.  p.  267, 
has  given  reasons  for  supposing  that 
Glanvil  was  not  the  author  of  this 
treatise,  but  some  clerk  under  his  di* 
rection. 


Hvl 


ti 


322  CHARACTER  AND  DEFECTS    Chap.  VIH.  Part  IL 

the  same  time,  since  no  kind  of  evidence  attests  any  sudden 
Td  radical  change  in  the  jurisprudence  of   England    the 
question  must  be  considered  as  left  m  great  obscurity.     Per- 
E  it  might  be  reasonable  to  conjecture  that  the  treatise 
cXd  Leges  Henrici  Primi  contains  the  ancient  usages  stiU 
prevailing  in  the  inferior  jurisdictions,  and  that^^  ^lanvil 
the  rules  established  by  the  Norman  lawyers  of  the  king^s 
court,  which  would  of  course  acquire  a  general  recognition 
^d   efficacy,  in   consequence  of  the   institution  of  justices 
holcUng  their  assizes  periodically  throughout  the  country. 
The  capacity  of  deciding  legal  controversies  was  now  only 
to  be  found  in  men  who  had  devoted  themselves  to 
SS^'ts  of  that  peculiar  study ;  and  a  race  of  such  men  arose, 
Se  Boyish    whose  eagerness  and  even  enthusiasm  in  the  pro- 
^^'  fession  of  the  law  were  stimulated  by  the  self-com- 

placency of  intellectual  dexterity  in  threading  its  intricate  and 
thorny  mazes.     The  Normans  are  noted  in  their  o>vn  country 
for  a  shrewd  and  Utigious  temper,  which  may  have  given  a 
character  to  our  courts  of  justice  in  early  times.     Something 
too  of  that  excessive  subtlety,  and  that  preference  of  techni- 
cal  to  rational  principles,  which  runs  through  our  system,  may 
be  imputed  to  the  scholastic  philosophy,  which  was  m  vogue 
durin- the  same  period,  and  is  marked  by  the  same  features. 
But  we  have  just  reason  to  boast  of  the  leadmg  causes  of 
these  defects;  an  adherence  to  fixed  rules,  and  a  jealousy  of 
judicial  discretion,  which  have  in  no  country,  I  believe,  been 
carried  to  such  a  length-     Hence  precedents  of  adjudged 
cases,  becoming  authorities  for  the  future,  have  been  con- 
stantly  noted,  and  form  indeed  almost  the  sole  ground  of 
argument  in  questions  of  mere  law.     But  these  authorities 
beincr  frequently  unreasonable  and  inconsistent,  partly  trom 
the  infirmity  of  all  human  reason,  partly  from  the  imperfect 
manner  in  which  a  number  of  unwarranted  and  incorrect 
reporters  have  handed  them  down,  later  judges  grew  anxious 
to  elude  by  impalpable  distinctions  what  they  did  not  venture 
to  overturn.     In  some  instances  this  evasive  skill  has  been 
applied  to  acts  of  the  legislature.    Those  who  are  moderately 
conversant  with  the  history  of  our  law  will  easily  trace  other 
drcumstances  that  have  cooperated  in  producing  that  techm- 
cal  and  subtle  system  which  regulates  the  course  of  real 
property.     For  as  that  formed  almost  the  whole  of  our  an- 
dent  jurisprudence,  it  is  there  that  we  must  seek  its  onginal 


BvoLisH  Const.        OF  THE  ENGLISH  LAW. 


323 


character.     But  much  of  the  same  spirit  pervades  every  part 
of  the  law.    No  tribunals  of  a  civilized  people  ever  borrowed 
80  little,  even  of  illustration,  from  the  writings  of  philoso- 
phers, or  from  the  institutions  of  other  countries.    Hence  law 
has  been  studied,  in  general,  rather  as  an  art  than  a  science, 
with  more  solicitude  to  know  its  rules  and  distinctions  than  to 
perceive  their  application  to  that  for  which  all  rules  of  law 
ought  to  have  been  established,  the  maintenance  of  public  and 
private  rights.     Nor  is  there  any  readmg  more  jejune  and 
unprofitable  to  a  philosophical  mind  than  that  of  our  ancient 
law-books.    Later  times  have  introduced  other  inconveniences, 
till  the  vast  extent  and  multiplicity  of  our  laws  have  become 
a  practical  evil  of  serious  importance,  and  an  evil  which,  be- 
tween the  timidity  of  the  legislature  on  the  one  hand,  and  the 
selfish  views  of  practitioners  on  the  other,  is  likely  to  reach, 
in  no  long  period,  an  intolerable   excess.     Deterred  by  an 
interested  clamor  against  innovation  from  abrogating  what  is 
useless,  simplifying  what  is  complex,  or  determining  what  is 
doubtful,  and  always  more  inclined  to  stave  off  an  immediate 
difficulty   by  some  patchwork  scheme  of   modifications  and 
suspensions  than  to  consult  for  posterity  in  the  comprehensive 
spirit  of  legal  philosophy,  we  accumulate  statute  upon  statute, 
and  precedent  upon  precedent,  till  no  industry  can  acquire, 
nor  any  intellect  digest,  the  mass  of  learning  that  grows  upon 
the  panting  student ;  and  our  jurisprudence  seems  not  unlikely 
to  be  simplified  in   the   worst  and  least  honorable  manner, 
a  tacit  agreement  of  ignorance  among  its  professors.     Much 
indeed  has  already  gone  into  desuetude  within  the  last  cen- 
tury, and  is  known  only  as  an  occult  science  by  a  small  num- 
ber of  adepts.    We  are  thus  gradually  approaching  the  crisis 
of  a  necessary  reformation,  when  our  laws,  like  those  of  Rome, 
must  be  cast  into  the  crucible.     It  would  be  a  disgrace  to  the 
nineteenth  century,  if  England  could  not  find  her  Tribonian.* 


1  Whitelocke,  just  after  the  Restora- 
tion, complains  that  "  Now  the  volume 
of  our  statutes  is  grown  or  swelled  to  a 
great  bigness."  The  volume !  What 
would  he  have  said  to  the  monstrous 
birth  of  a  volume  triennially,  filled  with 
laws  professing  to  be  the  deliberate  work 
of  the  legislature,  which  every  subject  Is 
supposed  to  read,  remember,  and  under- 
•tand  1  The  excellent  sense  of  the  follow- 
ing sentences  from  the  same  passage  may 
well  excuse  me  for  quoting  them,  and, 
perhaps,  in  this  age  of  bigoted  averseness 


to  innovation,  I  have  need  of  some  apol- 
ogy for  what  I  have  ventured  to  say  in 
the  text.  '^  I  remember  the  opinion  of  a 
wise  and  learned  statesman  and  lawyer 
(the  chancellor  Oxenstiern),  that  multi- 
plicity of  written  laws  do  but  distract  the 
judges,  and  render  the  law  less  certain ; 
that  where  the  law  sets  due  and  clear 
bounds  betwixt  the  prerogative  royal  and 
the  rights  of  the  people,  and  gives  remedy 
in  private  causes,  there  neeids  no  mora 
laws  to  be  increased;  for  thereby  liti- 
gation will  be  increased   likewise.      II 


■*  i  i 


;: 


*i 


:■  I' 


824  HEREDITAKT  EIGHT  OF     Chap.  TOI.  Part  U. 

This  establishment  of  a  legal  system,  which  must  be  con- 
sidered  as  complete  at  the  end  of  Henry  IH.  s  re.gn,  when 
runwrUten  uLges  of  the  common  law  ssj^fj.  he  form 
and  precedents  of  the  courts  were  digested  «»»  *«  S«»' 
work  of  Bracton,  might,  in  some  respects,  conduce  to  the 
I^urity  of  public  freedom.     For,  however  h'gMy^the  pre- 
mS  might  be  strained,  it  was  incorporated  with  the  law, 
Sd    JeaSf  with  the  same  dis.inguished  and  argumentative 
t^btletv  as  every  other  part  of  it.     Whatever  thmgs,  there- 
fore iwiaT.er.ed  thafthe  king  might  do,  it  was  a  neces- 
S  mpb^ation  that  there  were  other  things  which  he  could 
KTelse  it  were  vain  to  specify  the  former     It  is  not 
meant  to  press  this  too  far;  since  undoubtedly  the  bias  of 
Wers  towards  the  prerogative  was  sometimes  too  d.scem.b  e 
Bnt  the  sweeoin.'  maxims  of  absolute  power,  which  servile 

fudges  LdcZchmen  taught  the  T/or  -d  Stu^t  p^C 
seem  to  have  made  no  progress  under  the  ^  a"t^S«"f /"*: 
Wtotever  may  be  thought  of  the  effect  which  the  study  of 
the  kw  had  upon  the  rights  of  the  subject  it  con- 
Hereditary  ■,  a  materially  to  the  security  of  good  order  Dy 
J^rLSl  teSg  th/hereditary  accession  ofU^.cro>^^ 
^^^-  Five  kings  out  of  seven  that  followed  William  the 

Conqueror  were  usurpers,   according   at  least    to   modem 
Ss!     Of  these,  Ste'phen  alone  encountered  any  ser^ou 
opposition  upon  that  ground ;  and  with  ^^^^P^^,^,*^^^,^?^^ 
be  remembered  that  all  the  barons,  ^^"^f  ^  \"f^f '^' ^!^ 
solemnly  sworn  to  maintain  the  succession  of  Matilda.  Henry 
EToeured  a  parliamentary  settlement  of  the  crown  upon 
his  eldest  and  second  sons ;  a  strong  presumption  that  their 
here^^  right  was  not  absolutely  secure.^    A  mixed  notion 
of  ri-&  choice  in  fact  prevailed  as  to  the  succession  of 
every  European  monarchy.    The  coronation  oath  and  the 
fjrm  of  popular  consent  then  required  were  considered  as 
mo"  materid,  at  least  to  perfect  a  title,  than  we  deem  them 
Rt  nresent.     They  gave  seizin,  as  it  were,  of  the  crown,  and, 
t  Sf  dispS  fretensions:  had  a  sort  of  judicial  efficacy. 

w«e  a  work  worthy  of  a  p«liament,  a^  -^terj  .^^^.-fj^o^J  i^tiJuCtlTaTiei; 
cannot  be  done  otherwise,  to  cause  a  le-  jjf^^^t^^c  earnest  may  appear  In  our 
Tiew  of  all  our  statutes,  to  rep^  such  m  ^•'f  "^J^.J^*;  ^j^j^^  at  this  day  few  «tu- 
theyshalljudge  inconvenient  to  remain  ;"'^"'^7<»n  find  in  them."  White- 
InfJrce;  to  confirm  those  which  they  shall  f«'?»f,.°^^J,^?;  on  Parliamentary 
think  fit  to  stand,  and  those  seyeral  stat-  locke  •  J^o™"*^  ^ 
utes  which  are  confused,  some  repug-  ^^[^tX^^P'^  u.  p.  U. 
nuxt  to  others,  many  touching  the  same       »  Lytteiton,  toi.  u  v 


English  Const.     THE  CROWN  ESTABLISHED. 


325 


The  Chronicle  of  Dunstable  says,  concerning  Richard  I.,  that 
he  was  "  elevated  to  the  throne  by  hereditary  right,  after  a 
solemn  election  by  the  clergy  and  people  : "  ^  words  that  indi- 
cate the  current  principles  of  that  age.  It  is  to  be  observed, 
however,  that  Richard  took  upon  him  the  exercise  of  royal 
prerogatives  without  waiting  for  his  coronation.^  The  suc- 
cession of  John  has  certainly  passed  in  modem  times  for  an 
usurpation.  I  do  not  find  that  it  was  considered  as  such  by 
his  own  contemporaries  on  this  side  of  the  Channel.  The 
question  of  inheritance  between  an  uncle  and  the  son  of  his 
deceased  elder  brother  was  yet  unsettled,  as  we  learn  from 
Glanvil,  even  in  private  succession.'  In  the  case  of  sovereign- 
ties, which  were  sometimes  contended  to  require  different 
rules  from  ordinary  patrimonies,  it  was,  and  continued  long 
to  be,  the  most  uncertain  point  in  public  law.  John's  pre- 
tensions to  the  crown  might  therefore  be  such  as  the  English 
were  justified  in  admitting,  especially  as  his  reversionary  title 
seems  to  have  been  acknowledged  in  the  reign  of  his  brother 
Richard.*  If  indeed  we  may  place  reliance  on  Matthew 
Paris,  archbishop  Hubert,  on  this  occasion,  declared  in  the 
most  explicit  terms  that  the  crown  was  elective,  giving  even 
to  the  blood  royal  no  other  preference  than  their  merit  might 
challenge.*  Carte  rejects  this  as  a  fiction  of  the  historian ; 
and  it  is  cei-tainly  a  strain  far  beyond  the  constitution,  which, 
both  before  and  after  the  Conquest,  had  invariably  limited 
the  throne  to  one  royal  stock,  though  not  strictly  to  its  nearest 
branch.  In  a  cliarter  of  the  first  year  of  his  reign,  John 
calls  himself  king,  "by  hereditary  right,  and  through  the 
consent  and  favor  of  the  church  and  people."  ^ 

It  is  deserving  of  remark,  that,  during  the  rebellions  against 
this  prince  and  his  son  Henry  III.,  not  a  syllable  was  breathed 
in  favor  of  Eleanor,  Arthur's  sister,  who,  if  the  present 
rules  of  succession  had  been  established,  was  the  undoubted 
heiress  of  his  right  The  barons  chose  rather  to  call  in  the 
aid  of  Louis,  with  scarcely  a  shade  of  title,  though  with  much 
better  means  of  maintaining  himself.  One  should  think  that 
men  whose  fathers  had  been  in  the  field  for  Matilda  could 
make  no  difficulty  about  female  succession.      But  I  doubt 


1  Lytteiton,  vol.  ii.  p.  42.  Hsereditario 
Jure  promoTcndus  in  regnum,  post  cleri 
•t  populi  8otennom  elcctioncm. 

*  Qui.  Neubrigensia,  1.  ir.  c.  1. 

*  Qlanvil,  1.  vii.  c.  3. 


*  Hoveden,  p.  702. 

6  p.  165. 

0  Jure  hsereditario,  et  medlante  tarn 
cicri  pt  populi  consensu  et  favore.  Gar* 
don  on  Parliaments,  p.  139 


^6 


GENTRY  DESTITUTE* OF      Chap.  Vm.  Part  R 


whether,  notwithstanding  that  precedent,  the  crown  of  Eng- 
land was  universally  acknowledged  to  be  capable  of  descend- 
ing to  a  female  heir.  Great  averseness  had  been  shown  by 
the  nobility  of  Henry  I.  to  his  proposal  of  settling  the  king- 
dom on  hi8  daughter.^  And  from  a  remarkable  passage 
which  I  shall  produce  in  a  note,  it  appears  that  even  in  the 
reign  of  Edward  III.  the  succession  was  supposed  to  be  con 
fined  to  the  male  line.* 

At  length,  about  the  middle  of  the  thirteenth  century,  the 
lawyers  applied  to  the  crown  the  same  strict  principles  of 
descent  which  regulate  a  private  inheritance.  Edward  L 
was  proclaimed  immediately  upon  his  father's  death,  though 
absent  in  Sicily.  Something  however  of  the  old  principle 
may  be  traced  in  this  proclamation,  issued  in  his  name  by 
the  guardians  of  the  realm,  where  he  asserts  the  crown  of 
England  "  to  have  devolved  upon  him  by  hereditary  succes- 
sion and  the  will  of  his  nobles."  *  These  last  words  were 
omitted  in  the  proclamation  of  Edward  II. ;  *  since  whose 
time  the  crown  has  been  absolutely  hereditary.  The  corona- 
tion oath,  and  the  recognition  of  the  people  at  that  solemnity, 
are  formalities  which  convey  no  right  either  to  the  sovereign 
or  the  people,  though  they  may  testify  the  duties  of  each.*^ 

I  cannot  conclude  the  present  chapter  without  observing 
En  lish  ^^^  ^os*  prominent  and  characteristic  distinction 
gentry  des-  bctwecn  the  constitution  of  England  and  that  of 
exduswe  every  other  country  in  Europe;  I  mean  its  refusal 
priTiieges.      Qf  qIyH  privileges  to  the  lower  nobility,  or  those 


1  Lyttelton,  vol.  i.  p.  162. 

«  This  is  intimated  by  the  treaty  made 
In  1339  for  a  marriage  between  the  eldest 
son  of  Edward  III.  and  the  duke  of  Bra- 
bant's daughter.  Edward  therein  prom- 
ises that,  if  his  eon  should  die  before 
him,  leaving  male  issue,  be  will  procure 
the  consent  of  his  barons,  nobles,  and 
cities  (that  is,  of  parliament ;  nobles  here 
meaning  knights,  if  the  word  has  any 
distinct  sense),  for  such  issue  to  inherit 
the  kingdom ;  and  if  he  die  leaving  a 
daughter  only,  Edward  or  his  heir  shall 
make  such  provision  for  her  as  belongs 
to  the  daughter  of  a  king.  Rymer,  t.  y. 
p.  114.  It  may  be  inferred  from  this  in- 
strument that,  in  Edward's  intention,  if 
not  by  the  constitution,  the  Salic  law 
was  to  regulate  the  succession  of  the 
English  crown.  This  law.  it  must  be  re- 
membered, he  was  compelled  to  admit  in 
his  claim  on  the  kingdom  of  France, 


though  with  a  certain  modification  which 
gave  a  pretext  of  title  to  himsflf. 

3  Ad  nos  regni  gubernaculum  sue- 
cessione  haereditarii,  ac  procerum  regni 
Yoluntate,  et  fidelitate  nobis  prsestitl  sit 
devolutum.  Brady  (History  of  England, 
vol.  ii.  Appendix,  p.  1)  expounds  pro- 
cerum voluntate  to  mean  willingness,  not 
will;  as  much  as  to  say,  they  acted  read- 
ily and  ^thout  command.  But  in  all 
probability  it  was  intended  to  save  tiie 
usual  form  of  consent. 

4  liymer,  t.  iii.  p.  1.  Walsingham, 
however,  asserts  that  Edward  II.  as- 
cended the  throne  non  tam  jure  haere- 
ditario  qui\m  unanimi  a.«!.sensu  procerum 
et  magriatum.  p.  95.  Perhaps  we  should 
omit  the  word  non,  and  he  might  intend 
to  say  that  the  king  had  not  only  his 
hereditary  title,  but  the  free  consent  of 
his  barons. 

6  [Note  XIV.] 


ExuLisii  Const.        EXCLUSIVE  PRIVILEGES. 


327 


whom  we  denominate  the  gentry.  In  France,  in  Spain,  in 
Grermany,  wherever  in  short  we  look,  the  appellations  of 
nobleman  and  gentleman  have  been  strictly  synonymous. 
Those  entitled  to  bear  them  by  descent,  by  tenure  of  land,  by 
office  or  royal  creation,  have  formed  a  class  distinguished  by 
privileges  inherent  in  their  blood  from  ordinary  freemen. 
Marriage  with  noble  families,  or  the  purchase  of  military 
fiefs,  or  the  participation  of  many  civil  offices,  were,  more  or 
less,  interdicted  to  the  commons  of  France  and  the  empire. 
Of  these  restrictions,  nothing,  or  next  to  nothing,  was  ever 
known  in  England.  The  law  has  never  taken  notice  of 
gentlemen.*  From  the  reign  of  Hemy  III.  at  least,  the  legal 
equality  of  all  ranks  below  the  peerage  was,  to  every  essen- 
tial purpose,  as  complete  as  at  present.  Compare  two  writers 
nearly  contemporary,  Bracton  with  Beaumanoir,  and  mark 
how  the  customs  of  England  are  distinguishable  in  this  re- 
spect The  Frenchman  ranges  the  people  under  three 
divisions,  the  noble,  the  free,  and  the  servile ;  our  countryman 
has  no  generic  class,  but  freedom  and  villenage.*  No  re- 
straint seems  ever  to  have  lain  upon  marriage ;  nor  have  the 
children  even  of  a  peer  been  ever  deemed  to  lose  any  privi- 
lege by  his  union  with  a  commoner.  The  purchase  of  lands 
held  by  knight-service  was  always  open  to  all  freemen.  A 
few  privileges  indeed  were  confined  to  those  who  had  received 
knighthood.'  But,  upon  the  whole,  there  was  a  virtual 
equality  of  rights  among  all  the  commoners  of  England. 
What  is  most  particular  is,  that  the  peerage  itself  imparts  no 
privilege  except  to  its  actual  possessor.  In  every  other 
country  the  descendants  of  nobles  cannot  but  themselves  be 
noble,  because  their  nobility  is  the  immediate  consequence  of 
their  birth.     But  though  we  commonly  say  that  the  blood  of 


»  It  is  hardly  worth  while,  even  for  the 
\Sake  of  obviating  cavils,  to  notice  as  an 
exception  the  statute  of  23  H.  VI.  c.  14, 
prohibiting  the  election  of  any  who  were 
not  born  gentlemen  for  knights  of  the 
■hire.  Much  less  should  I  hare  thought 
of  noticing,  if  it  had  not  been  suggested 
as  an  objection,  the  provision  of  the  stat- 
ute of  Merton,  that  guardians  in  chivalry 
shall  not  marry  their  wards  to  villeins 
or  burgesses,  to  their  disparagement. 
Wherever  the  distinctions  of  rank  and 
property  are  felt  in  the  customs  of  society, 
such  marriages  will  be  deemed  unequal ; 
and  it  was  to  obviate  the  tyranny  of 
feudal   superiors  who    compelled   their 


wards  to  accept  a  mean  alliance,  or  to 
forfeit  its  price,  that  this  provision  of  the 
statute  was  made.  But  this  does  not 
affect  the  proposition  I  had  maintained 
as  to  the  legal  equality  of  commoners, 
any  more  than  a  report  of  a  Master  in 
Chancery  at  the  present  day,  that  a  pro- 
posed marriage  for  a  ward  of  the  court  was 
unequal  to  what  her  station  in  society 
appeared  to  claim,  would  invalidate  the 
same  proposition. 

i  Beaumanoir,  c.  45.  Bracton,  1.  L 
c.  6. 

3  See  for  these,  Selden's  Titles  of  Honor, 
vol.  iii.  p.  806. 


■1 


328 


CAUSES  OF  EQUALITY    Chap.  VHI.  Pakt  IL 


a  peer  is  ennobled,  yet  this  expression  seems  hardly  accurate, 
and  fitter  for  heralds  than  lawyers;  since  in  truth  nothing 
confers  nobility  but  the  actual  descent  of  a  peerage.  The 
sons  of  peers,  as  we  well  know,  are  commoners,  and  totally 
destitute  of  any  legal  right  beyond  a  barren  precedence. 

There  is  no  part,  perhaps,  of  our  constitution  so  admirable 
as  this  equality  of  civil  rights ;  this  isonomia,  which  the  phi- 
losophers of  ancient  Greece  only  hoped  to  find  in  democrat- 
ical  government.^     From  the  beginning  our  law  has  been  no 
respecter  of  persons.    It  screens  not  the  gentleman  of  ancient 
lineage  from  the  judgment  of  an  ordinary  jury,  nor  from 
ignominious  punishment.     It  confers  not,  it  never  did  confer, 
those  unjust  immunities  from  public  burdens,  which  the  supe- 
rior orders  arrogated  to  themselves  upon  the  continent.    Thus, 
while  the  privileges  of  our  peers,  as  hereditary  legislators  of 
a  free  people,  are  incomparably  more  valuable  and  dignified 
in  their  nature,  they  are  far  less  invidious  in  their  exercise 
than  those  of  any  other  nobility  in  Europe.    It  is,  I  am  firmly 
persuaded,  to  this  peculiarly  democratical  character  of  the 
English  monarchy,  that  we  are  indebted  for  its  long  perma- 
nence, its  regular  improvement,  and  its  present  vigor.     It  is 
a  singular,  a  providential  circumstance,  that,  in  an  age  when 
the  gradual  march  of  civilization  and  commerce  was  so  little 
foreseen,  our  ancestors,  deviating  from  the  usages  of  neigh- 
boring countries,  should,  as  if  deliberately,  have   guarded 
against   that   expansive    force  which,  in    bursting    through 
obstacles  improvidently  opposed,  has  scattered  havoc  over 

Europe. 

This  tendency  to  civil  equality  in  the  English  law  may,  I 
Causes  of  think,  be  ascribed  to  several  concurrent  causes.  In 
the  eqaiity  the  first  placc  the  feudal  institutions  were  far  less 
among  free-  ^^Yi\2iry  in  England  than  upon  the  continent  From 
England.  the  time  of  Henry  II.  the  escuage,  or  pecuniary 
commutation  for  personal  service,  became  almost  universal. 
The  armies  of  our  kings  were  composed  of  hired  troops,  great 
part  of  whom  certainly  were  knights  and  gentlemen,  but 
who,  serving  for  pay,  and  not  by  virtue  of  their  birth  or 
tenure,  preserved  nothing  of  the  feudal  character.     It  was 

^   IIXn«9oc     uoxw.     npuTOV     U£V  Herodotus  (Thalia,  c.  80)  has  put  Into 

h,fvn,in    K^nrm,    fr^i     iaovouiav  the  mouths  of  three  Persian  satraps,  after 

dWO(M    KaAMOTOV    tx^l,    Laovojuav,  ^^^  murder  of  Smerdis ;  a  f  cene  conceired 

nys  the  advocate  of  democracy   in  the  j^  ^^^     j^^^  of  Conwiile. 

discussion  of  forms  of  goyemment  which  ' 


English  Const. 


AMONG  FREEMEN. 


329 


not,  however,  so  much  for  the  ends  of  national  as  of  private 
warfare,  that  the  relation  of  lord  and  vassal  was  contrived. 
The  right  which  every  baron  in  France  possessed  of  redress- 
ing his  own  wrongs  and  those  of  his  tenants  by  arms  rendered 
their  connection  strictly  military.  But  we  read  very  little  of 
private  wars  in  England.  Notwithstanding  some  passages  in 
Glanvil,  which  certainly  appear  to  admit  their  legality,  it  is 
not  easy  to  reconcile  this  with  the  general  tenor  of  our  laws.^ 
They  must  always  have  been  a  breach  of  the  king's  peace, 
which  our  Saxon  lawgivers  were  perpetually  striving  to  pre- 
serve, and  which  the  Conqueror  and  his  sons  more  effectually 
maintained.^  Nor  can  we  trace  many  instances  (some  we  per- 
haps may)  of  actual  hostilities  among  the  nobility  of  England 
after  the  Conquest,  except  during  such  an  anarchy  as  the 
reign  of  Stephen  or  the  minority  of  Henry  III.  Acts  of 
outrage  and  spoliation  were  indeed  very  frequent.  The 
statute  of  Marlebridge,  soon  after  the  baronial  wars  of  Henry 
III.,  speaks  of  the  disseizins  that  had  taken  place  during  the 
late  disturbances ; '  and  thirty-five  verdicts  are  said  to  have 
been  given  at  one  court  of  assize  against  Foulkes  de  Breaut^, 
a  notorious  partisan,  who  commanded  some  foreign  mercena- 
ries at  the  beginning  of  the  same  reign  ;*  but  these  are  faint 
resemblances  of  that  wide-spreading  devastation  which  the 
nobles  of  France  and  Germany  were  entitled  to  carry  among 
their  neighbors.  The  most  prominent  instance  perhaps  of 
what  may  be  deemed  a  private  war  arose  out  of  a  contention 
between  the  earls  of  Gloucester  and  Hereford,  in  the  reign 
of  Edward  I.,  during  which  acts  of  extraordinary  violence 
were  perpetrated  ;  but,  far  from  its  having  passed  for  lawful, 
these  powerful  nobles  were  both  committed  to  prison,  and 
paid  heavy  fines.^  Thus  the  tenure  of  knight-service  was 
not  in  effect  much  more  peculiarly  connected  with  the  pro- 


1 1  have  modified  this  passage  in  con- 
sequence of  the  just  animadTersion  of  a 
periodical  critic.  In  the  first  edition  I 
liad  stated  too  strongly  the  difference 
tvhich  I  still  believe  to  have  existed  be- 
tween the  customs  of  England  and  other 
feudal  countries  in  respect  of  private 
warfare.    [Note  XV.] 

s  The  penalties  imposed  on  breaches 
of  the  peace,  in  Wilkins's  Anglo-Saxon 
Laws),  are  too  numerous  to  be  particularly 
Inserted.  One  remarkable  passage  in 
Domesday  appears,  by  mentioning  a  legal 
custom  of  private  feuds  in  an  individual 
manor,  and  there  only  among  Welshmen, 


to  afford  an  inference  that  it  was  an 
anomaly.  In  the  royal  manor  of  Ar- 
chenfeld  in  Herefordshire,  if  one  Welsh* 
man  kills  another,  it  was  a  custom  for 
the  relations  of  the  slain  to  assemble  and 
plunder  the  murderer  and  his  kindred, 
and  burn  their  houses,  until  the  corpse 
should  be  interred,  which  was  to  take 
place  by  noon  on  the  morrow  of  his  death. 
Of  this  plunder  the  king  had  a  third  part, 
and  the  rest  they  kept  for  themselves. — 
p.  179. 

3  Stat.  52  H.  in. 

«  Matt.  Paris,  p.  271. 

6  Kot.  Pari.  vol.  i.  p.  70. 


■I 


r 


^  : 


[ 


v4 


830 


CAUSES  OF  EQUALITT    Chap.  VUI.  Pabt  IL 


fession  of  arms  than  that  of  socage.  There  was  nothing  in 
the  former  condition  to  generate  that  high  self-estimation 
which  military  hahits  inspire.  On  the  contrary,  the  burden- 
some incidents  of  tenure  in  chivalry  rendered  socage  the  more 
advantageous,  though  less  honorable  of  the  two. 

In  the  next  place,  we  must  ascribe  a  good  deal  of  efficacy 
to  the  old  Saxon  principles  that  survived  the  conquest  of 
William  and  infused  themselves  into  our  common  law.  A 
respectable  class  of  free  socagers,  having,  in  general,  full 
rights  of  alienating  their  lands,  and  holding  them  probably  at 
a  small  certain  rent  from  the  lord  of  the  manor,  frequently 
occur  in  Domesday  Book.  Though,  as  I  have  already  ob- 
served, these  were  derived  from  the  superior  and  more  fortu- 
nate Anglo-Saxon  ceorls,  they  were  perfectly  exempt  from  all 
marks  of  villenage  both  as  to  their  persons  and  esUites.  Most 
have  derived  their  name  from  the  Saxon  soc,  which  signifies  a 
franchise,  especially  one  of  jurisdiction,*  and  they  undoubtedly 
were  suitors  to  the  court-baron  of  the  lord,  to  whose  socy  or 
right  of  justice,  they  belonged.  They  were  consequently 
judges  in  civil  causes,  determined  before  the  manorial  tribu- 
nal.*   Such  privileges  set  them  greatly  above  the  roturiers  or 


1  It  now  appears  strange  to  me  that 
I  could  eyer  have  given  the  preference 
to  Bracton's  derivation  of  socage  from 
$oe  de  charue.  The  word  sokeman,  which 
occurs  so  often  in  Domesday,  is  con- 
tinually coupled  with  soca,  a  franchise 
or  right  of  Jurisdiction  belonging  to  the 
lord,  whose  tenant  or  rather  suitor,  the 
Bokeman  is  described  to  be.  Soc  is  an 
idle  and  improbable  etymology ;  espe- 
cially as  at  the  time  when  sokeman  was 
most  in  use  there  was  hardly  a  word  of 
a  French  root  in  the  language.  Soc  is 
plainly  derived  from  seco^  and  therefore 
cannot  pass  for  a  Teutonic  word. 

1  once  thought  the  etymology  of  Brac- 
ton  and  Lyttelton  curiously  illustrated 
by  a  passage  in  Blomefield's  Hist,  of 
Norfolk,  vol.  iii.  p.  538  (folio).  In  the 
manor  of  Cawston  a  man  with  a  brazen 
hand  holding  a  ploughshare  was  carried 
before  the  steward  as  a  sign  that  it  was 
held  by  socage  of  the  duchy  of  Lan- 
caster. 

2  The  feudal  courts,  if  under  that  name 
^re  include  those  of  landholders  having 
grants  of  soc,  sac,  infangthef,  &c..  from 
the  crown,  had  originally  a  jurisdiction 
exclusive  of  the  county  and  hundred. 
The  Laws  of  Henry  I.,  a  treatise  of  great 
authority  as  a  contemporary  exposition 
of  the  law  of  England  in  the  middle  of 


the  twelfth  century,  just  before  the  great 
though  silent  revolution  which  brought 
in  the  Norman  jurisprudence,  bear 
abundant  witness  to  the  territorial  courts, 
collateral  to  and  independent  of  those  of 
the  sheriff.  Other  proofs  are  easily  fur- 
nished for  a  later  period.  Vide  Chron. 
Jocelyn  de  Brakelonde,  et  alia. 

It  is  nevertheless  true  that  territorial 
jurisdiction  was  never  so  extensive  as  in 
governments  of  a  more  aristocratical 
character,  either  in  criminal  or  civil  cases. 
1.  In  the  laws  ascribed  to  Henry  I.  it  is 
said  that  all  great  offences  could  only  be 
tried  in  the  king's  court,  or  by  his  com- 
mission, c.  10.  Qlanvil  distinguishes  the 
criminal  pleas,  which  could  only  be  deter- 
mined before  the  king's  judges,  from  those 
which  belong  to  the  sheriff.  Treason, 
murder,  robbery,  and  rape  were  of  the 
former  class  ;  theft  of  the  latter.  1.  xiv. 
The  criminal  jurisdiction  of  the  sheriff 
is  entirely  taken  away  by  Magna  Charta 
c.  17.  Sir  E.  Coke  says  the  territorial 
franchises  of  infangthief  and  outfangthief 
*|  had  some  continuance  afterwards,  but 
either  by  this  act,  or  per  desuetudinem 
for  inconvenience,  these  franchises  within 
manors  are  antiquated  and  gone."  2  Inst, 
p.  81.  The  statute  hardly  seems  to  reach 
them ;  and  they  were  certainly  both 
claimed  and  exercised  as  late  as    the 


EsGLxsH  Const. 


AMONG  FREEMEN. 


331 


censiers  of  France.  They  were  all  Englishmen,  and  tlieir 
tenure  strictly  English ;  which  seems  to  have  given  it  credit 
in  the  eyes  of  our  lawyers,  when  the  name  of  Englishman 
was  affected  even  by  those  of  Norman  descent,  and  the  laws 
of  Edward  the  Confessor  became  the  univei-sal  demand.  Cer- 
tainly Glanvil,  and  still  more  Bracton,  treat  the  tenure  in  free 
socage  with  great  respect  And  we  have  reason  to  think  that 
this  class  of  freeholders  was  very  numerous  even  before  the 
reign  of  Edward  I. 

But,  lastly,  the  change  which  took  place  in  the  constitution 
of  parliament  consummated  the  degradation,  if  we  must  use 
the  word,  of  the  lower  nobility :  I  mean,  not  so  much  their 
attendance  by  representation  instead  of  personal  summons,  as 
their  election  by  the  whole  body  of  freeholders,  and  their 
separation,  along  with  citizens  and  burgesses,  from  the  house 
of  peers.  These  changes  will  fall  under  consideration  in  the 
following  chapter. 


reign  of  Edward  I.     Blomefield  men- 
tions two  instances,  both  in  1285,  where 
executions  for  felony  took  place  by  the 
sentence  of  a   court-baron.      In  these 
cases  the  lord's  privilege  was  called  in 
question  at  the  assizes,  by  which  means 
we  learn  the  transaction  ;  it  is  very  prob- 
able that  similar  executions  occurred  in 
manors  where  the  jurisdiction  was  not 
disputed.    Hist,  of  Norfolk,  vol.  i.  p.  313 ; 
Tol.  iii.  p.  50.     Felonies  are  now  cog- 
nizable in  the  greater  part  of  boroughs  ; 
though  it  is  usual,  except  in  the  most 
considerable  places,  to  remit  such  as  are 
not  within  benefit  of  clergy  to  the  jus- 
tices of  gaol  delivery  on    their  circuit. 
This  jurisdiction,  however,  is  given,  or 
presumed  to  be  given,  by  special  charter, 
and  perfectly  distinct  from  that  which 
was  feudal  and  territorial.    Of  the  latter 
some  vestiges  appear  to  remain  in  par- 
ticular liberties,  as  for  example  the  Soke 
of  Peterborough  ;  but  most,  if  not  all,  of 
these  local  franchises  have  fallen,  by  right 
or  custom,  into  the  hands  of  justices  of 
the  peace.     A  territorial  privilege  some- 
what analogous  to  criminal  jurisdiction, 
but  considerably  more  oppressive,  was 
that  of  private  gaols.  At  the  parliament 
of  Merton,  1237,  the  lords  requested  to 
hare    their  own    prison  for    trespasses 
vpon  their  parks  and  ponds,  which  the 


king  refused.    Stat.  Merton,  c.  11.    But 
several  lords  enjoyed  this  as  a  particular 
franchise ;  which  is  saved  by  the  statute 
6  U.  IV.  c.  10,  directing  justices  of  the 
peace  to  imprison  no  man,  except  in  the 
common  gaol.    2.  The  civil  jurisdiction 
of  the  court-baron  was  rendered  insignifi- 
cant, not  only  by  its  limitation  in  per- 
sonal suits  to  debts  or  damages  not  ex- 
ceeding forty  shillings,  but  by  the  writs 
of  toU  and  pone^  which  at  once  removed 
a  suit  for  lands,  in  any  state  of  its  prog- 
ress before   judgment,  into  the  county 
court  or  that  of  the  king.    The  statute 
of  Marlebridge  took  away  all  appellant 
jurisdiction  of  the  sujterior  lord,  for  false 
judgment  in  the  manorial  court  of  his 
tenant,  and  thus  aimed  another  blow  at 
the  feudal  connection.    52  H.  III.  c.  19. 
3.  The  lords  of  the  counties  palatine  of 
Chester  and    Durham,  and    the   Royal 
franchise  of  Ely,  had  not  only  a  capital 
jurisdiction  in  criminal  cases,  but  an 
exclusive  cognizance  of  civil  suits ;  the 
former  still  is  retained  by  the  bishops  of 
Durham  and  Ely,  though  much  shorn  of 
its  ancient  extent  by  an  act  of  Henry 
VIII.  (27  H.  VIII.  c.  24),  and  adminis- 
tered by  the  king's  justices  of  assize ;  the 
bishops  or  their  deputies  being  put  only 
on  the  footing  of  ordinary  justices  of  the 
peace.    Id.  a.  20. 


!• 


'ti 


i 


a 


U3\ 


1 


332 


THE  BRETWALDAS. 


KOTSS  TO 


NOTES  TO  CHAPTER  VIH- 

(PaKTS  I.  AND  n.) 


Note  I.    Page  256. 

These  seven  princes  enumerated  by  Bede  have  been  called 
Bretwaldas,  and  they  have,  by  late  historians,  been  advanced 
to  higher  importance  and  to  a  different  kind  of  power  than, 
as  it  appears  to  me,  there  is  any  sufficient  ground  to  bestow 
on  them.  But  as  I  have  gone  more  fully  into  this  subject  in 
a  paper  published  in  the  32d  volume  of  the  *  Archoeologia,* 
I  shall  content  myself  with  giving  the  most  material  parts  of 
what  will  there  be  found. 

Bede  is  the  original  witness  for  the  seven  monarchs  who 
before  his  time  had  enjoyed  a  preponderance  over  the  Anglo- 
Saxons  south  of  the  Humber:— "Qui  cunctis  australibus 
gentis  Anglorum  provinciis,  quae  Humbroe  fluyio  et  contiguis 
ei  terminis  sequestrantur  a  Borealibus,  imperarunt."  (Hist. 
Eccl.  lib.  ii.  c.  5.)  The  four  first-named  had  no  authority 
over  Northumbria ;  but  the  last  three  being  sovereigns  of 
that  kingdom,  their  sway  would  include  the  whole  of  England. 

The  Saxon  Chronicle,  under  the  reign  of  Egbert,  says 
that  he  was  the  eighth  who  had  a  dominion  over  Britain ; 
using  the  remarkable  word  Bretwalda,  which  is  found  nowhere 
else.°  This,  by  its  root  waldan,  a  Saxon  verb,  to  rule  (whence 
our  word  wield),  implies  a  ruler  of  Britain  or  the  Britons. 
The  Chronicle  then  copies  the  enumeration  of  the  other  seven 
in  Bede,  with  a  little  abridgment.  The  kings  mentioned  by 
Bede  are  -^lli  or  Ella,  founder  of  the  kingdom  of  the  South- 
Saxons,  about  477 ;  Ceaulin,  of  Wessex,  after  the  interval 
of  nearly  a  century ;  Ethelbert,  of  Kent,  the  first  Christian 
king;  Redwald,  of  East  Anglia;  after  him  three  Northum- 
brian kings  in  succession,  Edwin,  Oswald,  Oswin.  We  have, 
therefore,  sufficient  testimony  that  before  the  middle  of  the 


i 


CHAP.vni. 


THE  BRETWALDAS. 


333 


seventh  cenhury  four  kings,  from  four  Anglo-Saxon  kingdoms, 
had,  at  mtervals  of  time,  become  superior  to  the  rest;  except- 
mg,  however,  the  Northumbrians,  whom  Bede  distinguishes, 
and  whose  subjection  to  a  southern  prince  does  not  appear  at 
all  probable.  None,  therefore,  of  these  could  weU  have  been 
called  Bretwalda,  or  ruler  of  the  Britons,  while  not  even  his 
own  countrymen  were  wholly  under  his  sway. 

We  now  come  to  three  Northumbrian  kings,  Edwin,  Os- 
wald,  and  Oswin,  who  ruled,  in  Bede's  language,  with  greater 
power  than  the  preceding,  over  all  the  inhabitants  of  Britain, 
both  English  and  British,  with  the  sole  exception  of  the  men 
of  Kent.     This  he  reports  in  another  place  with  respect  to 
Mwin,   the    first    Northumbrian   convert    to    Christianity; 
whose  worldly  power,  he  says,  increased  so  much  that,  what 
no  English  sovereign  had  done  before,  he  extended  his  do- 
minion to  the  furthest  bounds  of  Britain,  whether  inhabited 
by  English  or  by  Britons.     (Hist.  Eccl.  lib.  ii.  c.  9.)     Dr. 
L.mgard  has  pointed  out  a  remarkable  confirmation  of  this 
testimony  of  Bede  in  a  Life  of  St.  Columba,  published    by 
the  Bollandists.   He  names  Cuminius,  a  contemporary  writer 
as  the  author  of  this  Life  ;  but  I  find  that  these  writers  give 
several  reasons  for  doubting  whether  it  be  his.     The  words 
are  as  follow :  ~  «  Oswaldum  regem,  in  procinctu  belli  castra 
metatum,  et  in  papilione  supra  pulvillum  dormientem  allocu- 
tus  est,  et  ad  helium  procedere  jussit     Processit  et  secuta 
est  victoria;  reversusque  postea  totius  Britannia  imperator 
ordmatus  a  Deo,  et  tota  incredula  gens  baptizata  est."    (Acta 
Sanctorum,  Jun.  23.)     This  passage,  on  account  of  the  un- 
^rtainty  of  the  author's  age,  might  not  appear  sufficient. 
But  this  anonymous  Life  of  Columba  is  chiefly  taken  from 
that  by  Adamnan,  written  about  700 ;  and  in  that  Life  we 
find  i]\Q  important  expression  about  Oswald  —  "totius  Britan- 
niae  imperator  ordinatus  a  Deo."     We  have,  therefore,  here 
probably  a  distinct  recognition  of  the  Saxon  word  Bretwalda; 
for  what  else  could  answer  to  emperor  of  Britain  ?    And,  as 
far  35  I  know,  it  is  the  only  one  that  exists.     It  seems  more 
likely  that  Adamnan  refers  to  a  distinct  title  bestowed  on 
Oswald  by  his  subjects,  than  that  he  means  to  assert  as  a  fact 
that  he  truly  ruled  over  all  Britain.    This  is  not  very  credi- 
ble, notwithstanding  the   language  of  Bede,  who  loves  to 
amplify  the    power  of  favorite  monarchs.      For  though  it 
may  be  admitted  that  these  Northumbrian  kings  enjoyed  at 


i 


834 


THE  BRETWALDAS. 


Notes  to 


Chap.  VIII. 


THE  BRETWALDAS. 


335 


times  a  preponderance  over  the  other  Anglo-Saxon  princi- 
palities, we  know  that  both  Edwin  and  Oswald  lost  their  lives 
in  great  defeats  by  Penda  of  Mercia.  Nor  were  the  Strath- 
cluyd  Britons  in  any  permanent  subjection.  The  name  of 
Bretwalda,  as  applied  to  these  three  kings,  though  not  so 
absurd  as  to  make  it  incredible  that  they  assumed  it,  asserts 
an  untruth. 

It  is,  however,  at  all  events  plain  from  history  that  they 
obtained  their  superiority  by  force ;  and  we  may  probably 
believe  the  same  of  the  four  earlier  kings  enumerated  by 
Bede.  An  elective  dignity,  such  as  is  now  sometimes  sup- 
posed, cannot  be  presumed  in  the  absence  of  every  semblance 
of  evidence,  and  against  manifest  probability.  What  appear- 
ance do  we  find  of  a  federal  union  among  the  kites  and 
crows,  as  Milton  calls  them,  of  the  Heptarchy  ?  What  but 
the  law  of  the  strongest  could  have  kept  these  rapacious  and 
restless  warriors  from  tearing  the  vitals  of  their  common 
country  ?  The  influence  of  Christianity  in  effecting  a  com- 
parative civilization,  and  producing  a  sense  of  political  as 
well  as  religious  unity,  had  not  yet  been  felt 

Mercia  took  the  place  of  Northumberland  as  the  leading 
kingdom  of  the  Heptarchy  in  the  eighth  century.  Even 
before  Bede  brought  his  Ecclesiastical  History  to  a  close,  in 
731,  Ethelbald  of  Mercia  had  become  paramount  over  the 
southern  kingdoms ;  certainly  more  so  than  any  of  the  first 
four  who  are  called  by  the  Saxon  Chronicler  Bretwaldas. 
"  Et  hae  omnes  provincias  caeterasque  australes  ad  confinium 
usque  Hymbrae  fluminis  cum  suis  quaeque  regibus,  Merciorum 
regi  Ethelbaldo  subjectae  sunt."  (Hist.  Eccl.  v.  23.)  In  a 
charter  of  Ethelbald  he  styles  himself —  "  non  solum  Mercen- 
sium  sed  et  universarum  provinciarum  quae  communi  vocab- 
ulo  dicuntur  Suthangli  divina  largiente  gratia  rex."  (Codex 
Ang.-Sax.  Diplom.  i.  96;  vide  etiam  100,  107.)  Offa,  his 
successor,  retained  great  part  of  this  ascendency,  and  in  his 
chartei-s  sometimes  styles  himself  "rex  Anglorum,"  some- 
times "  rex  Merciorum  simulque  aliarum  circumquaque  na- 
tionum."  (lb.  162,  166,  167,  et  alibi,)  It  is  impossible 
to  define  the  subordination  of  the  southern  kingdoms,  but  we 
cannot  reasonably  imagine  it  to  have  been  less  than  they  paid 
in  the  sixth  century  to  Ceaulin  and  Ethclbert.  Yet  to  these 
potent  sovereigns  the  Saxon  Chronicle  does  not  give  the 
name  Bretwalda,  nor  a  place  in  the  list  of  British  rulers.    It 


copies  Bede  in  this  passage  servilely,  without  regard  to  events 
which  had  occurred  since  the  termination  of  his  history. 

I  am,  however,  inclined  to  believe,  combining  the  passa^^e 
Adamnan  with   this   less   explicitly  worded  of  the   Saxon 
Chronicle,  that  the  three  Northumbrian  kings,  having  been 
victorious  in  war  and  paramount  over  the  minor  kingdoms, 
were  really  designated,  at  least  among  their  own  subjects,  by 
the  name  Bretwalda,  or  ruler  of  Britain,  and  totius  Britan- 
niae  imperator.      The  assumption  of  so  pompous  a  title  is 
characteristic  of  the  vaunting  tone  which  continued  to  in- 
crease down  to  the  Conquest.     We  may,  therefore,  admit  as 
probable  that  Oswald  of  Northumbria  in  the  seventh  century 
as  well  as  his  fatlier  Edwin  and  his  son  Oswin,  took  the  ap- 
pellation of  Bretwalda  to  indicate  the  supremacy  they  had 
obtained,  not  only  over  Mercia  and  the  other  kino^doms  of 
their  countrymen,  but,  by  dint  of  successful  invasions,  over 
the  Strathcluyd  Britons  and  the  Scots  beyond  the  Forth.     I 
still  entertain  the  greatest  doubts,  to  say  no  more,  whether 
this  title  was  ever  applied  to  any  but  these  Northumbrian 
kmgs.     It  would  have  been  manifestly  ridiculous,  too  ridicu- 
lous, one  would  think,  even  for  Anglo-Saxon  grandiloquence, 
to  confer  it  on  the  first  four  in  Bede's  list ;  and  if  it  expressed 
an  acknowledged  supremacy  over  the  whole  nation,  why  was 
it  never  assumed  in  the  eighth  century  ? 

We  do  not  derive  much  additional  information  from  later 
historians.  Florence  of  Worcester,  who  usuaUy  copies  the 
Saxon  Chronicle,  merely  in  this  instance  transcribes  the  text 
of  Bede  with  more  exactness  than  that  had  done ;  he  neither 
repeats  nor  translates  the  word  Bretwalda.  Henry  of  Hunt- 
ingdon, after  repeating  the  passage  in  Bede,  adds  Egbert  to 
the  seven  kings  therein  mentioned,  calling  him  "rex'et  mon- 
archa  totius  Britanniae,"  doubtless  as  a  translation  of  the 
word  Bretwalda  in  the  Saxon  Chronicle;  subjoining  the 
names  of  Alfred  and  Edgar  as  ninth  and  tenth  in  the  list 
Egbert,  he  says,  was  eighth  of  ten  kings  remarkble  for  their 
bravery  and  power  (fortissimorum)  who  have  reigned  in 
England.  It  is  strange  that  Edward  the  Elder,  A&elstan 
and  Edred  are  passed  over. 

Rapin  was  the  first  who  broached  the  theory  of  an  elective 
Bretwalda,  possessing  a  sort  of  monarchical  supremacy  in 
the  constitution  of  the  Heptarchy;  something  like,  as  he 
says,  the  dignity  of  stadtholder  of  the  Netherlands.     It  was 


N 


I'    ^ 


336 


SAXON  KINGS  OF  ALL  ENGLAND.         Notm  to 


taken  up  in  later  times  by  Turner,  Lingard,  Palgrave,  and 
Lappenberg.  But  for  this  there  is  certainly  no  evidence 
whatever  ;  nor  do  I  perceive  in  it  anything  but  the  very  re- 
verse of  probability,  especially  in  the  earlier  instances. 
With  what  we  read  in  Bede  we  may  be  content,  confirmed  as 
with  respect  to  a  Northumbrian  sovereign  it  appears  to  be 
by  the  Life  of  Columba ;  and  the  plain  history  will  be  no 
more  than  this  —  that  four  princes  from  among  the  southern 
Anglo-Saxon  kingdoms,  at  different  times  obtained,  probably 
by  force,  a  superiority  over  the  rest ;  that  aflerwards  three 
Northumbrian  kings  united  a  similar  supremacy  with  the 
government  of  their  own  dominions ;  and  that,  having  been 
successful  in  reducing  the  Britons  of  the  north  and  also  the 
Scots  into  subjection,  they  assumed  the  title  of  Bretwalda,  or 
ruler  of  Britain.  This  title  was  not  taken  by  any  later 
kings,  though  some  in  the  eighth  century  were  very  powerful 
in  England;  nor  did  it  attract  much  attention,  since  we  find 
the  word  only  once  employed  by  an  historian,  and  never  in  a 
charter.  The  consequence  I  should  draw  is,  that  too  great 
prominence  has  been  given  to  the  appellation,  and  undue 
inferences  sometimes  derived  from  it,  by  the  eminent  writers 
above  mentioned. 

Note  H.    Page  258. 

The  reduction  of  all  England  under  a  single  sovereign 
was  accomplished  by  Edward  the  Elder,  who  may,  therefore, 
be  reckoned  the  founder  of  our  monarchy  more  justly  than 
Egbert.  The  five  Danish  towns,  as  they  were  called,  Lei- 
cester, Lincoln,  Stamford,  Derby,  and  Nottingham,  had  been 
brought  under  the  obedience  of  his  gallant  sister  -^thelfleda, 
to  whom  Alfred  had  intrusted  the  viceroyalty  of  Mercia. 
Edward  himself  subdued  the  Danes  of  East  Anglia  and 
Northumberland.  In  922  « the  kings  of  the  North  Welsh 
sought  him  to  be  their  lord."  And  in  924  "  chose  him  for 
fatl^r  and  lord,  the  king  of  the  Scots  and  the  whole  nation 
of  the  Scots,  and  Regnald,  and  the  son  of  Eadulf,  and  all 
those  who  dwell  in  Northumberland,  as  well  English  as 
Danes  and  Northmen  and  others,  and  also  the  king  of  the 
Strathcluyd  Britons,  and  all  the  Strathcluyd  Britons."  (Sax. 
Chronicle.) 

Edward  died  next  year ;  of  his  son  ^thelstan  it  is  said 


Chap.  VIIL       SAXON  KINGS  OF  ALL  ENGLAND.  337 

that  "he  ruled  all  the  kings  who  were  in  this  island:  first. 
Howel  kmg  of  West  Welsh,  and  Constantine  kinnr  of  the 
bcots,  and  Uwen  king  of  the  Gwentian  (Silurian)  people, 
and  Ealdrad  son  of  Ealdalf  of  Bamborough,  and  they 
confirmed  the  peace  by  pledge  and  by  oaths  at  the  place 
which  IS  called  Eamot,  on  the  fourth  of  the  Ides  of  July  • 
and  they  renounced  all  idolatry,  and  after  that  submitted  tJ 
hmi  m  peace."     (Id.  a.d.  926.) 

From  this  time  a  striking  change  is  remarkable  in  the 
style  of  our  kmgs.     Edward,  of  whom  we  have  no  extaiH 
charte^  after  these  great  submissions  of  the  native  princes^ 
calls  himself  only  Angul-Saxonum  rex.     But  in  those  of 
Athelstan,  such  as  are  reputed  genuine  (for  the  tone  is  still 
more  pompous  in  some  marked  by  Mr.  Kemble  with  an 
asterisk),  we  meet,  as  early  as  927,  with  "  totius  Britanniae 
monarchus,  rex,  rector,  or  basileus;"  "totius  Britannia  solio 
subhmatus ;      and   other    phrases   of   insular    sovereignty. 
(<^odex  Diplom.  vol.  ii,  passim;  vol.  v.  198.)     What  has 
been  attributed  to  the  imaginary  Bretwaldas,  belonged  truly 
to  the  kings  of  the  tenth  century.     And  the  grandiloquence 
ot  their  titles  is  sometimes  almost  ridiculous.     They  affected 
particularly  that  of  Basileus  as  something  more   imperial 
than  king  and  less  easily  understood.     Edwy  and  Edffar  are 
remarkable  for  this  pomp,  which  shows  itself  also  in  the 
spurious  charters  of  older  kings.     But  Edmund  and  Edred 
with  more  truth  and  simplicity  had  generally  denominated 
themselves  "rex  Anglorum,  caeterorumque  in  circuitu  per- 
sistentium  gubemator  et  rector."     (Codex  Diplom.  vol  ii. 
passim.)     An  expression  which  was  retained  sometimes  by 
ii-dgar.     And  though  these   exceedingly  pompous  phrases 
seem  to  have  become  less  frequent  in  the  next  century,  we 
fand  « totius  Albionis  rex,"  and  equivalent  terms,  in  all  the 
charters  of  Edward  the  Confessor.^ 

But  looking  from  these  charters,  where  our  kings  asserted 
what  they  pleased,  to  the  actual  truth,  it  may  be  inquired 
whether  Wales  and  Scotland  were  really  subject,  and  in  whai 
degree,  to  the  self-styled  Basileus  at  Winchester.  This  is  a 
debatable  land,  which,  as  merely  historical  antiquities  are  fai- 

about  that  time  the  inflience  of  the  By.    to  vS  U  7'x     ^®™''^®  «  IntrodttCttoa 
anUne  court  began  to  be  felt :  and  that  ^* 

VOL.  u.  22 


m 


338 


EORLS  AND  CEORLS. 


Notes  tc 


from  being  the  object  of  this  work,  I  shall  leave  to  national 
prejudice  or  philosophical  impartiality.  Edgar,  it  may  be 
mentioned,  in  a  celebrated  charter,  dated  in  964,  asserts  his 
conquest  of  Dublin  and  great  part  of  Ireland :  — "  Mihi 
autem  concessit  propitia  divinitas  cum  Anglorum  imperio 
omnia  regna  insularum  oceani  cum  suis  ferocissimis  regibus 
usque  Norwegiam,  maximamque  partem  Hibemiae  cum  su^ 
nobilissima  civitate  Dublinia  Anglorum  regno  subjugare; 
quos  etiam  omnes  meis  imperils  colla  subdere,  Dei  favente 
gratia,  coegi."  (Codex  Diplom.  ii.  404.)  No  historian 
mentions  any  conquest  or  even  expedition  of  this  kind.  Sir 
Francis  Palgrave  (ii.  258)  thinks  the  charter  "does  not 
contain  any  expression  which  can  give  rise  to  suspicion ;  and 
its  tenor  is  entirely  consistent  with  history:"  meaning,  I 
presume,  that  the  silence  of  history  is  no  contradiction.  Mr. 
Kemble,  however,  marks  it  with  an  asterisk.  I  will  mention 
here  that  an  excellent  summary  of  Anglo-Saxon  history, 
from  the  earliest  times  to  the  Conquest,  has  been  drawn  up 
by  Sir  F.  Palgrave,  in  the  second  volume  of  the  Rise  and 
Progress  of  the  English  Commonwealth. 

Note  HI.    Page  262. 

The  proper  division  of  freemen  was  into  eorls  and  ceorls : 
ge  eorle  —  ge  ceorle ;  ge  eorlische  —  ge  ceorlische ;  occur  in 
several  Anglo-Saxon  texts.  The  division  corresponds  to  the 
phrase  "  gentle  and  simple"  of  later  times.  Palgrave  (p.  11) 
agrees  with  this.  Yet  in  another  place  (vol.  ii.  p.  352)  he 
says,  "  It  certainly  designated  a  person  of  noble  race.  This 
is  the  form  in  which  it  is  employed  in  the  laws  of  Ethelbert 
The  earl  and  the  churl  are  put  in  opposition  to  each  other  as 
the  two  extremes  of  society."  I  cannot  assent  to  this ;  the 
second  thoughts  of  my  learned  friend  I  like  less  than  the 
first.  It  seems  like  saying  men  and  women  arc  the  extremes 
of  humanity,  or  odd  and  even  of  number.  What  was  in  the 
middle?*  Mr.  Kemble,  in  his  Glossary  to  Beowulf,  explains 
eorl  by  vir  fortis,  pugil  vtr ;  and  proceeds  thus :  — "  Eorl 
is  not  a  title,  as  with  us,  any  more  than  heom    .     .    •     We 

1  An  earlier  writer  has  &llen  into  tlie  the  lowest  description  of   fteemen,   to 

flame  mistake,  which  should  be  corrected,  eorls,  as  the  highest  of   the  nobility." 

as  the  equivocal  meaning  of  the  word  Heywood  "  On  Ranks  among  the  An^o 

•orl    might    easily  deceite  the   reader.  Saxons,"  p.  278. 
**  Ceorls,  or  cyrlise  men,  are  opposed,  as 


Chap.  VIH. 


EORLS  AND  CEORLS. 


339 


may  safely  look  upon  the  origin  of  earl,  as  a  title  of  rank  to 
be  the  same  as  that  of  the  comites,  who,  according  to  Tacitus 

tIT^^  ^ISf 't  '^^^'^^^^'  to  any  distinguished  cWef! 
Ihat  these  JideUs  became  under  a  warlike  prince  soraethinor 
more  important  than  the  early  constitution  of  our  tribes  con" 
templa  ed,  is  natural,  and  is  moreover  proved  by  historv  and 
tZ  ^^t  'r-^-^^-l  of  that  syster^  which  /ecoS  thj 
kmg  as  the  fountain  of  honor.     In  the  later  Anglo-Saxon 

Xer.  Z  r^^"""'  '''^-''9ulus ;  he  was  a  constitutional 
officer;  the  earl  was  not  an  officer  at  all,  though  afterwards 
the  government  of  counties  came  to  be  intrusted  to  WmTt 
first.  If  he  had  a  beneficium  or  feud  at  all,  it  was  a  ho^e  or 

^n%"LT''f''''^^  ^"'^^^-  This  'appears  consent? 
n  Beowuin  and  requires  no  further  rem^k."  A  speech 
mdeed  ascribed  to  Withred  king  of  Kent,  in  69^  by  the 
Saxon  Chronicle,  would  prove  earls  to  have  been  superior  to 
aldermen  m  that  early  age.      But  the  forgery   seems  to^ 

rtr    itis  sometimes  a  husband;  a  woman  is  said  ceorlian, 
%•  e.  viro  se  adjungere.  ^ 

Mr^^^f^'uf '^  haa  Clearly  apprehended,  and  that  long  before 
Mr.  Kemble's  pubhcation,  the  distributive  character  of  the 
words  eorl  and  ceorl.    "Among  the  Anglo-Saxons  the  f^ee 
population  was  divided  into  the%orl  ani  ceorl,  the  Zn^ 
noble  and  ignoble  descent;"  and  he  well  obser;es  that  "by 
not  at  ending  to  this  meaning  of  the  word  eorl,  and  rendering 
It  earl,  or  rather  comes,  the  translators  of  the  Saxon  laws 
have  made  several  passages  unintelbgible."     (Hist  of  Eng- 
knd  ..  468.)     Mr.  Thorpe  has  not,  as  I  conceive,  explain^ 
toe  word  as  accurately  or  perspicuously  as  Mr.  Kemble.    He 
says,  in  his  Glossary  to  Ancient  EngUsh  Laws,  — "EorL 
comes,  satelles  principis.     This  is  the  prose  definition  of  the 
word ;  m  Anglo-Saxon  and  Old  Saxon  poetry  it  signifies  man. 
though  generally  applied  to  one  of  consideration  on  account 
ot  his  rank  or  valor.    Its  etymon  is  unkno^vn,  one  derivino- 
It  from  Old  Noree,  ar,  minister,  satelles ;  another  from  jarl 
prtehum.    (See  B  Hald.  voc.  Jarl,  and  the  Gloss,  to  Soemuni 
by  Edda,  1 1.  p.  597.)     This  title,  which  seems  introduced  by 
the  Jutes  of  Kent,  occurs  frequently  in  the  laws  of  the  kinm 
ot  that  distnct,  the  first  mention  of  it  being  in  Ethelbert,  13 
Its  more  general  use  among  us  dates  from  the  later  Scandina- 


I 


.• 


* 


S40 


EORLS  AND  CEORLS. 


NOTBS   TO 


vian  invasions ;  and  though  originally  only  a  title  of  honor,  it 
became  in  later  times  one  of  office,  nearly  supplanting  the  older 
and  more  Saxon  one  of  ealdorman."    The  editor  does  not  here 
particularly  advert  to  the  use  of  the  word  in  opposition  to  ceorl. 
That  a  word  merely  expressing  man  may  become  appropriate 
to  men  of  dignity  appears  from  bar  and  haro  ;  and  something 
analogous  is  seen  in  the  Latin  vir,     Lappenberg  (vol.  ii.  p- 
13)  says,— "The  title  of  eorl  occurs  in  early  times  among 
the  laws  of  the  Kentish  kings,  but  became  more  general  only 
in  the  Danish  times,  and  is  probably  of  old  Jutish  origin." 
This  is  a  confusion  of  words :  in  the  laws  of  the  Kentish 
kings,  eorl  means  only  ingenuus,  or,  if  we  please,  nobilis  ;  in 
the°Danish  times  it  was  comes,  as  has  just  been  pointed  out. 
Such  was  the  eorl,  and  such  the  ceorl,  of  our  forefathers 
— one  a  gentleman,  the  other  a  yeoman,  but  both  freemen. 
We  are  Uable  to  be  misled  by  the  new  meaning  which  from 
the  tenth  century  was  attached  to  the  former  word,  as  well  as 
by  the  inveterate  prejudice  that  nobility  of  birth  must  carry 
with  it  something  of  privilege  above  the  most  perfect  freedom. 
But  we  do  not  appreciate  highly  enough  the  value  of  the 
latter  in  a  semi-barbarous  society.     The  eorlcundman  was 
generally,  though  not  necessarily,  a  freeholder;   he  might, 
unless  restrained  by  special  tenure,  depart  from  or  alienate 
his  land ;  he  was,  if  a  freeholder,  a  judge  in  the  county  court  : 
he  might  marry,  or  become  a  priest,  at  his  discretion ;  his  oath 
weighed  heavily  in  compurgation;   above  all,  his  life  was 
valued  at  a  high  composition ;  we  add,  of  course,  the  general 
respect  which  attaches  itself  to  the  birth  and  position  of  a 
gentleman.     Two  classes  indeed  there  were,  both  "  eorlcund,*' 
or  of  gentle  birth,  and  so  called  in  opposition  to  ceorls,  but  in 
a  relative  subordination.     Sir  F.  Palgrave  has  pointed  out 
the  distinction  in  a  passage  which  I  shall  extract: — 

"  The  whole  scheme  of  the  Anglo-Saxon  law  is  founded 
upon  the  presumption  that  every  freeman,  not  being  a 
*  hlaford,'  was  attached  to  a  superior,  to  whom  he  was  bound 
by  fealty,  and  from  whom  he  could  claim  a  legal  protection 
or  warranty,  when  accused  of  any  transgression  or  crime.  If, 
therefore,  the  *  eorlcund  *  individual  did  not  possess  the  real 
property  which,  either  from  its  tenure  or  its  extent,  was  such 
as  to  constitute  a  lordship,  he  was  then  ranked  in  the  very 
numerous  class  whose  members,  in  Wessex  and  its  dependent 
states,  were  originally  known  by  the  name  of  *  sithcundmen,' 


Chap.  VIII. 


EORLS  Km)  CEORLS. 


341 


an  appellation  which  we  may  paraphrase  by  the  heraldic  ex- 
pression,  *  gentle  by  birth  and  blood.'  ^    This  term  of  sitlicund- 
man,  however,  was  only  in  use  in  the  earlier  periods.     After 
the  reign  of  Alfred  it  is  lost ;  and  the  most  comprehensive 
and  significant  denomination  given  to  this  class  is  that  of  '  six- 
hoendmen,'  indicating  their  position  between  the  highest  and 
lowest  law-worthy  classes  of  society.    Other  designations  were 
denved  from  their  services  and  tenures.     Radechnights,  and 
lesser  thanes,  seem  to  be  included  in  this  rank,  and  to  which 
m  many  mstances,  the  general  name  of  sokemen  was  applied' 
But,  however  designated,  the  sithcundman,  or  sixhoendman 
appears  m  every  instance  in  the  same  relative  position  in  the 
community  — classed  amongst  the  nobiUty,  whenever  the  eorl 
and  the  ceorl  are  placed  in  direct  opposition  to  each  other; 
always  considered  below  the  territorial  aristocracy,  and  yet 
distinguished  from  the  villainage  by  the  important  right  of 
eelecting  his  hlaford  at  his  will  and  pleasure.     By  common 
nght  the  '  sixhoendman  *  was  not  to  be  annexed  to  the  glebe, 
lo  use  the  expressions  employed  by  the  compilers  of  Domes- 
day, he  could  '  go  with  his  land  wheresoever  he  chose,'  or, 
leaving  his  land,  he  might  <  commend '  himself  to  any  hlaford 
who  would  accept  of  his  fealty."     (Vol.  i.  p.  14.)  2 

It  may  be  pointed  out,  however,  which  Sir  F.  P.  has  here 
forgotten  to  observe,  that  the  distinction  of  weregild  between 
the  twelf hynd  and  syxhynd  was  aboHshed  by  a  treaty  between 
Atfred  and    Guthrum.      (Thorpe's   Ancient  Laws,  p.  QQ.) 
Ihis  indeed  affects  only  the  reciprocity  of  law  between  Eng. 
lish  and  Danes.     Yet  it  is  certain  that  from  that  time  we 
rarely  find  mention  of  the   intermediate   rank  between  ihe^ 
twelthynd,  or  superior  thane,  and  the  twyhynd  or  ceori.    The 
sithcundman,  it  would  seem,  was  from  henceforth  rated  at  the 
same  composition  as  his  lord ;  yet  there  is  one  apparent  ex- 
ception  (I  have  not  observed  any  other)  in  the  laws  of  Henry 
I.     It  is  said  here  (C.  76),— «  Liberi  alii  twyhyndi,  alii  syx- 
hyndi,  ahi  twelfhyndi.     Twyhyndus  homo  dicitur,  cujus  wera 
est  22  sohdorum,  qui  faciunt  4  librae.    Twelf  hyndus  est  homo 
plene  nobihs,  id  est,  thainus,  cujus  wera  est  1200  solidorum, 

erlVrs?rinHvo''nfiif  h''""*!^''  P~P-  P"**^'*  ''"^"K^  ^  ^^^^  ^o  general  a 

Srd    S^  I     «^"  **^^°''^'?*^®  °°  *  proposition.    The  conditions  of  tenure  in 

&""'   ^^"^  ^°"  "^'^   *''^"'"»'   ^  the  eleventh  century,  whatever  they  may 

«This  right   of   choosing  a   lord  at  ^«  ;;,*;«  b««°.  »^d  i>ecome  exceedingly 
Rteaaure,  so  little  feudal,  seems  notindis- 


H! 


I   t 


342 


EORLS  AND  CEORLS. 


KOTKS  TO 


Chap.  VIII. 


EORLS  AND  CEORLS. 


343 


qui  faciunt  libras  25."  It  is  remarkable  that,  though  the 
syxhyndman  is  named  at  first,  nothing  more  is  said  of  him, 
and  the  twelf  hyndman  is  defined  to  be  a  thane.  It  appears 
from  several  passages  that  the  laws  recorded  in  this  treatise 
are  chiefly  those  of  the  West  Saxons,  which  differed  in  some 
respects  from  those  of  Mercia,  Kent,  and  the  Danish  counties. 
With  regard  to  the  word  sithcund,  it  does  occur  once  or  twice 
in  the  laws  of  Edward  the  Elder.  It  might  be  supposed  that 
the  Danes  had  retained  the  principle  of  equality  among  all 
of  gentle  birth,  common,  as  we  read  in  Grimm,  to  the  northern 
nations,  which  the  distinction  brought  in  by  the  kings  of  Kent 
between  two  classes  of  eorls  or  thanes  seemed  to  contravene. 
We  shall  have  occasion,  however,  to  quote  a  passage  from  the 
laws  of  Canute,  which  indicates  a  similar  distinction  of  rank 
among  the  Danes  themselves,  whatever  might  be  the  rule  as 
to  composition  for  life. 

The  influence  of  Danish  connections  produced  another 
great  change  in  the  nomenclature  of  ranks.  Uorl  lost  its 
general  sense  of  good  birth  and  became  an  official  title,  for 
the  most  part  equivalent  to  alderman,  the  governor  of  a 
shire  or  district.  It  is  used  in  this  sense,  for  the  first  time, 
in  the  laws  of  Edward  the  Elder.  Yet  it  had  not  wholly 
lost  its  primary  meaning,  since  we  find  eorlish  and  ceorlish 
opposed,  as  distributive  appellations,  in  one  of  Athelstan. 
(Id.  p.  96.)  It  is  said  in  a  sort  of  compilation,  entitled, 
"  On  Oaths,  Weregilds,  and  Ranks,"  subjoined  to  the  laws 
of  Edward  the  Elder,  but  bearing  no  date,  that  "  It  was 
whilom  in  the  laws  of  the  English  ....  that,  if  a  thane 
thrived  so  that  he  became  an  eorl,  then  was  he  henceforth  of 
eorl-right  worthy."  (Ancient  Laws,  p.  81.^)  But  this 
passage  is  wanting  in  one  manuscript,  though  not  in  the 
oldest,  and  we  find,  just  before  it,  the  old  distributive  opposi- 
tion of  eorl  and  ceorl.  It  is  certainly  a  remarkable  excep- 
tion to  the  common  use  of  the  word  eorl  in  any  age,  and  has 
led  Mr.  Thorpe  to  suppose  that  the  rank  of  earl  could  be 
obtained  by  landed  wealth.  The  learned  editor  thinks  that 
"  these  pieces  cannot  have  had  a  later  origin  than  the  period 
in  which  they  here  stand.  Some  of  them  are  probably  much 
earlier"  (p.  76).     But  the  mention  of  the  "  Danish  law,"  in 

I  The  referencea  are  to  the  folio  edition  Commission.  I  fear  this  may  cause  some 
of '  Ancient  Laws  and  Institutes  of  Eng-  trouble  to  those  who  possess  the  ocUto 
land,'  1840,  aa  published  by  the  Record    edition,  which  is  much  more  common. 


p.  79,  seems  much  against  an  earlier  date ;  and  this  is  so 
mentioned  as  to  make  us  think  that  the  Danes  were  then  in 
subjection.     In  the  time  of  Edgar  eorl  had  fully  acquired  its 
secondary  meaning;  in  its  original  sense  it  seems  to  have 
been  replaced  by  thane.     Certain  it  is  that  we  find  thane 
opposed  to  ceorl  in  the  later  period  of  Anglo-Saxon  monu- 
ments, as  eorl  is  in  the  earlier — as  if  the  law  knew  no  other 
broad  line  of  demarcation  among  laymen,  saving  always  the 
official  dignities  and  the  royal  family.^     And  the  distinction 
between   the   greater  and  the   lesser  thanes  was  not  lost^ 
though  they  were  put  on  a  level  as  to  composition.     Thus,  in 
the  Forest  Laws  of  Canute :  —  "  Sint  jam  deinceps  quattuor 
ex  liberalioribus  hominibus  qui  habent  salvas  suas  consue- 
tudines,  quos  Angli  thegnes  appellant,  in  qualibet  regni  mei 
provincia  constitute     Sint  sub  quolibet  eorum  quattuor  ex 
mediocribus  hominibus,  quos  Angli  lesthegenes   nuncupant, 
Dani  vero   yoongmen  vocant,  locati."     (Ancient  Laws,  p. 
183.)     Meantime  the  composition  for  an  earl,  whether  we 
confine  that  word  to  office  or  suppose  that  it  extended  to  the 
wealthiest  landholders,  was  far  higher  in  the  later  period 
than  that  for  a  thane,  as  was  also  his  heriot  when  that  came 
into  use.     The  heriot  of  the  king's  thane  was  above  that  of 
what  was  called  a  medial  thane,  or  mesne  vassal,  the  sith- 
cundman,  or  syxhynder,  as  I  apprehend,  of  an  earlier  style. 
In  the  laws  of  the  continental  Saxons  we  find  the  rank 
corresponding  to  the  eorlcunde  of  our  own  country,  denomi- 
nated edelingi  or  noble,  as  opposed  to  the  frilingi  or  ordinary- 
freemen.     This  appellation  was  not  lost  in  England,  and 
was  perhaps  sometimes  applied  to  nobles;    but  we  find  it 
generally  reserved  for  the  royal  family .^     Ethel  or  noble, 
sometimes  contracted,  forms,  as  is  well  known,  the  peculiar 
prefix  to  the  names  of  our  Anglo-Saxon  royal  house.     And 
the  word  atheling  was  used,  not  as  in  Germany  for  a  noble, 
but  a  prince ;  and  his  composition  was  not  only  above  that 
of  a  thane,  but  of  an  alderman.     He  ranked  as  an  arch- 
bishop in  this  respect,  the  alderman  as  a  bishop.     (Leges 


»  "  That  the  thane,  at  least  originally, 
a  military  follower,  a  holder  by  mili- 
tary senrice,  seems  certain ;  though  in 
later  times  the  ranlc  seems  to  have  been 
•^Joyed  by  all  great  landholders,  as  the 
natural  concomitant  of  possession  to  a 
eertain  ralue.  By  Mercian  law,  he  ap- 
pears a«  a  *  twelfhynde '  man,  his  '  wer ' 


being  1200  shillings.  That  this  dignity 
ceased  from  being  exclusively  of  a  mili- 
tary character  is  evident  from  numerous 
passages  in  the  laws,  where  thanes  are 
mentioned  in  a  judicial  capacity,  and  aa 
civil  officers."  Thorpe's  Glossary  to 
Ancient  Laws,  toc.  Thegen. 
s  Thorpe's  Glossary. 


'^i\ 


i 


344 


EOBLS  AND  CEORLS. 


Notes  ti 


Ethelredi,  p.  141.)  It  is  necessary  to  mention  this,  lest,  in 
speaking  of  the  words  earl  and  ceorl  as  originally  distributive, 
I  should  seem  to  have  forgotten  the  distinctive  superiority  of 
the  royal  family.  But  whether  this  had  always  been  the 
case  I  am  not  prepared  to  determine.  The  aim  of  the  later 
kings,  I  mean  after  Alfred,  was  to  carry  the  monarchical 
principle  as  high  as  the  temper  of  the  nation  would  permit. 
Hence  they  prefer  to  the  name  of  king,  which  was  associated 
in  all  the  Germanic  nations  with  a  limited  power,  the  more 
indefinite  appellations  of  imperator  and  basileus.  And  the 
latter  of  these  they  borrowed  from  the  Byzantine  court, 
liking  it  rather  better  than  the  other,  not  merely  out  of  the 
pompous  affectation  characteristic  of  their  style  in  that  pe- 
riod, but  because,  being  less  intelligible,  it  served  to  strike 
more  awe,  and  also  probably  because  the  title  of  western 
emperor  seemed  to  be  already  appropriated  in  Germany.  It 
was  natural  that  they  would  endeavor  to  enhance  the  supe- 
riority of  all  athelings  above  the  surrounding  nobility. 

A  learned  German  writer,  who  distributes  freemen  into 
but  two  classes,  considers  the  ceorl  of  the  Anglo-Saxon  laws 
as  corresponding  to  the  ingenuus,  and  the  thrall  or  esne,  that 
is,  slave,  to  the  lidus  of  the  continent.  ^' Adelingus  und 
liber,  nobilis  und  ingenuus,  edelingtis  und  frtlingus,  jarl  und 
karl,  stehen  hier  immer  als  Stand  der  freien  dem  der  unfreien, 
dem  servus,  litus,  lazzus,  thrall  entgegen."  (Grimm,  Deutsche 
Rechts-Alterthiimer,  Gottingen,  1828,  p.  226  et  alibi,)  Ceorl, 
however,  he  owns  to  have  "  etwas  befremdendes,"  something 
peculiar.  "  Der  Sinn  ist  bald  mas,  bald  liber  ;  allein  colonus, 
rusticus,  ignohilis  ;  die  Mitte  zwischen  nobilis  und  sermisJ* 

It  does  not  appear  from  the  continental  laws  that  the  litus, 
or  lidus,  was  strictly  a  slave,  but  rather  a  cultivator  of  the 
earth  for  a  master,  something  like  the  Roman  colonus,  though 
of  inferior  estimation.^    No  slave  had  a  composition  due  to 


1  Mr.  Spence  remarks  (Equitable  Ju- 
risdiction, p.  61)  —  "  In  the  conditio^  of 
the  ccorls  we  observe  one  of  the  many 
striking  examples  of  the  adaptation  of 
the  Qerman  to  the  Roman  institutions  — 
the  ceorls  and  servile  cultivators  or 
adsrriptitii  in  England,  as  well  as  in  the 
continental  states,  exactly  corresponded 
with  the  eoloni  and  inquilini  of  the  Ro- 
man provinces."  Yet  he  immediately 
subjoins  —  ^'  The  condition  of  the  rural 
slaves  of  the  Qermans  nearly  resembled 
that  of  the  Roman  eoloni  and  Anglo- 


Saxon  ceorls,"  quoting  Tacitus,  e.  21. 
But  did  the  Qermans  at  that  time  adapt 
their  institutions  to  those  of  the  Romans  ? 
Do  we  not  rather  see  here  an  illustration 
of  what  appears  to  me  the  true  theory, 
that  similarity  of  laws  and  customs  may 
often  be  traced  to  natural  causes  in  the 
state  of  society  rather  than  to  imitation  ? 
My  notion  is,  that  the  Germans,  through 
principles  of  common  sympathy  among 
the  same  tribe,  the  Romans,  through 
memory  of  republican  institutions  car- 
ried on  into  the  empire,  repudiated  th* 


CuAP.VIIL 


EORLS  AND  CEORLS. 


345 


his  kindred  by  law ;  the  price  of  his  life  was  paid  to  his  lord. 
By  some  of  the  barbaric  laws,  one  third  of  the  composition 
for  a  lidus  went  to  the  kindred ;  the  remainder  was  the  lord's 
share.  This  indicates  something  above  the  Anglo-Saxon 
theow  or  slave,  and  yet  considerably  below  the  ceorl.  The 
word,  indeed,  has  been  puzzling  to  continental  antiquaries ; 
and  if,  in  deference  to  the  authorities  of  Gothofred  and 
Grimm,  we  find  the  lidi  in  the  barbaric  Iceti  of  the  Roman 
empire,  we  cannot  think  these  at  least  to  have  been  slaves, 
though  they  may  have  become  eoloni.  But  I  am  not  quite 
convinced  of  the  identity  resting  on  a  slight  resemblance  of 
name. 

The  ceorl,  or  viUanus,  as  we  find  him  afterwards  called  in 
Domesday,  was  not  generally  an  independent  freeholder; 
but  his  condition  was  not  always  alike.  He  might  acquire 
land,  and  if  he  did  this  to  the  extent  of  five  hydes,  he  be- 
came a  thane.*  He  required  no  enfranchisement  for  this; 
his  own  industry  might  make  him  a  gentleman.  This  was 
not  the  case,  at  least  not  so  easily,  in  France.  It  appears  by 
the  will  of  Alfred,  published  in  1788,  that  certain  ceorls 
might  choose  their  own  lord ;  and  the  text  of  his  law  above 
quoted  furnishes  some  ground  for  supposing  that  he  extended 
the  privilege  to  all.  The  editor  of  his  will  says  —  "All 
ceorls  by  the  Saxon  constitution  might  choose  such  man  for 
their  landlord  as  they  would"  (p.  26).  But  even  though 
we  should  think  that  so  high  a  privilege  was  conferred  by 
Alfred  on  the  whole  class,  it  is  almost  certain  that  they  did 
not  continue  to  enjoy  it. 


personal  servitude  of  citizens,  while  they 
maintained  very  strict  obligations  of 
prxdial  tenure ;  and  thus  the  eoloni  of 
the  lower  empire  on  the  one  hand,  the 
lidi  and  ceorls  on  the  other,  were  neither 
absolutely  free  nor  merely  slaves. 

"In  the  Lex  Frisiorum,"  says  Sir  P. 
Palgrave,  in  one  of  his  excellent  contri- 
butions to  the  Edinburgh  Review  (xxxii. 
16),  we  find  the  usual  distinctions  of 
nobilis,  liber,  and  litiLf.  The  rank  of  the 
Teutonic  litus  has  been  much  discussed ; 
he  appears  to  have  been  a  villein,  owing 
many  services  to  his  lord,  but  above  the 
class  of  slaves."  The  word  villein,  it 
ahould  be  remembered,  bore  several 
senses  :  the  litus  was  below  a  Saxon 
ceorl,  but  he  was  also  above  the  villein 
of  Bracton  and  Littleton. 

1  This  is  not  in  the  laws  of  Athelstan, 
to  which  I  have  referred  in  p.  363,  nor  in 


any  regular  statute,  but  In  a  kind  of 
brief  summary  of  law,  printed  by  Wil- 
kins  and  Thorpe.  But  I  think  that  Sir 
Francis  Palgrave  treats  this  too  slightly 
when  he  calls  it  a  "  traditionary  notice  of 
an  unknown  writer,  who  says,  '  Whilom 
it  was  the  law  of  England ; '  leaving  it 
doubtful  whether  it  were  so  still,  or  had 
been  at  any  definite  time."  (Edinb.  Rev. 
xxxiv.  263.)  Though  this  phrase  is  once 
used,  it  is  said  also  expressly  :  —  "  If  a 
ceorl  be  enriched  to  that  degree  that  he 
have  five  hydes  of  land,  and  any  one  slay 
him,  let  him  be  paid  for  with  2000  thrym- 
sas."  Thorpe,  p.  79.  This,  a  few  sen- 
tences before,  is  named  as  the  composi- 
tion for  a  thane  in  the  Danelage.  And, 
indeed,  though  no  king^s  name  appears. 
I  have  little  doubt  that  these  are  real 
statutes,  collected  probably  by  some 
one  who  has  inserted  a  little  of  his  own. 


S46 


EORLS  AND  CEORLS. 


Norsa  to 


Chap.YIIL 


EORLS  AND  CEORLS. 


847 


In  the  Anglo-Saxon  charters  the  Latin  words  for  the  cul- 
tivators are  "manentes"  or  "casati."  Their  number  is 
generally  mentioned ;  and  sometimes  it  is  the  solo  description 
of  land,  except  its  title.  The  French  word  manant  is  evi- 
dently  derived  from  manentes.  There  seems  more  difficulty 
about  casattj  which  is  sometimes  used  for  persons  in  a  state 
of  servitude,  sometimes  even  for  vassals  (Du  Cange).  In 
our  charters  it  does  not  bear  the  latter  meaning.  (See  Co- 
dex Diplomaticus,  passim,  Spence  on  Equitable  Jurisdic- 
tion, p.  50.) 

But  when  we  turn  over  the  pages  of  Domesday  Book,  a 
record  of  the  state  of  Anglo-Saxon  orders  of  society  under 
Edward  the  Confessor,  we  find  another  kind  of  difficulty.  New 
denominations  spring  up,  evidently  distinguishable,  yet  such 
as  no  information  communicated  either  in  that  survey  or  in 
any  other  document  enables  us  definitively  and  certainly  to 
distinguish.  Nothing  runs  more  uniformly  through  the  legal 
documents  antecedent  to  the  Conquest  than  the  broad  di- 
vision of  freemen  into  eorls,  afterwards  called  thanes,  and 
ceorls.  In  Domesday,  which  enumerates,  as  I  need  hardly 
say,  the  inhabitants  of  every  manor,  specifying  their  ranks, 
not  only  at  the  epoch  of  the  survey  itself,  about  1085,  but  as 
they  were  in  the  time  of  king  Edward,  we  find  abundant 
mention  of  the  thanes,  generally  indeed,  but  not  always  in 
reference  to  the  last-named  period.  But  the  word  ceorl  never 
occurs.  This  is  immaterial,  for  by  the  name  villani  we  have 
upwards  of  108,000.  And  this  word  is  frequently  used  in  the 
first  Anglo-Norman  reigns  as  the  equivalent  of  ceorl.  No 
one  ought  to  doubt  that  they  expressed  the  same  persons. 
But  we  find  also  a  very  numerous  class,  above  82,000,  styled 
hordarii;  a  word  unknown,  I  apprehend,  to  any  other  public 
document,  certainly  not  used  in  the  laws  anterior  to  the  Con- 
quest. They  must,  however,  have  been  also  ceorls,  distin- 
guished by  some  legal  diffisrence,  some  peculiarity  of  service 
or  tenure,  well  understood  at  the  time.  A  small  number  are 
denominated  coscetz,  or  cosceti ;  a  word  which  does  in  fact  ap- 
pear in  one  Anglo-Saxon  document.  There  are  also  several 
minor  denominations  in  Domesday,  all  of  which,  as  they  do 
not  denote  slaves,  and  certainly  not  thanes,  must  have  been 
varieties  of  the  ceorl  kind.  The  most  frequent  of  these  ap- 
pellations is  «  cotarii." 

But,  besides  these  peasants,  there  are  two  appellations 


which  it  is  less  easy,  though  it  would  be  more  important,  to 
define.  These  are  the  liheri  homines  and  the  socmanni.  Of 
the  former  Sir  Henry  Ellis,  to  whose  indefatigable  diligence 
we  owe  the  only  real  analysis  of  Domesday  Book  that  has 
been  given,  has  counted  up  about  12,300  ;  of  the  latter,  about 
23,000  ;  forming  together  about  one  eighth  of  the  whole  pop- 
ulation, that  is,  of  male  adults.  This,  it  must  be  understood, 
was  at  the  time  of  the  survey  ;  but  there  is  no  appearance,  as 
far  as  I  have  observed,  that  any  material  difierence  in  the 
proportion  of  these  respective  classes,  or  of  those  belpw  them, 
had  taken  place.  The  confiscation  fell  on  the  principal  ten- 
ants. It  is  remarkable  that  in  Norfolk  alone  we  have  4487 
liberi  homines  and  4588  socmen  —  the  whole  enumerated  pop- 
ulation being  27,087.  But  in  Suffolk,  out  of  a  population  of 
20,491,  we  find  7470  liberi  homines,  with  1060  socmen.  Thus 
these  two  counties  contained  almost  all  the  liberi  homines  of 
the  kingdom.  In  Lincohishire,  on  the  other  hand,  where 
11,504  are  returned  as  socmen,  the  word  liber  homo  does  not 
occur.  These  Lincolnshire  socmen  are  not,  as  usual  in  other 
counties,  mentioned  among  occupiers  of  the  demesne  lands, 
but  mingled  with  the  villeins  and  bordars;  sometimes  not 
standing  first  in  the  enumeration,  so  as  to  show  that,  in  one 
country,  they  were  both  a  more  numerous  and  more  subor- 
dinate class  than  in  the  rest  of  the  realm.^ 

The  concise  distinction  between  what  we  should  call  free- 
hold and  copyhold  is  made  by  the  forms  of  entering  each 
manor  throughout  Domesday  Book.  Liberi  homines  inva- 
riably, and  socmen  I  believe,  except  in  Lincolnshire,  occupied 
the  one,  villani  and  bordarii  the  other.  Hence  liberum 
tenementum  and  viUenagium.  What  then,  in  Anglo-Saxon 
language,  was  the  hind  of  the  two  former  classes?  They 
belong,  it  will  be  observed,  almost  wholly  to  the  Danish  coun- 
ties; not  one  of  either  denomination  appeal's  in  Wessex,  as 
will  be  seen  by  reference  to  Sir  H.  Ellis's  abstract.  Were 
they  thanes  or  ceorls,  or  a  class  distinct  from  both  ?  What 
was  their  were  f  We  cannot  think  that  a  poor  cultivator  of 
a  few  acres,  though  of  his  own  land,  was  estimated  at  1200 


1  Socmen  are  returned  in  not  a  few 
Instances  as  sub-tenants  of  whole  manors, 
but  only  in  Cambridgeshire  and  some 
neighboriug  counties.  Ellis's  Introd. 
to  Domesday,  ii.  389.  But  this  could. 
It  seems,  have  only  originated  in  the 
Irfiraseology  of  different  commissioners; 


for  the  counties  in  which  we  find  socmen 
so  much  elevated  had  not  belonged  to 
the  same  Anglo-Saxon  kingdom ;  some 
were  Bast-Anglian,  some  Mercian,  some 
probably,  as  Uertfordshire,  of  either  the 
Kent  or  Wessex  law. 


V 


348 


EORLS  AND  CEORLS. 


Notes  to 


Chap.  TUI. 


EORLS  AND  CEORLS. 


349 


shillings,  like  a  royal  thane.  The  intermediate  composition 
of  the  sixhyndman  would  be  a  convenient  guess ;  but  unfor- 
tunately this  seems  not  to  have  existed  in  the  Danelage.  We 
gain  no  great  light  from  the  laws  of  Edward  the  Confessor, 
which  fix  the  manbote,  or  fine,  to  the  lord  for  a  man  slain, 
regulated  according  to  the  were  due  to  his  children.  Man- 
bote, in  Danelage,  "  de  viUano  et  de  sokemanno  12  oras  ;  de 
liberis  hominibus,  tres  marcas  "  (c.  12).  Thus,  in  the  Da- 
nish counties,  of  which  Lincolnshire  was  one,  the  socman 
was  estimated  like  a  villanus,  and  much  lower  than  a  liber 
homo.  The  ora  is  said  to  have  been  one  eighth  of  a  mark, 
consequently  the  liber  homo's  manbote  was  double  that  of 
the  villein  or  socman.  If  this  bore  a  fixed  ratio  to  the 
were,  we  have  a  new  and  unheard-of  rank  who  might 
be  called  fourhyndmen.  But  such  a  distinction  is  never  met 
with.  It  would  not  in  itself  be  improbable  that  the  liberi 
homines  who  occupied  freehold  lands,  and  owed  no  praedial 
service,  should  be  raised  in  the  composition  for  their  lives 
above  common  ceorls.  But  in  these  inquiries  new  difficulties 
are  always  springing  forth. 

We  must  upon  the  whole,  I  conceive,  take  the  socmen  for 
twyhyndi,  for  ceorls  more  fortunate  than  the  rest,  who  had 
acquired  some  freehold  land,  or  to  whose  ancestors  possibly  it 
had  been  allotted  in  the  original  settlement  It  indicates  a 
remarkable  variety  in  the  condition  of  these  East-Anglian 
counties,  Norfolk  and  Suffolk,  and  a  more  diffused  freedom 
in  their  inhabitants.  The  population,  it  must  strike  us,  was 
greatly  higher,  relatively  to  their  size,  than  in  any  other  part 
of  England ;  and  the  multitude  of  small  manors  and  of  parish 
churches,  which  still  continue,  bespeaks  this  progress.  The 
socmen,  as  well  as  the  liberi  homines,  in  whose  condition 
there  may  have  been  little  difference,  except  in  Lincolnshire, 
where  we  have  seen  that,  for  whatever  cause,  those  denomi- 
nated socmen  were  little,  if  at  all,  better  than  the  villani, 
were  all  commended  ;  they  had  all  some  lord,  though  bearing 
to  him  a  relation  neither  of  fief  nor  of  villenage ;  they  could  in 
general,  though  with  some  exceptions,  alienate  their  lands  at 
pleasure ;  it  has  been  thought  that  they  might  pay  some  small 
rent  in  acknowledgment  of  commendation  ;  but  the  one  class 
undoubtedly,  and  probably  the  other,  were  freeholders  in 
every  legal  sense  of  the  word,  holding  by  that  ancient  and 
respectable  tenure,  free  and  common  socage,  or  in  a  man* 


ner  at  least  analogous  to  it  Though  socmen  are  chiefly 
mentioned  m  the  Danelage,  other  obscure  denominations  of 
occupiers  occur  in  Wessex  and  Mercia,  which  seem  to  have 
denoted  a  similar  class.  But  the  style  of  Domesday  is  so 
concise,  and  so  far  from  uniform,  that  we  are  very  liable  to 
be  deceived  in  our  conjectural  inferences  from  it 

It  may  be  remarked  here  that  many  of  our  modem  writera 
draw  too  unfavorable  a  picture  of  the  condition  of  the  Anc^lo- 
Saxon  ceorl      Few  indeed  fall  into  the  capital  mistake°of 
Ml,  Sharon  Turner,  by  speaking  of  him  as  legally  in  servi- 
tude, like  the  Villein  of  Bracton's  age.     But  we  often  find  a 
tendency  to  consider  him  as  in  a  very  uncomfortable  condi- 
tion  little  caring  «to  what  lion^s  paw  be  might  fall,"  as  Bo- 
hngbroke  said  in  1745,  and  treated  by  his  lord  as  a  miserable 
dependant.     Half  a  century  since,  in  the  days  of  Sir  William 
Jones,  Granville  Sharp,  and  Major  Cartwright,  the  Anglo- 
baxon  constitution  was  built  on  universal  suffrage ;   every 
man  in  his  tything  a  partoker  of  sovereignty,  and  sending 
irom  his  rood  of  land  an  annual  representative  to  the  wite- 
nagemot.     Such  a  theory  could  not  stand  the  first  glimmerings 
ot  histoncal  knowledge  in  a  mind  tolerably  sound.     But  whUe 
we  absolutely  deny  poHtical  privileges  of  this  kind  to  the 
ceorl    we  need  not  assert  his  life  to  have  been  miserable. 
He  had  very  definite  legal  rights,  and  acknowledged  capac- 
ities  of  acquiring  more;  that  he  wa^  sometimes  exposed  to 
oppression  is  probable  enough ;  but,  .in  reality,  the  records  of 
aU  kinds  that  have  descended  to  us  do  not  speak  in  such 
strong  language  of  this  as  we  may  read  in  those  of  the  conti- 
nent    We  have  no  insurrection  of  the  ceorls,  no  outrages  by 
themselves,  no  atrocious  punishment  by  their  masters,  as  in 
Normandy.     Perhaps  we  are  a  little  too  much  struck  by 
their  obligation  to  reside  on  the  lands  which  they  cultivated  • 
the  term  ascriptus   glebcB  denotes,  in  our  apprehension,  an 
Ignoble  servitude.     It  is,  of  course,  inconsistent  with  our  mod- 
em  equality  of  rights ;  but  we  are  to  remember  that  he  who 
deserted  his  land,  and  consequently  his  lord,  did  so  in  order 
to  become  a  thief.     Hlafordles  men,  of  whom  we  read  so 
much,  were  invariably  of  this  character.     What  else,  indeed, 
could  he  become  .?     Children  have  an  idle  play,  to  count  but^ 
tons,  and  say,  —  Gentleman,  apothecary,  ploughman,  thief. 
iMow  tins,  if  we  consider  the  second  as  representative  of  bur- 
gesses m  to^Tis,  is  actuaUy  a  distributive;  enumeration,  setting 


:S 


350 


BRITISH  NATIVES  OF  ENGLAND.  Notes  to 


Chap.  VHI.       BRITISH  NATIVES  OF  ENGLAND. 


351 


aside  the  clergy  of  the  Anglo-Saxon  population ;  a  thane,  a 
burgess,  a  ceorl,  a  hlafordles  man;  that  is,  a  man  without 
land,  lord,  or  law,  who  lived  upon  what  he  could  take.  For 
the  sake  of  protecting  the  honest  ceorl  from  such  men,  as  well 
as  of  protecting  the  lord  in  what,  if  property  be  regarded  at 
all,  must  be  protected,  his  rights  to  services  legally  due,  it  was 
necessary  to  restrain  the  cultivator  from  quitting  his  land. 
Exceptions  to  this  might  occur,  as  we  find  among  the  liberi 
homines  and  others  in  Domesday ;  but  it  was  the  general  rule. 
We  might  also  ask  whether  a  lessee  for  years  at  present  is 
not  in  one  sense  ascriptus  glehce  ?  It  is  true  that  he  may  go 
wherever  he  will,  and,  if  he  continue  to  pay  his  rent  and  per- 
form his  covenants,  no  more  can  be  said.  But  if  he  does 
not  this,  the  law  will  follow  his  person,  and,  though  it  can- 
not force  him  to  return,  will  make  it  by  no  means  his  inter- 
est to  desert  the  premises.  Such  remedies  as  the  law  now 
furnishes  were  not  in  the  power  of  the  Saxon  landlord  ;  but 
all  that  any  lord  could  desire  was  to  have  the  services  per- 
formed, or  to  receive  a  compensation  for  them. 

Note  IV.    Page  263. 

Those  who  treat  this  opinion  as  chimerical,  and  seem 
to  suppose  that  a  very  large  portion  of  the  people  of  Eng- 
land, during  the  Anglo-Saxon   period,  must  have  been  of 
British  descent,  do  not,  I  think,  sufficiently  consider  —  first, 
the  exterminating  character  of  barbarous  warfare,  not  here 
confined,  as  in  Gaul,  to  a  single  and  easy  conquest,  but  pro- 
tracted for  two  centuries  with  the  most  obstinate  resistance  of 
the  natives ;  secondly,  the  facilities  which  the  possessions  of 
the  Welsh  and  Cumbrian  Britons  gave  to  their  countrymen 
for  retreat;  and  thirdly,  the  natural  increase  of  population 
among  the   Saxons,  especially  when   settled   in  a  country 
already  reduced  into  a  state  of  culture.     Nor  can  the  succes- 
sive migrations  from  Germany  and  Norway  be  shown  to  have 
been  insignificant     Nothing  can  be  scantier  than  our  histori- 
cal materials  for  the  fifth  and  sixth  centuries.     We  cannot 
|lso  but  observe  that  the  silence  of  the  Anglo-Saxon  records,  at 
A  later  time,  as  to  Welsh  inhabitants,  except  in  a  few  passages, 
affords  a  presumption  that  they  were  not  very  considerable. 
Yet  these  passages,  three  or  four  in  number  (I  do  not  include 
those  which  obviously  relate  to  the  independent  Welsh,  whether 


Cambrian  or  Cumbrian),  repel  the  hypothesis  that  they  may 
have  been  wholly  overlooked  and  confounded  with  the  ceorls. 
Their  composition  was  less  than  that  of  the  ceorl  in  Wessex 
and  Northumbria;  would  not  this  have  been  mentioned  in 
Kent  if  they  had  been  found  there  ? 

It  is  by  no  means  unimportant  in  this  question  that  we  find 
no  mention  of  bishops  or  churches  remaining  in  the  parts  of 
England  occupied  by  the  Saxons  before  their  conversion.  If 
a  large  part  of  the  population  was  British,  though  in  sub- 
jection, what  religion  did  they  profess  ?  If  it  is  said  that 
the  worshippers  of  Thor  persecuted  the  Christian  priesthood, 
why  have  we  no  records  of  it  in  hagiology?  Is  it  con- 
ceivable that  all  alike,  priests  and  people,  of  that  ancient 
church,  pusillanimously  relinquished  their  faith  ?  Sir  F.  Pal- 
grave  indeed  meets  this  difficulty  by  supposing  that  the  doc- 
trines of  Christianity  were  never  cordially  embraced  by  the 
British  tribes,  nor  had  become  the  national  religion.  (EngL 
Commonwealth,  i.  154.)  Perhaps  this  was  in  some  measure 
the  case,  though  it  must  be  received  with  much  limitation : 
for  the  retention  of  heathen  superstitions  was  not  incompati- 
ble in  that  age  with  a  cordial  faith ;  but  it  will  not  account 
for  the  disappearance  of  the  original  clergy  in  the  English 
kingdoms.  Their  persecution,  which  I  do  not  deny,  though 
we  have  no  evidence  of  it,  would  be  part  of  the  exterminat- 
ing system ;  they  fled  before  it  into  the  safe  quarters  of 
Wales.  And  to  obtain  the  free  exercise  of  their  religion  was 
probably  an  additional  motive  with  the  nation  to  seek  liberty 
where  it  was  to  be  found. 

It  must  have  struck  every  one  who  has  looked  into  Domes- 
day Book  that  we  find  for  the  most  part  the  same  manors, 
the  same  parishes,  and  known  by  the  same  names,  as  in  the 
present  age.  England  had  been  as  completely  appropriated 
by  Anglo-Saxon  thanes  as  it  was  by  the  Normans  who  sup- 
planted them.  This,  indeed,  only  carries  us  back  to  th$ 
eleventh  century.  But  in  all  charters  with  which  the  excel- 
lent Codex  Diplomaticus  supplies  us  we  find  the  boundaries 
assigned ;  and  these,  if  they  do  not  establish  the  identity  of 
manors  as  well  as  Domesday  Book,  give  us  at  least  a  great 
number  of  local  names,  which  subsist,  of  course  with  the 
usual  changes  of  language,  to  this  day.  If  British  names 
of  places  occur,  it  is  rarely,  and  in  the  border  counties,  or  in 
Cornwall.     No  one  travclUng  through  England  would  dis- 


1' 


352 


BRITISH  NATIVES  OF  ENGLAND. 


NOTKS  TO 


cover  that  any  people  had  ever  inhabited  it  before  the  Saxons, 
save  so  for  as  the  mighty  Rome  has  left  traces  of  her  empire 
in  some  enduring  walls,  and  a  few  names  that  betray  the  colo- 
nial city,  the  Londinium,  the  Camalodunum,  the  Lindum. 
And  these  names  show  that  the  Saxons  did  not  systematically 
innovate,  but  often  left  the  appellations  of  places  where  they 
found  them  given.  Their  own  favorite  terminations  were  ton 
and  by;  both  words  denoting  a  village  or  township,  like  ville 
in  French.*  In  each  of  these  there  gradually  rose  a  churchy 
and  the  ecclesiastical  division  for  the  most  part  corresponds 
to  the  civil ;  though  to  this,  as  is  well  known,  there  are  fre- 
quent exceptions.  The  central  point  of  every  township  or 
manor  was  its  lord,  the  thane  to  whose  court  the  socagers  and 
ceorls  did  service ;  we  may  believe  this  to  have  been  so  from 
the  days  of  the  Heptarchy,  as  it  was  in  those  of  the  Confessor. 
The  servi  enumerated  in  Domesday  Book  are  above  25,000, 
or  nearly  one  eleventh  part  of  the  whole.  These  seem  gen- 
erally to  have  been  domestic  slaves,  and  partly  employed  in 
tending  the  lord's  cattle  or  swine,  as  Gurth,  wliom  we  all  re- 
member, the  (iloi  v<^p(3dg  of  the  thane  Cedric,  in  Ivanhoe. 
They  are  never  mentioned  as  occupiers  of  land,  and  have 
nothing  to  do  with  the  villeins  of  later  times.  A  genuine 
Saxon,  as  I  have  said,  could  only  become  a  slave  by  his  own 
or  his  forefather's  default,  in  not  paying  a  weregild,  or  some 
legal  offence ;  and  of  these  there  might  have  been  many. 
The  few  slaves  whose  names  Mr.  Turner  has  collected  from 
Hickes  and  other  authorities  appear  to  be  all  Anglo-Saxon. 
(Hist,  of  Anglo-Saxons,  vol.  iii.  p.  92.)  Several  others  are 
mentioned  in  charters  quoted  by  Mr.  Wright  in  the  30th  vol- 
ume of  the  "  Archaeologia,"  p.  220.  But  the  higher  proportion 
which  servi  bore  to  villani  and  hordarii,  that  is,  free  ceorls,  in 
the  western  counties,  those  in  Gloucestershire  being  almost 
one  third,  may  naturally  induce  us  to  suspect  that  many  were 


'  The  word  tun  denotes  originally  any 
enclosure.  "  But  its  more  usual,  though 
restricted  sense,  is  that  of  a  dwelling,  a 
homestead,  the  house  and  inland  ;  all.  in 
short,  that  is  surrounded  and  bounded  by 
a  hedge  or  fence.  It  is  thus  capable  of 
being  used  to  express  what  we  mean  by 
the  word  town,  viz.,  a  large  collection  of 
dwellings;  or,  like  the  Scottish  town, 
even  a  solitary  farm-house.  It  is  very 
remarkable  that  the  largest  proportion 
of  the  names  of  places  among  the  Anglo- 
Saxons  should  have  been  formed  with 


this  word,  while  upon  the  continent  of 
Europe  it  is  never  used  for  such  a  pur- 
pose. In  the  first  two  yolumes  of  the 
Codex  Diplomaticus,  Dr.  Lee  computes 
the  proportion  of  local  names  com- 
pounded  with  tun  at  one  eighth  of  the 
whole  number ;  a  ratio  which  unavoid- 
ably leads  us  to  the  conclusion,  that  en- 
closures were  as  much  favored  by  the 
Anglo-Saxons  as  they  were  avoided  bv 
their  German  brethren  beyond  the  sea." 
Preface  to  Kemble's  Codex  Diplom.  ToL 
iii.  p.  xxxiz. 


Chap.  Vin. 


THE  WITENAGEMOT. 


353 


of  British  origin  ;  and  these  might  be  sometimes  in  praedial 
servitude.  All  inference,  however,  from  the  sentence  in 
Domesday,  as  to  the  particular  state  of  the  enumerated 
mhabitants,  must  be  conjecturally  proposed. 

Note  V.    Page  265. 

The  constituent  parts  of  the  witenagemot  cannot  be  cer- 
tainly determined,  though  few  parts   of  the  Anglo-Saxon 
pohty  are  more  important.     A  modem  writer  espouses  the 
more  popular  theory.     «  There  is  no  reason  extant  for  doubt- 
ing that  every  thane  had  the  right  of  appearing  and  voting 
m  the  Witenagemot,  not  only  of  his  shire,  but  of  the  wholl 
kingdom,  without  however  being  bound  to  personal  attend- 
ance, the  absent  being  considered  as  tacitly  assentino^  to  the 
resolutions  of  those  present."     (Lappenberg,  Hist  of  Eng- 
land, vol.  ii.  p.  317.)     Palgrave  on  the  other  hand,  adheres 
to  the  testimony  of  the  Historia  Eliensis,  that  forty  hydes  of 
land  were  a  necessary  qualification ;  which  of  course  would 
have  excluded  all  but  very  wealthy  thanes.     He  observes 
and  I  believe  with  much  justice,  that  "  proceres  terrse  "  is  a 
common  designation  of  those  who  composed  a  cuHa  regis 
sjTionymous,  as  he  conceives,  with  the  witenagemot.     Mr 
Thorpe  ingeniously  conjectures  that  « inter  proceres  terrse* 
enumeran  '  was  to  have  the  rank  of  an  eari ;  on  the  ground 
that  five  hydes  of  land  was  a  qualification  for  a  common 
thane,  whose  heriot,  by  the  laws  of  Canute,  was  to  that  of  an 
earl  as  one  to  eight.    (Ancient  Laws  of  Anglo-Saxons,  p.  81.) 
Mr.  Spence  supposes  the  rank  annexed  to  forty  hydes  to  have 
been  that  of  king's  thane.     (Inquiry  into  Laws  of  Europe, 
p.  311.)     But  they  were  too  numerous  for  so  high  a  qualifi- 
cation. °       ^ 

Mr.  Thorpe  explains  the  word  witenagemot  thus :  —  «  The 
rapreme   council  of  the   nation,  or  meeting  of   the  witan 
1  his  assembly  was  summoned  by  the  king;  and  its  members,' 
besides  the   archbishop   or  archbishops,  were   the   bishops, 
aldermen,   duces,   eoris,    thanes,  abbots,   priests,   and   even 
deacons.     In  this  assembly,  laws,  both  secular  and  ecclesias- 
tical, were  promulgated  and  repealed ;  and  charters  of  grants 
made  by  the  king  confirmed  and  ratified.      Whether  this 
assembly  met   by  royal  summons,  or  by   usage  at  stated 
periods,  IS  a  point  of  doubt."     (Glossary  to  Ancient  Laws.^ 
VOL.  II.  28  * 


I 


!  J  i 


354 


THE  WITENAGEMOT. 


NOTKS  TO 


Chap.  VJH. 


THE  WITENAGEMOT. 


355 


This  is  not  remarkably  explicit:  aldermen  are  distinguished 
from  earls,  and  duces,  an  equivocal  word,  from  both  ;^  and 
the  important  difficulty  is  slurred  over  by  a  general  descrip- 
tion, thanes.     But  what  thanes  ?  remains  to  be  inquired. 

The  charters  of  all  Anglo-Saxon  sovereigns  are  attested, 
not  only  by  bishops  and  abbots,  but  by  laymen,  described,  if 
by  any  Saxon  appellation,  as  aldermen,  or  as  thanes.     Their 
number  is  not  very  considerable ;  and  some  appear  hence  to 
have  inferred  that  only  the  superior  or  royal  thanes  were 
present  in  the  witenagemot.     But,  as  the  signatures  of  the 
whole  body  could  not  be  required  to  attest  a  charter,  this  is 
far  too  precarious  an  inference.     Few,  however,  probably, 
are  found  to  believe  that  the  lower  thanes  flocked  to  the 
national  council,  whatever  their  rights  may  have  been ;  and 
if  we  have  no  sufficient  proof  that  any  such  privileges  had 
been  recognized  in  law  or  exercised  in  fact,  if  we  are  rather 
led  to  consider  the  sithcundman,  or  sixhynder,  as  dependent 
merely  on  his  lord,  in  something  very  analogous  to  a  feudal 
relation,  we  may  reasonably  doubt  the  strong  position  which 
Lappenberg,  though  following  so  many  of  our  own  antiqua- 
ries, has  laid  down.     Probably  the  traditions  of  the  Teutonic 
democracy  led  to  the  insertion  of  the  assent  of  the  people  in 
some  of  the  Anglo-Saxon  laws.     But  it  is  done  in  such  a 
manner  as  to  produce  a  suspicion  that  no  substantial  share  in 
legislation  had  been  reserved  to  them.     Thus,  in  the  pre- 
amble of  the  laws  of  Withroed,  about  696,  we  read.  "  The 
great  men  decreed,  with  the  suffrages  of  all,  these  dooms." 
Ina*s  laws  are  enacted  "  with  all  my  ealdormen,  and  the  most 
distinguished  witan  of  my  people."     Alfred  has  consulted 
his  "  witan."     And  this  is  the  uniform  word  in  all  later  laws 
in  Anglo-Saxon.     Canute's,  in  Latin,  run  —  **  Cum  consilio 
primariorum  meorum."     We  have  not  a  hint  of  any  numer- 
ous or  popular  body  in  the  Anglo-Saxon  code. 

Sir  F.  Palgrave  (i.  637)  supposes  that  the  laws  enacted  in 
the  witenagemot  were  not  valid  till  accepted  by  the  legisla- 


i  Dux  appears  to  be  sometimes  used 
in  the  subscription  of  charters  for  thane^ 
more  commonly  for  alderman.  Thane 
is  generally,  in  Latin,  minister.  Codex 
Diplomat,  passim.  Some  haw  supposed 
dux  to  signify,  at  least  occasionally,  a 

Ssculiar  dignity,  called,  in  Anglo-Saxon, 
eretoch  (herzog,  Grnn.).  This  word 
firequently  occurs  in  the  later  peri«d. 
Mr.  Thorpe  «ays,  — ''This  title,  aoMng 


the  Anglo-Saxons,  was,  as  it  implies, 
given  originally  to  the  leader  of  an  army ; 
but  in  the  latter  days  of  the  monarchy  it 
seems  to  hare  become  hereditary  in  the 
fiunilies  of  those  on  whom  the  gorern- 
ment  of  the  prorinces  formed  out  of  the 
kingdoms  of  the  Heptarchy  were  be- 
stowed, and  was  sometimes  used  synony- 
mously with  those  of  ealdorman  ftnd 
«orl."    01oesai7,  TOO.  Heretoga. 


tares  of  the  different  kingdoms.     This  seems  a  paradox, 
though  supported  with  his  usual  learning  and  ingenuity.    He 
admits  that  Edgar  "speaks  in  the  ton! of  prefogativ;,  ^d 
directs  his  statutes  to  be  obser^-ed  and  transmitted  by  writ  to 
die  aldermen  of  the  other  subordinate  states."     (p.  638  ^ 
But  I  must  say  that  this  is  not  very  exact     The  wonis  in 
Thorpes    translaUon    are,_«And  let  many  writin..s    te 
written  concerning  these  things,  and  sent  both  to  Jlfere 
alderman  and  to  ^thelwine,  alderman,  and  let  them  rsendj 
m  every  direction  that  this  ordinance  be  known  to  the  L»r 
«.d  nch."     (p  ns.)     «  And  yet,"  Sir  F.  P.  proceeds,'^ 
defiance  of  this  positive  injunction,  the  laws  of  Ed-mr  were 
not  accepted  ,n  Mercia  till  the  reign  of  Canute  the"  Da^l^ 
For  tins  however,  he  cites  no  authority,  and  I  do  not  find  it 
m  the  Anglo-Saxon  laws.    Edgar  says,  — «  And  I  will  th»f 
secular  rights  stand  among  the^Dane^  ^ith  at  good  ts^' 
they  best  may  choose.    But  with  the  English,  let  that  stod 

ftfh'^  V"i'"{  f*^  ^^^  ^^^^  to  the  dooms  of  my  f^. 
fathers  for  the  behoof  of  all  the  people.     Let  this  ordinan^ 
neverthele^,  be  common  to  all  the  ^ople,  whether  EnS 
Danes,  or  Britons,  on  every  side  of  my  dom  nion."    (ThoW^ 

IZT^^T  ?V"'-^  But  what  does  this  pr^ve Tto 
Merctaf  The  inference  is,  that  Edgar,  when  he  thouei^ 
any  particular  statute  necessary  for  the"  piblic  weal,  enfS 

Ifp'ny'ltJr"  °J  ^i""  ^'**"*'"'  Athelstan  had  no  effect  in 

W  ?li^-.  Pr^^.f'u^PP?.'"'!^  "^  ^^  •=«>'^'''  ""til  sanctioned 
by  the  witen  of  the  shire."    It  is  certainly  true  that  we  find 

a  letter  addressed  1«  the  king  in  the  name  of  «  episc^piT^ 
fif.  b?  '5  ^'„<"°"f  Cantescyre  thaini,  comites  et  villani." 
thanking  h.m  "quod  nobis  de  pace  nostra  pr^cipere  void  'ti 
et  de  commodo  nostro  quasrere  et  consulere,  quia  magnum 

tenor  of  IhitVr  "^v  f  "S"'  Pauperibus."  ^ut  the  whole 
tenor  of  this  letter,  which  relates  to  the  kws  enacted  at  the 
witenagemot,  or  "grand  synod"  of  Greatanlea  (supposed 

kw  ^  ^^""\  *^°"«*'  i'  "^P^^«^  approbation  ^f'^Lose 
tows,  and  repeats  some  of  them  with  slight  variations,  does 

ftem  «!!!r.K^  Fr^-T"""*  ^  *  ^^'"'^  enactment  of 
Ihem  ;  and  the  final  words  are  not  very  legislative.    «  Pre- 

camur,  Domine,  misericordiam  tuam,  sITn  h^c  scripto  alSl 

!rum  est  vel  mmis  vel   minus,  ut  hoc  emendsii  jubew 


■'l 


356 


THE  WITENAGEMOT. 


NOTSS  TO 


,i 


1 


I 


secundum  velle  tuum.     Et  nos  devote  parati  sumus  ad  omnia 
quse  nobis  praecipere  velis  quae  unquam  aliquatenus  implere 

valeamus."  (p.  91-) 

It  is,  moreover,  an  objection  to  considermg  this  as  a  tormal 
enactment  by  the  witan  of  the  shire,  that  it  runs  in  the 
names  of  "  thaini,  comites  et  villani."  Can  it  be  maintained 
that  the  ceorls  ever  formed  an  integrant  element  of  the 
legislature  in  the  kingdom  of  Kent?  It  may  be  alleged 
that  their  name  was  inserted,  though  they  had  not  been 
formally  consenting  parties,  as  we  find  in  some  parliamentary 
grants  of  money  much  later.  But  this  would  be  an  arbitrary 
conjecture,  and  the  terms  "  omnes  thaini,"  «fec.,  are  very 
large.  By  comites  we  are  to  understand,  not  earls,  who  in 
that  age  would  not  have  been  spoken  of  distinctly  from 
thanesrat  least  in  the  plural  number,  nor  postponed  to  them, 
but  thanes  of  the  second  order,  sithcundmen,  sixhynder. 
Alfred  translates  "  comes "  by  "  gesith,"  and  the  meaning 

is  nearly  the  same. 

In  the  next  year  we  have  a  very  peremptory  declaration 
of  the  exclusive  rights  of  the  king  and  his  witan.  "  Athel- 
stan,  king,  makes  known  that  I  have  learned  that  our  *  frith ' 
(peace)  ?s  worse  kept  than  is  pleasing  to  me,  or  as  at  Great- 
anlea  was  ordained,  and  my  witan  say  that  I  have  too  long 
borne  with  it.  Now,  I  have  decreed,  with  the  witan  who 
were  with  me  at  Exeter  at  midwinter,  that  they  [the  frith- 
breakers]  shall  all  be  ready,  themselves  and  with  wives  tuid 
property,  and  with  all  things,  to  go  whither  I  will  (unless 
from  thenceforth  they  shall  desist),  on  this  condition,  that 
they  never  come  again  to  the  country.  And  if  they  shall 
ever  again  be  found  in  the  country,  that  they  be  as  guilty  as 
he  who  may  be  taken  with  stolen  goods  (handhabbende)."^ 

Sir  Francis  Palgrave,  a  strenuous  advocate  for  the  antiq- 
uity of  municipal  privileges,  contends  for  aldermen,  elected 
by  the  people  in  boroughs,  sitting  and  assenting  among  the 
king's  witan.  (Edinb.  Rev.  xxvi.  26.)  "  Their  seats  in  the 
witenagemot  were  connected  as  inseparably  with  their  office 
as  their  duties  in  the  folkmote.  Nor  is  there  any  reason  for 
denying  to  the  aldermen  of  the  boroughs  the  rights  and  rank 
possessed  by  the  aldermen  of  the  hundreds ;  and  they,  in  all 
cases,  were  equally  elected  by  the  commons."  The  passage 
is  worthy  of  consideration,  like  everything  which  comes  from 
this  ingenious  and  deeply  read  author.     But  we  must  be 


II 


Chap.  Vin. 


THE  HUNDRED. 


357 


.W?i^^  *^  absence  of  all  pm>f,  and  particularly  bv 
the  fact  that  we  do  not  find  aldermen  of  towns,  so  described 
atnong  the  witnesses  of  any  royal  charter.  Yet  it  is  possible 
t\^Bt  such  a  privilege  wa^  confined  to  the  superior  thanef 
wl«ch  weakens  the  inference.  We  cannot  pretend,  I  thhi 
to  deny  ,n  so  obscure  an  inquiry,  that  some  eminent  inhabit 
tents  (I  would  here  avoid  the  ambiguous  word  citizens)  of 
London,  or  even  other  cities,  might  occasionally  be  present 
m  the  witenagemot  But  were  not  these,  as  we  may  S- 
dently  assume,  of  the  mnk  of  thane  ?  The  position^in  my 
text  18,  that  ceorls  or  inferior  freemen  had  no  share  in  4e 
deliberations  of  that  assembly.    Nor  would  these  aldermen 

S^at  ^u?cil?'T'^  V  ^  'f g"''*' «^i^t«tes.  «0f  this 
XXX1V.336),  "as  constituted  anterior  to  the  Conouest  we 
know  httle  more  than  the  name."    The  greater  i^oml^nr 

above.  Sir  F.  P.  adopts  the  notion  that  forty  hydes  of  land 
were  the  necessary  qualification  for  a  seat  L  the  witen^- 
moL  This  IS  almost  inevitably  inconsistent  with  the  preset 
as  by  right,  of  aldermen  elected  by  boroughs.  w!Z^t 
conclude,  therefore,  that  he  has  abandoned  that  hymth^ 
Neither  of  the  two  is  satisfactory  fa,  my  judgment: 

Note  VI.    Page  267. 

The  hundred-court,  and  indeed  the  hundred  itself,  do  not 
appear  m  our  Anglo-Saxon  code  before  the  reign  of  EdffT 
whose  replations  concerning  the  former  are  rather  full' 
n^  ""?  Kr°K  ^  be  too  hasty  in  concluding  that  it  was  then 
fct  established.  Nothing  in  the  language  of  those  laws  iZ 
phes  It  A  theory  has  been  developed  in  a  very  brilliant  and 
learned  article  of  the  Edinburgh  Review  for^l822  f™" 

h,!nH  ^Tf^  T'^'f  *^f"/-  I'^'g'-a^e,  which  deduces  the 
hundred  from  the  h<Brad  of  the  Scandinavian  kinadoms  the 
integral  unit  of  the  Scandinavian  commonwealths.  "The 
bothic  commonwealth  is  not  an  unit  of  which  the  smaller  bod- 
ies politic  are  fractions.  They  are  the  units,  and  the  com- 
monwealth s  the  multiple.  Every  Gothic  monarchj  71 
the  nature  of  a  confederation.  It  is  composed  of  towns  tow^ 
slups.  shires,  bailiwicks,  burghs,  earldoms,  dukedomTaU  ba 


S58 


THE  HUNDRED. 


Notes  to 


certain  degree  strangers  to  each  other,  and  separated  in  juris- 
diction.   Their  magistrates,  therefore,  in  theory  at  least,  ought 

not  to  emanate  from  the  sovereign The  strength 

of  the  state  ascends  from  region  to  region.  The  represent- 
ative  form  of  government,  adopted  by  no  nation  but  the  Gothic 
tribes,  and  originally  common  to  them  all,  necessarily  resulted 
from  this  federative  system,  in  which  the  sovereign  was  com- 
pelled to  treat  the  component  members  as  possessing  a  several 

authority." 

The  hundred  was  as  much,  according  to  Palgrave,  the  or- 
ganic germ  of  the  Anglo-Saxon  commonwealth,  as  the  haerad 
was  of  the  Scandinavian.     Thus,  the  leet,  held  every  month, 
and  composed  of  the  tythingmen  or  head-boroughs,  represent- 
ing the  inhabitants,  were  both  the  inquest  and  the  jury,  pos- 
sessino-  jurisdiction,  as  he  conceives,  in  all  cases  civil,  criminal, 
and  ecclesiastical,  though  this  was  restrained  after  the  Con- 
quest.    William  forbade  the  bishop  or  archdeacon  to  sit  there ; 
and  by  the  17th  section  of  Magna  Charta  no  pleas  of  the 
crown  could  be  held  before  the  sheriff,  the  constable,  the  coro- 
ner, or  other  bailiff  (inferior  officer)  of  the  crown.     This  was 
intended  to  secure  for  the  prisoner,  on  charges  of  felony,  a 
trial  before  the  king's  justices  on  their  circuits ;  and,  from 
this  time,  if  not  earlier,  the  hundred-court  was  reduced  to  in- 
significance.    That,  indeed,  of  the  county,  retaining  its  civil 
jurisdiction,  as  it  still  does  in  name,  continued  longer  in  force. 
In  the  reign  of  Henry  I.,  or  when  the  customal  (as  Sir  F. 
Palgrave  denominates  what  are  usually  called  his  laws)  was 
compiled  (which  in  fact  was  a  very  little  later),  all  of  the 
highest  rank  were  bound  to  attend  at  it.     And  though  the 
extended  jurisdiction  of  the  curia  regis  soon   cramped   its 
energy,  we  are  justified  in  saying  that  the  proceedings  before 
the  justices  of  assize  were  nearly  the  same  in  effect  as  those 
before  the  shiremote.     The  same  suitors  were  called  to  attend, 
and  the  same  duties  were  performed  by  them,  though  under 
different  presidents.     The  grand  jury,  it  may  be  remarked, 
still  corresponds,  in  a  considerable  degree,  to  the  higher  class 
of  landholders  bound  to  attendance  in  the  county-court  of  the 
Saxon  and  Norman  periods. 

I  must  request  the  reader  to  turn,  if  he  is  not  already  ac- 
quainted with  it,  to  this  original  disquisition  in  the  Edinburgh 
Review.  The  analogies  between  the  Scandinavian  and 
Anglo-Saxon  institutions  are  too  striking  to  be  disregarded, 


Chap.  VHI.         ANGLO-SAXON  JURISDICTION. 


359 


though  some  conclusions  may  hav6  been  drawn  from  them  to 
which  we  cannot  thoroughly  agree.  If  it  is  alleged  that  we 
do  not  find  in  the  ancient  customs  of  Germany  that  peculiar 
scale  of  society  which  ascends  from  the  hundred,  as  a  monad 
of  self-government,  to  the  collective  unity  of  a  royal  common- 
wealth, it  may  be  replied  that  we  trace  the  essential  principle 
in  the  pagm^  or  gau^  of  Tacitus,  though  perhaps  there  might 
be  nothing  numerical  in  that  territorial  direction ;  that  we 
have,  in  fact,  the  centenary  distribution  under  peculiar  magis- 
trates in  the  old  continental  laws  and  other  documents ;  and 
that  a  large  proportion  of  the  inhabitants  of  England,  ulti- 
mately coalescing  with  the  rest,  so  far  at  least  as  to  acknowl- 
edge a  common  sovereign,  came  from  the  very  birthplace  of 
Scandinavian  institutions.  In  the  Danelage  we  might  expect 
more  traces  of  a  northern  policy  than  in  the  south  and  west ; 
and  perhaps  they  may  be  found.^  Yet  we  are  not  to  disre- 
gard the  effect  of  countervailing  agencies,  or  the  evidence  of 
our  own  records,  which  attest,  as  I  must  think,  a  far  greater 
unity  of  power,  and  a  more  paramount  authority  in  the  crown, 
throughout  the  period  which  we  denominate  Anglo-Saxon, 
than,  according  to  the  scheme  of  a  Scandinavian  common- 
wealth sketched  in  the  Edinburgh  Review,  could  be  attributed 
to  that  very  ancient  and  rude  state  of  society.  And  there  is 
a  question  that  might  naturally  be  asked,  how  it  happens  that, 
if  the  division  by  hundreds  and  the  court  of  the  hundred  were 
parts  so  essential  of  the  Anglo-Saxon  commonwealth  that  all 
its  unity  is  derived  from  them,  we  do  not  find  any  mention  of 
either  in  the  numerous  laws  and  other  documents  which  re- 
main before  the  reign  of  Edgar  in  the  middle  of  the  tenth 
century.  But  I  am  far  from  supposing  that  hundreds  did  not 
exist  in  a  much  earlier  period. 

Note  Vn.    Page  270. 

"The  judicial  functions  of  the  Anglo-Saxon  monarchs 
wens  of  a  twofold  nature ;  the  ordinary  authority  which  the 
king  exercised,  like  the  inferior  territorial  judges,  differing, 
perhaps,  in  degree,  though  the  same  in  kind ;  and  the  pre- 
rogative supremacy,  pervading  all  the  tribunals  of  the  people, 
Vid  which  was  to  be  called  into  action  when  they  were  un- 


i  Tide  L^M  Ethelredi. 


'(I 


.( 


360 


JURISDICTION  OF 


Notes  to 


Chap.  Vm. 


ANGLO-SAXON  KINGS. 


361 


able  or  unwilling  to  afford  redress.  The  jurisdiction  which 
he  exercised  over  his  own  thanes  was  similar  to  the  authority 
of  any  other  hiaford ;  it  resulted  from  the  peculiar  and  im- 
mediate relation  of  the  vassal  to  the  superior.  Offences  com- 
mitted in  the  fyrd  or  anny  were  punished  by  the  king,  in  his 
capacity  of  military  commander  of  the  people.  He  could  con- 
demn the  criminal,  and  decree  the  forfeiture  of  his  proper- 
ty, without  the  intervention  of  any  other  judge  or  tribunal. 
Furthermore,  the  rights  which  the  king  had  over  all  men, 
though  slightly  differing  in  "  Danelage  "  from  the  prerogative 
which  he  possessed  in  Wessex  and  Mercia,  allowed  him  to 
take  cognizance  of  almost  every  offence  accompanied  by  vio- 
lence and  rapine  ;  and  amongst  these  "  pleas  of  the  crown  " 
we  find  the  terms,  so  familiar  to  the  Scottish  lawyer  and  anti- 
quary, of  "  hamsoken  "  and  "  flemen  firth,"  or  the  crimes  of 
invading  the  peaceful  dwelling,  and  harboring  the  outlawed 
fugitive.  (Rise  and  Progress  of  Engl.  Commonwealth,  vol. 
i.  p.  282.) 

Edgar  was  renowned  for  his  strict  execution  of  justice. 
"  Twice  in  every  year,  in  the  winter  and  in  the  spring,  he 
made  the  circuit  of  his  dominions,  protecting  the  lowly,  rigidly 
examining  the  judgments  of  the  powerful  in  each  province, 
and  avenging  all  violations  of  the  law."  (Id.  p.  286.)  He 
infers  from  some  expressions  in  the  history  of  Ramsey  (Gale, 
iii.  441) — "cum  more  assueto  rex  Gnuto  regni  fines  pera- 
graret "  —  that  these  judicial  eyres  continued  to  be  held.  It 
is  not  at  all  improbable  that  such  a  king  as  Canute  would  re- 
vive the  practice  of  Edgar ;  but  it  was  usual  in  all  the  Teu- 
tonic nations  for  the  king,  once  after  his  accession,  to  make 
the  circuit  of  his  realm.  Proofs  of  this  are  given  by  Grimm, 
p.  237. 

In  this  royal  court  the  sovereign  was  at  least  assisted  by 
his  "  witan,"  both  ecclesiastic  and  secular.  Their  consent 
was  probably  indispensable ;  but  the  monarchical  element  of 
Anglo-Saxon  polity  had  become  so  vigorous  in  the  tenth 
and  eleventh  centuries,  that  we  can  hardly  apply  the  old  Teu- 
tonic principle  expressed  by  Grimm.  "  All  judicial  power 
was  exercised  by  the  assembly  of  freemen,  under  the  presidence 
of  an  elective  or  hereditary  superior."  (Deutsche  Rechts- 
Alterth.  p.  749.)  This  was  the  case  in  the  county-court,  and 
perhaps  had  once  been  so  in  the  court  of  the  king. 

The  analogies  of  the  Anglo-Saxon  monarchy  to  that  of 


France  during  the  same  period,  though  not  uniformly  to  be 
traced,  are  very  striking.  The  regular  jurisdiction  over  the 
king's  domanial  tenants,  that  over  the  vassals  of  the  crown, 
that  which  was  exercised  on  denial  of  justice  by  the  lower 
tribunals,  meet  us  in  the  two  first  dynasties  of  France,  and  in 
the  early  reigns  of  the  third.  But  they  were  checked  in  that 
country  by  the  feudal  privileges,  or  assumptions  of  privilege, 
which  rendered  many  kings  of  these  three  races  almost  im- 
potent to  maintain  any  authority.  Edgar  and  Canute,  or  even 
less  active  princes,  had  never  to  contend  with  the  feudal  aris- 
tocracy. They  legislated  for  the  realm;  they  wielded  its 
entire  force ;  they  maintained,  not  always  thoroughly,  but  in 
right  and  endeavor  they  failed  not  to  maintain,  the  public 
peace.  The  scheme  of  the  Anglo-Saxon  commonwealth  was 
better  than  the  feudal;  it  preserved  more  of  the  Teutonic 
character,  it  gave  more  to  the  common  freeman  as  well  as  to 
the  king.  The  love  of  Utopian  romance,  and  the  bias  in 
favor  of  a  democratic  origin  for  our  constitution,  have  led  many 
to  overstate  the  freedom  of  the  Saxon  commonwealth;  or 
rather,  perhaps,  to  look  less  for  that  freedom  where  it  is  really 
best  to  be  found,  in  the  administration  of  justice,  than  in  rep- 
resentative councils,  which  authentic  records  do  not  confirm. 
But  in  comparison  to  France  or  Italy,  perhaps  to  Germany, 
with  the  exception  of  a  few  districts  which  had  preserved 
their  original  customs,  we  may  reckon  the  Anglo-Saxon 
polity,  at  the  time  when  we  know  most  of  it,  from  Alfred  to 
the  Conquest,  rude  and  defective  as  it  must  certainly  appear 
when  tried  by  the  standard  of  modem  ages,  not  quite  unwor- 
thy of  those  affectionate  recollections  which  long  continued  to 
attach  themselves  to  its  name. 

The  most  important  part,  perhaps,  of  the  jurisdiction  exer- 
cised by  the  Anglo-Saxon  kings,  as  by  those  of  France,  was 
ob  defectum  justiticBf  where  redress  could  not  be  obtained  from 
an  inferior  tribunal,  a  case  of  not  unusual  occurrence  in  those 
ages.  It  forms,  as  has  been  shown  in  the  second  chapter,  a 
conspicuous  feature  in  that  feudal  jurisprudence  which  we 
trace  in  the  establishments  of  St.  Louis,  and  in  Beaumanoir. 
Nothing  could  have  a  more  decided  tendency  to  create  and 
strengthen  a  spirit  of  loyalty  towards  the  crown,  a  trust  in  its 
power  and  paternal  goodness.  "  The  sources  of  ordinary  ju- 
risdiction," says  Sir  F.  Palgrave,  "  however  extensive,  were 
less  important  than  the  powers  assigned  to  the  king  as  the 


rr 


.'   (•■ 


11 


m 


362 


JURISDICTION  OF 


Notes  to 


Chap.  vm. 


ANGLO-SAXON  KINGS. 


363 


lord  and  leader  of  his  people ;  and  by  which  he  remedied  the 
defects  of  the  legislation  of  the  state,  speaking  when  the  law 
was  silent,  and  adding  new  vigor  to  its  administration.  It 
was  to  the  royal  authority  that  the  suitor  had  recourse  when 
he  could  not  obtain  *  right  at  home,*  though  this  appeal  was 
not  to  be  had  until  he  had  thrice  *  demanded  right '  in  the 
hundred.  If  the  letter  of  the  law  was  grievous  or  burden- 
some, the  alleviation  was  to  be  sought  only  from  the  king.' 
All  these  doctrines  are  to  be  discerned  in  the  practice  of  the 
subsequent  ages  ;  in  this  place  it  is  only  necessary  to  remark 
that  the  principle  of  law  which  denied  the  king's  help  in  civil 
suits,  until  an  endeavor  had  first  been  made  to  obtain  redress 
in  the  inferior  courts,  became  the  leading  allegation  in  the 
*  Writ  of  Right  Close  ;  *  this  prerogative  process  being  found- 
ed upon  the  default  of  the  lord's  court,  and  issued  lest  the 
king  should  hear  any  more  complaints  of  want  of  justice. 
And  the  alleviation  of  *  the  heavy  law  '  is  the  piimary  source 
of  the  authority  delegated  by  the  king  to  his  council,  and  af- 
terwards assumed  by  his  chancery  and  chancellor,  and  from 
whence  our  courts  of  equity  are  derived. "  (Rise  and  Prog- 
ress of  English  Commonwealth,  vol.  i.  p.  203.)  I  hesitate 
about  this  last  position ;  the  "  heavy  law  "  seems  to  have  been 
the  legal  fine  or  penalty  for  an  offence.  (Leges  Edgar,  ubi 
supra,) 

That  there  was  a  select  council  of  the  Anglo-Saxon  kings, 
distinct  from  the  witenagemot,  and  in  constant  attendance 
upon  them,  notwithstanding  the  opinion  of  Madox  and  of 
Allen  (Edinb.  Rev.  xxxv.  8),  appears  to  be  indubitable. 
"  From  the  numerous  charters  granted  by  the  kings  to  the 
church,  and  to  their  vassals,  which  are  dated  from  the  differ- 
ent royal  vills  or  manors  wherein  they  resided  in  their  prog- 
resses through  their  dominions,  it  would  appear  that  there 
were  always  a  certain  number  of  the  optimates  in  attendance 
on  the  king,  or  ready  to  obey  his  summons,  to  act  as  his 
council  when  circumstances  required  it.  This  may  have  been 
what  afterwards  appears  as  the  select  council."  (Spence's 
Equitable  Jurisdict  p.  72.)  The  charters  published  by  Mr. 
Kembler  in  the  Codex  Aiig.-Sax.  Diplomaticus  are  attested 
by  those  whom  we  may  suppose  to  have  been  the  members 
of  this  council,  with  the  exception  of  some,  which,  by  the 

1  Edgar  11.  2 ;  Canute  n.  16;  Ethelxed,  17. 


number  of  witnesses  and  the  importance  of  the  matter,  were 
probably  granted  in  the  witenagemot 

The  jurisdiction  of  the  king  is  illustrated  by  the  laws  of 
Edgar.  "  Now  this  is  the  secular  ordinance  which  I  will  that 
it  be  held.  This  then  is  just  what  I  will ;  that  every  man  be 
worthy  of  folk-right,  as  well  poor  as  rich  ;  and  that  righteous 
dooms  be  judged  to  him  ;  and  let  there  be  that  remission  in 
the  *  bot  *  as  may  be  becoming  before  God  and  tolerable  before 
the  world.  And  let  no  man  apply  to  the  king  in  any  suit, 
unless  he  at  home  may  not  be  worthy  of  law,  or  cannot  ob- 
tain law.  If  the  law  be  too  heavy,  let  him  seek  a  mitigation 
of  it  from  the  king;  and  for  any  hotworthy  crime  let  no  man 
forfeit  more  than  his  *  wer.' "  (Thorpe's  Ancient  Laws,  p. 
112.)  Bot  is  explained  in  the  glossary,  "amends,  atone- 
ment, compensation,  indemnification." 

This  law  seems  not  to  include  appeals  of  false  judgment, 
in  the  feudal  phrase.    But  they  naturally  come  within  the  spir- 
it of  the  provision  ;  and  "  injustum  judicium  "  is  named  in  Le- 
ges Henr.  Primi,  c.  10,  among  the  exclusive  pleas  of  the 
crown.     It  does  not  seem  clear  to  me,  as  Palgrave  assumes, 
that  the  disputes  of  royal  thanes  with  each  other  came  be- 
fore the   king's  court.     Is    there  any  ground  for  supposing 
that  they  were  exempt  from  the  jurisdiction  of  the  county- 
court  ?     Doubtless,  when  powerful  men  were  at  enmity,  no 
petty  court  could  effectively  determine  their  quarrel,  or  pre- 
vent them  from  having  recourse  to  arms;  such  suits  would 
fall  naturally  into  the  king's  own  hands.     But  the  jurisdic- 
tion might  not  be  exclusively  his ;  nor  would  it  extend,  as  of 
course,  to  every  royal  thane ;  some  of  whom  might  be  amena- 
ble, without  much  difficulty,  to  the  local  courts.     It  is  said  in 
the  seventh  chapter  of  the  laws  of  Henry  L,  which  are  An- 
glo-Saxon in  substance,  concerning  the  business  to  be  trans- 
acted in  the  county-court,  where  bishops,  earls,  and  others,  as 
well  as  "  barons  and  vavassors,"  that  is,  king's  thanes  and  in- 
ferior thanes  in  the  older  language  of  the  law,  were  bound  to 
be  present,  —  "  Agantur  itaque  primo  debita  vere  Christiani- 
tatis  jure  ;  secundo  regis  placita ;  postremo  causae  singulorum 
dignis   satisfactionibus   expleantur."      The   notion   that    the 
king's  thanes  resorted  to  his  court,  as  to  that  of  their  lord  or 
common  superior,  is  merely  grounded  on  feudal  principles  ; 
but  the  great  constitutional  theory  of  jurisdiction  in  Anglo- 


364 


TRIAL  BY  JURY. 


Notes  to 


Saxon  times,  as  Sir  F.  Palgrave  is  well  aware,  was  not  feu- 
dal, but  primitive  Teutonic. 

"  The  witenagemot,"  says  Allen,  "  was  not  only  the  king's 
legislative  assembly,  but  his  supreme  court  of  judicature." 
(Edinb.  Rev.  xxxv.  9  ;  referring  for  proofs  to  Turner's  Histo- 
ry of  the  Anglo-Saxons.)  Nothing  can  be  less  questionable 
than  that  civil  as  well  as  criminal  jurisdiction  fell  within  the 
province  of  this  assembly.  But  this  does  not  prove  that  there 
was  not  also  a  less  numerous  body,  constantly  accessible,  fol- 
lowing the  king's  person,  and  though  not,  perhaps,  always 
competent  in  practice  to  determine  the  quarrels  of  the  most 
powerful,  ready  to  dispose  of  the  complaints  which  might  come 
before  it  from  the  hundred  or  county  courts  for  delay  of  jus- 
tice or  manifest  wrong.  Sir  F.  Palgrave*s  arguments  for  the 
existence  of  such  a  tribunal  before  the  Conquest,  founded  on 
the  general  spirit  and  analogy  of  the  monarchy,  are  of  the 
greatest  weight.  But  Mr.  Allen  had  acquired  too  much  a 
habit  of  looking  at  the  popular  side  of  the  constitution,  and, 
catching  at  every  passage  which  proved  our  early  kings  to 
have  been  limited  in  their  prerogative,  did  not  quite  attend 
enough  to  the  opposite  scale. 


M 


Note  Vm.    Page  273. 

Though  the  following  note  relates  to  a  period  subsequent 
to  the  Conquest,  yet,  as  no  better  opportunity  will  occur  for 
following  up  the  very  interesting  inquiry  into  the  origin  and 
progress  of  trial  by  jury,  I  shall  place  here  what  appears  most 
worthy  of  the  reader's  attention.  And,  before  we  proceed,  let 
me  observe  that  the  twelve  thanes,  mentioned  in  the  law  of 
Ethelred,  quoted  in  the  text  (p.  270),  appear  to  have  been 
cleai'ly  analogous  to  our  grand  juries.  Their  duties  were  to 
present  offenders  ;  they  corresponded  to  the  scabini  or  ^chevins 
of  the  foreign  laws.  Palgrave  has,  with  his  usual  clearness, 
distinguished  both  compurgators,  such  as  were  previously 
mentioned  in  the  text,  and  these  thanes  from  real  jurors. 
"  Trial  by  compurgators  offers  many  resemblances  to  a  jury  ; 
for  the  dubious  suspicion  that  fell  upon  the  culprit  might 
often  be  decided  by  their  knowledge  of  his  general  conduct 
and  conversation,  or  of  some  fact  or  circumstance  which  con- 
vinced them   of    his   innocence.      The  thanes  or  ^chevins 


\i 


Chap.  VIE- 


TRIAL  BY  JURY. 


365 


may  equally  be  confounded  with  a  jury ;  since  the  floating, 
customary,  unwritten  law  of  the  country  was  a  fact  to  be 
ascertained  from  their  belief  and  knowledge,  and,  unlike  the 
suitors,  they  were  sworn  to  the  due  discharge  of  their  duty. 
Still,  each  class  will  be  found  to  have  some  peculiar  distinc- 
tion. Virtually  elected  by  the  community,  the  echevins  con- 
stituted a  permanent  magistracy,  and  their  duty  extended 
beyond  the  mere  decision  of  a  contested  question ;  but  the 
jurors,  when  they  were  traversers,  or  triers  of  the  issue,  were 
elected  by  the  king's  officers,  and  impanelled  for  that  time 
and  turn.  The  juror  deposed  to  facts,  the  compurgator 
pledged  his  faith."     (Enghsh  Commonw.  i.  248). 

In  the  Anglo-Saxon  laws  we  find  no  trace  of  the  trial  of 
offences  by  the  judgment,  properly  so  called,  of  peers,  though 
civil  suits  were  determined  in  the  county  court.  The  party 
accused  by  the  twelve  thanes,  on  their  presentment,  or  per- 
haps by  a  single  person,  was  to  sustain  his  oath  of  innocence 
by  that  of  compurgators  or  by  some  mode  of  ordeal.  It  has 
been  generally  doubted  whether  trial  by  combat  were  known 
before  the  Conquest ;  and  distinct  proofs  of  it  seem  to  be 
wanting.  Palgrave,  however,  thinks  it  rather  probable  that, 
in  questions  affecting  rights  in  land,  it  may  sometimes  have 
been  resorted  to  (p.  224).  But  let  us  now  come  to  trial  by 
jury,  both  in  civil  and  criminal  proceedings,  as  it  slowly  grew 
up  in  the  Norman  and  later  periods,  erasing  from  our  minds 
all  prejudices  about  its  English  original,  except  in  the  form 
already  mentioned  of  the  grand  inquest  for  presentment  of 
offenders,  and  in  that  which  the  passage  quoted  in  the  text 
from  the  History  of  Ramsey  furnishes  —  the  reference  of  a 
suit  already  commenced,  by  consent  of  both  parties,  to  a  select 
number  of  sworn  arbitrators.  It  is  to  be  observed  that  the 
thirty-six  thanes  were  to  be  upon  oath,  and  consequently  came 
very  near  to  a  jury. 

The  period  between  the  Conquest  and  the  reign  of  Henry 
n.  is  one  in  which  the  two  nations,  not  yet  blended  by  the 
effects  of  intermarriage,  and  retaining  the  pride  of  superiority 
on  the  one  hand,  the  jealousy  of  a  depressed  but  not  van- 
quished spirit  on  the  other,  did  not  altogether  fall  into  a 
common  law.  Thus  we  find  in  a  law  of  the  Conqueror,  that, 
while  the  Englishman  accused  of  a  crime  by  a  Norman  had 
the  choice  of  trial  by  combat  or  by  ordeal,  the  Norman  must 
meet  the  former  if  his  English  accuser  thought  fit  to  encounter 


'■'  i'> 

'4 


I 


366 


TRIAL  BY  JURY. 


Nontt  TO 


him ;  but  if  he  dared  not,  as  the  insolence  of  the  victor  seems 
to  presume,  it  was  sufficient  for  the  foreigner  to  purge  himself 
by  the  oaths  of  his  friends,  according  to  the  custom  of  Nor- 
mandy.    (Thorpe,  p.  210.) 

We  have  next,  in  the  Leges  Henrici  Primi,  a  treatise  com- 
piled, as  I  have  mentioned,  under  Stephen,  and  not  intended 
to  pass  for  legislative,^  numerous  statements  as  to  the  usual 
course  of  procedure,  especially  on  criminal  charges.     These 
are  very  carelessly  put  together,  very  concise,  very  obscure, 
and  in  several  places  very  corrupt.    It  may  be  suspected,  and 
cannot  be  disproved,  that  in  some  instances  the  compiler  has 
copied  old  statutes  of  the  Anglo-Saxon  period,  or  recorded 
old  customs  which  had  already  become  obsolete.     But  be  this 
as  it  may.  the  Leges  Henrici  Primi  still  are  an  important 
document  for  that  obscure  century  which  followed  the  Norman 
invasion.     In  this  treatise  we  find  no  allusion  to  juries  ;  the 
trial  was  either  before  the  court  of  the  hundred  or  that  of  the 
territorial  judge,  assisted  by  his  free  vassals.     But  we  do  find 
the  great  original  principle,  trial  by  peers,  and,  as  it  is  called, 
per  pais;  that  is,  in  the  presence  of  the  country,  opposed  to  a 
distant  and  unknown  jurisdiction  —  a  principle  truly  derived 
from  Saxon,  though  consonant  also  to  Norman  law,  dear  to 
both  nations,  and  guaranteed  to  both,  as  it  was  claimed  by 
both,  in  the  29th  section  of  Magna  Charta.     "  Unusquisque 
per  pares  suos  judicandus  est,  et  ejusdem  provinciae ;  peregrina 
autem  judicia  modis  omnibus  submovemus."     (Leges  H.  I. 
c.  31.)    It  may  be  mentioned  by  the  way  that  these  last  words 
are  taken  from  a  capitulary  of  Ludovicus  Pius,  and  that  the 
compiler  has  been  so  careless  as  to  leave  the  verb  in  the  first 
person.     Such  an  inaccuracy  might  mislead  a  reader  into  the 
supposition  that  he  had  before  him  a  real  law  of  Henry  I. 

It  is  obvious  that,  as  the  court  had  no  function  but  to  see 
that  the  formalities  of  the  combat,  the  ordeal,  or  the  compur- 
gation were  duly  regarded,  and  to  observe  whether  the  party 
succeeded  or  succumbed,  no  oath  from  them,  nor  any  reduction 
of  their  numbers,  could  be  required.  But  the  law  of  Nor- 
mandy had  already  established  the  inquest  by  sworn  recogni- 


llt  may  be  here  obserred,  that,  in 
til  probability,  the  title,  Leges  Henrici 
Primi,  has  been  continued  to  the  whole 
book  from  the  first  two  chapters,  which 
do  really  contain  laws  of  Henry  I-, 
DMnely,  his  general  charter,  and  that 


to  the  city  of  London.  A  similar  in- 
adrertence  has  caused  the  well-known 
book,  commonly  ascribed  to  Thomas  k 
Kempis,  to  be  called  '  De  Imitatione 
Christi,'  which  is  merely  the  title  of  the 
first  chapter. 


1 


I 


Chap.  YUL 


TRIAL  BY  JURY. 


367 


tors,  twelve  or  twenty-four  in  number,  who  were  supposed  to 
be  well  acquainted  with  the  facts ;  and  this  in  civil  as  well  as 
criminal  proceedings.  We  have  seen  an  instance  of  it,  not 
long  before  the  Conquest,  among  ourselves,  in  the  history  of 
the  monk  of  Ramsey.  It  was  in  the  development  of  this 
amelioration  in  civil  justice  that  we  find  instances  during  this 
period  (Sir  F.  Palgrave  has  mentioned  several)  where  a  small 
number  have  been  chosen  from  the  county  court  and  sworn  to 
declare  the  truth,  when  the  judge  might  suspect  the  partiality 
or  ignorance  of  the  entire  body.  Thus  in  suits  for  the  recov- 
ery of  property  the  public  mind  was  gradually  accustomed  to 
see  the  jurisdiction  of  the  freeholders  in  their  court  transferred 
to  a  more  select  number  of  sworn  and  well-informed  men. 
But  this  was  not  yet  a  matter  of  right,  nor  even  probably  of 
very  common  usage.  It  was  in  this  state  of  things  that 
Henry  II.  brought  in  the  assize  of  novel  disseizin. 

This  gave  an  alternative  to  the  tenant  on  a  suit  for  the  re- 
covery of  land,  if  he  chose  not  to  risk  the  combat,  of  putting 
himself  on  the  assize ;  that  is,  of  being  tried  by  four  knights 
summoned  by  the  sheriff  and  twelve  more  selected  by  them, 
forming  the  sixteen  sworn  recognitors,  as  they  were  called,  by 
whose  verdict  the  cause  was  determined.  "  Est  autem  magna 
assisa,"  says  Glanvil  (lib.  ii.  c.  7),.**  regale  quoddam  bene- 
ficium,  dementia  principis  de  consilio  procerum  populis 
indultum,  quo  vitae  hominum  et  status  integritati  tam  salu- 
briter  consuUtur,  ut  in  jure  quod  quis  in  libero  soli  tenemento 
possidet  retinendo  duelli  casum  declinare  possint  homines 
ambiguum.  Ac  per  hoc  contingit  insperatae  et  prematurae 
mortis  ultimum  evadere  supplicium,  vel  saltem  perennis  in- 
famise opprobrium,  illius  infesti  et  inverecundi  verbi  quod  in 
ore  victi  turpiter  sonat  consecutivum.^  Ex  aequitate  autem 
maxima  prodita  est  legalis  ista  institutio.  Jus  enim  quod  post 
multas  et  longas  dilationes  vix  evincitur  per  duellum,  per 
beneficium  istius  constitutionis  commodius  et  acceleratius  ex- 
peditur."  The  whole  proceedings  on  an  assize  of  novel 
disseizin,  which  was  always  held  in  the  king's  court  or  that  of 
the  justices  itinerant,  and  not  before  the  county  or  hundred, 
whose  jurisdiction  began  in  consequence  rapidly  to  decline, 
are  explained  at  some  length  by  this  ancient  author,  the  chief 
justiciary  of  Henry  II. 

1  This  was  the  word  craven,  or  begging  for  life,  wiiich  wm  thought  the  utmost 
Ikinoe. 


368 


TRIAL  BY  JURY. 


Notes  to 


Changes  not  less  important  were  effected  in  criminal  pro- 
cesses during  the  second  part  of  the  Norman  period,  which 
we  consider  as  terminating  with  the  accession  of  Edward  I. 
,  Henry  II.  abolished  the  ancient  privilege  of  compurgation  by 
I  the  oaths  of  friends,  the  manifest  fountain  of  unblushing  per- 
I  jury ;  though  it  long  afterwards  was  preserved  in  London 
and  in  boroughs  by  some  exemption  which  does  not  appear. 
I  This,  however,  left  the  favorite,  or  at  least  the  ancient  and 
/  English,  mode  of  defence   by  chewing  consecrated   bread 
')  handling  hot  iron,  and  other  tricks  called  ordeals.     But  near 
I  the  beginning  of  Henry  HI.'s  reign  the  church,  grown  wiser 
and  more  fond  of  her  system  of  laws,  abolished,  all  kinds  of 
\  ordeal  in  the  fourth  Lateran  council.    The  combat  remained ; 
but  it  was  not  applicable  unless  an  injured  prosecutor  or  ap- 
pellant came  forward  to  demand  it     In  cases  where  a  party 
was  only  charged  on  vehement  suspicion  of  a  crime,  it  was 
necessary  to  find  a  substitute  for  the  forbidden  superstition. 
He  might  be  compelled,  by  a  statute  of  Henry  IL,  to  abjure 
the  realm.    A  writ  of  3  Henry  HI.  directs  that  those  against 
whom  the  suspicions  were  very  strong  should  be  kept  in  safe 
custody.     But  this  was  absolutely  incompatible  with  English 
liberty  and  with  Magna  Charta.     "  No  further  enactment," 
says  Sir  F.  Palgrave,  "  was  made ;  and  the  usages  which 
abeady  prevailed  led  to  a  general  adoption  of  the  proceeding 
which  had  hitherto  existed  as  a  privilege  or  as  a  favor — that 
is  to  say,  of  proving  or  disproving  the  testimony  of  the  first 
set  of  inquest-men  by  tlie  testimony  of  a  second  array — and 
the  individual  accused  by  the  appeal,  or  presented  by  the  gen- 
eral opinion  of  the  hundred,  was  allowed  to  defend  himself 
by  the  particular  testimony  of  the  hundred  to  which  he  be-  - 
longed.     For  this  purpose  another  inquest  was  impanelled, 
sometimes  composed  of  twelve  persons  named  from  the  *  visne* 
and  three  from  each  of  the  adjoining  to\vnships ;  and  some- 
times the  very  same  jurymen  who  had  presented  the  offence 
might,  if  the  culprit  thought  fit,  be  examined  a  second  time, 
as  the  witnesses  or  inquest  of  the  points  in  issue.    But  it  seems 
worthy  of  remark  that  *  trial  by  inquest '  in  criminal  cases 
never  seems  to  have  been  introduced  except  into  those  courts 
which  acted  by  the  king's  writ  or  commission.     The  present^ 
ment  or  declaration  of  those  officers  which  fell  within  the 
cognizance  of  the  hundred  jury  or  the  leet  jury,  the  repre- 
Bentatives  of  the  ancient  echevins,  was  final  and  conclusive ; 


Chap.  Vin. 


TRIAL  BY  JURY. 


369 


no  traverse,  or  trial  by  a  second  jury,  in  the  nature  of  a  petty 
jury,  being  allowed."  (p.  269.) 

Thus  trial  by  a  petty  jury  upon  criminal  charges  came  in; 
it  is  of  the  reign  of  Henry  III.,  and  not  earUer.  And  it  is 
to  be  remarked,  as  a  confirmation  of  this  view,  that  no  one 
was  compellable  to  plead ;  that  is,  the  inquest  was  to  be  of 
his  own  choice.  But  if  he  declined  to  endure  it  he  was  re- 
manded to  prison,  and  treated  with  a  severity  which  the 
statute  of  Westminster  1,  in  the  third  year  of  Edward  I., 
calls  peine  forte  et  dure;  extended  afterwards,  by  a  crue' 
interpretation,  to  that  atrocious  punishment  on  those  who  re 
fused  to  stand  a  trial,  commonly  in  order  to  preserve  their 
lands  from  forfeiture,  which  was  not  taken  away  by  law  till 
the  last  century. 

Thus  was  trial  by  jury  established,  both  in  real  actions  or 
smts  affecting  property  in  land  and  in  criminal  procedure, 
the  former  preceding  by  a  little  the  latter.  But  a  new  ques- 
tion arises  as  to  the  province  of  these  early  juries ;  and  the 
view  lately  taken  is  very  different  from  that  which  has  been 
commonly  received. 

The  writer  whom  we  have  so  often  had  occasion  to  quote 
has  presented  trial  by  jury  in  what  may  be  called  an  altogether 
new  light ;  for  though  Reeves,  in  his  "History  of  the  English 
Law,"  ahnost  translating  Glanvil  and  Bracton,  could  not  help 
leading  an  attentive  reader  to  something  like  the  same  result, 
I  am  not  aware  that  anything  approaching  to  the  generality 
and  fuhiess  of  Sir  Francis  Palgrave's  statements  can  be  found 
in  any  earlier  work  than  his  own. 

«  Trial  by  jury,  according  to  the  old  English  law,  was  a 
proceeding  essentially  different  from  the  modern  tribunal,  still 
bearing  the  same  name,  by  which  it  has  been  replaced ;  and 
whatever  merits  belonged  to  the  origmal  mode  of  judicial 
investigation— and  they  were  great  and  unquestionable, 
though  accompanied  by  many  imperfections  —  such  benefits 
are  not  to  be  exactly  identified  with  the  advantages  now  re- 
sulting from  the  great  bulwark  of  English  hberty.°  Jurymen 
in  the  present  day  are  triers  of  the  issue :  they  are  individu 
als  who  found  their  opinion  upon  the  evidence,  whether  ora 
or  written,  adduced  before  them ;  and  the  verdict  delivered 
by  them  is  their  declaration  of  the  judgment  which  they  have 
formed.  But  the  ancient  jurymen  were  not  impanelled  to 
examine  into  the  credibility  of  the   evidence :  the   question 

VOL.  II.  24 


!l 


370 


TRIAL  BY  JURY. 


Notes  to 


was  not  discussed  and  argued  before  them :  they,  the  jury- 
men,  were  the  witnesses  themselves,  and  the  verdict  was  sub- 
stantially the  examination  of  these  witnesses,  who  of  their 
own  knowledge,  and  without  the  aid  of  other  testimony, 
afforded  their  evidence  respecting  the  facts  in  question  to  the 
best  of  their  belief.  In  its  primitive  form  a  trial  by  jury 
was  therefore  only  a  trial  by  witnesses ;  and  jurymen  were 
distinc^uished  from  any  other  witnesses  only  by  customs  which 
imposed  upon  them  the  obligation  of  an  oath  and  regulated 
their  number,  and  which  prescribed  their  rank  and  defined 
the  territorial  qualifications  from  whence  they  obtained  their 
degree  and  influence  in  society.  ^    ^ 

"  I  find  it  necessary  to  introduce  this  descnption  ot  the 
ancient  *  Trial  by  Jury,'  because,  unless  the  real  functions 
of  the  original  jurymen  be  distinctly  presented  to  the  reader, 
his  familiar  knowledge  of  the  existing  course  of  jurispru- 
dence will  lead  to  the  most  erroneous  conclusions.  Many  ot 
those  who  have  descanted  upon  the  excellence  of  our  yener- 
ated  national  franchise  seem  to  have  supposed  that  it  has 
descended  to  us  unchanged  from  the  days  of  Alfred ;  and  the 
patriot  who  claims  the  jury  as  the  'judgment  by  his  peers 
secured  by  Magna  Charta  can  never  have  suspected  how 
distinctly  the  trial  is  resolved  into  a  mere  examination  of 
witnesses,"     (Palgrave,  i.  243.) 

This  theory  is  sustained  by  a  great  display  ot  erudition, 
which  fully  establishes  that  the  jurors  had  such  a  knowledge, 
however  acquired,  of  the  facts  as  enabled  them  to  render  a 
verdict  without  hearing  any  other  testimony  in  open  court 
than  that  of  the  parties  themselves,  fortified,  if  it  might  be, 
by  written  documents  adduced.      Hence  the  knights  of  the 
grand  assize  are  called  recognitors,  a  name  often  given  to 
others  sworn  on  an  inquest     In  the  Grand  Coustumier  ot 
Normandy,  from  which  our  writ  of  right  was  derived,  it  is 
said  that  those  are  to  be  sworn  "  who  were  born  in  the  neigh- 
borhood, and  who  have  kwig  dwelt  there;    and  such  ought 
they  to  be,  that  it  may  be  believed  they  know  the  truth  ot 
the  case,  and  that  they  will  speak  the  truth  when  they  shaJl 
be  asked."     This  was  the  rule  in  our  own  grand  assize.    The 
knights  who  appeared  in  it  ought  to  be  acquainted  with  the 
truth,  and  if  any  were  not  so  they  were  to  be  rejected  and 
others  chosen,  until  twelve  were  unanimous  witnesses.  Ulan- 
vil  (lib.  ii.)  furnishes  sufficient  proof,  if  we  may  depend  on 


Chap.  VIII. 


TRIAL  BY  JURY. 


371 


the  language  of  the  writs  which  he  there  inserts.     It  is  to  be 
remembered  that  the  transactions  upon  which  an  assize  of 
modern  disseizin  or  writ  of  right  would  turn  might  frequently 
have  been  notorious.     In  the  eloquent  language  of  Sir  F. 
Palgrave,  "  the  forms,  the  festivities,  and  the  ceremonies  ac- 
companying the  hours  of  joy  and  the  days  of  sorrow  which 
form  the  distinguishing  epochs  in  the  brief  chronicle  of  do- 
mestic life,  impressed  them  upon  the  memory  of  the  people 
at  large.     The  parchment  might  be  recommended  by  custom, 
but  it  was  not  required  by  law;  and  they  had  no  registers  to 
consult,  no  books  to  open.     By  the  declaration  of  the  hus- 
band at  the  church  door,  the  wife  was  endowed  in  the  pres- 
ence of  the  assembled  relations,  and  before  all  the  merry 
attendants  of  the  bridal  train.     The  birth  of  the  heir  was 
recollected  by  the  retainers  who  had  participated  in  the  cheer 
of  the    baronial  hall;    and  the  death  of  the  ancestor  was 
proved  by  the  friends  who  had  heard  the  wailings  of  the 
widow,  or  who  had  followed  the  corpse  to  the  grave.     Hence 
trial  by  jury  was  an  appeal  to  the  knowledge  of  the  country; 
and  the  sheriff,  in  naming  his  panel,  performed  his  duty  by 
summoning  those  individuals  from  amongst  the  inhabitants  of 
the  country  who  were  best  acquainted   with  the    points  at 
issue.     If  from  peculiar  circumstances  the  witnesses  of  a 
fact  were  previously  marked  out  and  known,  then  they  were 
particularly  required  to  testify.     Thus,  when  a  charter  was 
pleaded,  the  witnesses  named  in  the  attesting  clause  of  the 
mstrument  and  who  had  been  present  in  the  folkmoot,  the 
shire,  or  the  manor  court  when  the  seal  was  affixed  by  the 
donor,  were  included  in  the  panel ;   and  when  a  grant  had 
been  made  by  parol  the  witnesses  were  sought  out  by  the 
sheriff  and  returned  upon  the  jury."     (Palgrave,  p.  248.) 

Several  instances  of  recognition  —  that  is,  of  jurors  finding 
facts  on  their  own  knowledge  —  occur  in  the  very  curious 
chronicle  of  Jocelyn  de  Brakelonde,  published  by  the  Cam- 
den Society,  long  after  the  "  Rise  and  Progress  of  the  Com- 
monwealth." One  is  on  a  question  whether  certain  land  was 
liberum  feudum  ecclesiae  an  non.  "  Cumque  inde  summonita 
foit  recognitio  12  militum  in  curia  regis  facienda,  facta  est 
in  curia  abbatis  apud  Herlavum  per  licentiam  Ranulfi  de 
Glanvilla,  et  juraverunt  recognitores  se  nunquam  scivisse 
illam  terram  fuisse  sejparatam  ab  ecclesia."  (p.  45.)  Another 
is  still  more  illustrative  of  the  personal  knowledge  of  the 


372 


TRIAL  BY  JURY. 


Notes  to 


jury  overruling  written  evidence.  A  recognition  was  taken 
as  to  the  right  of  the  abbey  over  three  manors.  "Carta 
nostra  lecta  in  publico  nuUam  vim  habuit,  quia  tota  curia  erat 
contra  nos.  Juramento  facto,  dixerunt  milites  se  nescire  de 
cartis  nostris,  nee  de  privatis  conventionibus;  sed  se  credere 
dixerunt,  quod  Adam  et  pater  ejus  et  avus  a  centum  annis 
retro  tenuerunt  maneria  in  feudum  firmum,  unusquisque  post 
alium,  diebus  quibus  fuerunt  vivi  et  mortui,  et  sic  disseisiati 
sumus  per  judicum  terrae."     (p.  91.) 

This  "  judgment  of  the  land  "  is,  upon  Jocelyn's  testimony, 
rather  suspicious ;  since  they  seem  to  have  set  common  fame 
against  a  written  deed.  But  we  see  by  it  that,  although 
parol  testimony  might  not  be  generally  admissible,  the  parties 
had  a  right  to  prcSuce  documentary  evidence  in  support  of 

their  title. 

It  appears  at  first  to  be  an  obvious  difficulty  in  the  way  of 
this  general  resolution  of  jurors  into  witnesses,  or  of  wit- 
nesses into  jurors,  that  many  issues,  both  civil  and  criminal, 
required  the  production  of  rather  more  recondite  evidence 
than  common  notoriety.    The  known  events  of  family  history, 
which  a  whole  neighborhood  could  attest,  seem   not   very 
likely  to  have  created  litigation.     But  even  in  those  ages  of 
simplicity  facts  might  be  alleged,  the  very  groundwork  of  a 
claim  to  succession,  as  to  which  no  assize  of  knights  could 
speak  from  personal  knowledge.      This,  it  is  said,  was  obvi- 
ated by  swearing  the  witnesses  upon  the  panel,  so  that  those 
who  had  a  real  knowledge  of  the  facts  in  question  might 
instruct  their  fellow-jurors.     Such,  doubtless,  was  the  usual 
course ;  but  difficulties  would  often  stand  in  the  way.    Glanvil 
meets  the  question.  What  is  to  be  done  if  no  knights  are 
acquainted  with  the  matter  in  dispute  ?  by  determining  that 
persons  of  lower  degree  may  be  sworn.     But  what  if  women 
or  villeins  were  the  witnesses  ?     What,  again,  if  the  course 
of  inquiry  should  render  fresh  testimony  needful  ?     It  must 
appear,  according  to  all  our  notions  of  judicial  evidence,  that 
these  difficulties  must  not  only  have  led  to  the  distinction  of 
jurors  from  witnesses,  but  that  no  great  length  of  time  could 
have  elapsed  before  the  necessity  of  making  it  was  perceived. 
Yet  our  notions  of  judicial  evidence  are  not  very  applicable 
to  the  thirteenth  century.     The  records   preserved  give  us 
reason  to  believe  that  common  fame  had  great  influence  upon 
these  early  inquests.    In  criminal  inquiries  especially  the  pre- 


Chap.  VIII. 


TRUL  BY  JURY. 


373 


vious  fame  of  the  accused  seems  to  have  generally  determin- 
ed the  verdict     He  was  not  allowed  to  sustain  his  innocence 
by  witnesses  — a  barbarous  absurdity,  as  it  seems,  which  was 
gradually  removed  by  indulgence  alone ;  but  his  witnesses 
were  not  sworn  till  the  reign  of  Mary.     If,  however,  the 
prosecutor  or  appellant,  as  he  was  formerly  styled,  was  under 
an  equal  disability,  the  inequality  will  vanish,  though  the  ab- 
surdity will  remam.     The  prisoner  had  originally  no  defence, 
unless  he  could  succeed  in  showing  the  weakness  of  the  ap- 
pellant's testimony,  but  by  submitting  to  the  ordeal  or  combat, 
or  by  the  compurgation  of  his  neighbors.     The  jurors,  when 
they  acquitted  him,  stood  exactly  in  the  light  of  these ;  it  was 
a  more  refined  and  impartial  compurgation,  resting  on  their 
confidence  in  his  former  behavior.     Thus  let  us  take  a  record 
quoted  by  Palgrave,  vol.  ii.  p.  184 :  —  «  Rohertus  filius  Roberti 
de  Ferrariis  appellat  Ranulfum  de  Fatteswarthe  quod  ipse 
venitin  gardinum  suum,  in  pace  domini  Regis,  et  nequiter 
assultavit  Rogerum  hominem   suum,  et  eum  verberavit  et 
vuhieravit,  ita  quod  de  vita  ejus  desperabatur ;  et  ei  robavit 
unum  pallium  et  gladium  et  arcum  et  sagittas  ;  et  idem  Ro^ 
germ  ofiert  hoc  probare  per  corpus  suum,  prout  curia  oon- 
sideraverit ;  et  Ranvlphus  venit  et  defendit  totum  de  verbo 
in  verbum,  et  ofFert  domino  Regi  unam  marcam  argenti  pro 
habenda  inquisitione  per  legates  milites,  utrum  culpabilis  sit 
mde,  necne ;  et  praeterea  dicit  quod  iste  Rogerus  nunquam 
ante  appellavit  eum,  et  petit  ut  hoc  ei  allocetur,  —  oblatio  re- 
cipitur.  —  Juratores  dicunt  quod  revera  contencio  fuit  inter 
gjmlinarium  praedicti  Roberti,   Osmund  nomine,  et  quosdam 
garciones,  sed  Ranulfus  non  fuit  ibi,  nee  malecredunt  eum, 
de  aliqua  roberia,  vel  de  aliquo  malo,  facto  eidem." 

We  have  here  a  trial  by  jury  in  its  very  beginning,  for  the 
payment  of  one  mark  by  the  accused  in  order  to  have  an  in- 
quest instead  of  the  combat  shows  that  it  was  not  become  a 
matter  of  right  We  may  observe  that,  though  Robert  was 
the  prosecutor,  his  servant  Roger,  being  the  aggrieved  party, 
and  capable  of  becoming  a  witness,  was  put  forward  as  the 
appellant,  ready  to  prove  the  case  by  combat  The  verdict 
seems  to  imply  that  the  jury  had  no  bad  opinion  of  Ranulf 
the  appellee. 

The  fourteenth  book  of  Glanvil  contains  a  brief  account 
ot  the  forms  of  criminal  process  in  his  age ;  and  here  it  ap- 
pears that  a  woman  could  only  be  a  witness,  or  rather  an 


874 


TRIAL  BY  JURY. 


Notes  to 


I 


appellant,  where  her  husband  had  been  murdered  or  her 
person  assaulted.     The  words  are  worth  considering:  "Duo 
sunt  genera  homicidiorum ;  unum  est,  quod  dicitur  murdrum, 
quod  nullo  vidente,  nullo  sciente,  clam  perpetratur,  proeter 
solum  interfectorem  et  ejus  compUces ;  ita  quod  mox  non 
assequatur  clamor  popularis  juxta  assisam  super  hoc  proditam. 
In  huiusmodi  autera  accusatione  non  admittitur  aliquis,  nisi 
fuerit  de  consanguinitate  ipsius  defuncti.     Est  et  ahud  homi- 
cidium  quod  constat  in  general!  vocabulo,  et  dicitur  simplex 
homicidium.     In  hoc  etiam  placito  non   admittitur  aliquis 
accusator  ad  probationem,  nisi  fuerit  mortuo  consanguinitate 
conjunctus,  vel  homagio  vel  dominio,  ita  ut  de  morte  loqua- 
tur,  ut  sub  vims  sui  testimonio.     Praeterea  sciendum  quod 
in  hoc  placito  mulier  auditur  accusans  aliquem  de  morte  yiri 
sui,  si  de  visu  loquatur  (1.  xiv.  c.  3).     Tenetur  autem  mulier 
quse  proponit  se  h  viro  oppressam  in  pace  domini  regis,  mox 
dum   recens  fuerit  maleficium  vicinam  viUam  adire,  et    ibi 
injuriam  sibi  illatam  probis  hominibus  ostendere,  et  sangumem, 
si  quis  fuerit  effusus,  et  vestium  scissiones;   dehinc  autem 
apud  prsepositum  hundredi  idem  facit.      Postea  quoque  m 
pleno  comitatu  id  publice  proponat.     Auditur  itaque  mulier 
in  tali  casu  aliquem  accusans,  sicut  et  de  alia  qualibet  mjuria 
corpori  suo  illatam  solet  audiri."    (c.  6.) 

Thus  it  appears  that  on  charges  of  secret  murder  the 
kmdred  of  the  deceased,  but  no  others,  might  be  heard  m 
court  as  witnesses  to  common  suspicion,  since  they  could  be 
no  more.  I  add  the  epithet  secret ;  but  it  was  at  that  time 
implied  in  the  word  murdrum.  But  in  every  case  of  open 
homicide  the  appellant,  be  it  the  wife  or  one  of  his  kindred, 
his  lord  or  vassal,  must  have  been  actually  present.  Other 
witnesses  probably,  if  such  there  were,  would  be  placed  on 
the  panel.  The  woman  was  only  a  prosecutrix ;  and,  in  the 
other  sex,  there  is  no  doubt  that  the  prosecutor's  testimony 

was  heard.  ,  /.    j     ^  * 

In  claims  of  debt  it  was  in  the  power  of  the  defendant  to 
wacre  his  law ;  that  is,  to  deny  on  oath  the  justice  of  the  de- 
mand. This  he  was  to  sustain  by  the  oaths  of  twelve  com- 
purcrators,  who  declared  their  belief  that  he  swore  the  truth ; 
andV  he  declined  to  do  this,  it  seems  that  he  had  no  defence. 
But  in  the  writ  of  right,  or  other  process  affecting  real  estate, 
the  wager  of  law  was  never  allowed ;  and  even  in  actions  ot 
debt  the  defendant  was  not  put  to  this  issue  until  witnesses 


Chap.  VIII. 


TRIAL  BY  JURY. 


375 


for  the  plaintiff  had  been  produced,  "  sine  testibus  fidelibus  ad 
hoc  inductis."  This,  however,  was  not  in  presence  of  a  jury, 
but  of  the  bailiff  or  judge  (Magna  Charta,  c.  28),  and  there- 
fore does  not  immediately  bear  on  the  present  subject 

In  litigation  before  the  king's  justices,  in  the  curia 
regis,  it  must  have  been  always  necessary  to  produce  wit- 
nesses; though,  if  their  testimony  were  disputed,  it  was 
necessary  to  recur  to  a  jury  in  the  county,  unless  the  cause 
were  of  a  nature  to  be  determined  by  duel.  A  passage  in 
Glanvil  will  illustrate  this.  A  claim  of  villenage,  when  lib- 
erty was  pleaded,  could  not  be  heard  in  the  county  court,  but 
before  the  king's  justices  in  his  court.  "Utroque  autem 
praesente  in  curia  hoc  modo  dirationabitur  libertas  in  curia, 
siquidem  producit  is  qui  libertatem  petit,  plures  de  proximis 
et  consanguineis  de  eodem  stipite  unde  ipse  exierit  exeuntes, 
per  quorum  libertates,  si  fuerint  in  curia  recognitae  et  probatse, 
liberabitur  a  jugo  servitutis  is  qui  ad  libertatem  proclamatur. 
Si  vero  contra  dicatur  status  libertatis  eorundem  productorum 
vel  de  eodem  dubitatur,  ad  vicinetum  erit  recurrendum ;  ita 
quod  per  ejus  veredictum  sciatur  utriim  illi  liberi  homines  an 
non,  et  secundum  dictum  vicineti  judicabitur."  (1.  ii.  c.  4.) 
The  plea  of  villenage  was  never  tried  by  combat. 

It  is  the  opinion  of  Lord  Coke  that  a  single  accuser  was 
not  sufficient  at  common  law  to  convict  any  one  of  high  trea- 
son ;  in  default  of  a  second  witness  "  it  shall  be  tried  before 
the  constable  or  marshal  by  combat,  as  by  many  records  ap- 
peareth."  (3  Inst  26.)  But  however  this  might  be,  it  is 
evident  that  as  soon  as  the  trial  of  peers  of  the  realm  for 
treason  or  felony  in  the  court  of  the  high  steward  became 
estabhshed,  the  practice  of  swearing  witnesses  on  the  panel 
must  have  been  relinquished  in  such  cases.  "  That  two  wit- 
nesses be  required  appeareth  by  our  books,  and  I  remember 
no  authority  in  our  books  to  the  contrary.  And  this  seemeth 
to  be  tlie  more  clear  in  the  trial  by  the  peers  or  nobles  of  the 
realm  because  they  come  not  de  aliquo  vicineto,  whereby 
they  might  take  notice  of  the  fact  in  respect  of  vicinity,  as 
other  jurors  may  do."  (Ibid.)  But  the  court  of  the  high 
stewai-d  seems  to  be  no  older  than  the  reign  of  Henry  IV., 
at  which  time  the  examination  of  witnesses  before  common 
juries  was  nearly,  or  completely,  established  in  its  modem 
form ;  and  the  only  earlier  case  we  have,  if  I  remember  right, 
of  the  conviction  of  a  peer  in  parliament  —  that  of  Mortimer 


376 


TRIAL  BY  JURY. 


Komio 


Chap.  VHI. 


TRIAL  BY  JURY. 


377 


1 

1 


I 


i 


in  the  4th  of  Edward  m.  —  was  expressly  grounded  on  the 
notoriousness  of  the  facts  (Rot  Pari.  ii.  53).  It  does  not 
appear,  therefore,  indisputable  by  precedent  that  any  wit- 
nesses were  heard,  save  the  appellant,  on  trial  of  peers  of  the 
realm  in  the  twelfth  or  thirteenth  century,  though  it  is  by  no 
means  improbable  that  such  would  have  been  the  practice. 

Notwithstanding  such  exceptions,  however,  sufficient  proofs 
remain  that  the  jury  themselves,  especially  in  civil  cases,  long 
retained  their  character  of  witnesses  to  the  fact  If  the  re- 
cognitors, whose  name  bespeaks  their  office,  were  not  all  so 
well  acquainted  with  the  matters  in  controversy  as  to  believe 
themselves  competent  to  render  a  verdict,  it  was  the  practice 
to  qforce  the  jury,  as  it  was  called,  by  rejecting  these  and 
fiUing  their  places  with  more  sufficient  witnesses,  until  twelve 
were  found  who  agreed  in  the  same  verdict*  (Glanvil,  1.  ii. 
c.  17.)  Not  that  unanimity  was  demanded,  for  this  did  not 
become  the  rule  till  about  the  reign  of  Edward  III.;  but 
twelve,  as  now  on  a  grand  jury,  must  concur.*  And  though 
this  profusion  of  witnesses  seems  strange  to  us,  yet  what  they 
attested  (in  the  age  at  least  of  Glanvil  and  for  some  time  after- 
wards) was  not,  as  at  present,  the  report  of  their  senses  to 
the  fact  in  issue,  but  all  which  they  had  heard  and  believed 
to  be  true ;  above  all,  their  judgment  as  to  the  respective 
credibiUty  of  the  demandant  and  tenant,  heard  in  that  age 
personally,  or  the  appellant  and  appellee  in  a  prosecution. 

Bracton  speaks  of  affi^rcing  a  panel  by  the  addition  of 
better-informed  jurors  to  the  rest,  as  fit  for  the  court  to  order, 
"  de  consiHo  curiae  affortietur  assisa  ita  quod  apponantur  alii 
juxta  numerum  majoris  partis  quae  dissenserit,  vel  saltern 
quatuor  vel  sex,  et  adjungantur  aliis."  The  method  of  re- 
jection used  in  Glanvil's  time  seems  to  have  been  altered. 
But  in  the  time  of  Britton,  soon  afterwards,  this  affijrcement 
it  appears  could  only  be  made  with  the  consent  of  the  par- 
ties ;  though  if,  as  his  language  seems  to  imply,  the  verdict 
was  to  go  against  the  party  refusing  to  have  the  jury 
afforced,  no  one  would  be  hkely  to  do  so.    Perhaps  he  means 

1  By  the  jury,  the  reader  will  remem-  Tear-Books,  digested  into  ReeTes's  Hi»- 

her  that,  in  Glanvil's  time,  is  meant  the  tory  of  the  Law. 

recognitors,  on  an  assize  of  novel  dis-  «  In  20  E.  III.  Chief  Justice  Thorpe  Is 

seizin,  or  mort  d'ancestor.     For  these  said  to  have  been  reproved  lor  taking 

real  actions,  now  abolished,  he  may  con-  a  verdict  from  eleven  jurors.    I*W  «•• 

suit  a  good  cliapter  on  them  in  Black-  view,  No.  Iv.  p.  883. 
itone,  unless  he  prefer  Bracton  and  the 


that  this  refusal  would  create  a  prejudice  in  the  minds  of  the 
jury  almost  certain  to  produce  such  a  verdict 

"It  may  be  doubtful,"  says  Mr.  Starkie,  "whether  the 
doctrine  of  affiarcement  was  apphed  to  criminal  cases.  The 
account  given  by  Bracton  as  to  the  trial  by  the  country  on  a 
criminal  charge  is  very  obscure.  It  was  to  be  by  twelve 
jurors,  consisting  of  milites  or  liberi  et  legales  homines  of 
the  hundred  and  four  villatae."*  But  it  is  conjectured  that 
the  text  is  somewhat  corrupt,  and  that  four  inhabitants  of  the 
vill  were  to  be  added  to  the  twelve  jurors.  In  some  -crimi- 
nal cases  it  appears  from  Bracton  that  trial  by  combat  could 
not  be  dispensed  with,  because  the  nature  of  the  charge  did 
not  admit  of  positive  witnesses.  "  Oportet  quod  defendat  se 
per  corpus  suum  quia  patria  nihil  scire  potest  de  facto,  nisi 
per  praesumtionem  et  per  auditum,  vel  per  mandatum  [?] 
quod  quidem  non  sufficit  ad  probationem  pro  appellando  nee 
pro  appellato  ad  liberationem."  This  indicates,  on  the  one 
hand,  an  advance  in  the  appreciation  of  evidence  since  the 
twelfth  century ;  common  fame  and  mere  hearsay  were  not 
held  sufficient  to  support  a  charge.  But  on  the  other  hand, 
instead  of  presuming  the  innocence  of  a  party  against  whom 
no  positive  testimony  could  be  alleged,  he  was  preposterously 
called  upon  to  prove  it  by  combat,  if  the  appellant  was  con- 
vinced enough  of  his  guilt  to  demand  that  precarious  decis- 
ion. It  appears  clear  from  some  passages  in  Bracton  that 
in  criminal  cases  other  witnesses  might  occasionally  be  heard 
than  the  parties  themselves.  Thus,  if  a  man  were  charged 
with  stealing  a  horse,  he  says  that  either  the  prosecutor  or 
the  accused  might  show  that  it  was  his  own,  bred  in  his 
stable,  known  by  certain  marks,  which  could  hardly  be  but 
by  calling  witnesses.  It  is  not  improbable  that  witnesses 
were  heard  distinct  from  the  jury  in  criminal  cases  before 
the  separation  had  been  adopted  in  real  actions. 

At  a  later  time  witnesses  are  directed  to  be  joined  to  the 
inquest,  but  no  longer  as  parts  of  it  "  We  find  in  the  23rd 
of  Edward  III."  (I  quote  at  present  the  words  of  Mr. 
Spence,  Equitable  Jurisdiction,  p.  129)  "  the  witnesses,  in- 
stead of  being  summoned  as  constituent  members,  were 
adjoined  to  the  recognitors  or  jury  in  assizes  to  affiard  to  the 

*  The  history  of  trial  by  jury  has  been  which,  though  anonymous,  I  venture  to 
▼ery  ably  elucidated  by  Mr.  Starkie,  in  quote  by  his  name.  I  have  been  assisted 
the  fourth  number  of  the  Law  Bevicw,    in  the  text  by  this  paper. 


378 


TRIAL  BY  JURY. 


NOTU  TO 


I 


jury  the  benefit  of  their  testimony,  but  without  having  any 
voice  in  the  verdict.  This  is  the  first  indication  we  have  of 
the  jury  deciding  on  evidence  formally  produced,  and  it  is 
the  connecting  link  between  the  ancient  and  modem  jury."^ 
But  it  will  be  remembered  —  what  Mr.  Spence  certainly  did 
not  mean  to  doubt  —  that  the  evidence  of  the  demandant  in 
an  assize  or  writ  of  right,  and  of  the  prosecutor  or  appellant 
in  a  criminal  case,  had  always  been  given  in  open  court ;  and 
the  tenant  or  appellee  had  the  same  right,  but  the  latter 
probably  was  not  sworn.  Nor  is  it  clear  that  the  court 
would  refuse  other  testimony  if  it  were  offered  dm-ing  the 
course  of  a  trial.  The  sentence  just  quoted,  however,  ap- 
pears to  be  substantially  true,  except  that  the  words  "  for- 
mally produced'*  imply  something  more  like  the  modern 
practice  than  the  facts  mentioned  warrant.  The  evidence  in 
the  case  reported  in  23  Ass.  11  was  produced  to  none  but 
the  jury. 

Mr.  Starkie  has  justly  observed  that  "  the  transition  was 
now  almost  imperceptible  to  the  complete  separation  of  the 
witnesses  from  the  inquest  And  this  step  was  taken  at 
some  time  before  the  11th  of  Henry  IV.  ;2  namely,  that  all 
the  witnesses  were  to  give  their  testimony  at  the  bar  of  the 
court,  so  that  the  judges  might  exclude  those  incompetent  by 
law,  and  direct  the  jury  as  to  the  weight  due  to  the  rest." 
**  This  effected  a  change  in  the  modes  of  trying  civil  cases  ; 
the  importance  of  which  can  hardly  be  too  highly  estimated. 
Jurors,  from  being,  as  it  were,  mere  recipients  and  deposita- 
ries of  knowledge,  exercised  the  more  intellectual  faculty  of 
forming  conclusions  from  testimony — a  duty  not  only  of  high 
importance  with  a  view  to  truth  and  justice,  but  also  collat- 
erally in  encouraging  habits  of  reflection  and  reasoning 
(aided  by  the  instructions  of  the  judges),  which  must  have 
had  a  great  and  most  beneficial  effect  in  promoting  civiliza- 


1  The  reference  is  to  the  Year-Book,  23 
Am.  11.  It  was  adjudged  that  the  wit- 
MMes  could  not  be  challenged  like  jurors ; 
"  car  ils  doivent  rien  temoigner  fors  ceo 
qu'ils  verront  et  oiront.  Kt  I'assise  fut 
pris,  et  les  temoins  ajoints  a  eox."  This 
has  no  appearance  of  the  introduction  of 
a  new  custom.  Above  fifty  years  had 
elapsed  since  Bracton  wrote,  so  that  the 
change  might  have  easily  crept  in. 

»  The  Year-Boole  of  11  H.  IV.,  to 
which  a  reference  seems  here  to  be  made, 
not  been  consulted  br  me.     But 


in  the  next  year  (12  IT.  IV.  7)  witncsM* 
are  directed  to  be  joined  to  the  inquest 
(as  in  23  Ass.  11):  and  one  of  the  judges 
is  reported  to  have  said  this  had  often 
been  done ;  yet  we  might  infer  that  the 
practice  was  not  bo  general  as  to  pass 
without  comment.  This  looks  as  if  the 
separation  of  the  witnesses,  by  their  ex- 
amination in  open  court,  were  not  quite 
of  so  early  a  date  as  Mr.  Starkie  and  Mr. 
Spence  suppose.  But.  perhaps,  both 
modes  of  procedure  mignt  be  concurrent 
for  a  certain  time. 


Chap.  VIII. 


TRIAL  BY  JURY. 


379 


tion.  The  exercise  of  the  control  last  adverted  to  on  the 
part  of  the  judges  was  the  foundation  of  that  system  of 
rules  in  regard  to  evidence  which  has  since  constituted  so 
large  and  important  a  branch  of  the  law  of  England." 
(Spence,  p.  129.) 

The  obscurity  that  hangs  over  the  origin  of  our  modem 
course  of  procedure  before  juries  is  far  from  being  wholly 
removed.  We  are  reduced  to  conjectural  inferences  from 
brief  passages  in  early  law-books,  written  for  contemporaries^ 
but  which  leave  a  considerable  uncertainty,  as  the  readers 
of  this  note  will  be  too  apt  to  discover.  If  we  say  that  our 
actual  trial  by  jury  was  established  not  far  from  the  begin- 
ning of  the  fifteenth  century,  we  shall  perhaps  approach  as 
nearly  as  the  diligence  of  late  inquirers  has  enabled  us  to 
proceed.  But  in  the  time  of  Fortescue,  whose  treatise  De 
Laudibus  Legum  Angliae  was  written  soon  after  1450,  we 
have  the  clearest  proof  that  the  mode  of  procedure  before 
juries  by  mvd  voce  evidence  was  the  same  as  at  present.  It 
may  be  presumed  that  the  function  of  the  advocate  and  of 
the  judge  to  examine  witnesses,  and  to  comment  on  their 
testimony,  had  begun  at  this  time.  The  passage  in  Fortescue 
is  so  full  and  perspicuous  that  it  deserves  to  be  extracted. 

"  Twelve  good  and  true  men  being  sworn  as  in  the  manner 
above  related,  legally  qualified  —  that  is,  having,  over  and 
besides  their  movable  possessions,  in  land  sufficient  (as  was 
said)  wherewith  to  maintain  their  rank  and  staiion  —  neither 
suspected  by  nor  at  variance  with  either  of  the  parties  ;  all 
of  the  neighborhood  ;  there  shall  be  read  to  them  in  English 
by  the  court  the  record  and  nature  of  the  plea  at  length 
which  is  depending  between  the  parties ;  and  the  issue  there- 
upon shall  be  plainly  laid  before  them,  concerning  the  truth 
of  which  those  who  are  so  sworn  are  to  certify  the  court : 
which  done,  each  of  the  parties,  by  themselves  or  their 
counsel,  in  presence  of  the  court,  shall  declare  and  lay  open 
to  the  jury  all  and  singular  the  matters  and  evidences 
whereby  they  think  they  may  be  able  to  inform  the  court 
concerning  the  truth  of  the  point  in  question ;  after  which 
each  of  the  parties  has  a  liberty  to  produce  before  the  court 
all  such  witnesses  as  they  please,  or  can  get  to  appear  on 
their  behalf,  who,  being  charged  upon  their  oaths,  shall  give 
in  evidence  all  that  they  know  touching  the  truth  of  the  fact 
concerning  which  the  parties  are  at  issue.     And  if  necessity 


380 


TRIAL  BY  JURY. 


Notes  to 


Chap.  Vm. 


TRUL  BY  JURY. 


381 


SO  require,  the  witnesses  may  be  heard  and  examined  apart, 
till  they  shall  have  deposed  all  that  they  have  to  give  m 
evidence,  so  that  what  the  one  has  declared  shall  not  mform 
or  induce  another  witness  of  the  same  side  to  give  his 
evidence  in  the  same  words,  or  to  the  very  same  effect.  The 
whole  of  the  evidence  being  gone  through,  the  jurors  shall 
confer  together  at  their  pleasure,  as  they  shall  think  most 
convenient,  upon  the  truth  of  the  issue  before  them,  with  as 
much  deliberation  and  leisure  as  they  can  well  desire ;  being 
all  the  while  in  the  keeping  of  an  of&cer  of  the  court,  in  a 
place  assigned  them  for  that  purpose,  lest  any  one  should 
attempt  by  indu-ect  methods  to  influence  them  as  to  their 
opinion,  which  they  are  to  give  in  to  the  court.  Lastly,  they 
are  to  return  into  court  and  certify  the  justices  upon  the 
\  truth  of  the  issue  so  joined  in  the  presence  of  the  parties 
(if  they  please  to  be  present),  particularly  the  person  who  is 
plaintiff  in  the  cause:  what  the  jurors  shall  so  certify, in  the 
/  laws  of  England,  is  called  the  verdict."  (c.  26.) 
-  Mr.  Amos  indeed  has  observed,  in  his  edition  of  Fortescue 
(p.  93),  "  The  essential  alteration  which  has  since  taken  place 
in  the  character  of  the  jury  does  not  appear  to  have  been 
thoroughly  effected  till  the  time  of  Edward  VI.  and  Mary. 
Jurors°are  often  called  testes."  But  though  this  appellation 
might  be  retained  from  the  usage  of  older  times,  I  do  not  see 
what  was  left  to  effect  in  the  essential  character  of  a  jury, 
when  it  had  reached  the  stage  of  hearing  the  witnesses  and 
counsel  of  the  parties  in  open  court. 

The  result  of  this  investigation,  suggested  perhaps  by 
Reeves,  but  followed  up  by  Sir  Francis  Palgmve  for  the 
earlier,  and  by  Mr.  Starkie  for  the  later  period,  is  to  sweep 
away  from  the  ancient  constitution  of  England  what  has  al- 
ways been  accounted  both  the  pledge  of  its  freedom  and  the 
distinctive  type  of  its  organization,  trial  by  jury,  in  the  mod- 
ern sense  of  the  word,  and  according  to  modern  functions. 
For  though  the  passage  just  quoted  from  Fortescue  is  conclu- 
sive as  to  his  times,  these  were  but  the  times  of  the  Lancas- 
trian kings ;  and  we  have  been  wont  to  talk  of  Alfred,  or  at 
least  of  °he  Anglo-Saxon  age,  when  the  verdict  of  twelve 
sworn  men  was  the  theme  of  our  praise.  We  have  seen  that, 
during  this  age,  neither  in  ci\'il  nor  in  criminal  proceedings, 
it  is  possible  to  trace  this  safeguard  for  judicial  purity.  Even 
when  juries  may  be  said  to  have  existed  in  name,  the  institu- 


tion denoted  but  a  small  share  of  political  wisdom,  or  at  least 
provided  but  indifferently  for  impartial  justice.     The  mode 
of  trial  by  witnesses  returned  on  the  panel,  hearing  no  evi- 
dence beyond  their  own  in  open  court,  unassisted  by  the  sift- 
ing acuteness  of  lawyers,  laid  open  a  broad  inlet  for  credulity 
and  prejudice,  for  injustice  and  corruption.     Perjury  was  the 
dominant  crime  of  the  middle  ages  ;  encouraged  by  the  pre- 
posterous rules  of  compurgation,  and  by  the  multiplicity  of 
oaths  in  the  ecclesiastical  law.     It  was  the  frequency  of  this 
offence,  and  the  impunity  which  the  established   procedure 
gave  to  that  of  jurors,  that  produced  the  remedy  by  writ  of 
attaint ;  but  one  which  was  liable  to  the  same  danger ;  since 
jury  on  an  attaint  must,  in  the  early  period  of  that  process, 
have  judged  on  common  fame  or  on  their  own  testimony,  like 
those  whose  verdict  they  were  called  to  revise ;  and  where 
hearsay  and  tradition  passed  for  evidence,  it  must,  according 
to  our  stricter  notions  of  penal  law,  have  been  very  difficult 
to  obtain  an  equitable  conviction  of  the  first  panel  on  the 
ground  of  perjury. 

The  Chronicle,  abeady  quoted,  by  Jocelyn  de  Brakelonde, 
affords  an  instance,  among  multitudes,  probably,  that  are  un- 
recorded, where  a  jury  flagrantly  violated  their  duty.  Five 
recognitors  in  a  writ  of  assize  came  to  Samson  abbot  of  St 
Edmund's  Bury,  the  Chronicler's  hero,  the  right  of  presenta- 
tion to  a  church  being  the  question,  in  order  to  learn  from 
him  what  they  should  swear,  meaning  to  receive  money.  He 
promised  them  nothing,  but  bade  them  swear  according  to 
their  consciences.  They  went  away  in  wrath,  and  found  a 
verdict  against  the  abbey.^     (p.  44.) 


*  I  may  set  down  here  one  or  two 
other  passages  from  the  same  Chronicle, 
Illustrating  the  modes  of  trial  in  that 
age.  Samson  offered  that  a  riprht  of 
adyowson  should  be  determined  by  the 
claimant's  oath,  a  method  recognized  in 
some  cases  by  the  civil  and  canon  law, 
but  only,  I  conceive,  in  favor  of  the  de- 
fendant. Cumque  miles  ille  renuisset 
jurare,  dilatumest  juramentum  percon- 
eensum  utriusque  partis  sexdecim  legali- 
bus  behundredo,  qui  juraverunt  hoc  esse 
jus  abbatis.  p.  44.  The  proceeding  by 
jurors  was  sometimes  applied  even  when 
the  sentence  belonged  to  the  ecclesiastical 
jurisdiction.  A  riot,  with  bloodshed, 
having  occurred,  the  abbot,  acceptis 
iuramentis  a  sexdecim  legalibus  homini- 
buH,  et  auditifl  eorum  attestatiouibus, 


pronounced  sentence  of  excommunication 
against  the  offenders. 

The  combat  was  not  an  authorized 
mode  of  trial  within  boroughs ;  they 
preserved  the  old  Saxon  compurgation. 
And  this  may  be  an  additional  proof  of 
the  antiquity  of  their  privileges.  A  free 
tenant  of  the  cehrarius  of  the  abbey,  cui 
potils  et  escae  cura  (Du  Cange),  being 
charged  with  robbery,  and  vanquished  in 
the  combat,  was  hanged.  The  burgesses 
of  Bury  said  that,  if  he  had  been  resident 
within  the  borough,  it  would  not  have 
come  to  battle,  but  he  would  have  purged 
himself  by  the  oaths  of  his  neighbors, 
sicut  libertas  est  eorum  qui  manent  in- 
fra burgum.  p.  74.  It  is  hard  to  pro- 
nounce by  which  procedure  the  greater 
number  of  guilty  persons  escaped. 


382 


TRIAL  BY  JURY. 


Notes  to 


Chap.  Vm. 


FOLCLAND  AND  BOCLAND. 


383 


Yet  in  its  rudest  and  most  imperfect  form,  the  trial  by  a 
sworn  inquest  was  far  superior  to  the  impious  superstition  of 
ordeals,  the  hardly  less  preposterous  and  unequal  duel,  the 
unjust  deference  to  power  in  compurgation,  when  the  oath  of 
one  thane  counterbalanced  those  of  six  ceorls,  and  even  to  the 
free-spirited  but  tumultuary  and  unenlightened  decisions  of 
the  hundred  or  the  county.     It  may,  indeed,  be  thought  by 
the  speculative  philosopher,  or  the  practical  lawyer,  that  in 
those  eai-ly  stages  which  we  have  just  been  surveying,  from 
the  introduction  of  trial  by  jury  under  Henry  II.  to  the  at- 
tainment of  its  actual  perfection  in  the  first  part  of  the  fifteenth 
century,  there  was  little  to  warrant  our  admiration.     Still  let 
us  ever  remember  that  we  judge  of  past  ages  by  an  errone- 
ous standard  when  we  wonder  at  their  prejudices,  much  more 
when  we  forget  our  own.     We  have  but  to  place  ourselves, 
for  a  few  minutes,  in  imagination  among  the  English  of  the 
twelfth   and    thirteenth    centuries,  and  we  may  better   un- 
derstand why  they  cherished  and  panted  for  ih^  judicium 
parium,  the  trial  by  their  peers,  or,  as  it  is  emphatically 
styled,  by  the  country.     It  stood  in  opposition  to  foreign  law- 
yers and  foreign  law ;  to  the  chicane  and  subtlety,  the  dilatory 
and  expensive  though  accurate  technicalities,  of  Normandy, 
to  tribunals  where  their  good  name  could  not  stand  them  in 
stead,  nor  the  tradition  of  their  neighbors  support  their  claim. 
For  the  sake  of  these,  for  the  maintenance  of  the  laws  of  Ed- 
ward the  Confessor,  as  in  pious  reverence  they  termed  every 
Anglo-Saxon  usage,  they  were  willing  to  encounter  the  noisy 
rudeness  of  the  county-court,  and  the  sway  of  a  potent  adver- 
sary. 

Henry  II.,  a  prince  not  perhaps  himself  wise,  but  served 
by  wise  counsellors,  blended  the  two  schemes  of  jurisprudence, 
as  far  as  the  times  would  permit,  by  the  assize  of  novel  dis- 
seizin, and  the  circuits  of  his  justices  in  eyre.     From  this  age 
justly  date  our  form  of  civil  procedure;  the  trial  by  a  jury 
(using  always  that  word  in  a  less  strict  sense  than  it  bears 
with  us)  replaced  that  by  the  body  of  hundredors  ;  the  stream 
of  justice  purified  itself  in  successive  generations  through  the 
acuteness,  learning,  and  integrity  of  that  remarkable  series  of 
men  whose  memory  lives  chiefly  among  lawyers,  I  mean  the 
judges  under  the  house  of  Plantagenet ;  and  thus,  while  the 
common  law  borrowed  from  Normandy  too  much,  perhaps,  of 
its  subtlety  in  distinction,  and  became  as  scientific  as  that  of 


Rome,  it  maintained,  without  encroachment,  the  grand  prin- 
ciple of  the  Saxon  polity,  the  trial  of  facts  by  the  country. 
From  this  pnnciple  (except  as  to  that  preposterous  relic  of 
barbarism,  the  requirement  of  unanimity)  may  we  never 
swerve  —  may  we  never  be  compelled,  in  wish,  to  swerve  — 
by  a  contempt  of  their  oaths  in  jurors,  and  a  disregard  of  the 
just  limits  of  their  trust ! 

Note  IX.    Page  278. 

The  nature  of  both  tenures  has  been  perspicuously  illus. 
trated  by  Mr.  Allen,  in  his  Inquiry  into  the  Rise  and  Growth 
of  the  Royal  Prerogative,  from  which  I  shall  make  a  lon^ 
extract  ° 

"  The  distribution  of  landed  property  in  England  by  the 
Anglo-Saxons  appears  to  have  been  regulated  on  the  same 
pnnciples  that  directed  their  brethren  on  the  continent.  Part 
of  the  lands  they  acquired  was  converted  into  estates  of  in- 
heritance for  individuals ;  part  remained  the  property  of  the 
public,  and  was  left  to  the  disposal  of  the  state.  The  former 
was  called  hocland;  the  latter  I  apprehend  to  have  been  that 
description  of  landed  property  which  was  known  by  the 
name  oi  folcland, 

"  Folcland,  as  the  word  imports,  was  the  land  of  the  folk  or 
people.  It  was  the  property  of  the  community.  It  might  be 
occupied  in  common,  or  possessed  in  severalty ;  and,  in  the 
latter  case,  it  was  probably  parcelled  out  to  individuals  in  the 
fohgemot,  or  court  of  the  district,  and  the  grant  attested  by 
the  freemen  who  were  then  present  But,  while  it  continued 
to  be  folcland,  it  could  not  be  alienated  in  perpetuity  ;  and, 
therefore,  on  the  expiration  of  the  term  for  which  it  had  been 
granted,  it  reverted  to  the  community,  and  was  again  distrib- 
uted by  the  same  authority.* 

"  Bocland  was  held  by  book  or  charter.  It  was  land  that 
had  been  severed  by  an  act  of  government  from  the  folcland, 
and  converted  into  an  estate  of  perpetual  inheritance.  It 
might  belong  to  the  church,  to  the  king,  or  to  a  subject  It 
might  be  alienable  and  devisable  at  the  will  of  the  proprie- 

»  Spelman  describes  folcland  as  terra  duplici   Utulo   possMebant :  yel   scripti 

popuiarls,  qute  jure  communi  possidetur  auctoritate,  quod  bocland  vocabant  —  vel 

—  Sine    scnpto      Gloss.   Folcland.     In  populi  testimonio,  quod  folcland  dixere, 

■Bother  place  he  distinguishes   it  accu-  lb.  Bocland 
l»telj  from  bocland :  — Prsedia  Soxones 


384 


FOLCLAND  AND  BOCLAND. 


Notes  to 


Chap.  VHI. 


FOLCLAND  AND  BOCLAND. 


385 


tor.  It  might  be  limited  in  its  descent  without  any  power  of 
alienation  in  the  possessor.  It  was  often  granted  for  a  single 
life,  or  for  more  lives  than  one,  with  remainder  in  perpetuity 
to  the  church.     It  was  forfeited  for  various  delinquencies  to 

the  state. 

"Estates  in  perpetuity  were  usually  created  by  charter 
after  the  introduction  of  writing,  and,  on  that  account,  boc- 
land  and  land  of  inheritance  are  often  used  as  synonymous 
expressions.  But  at  an  earher  period  they  were  conferred 
by  the  delivery  of  a  staff,  a  spear,  an  arrow,  a  drinking-horn, 
the  branch  of  a  tree,  or  a  piece  of  turf;  and  when  the  dona- 
tion was  in  favor  of  the  church,  these  symbolical  representa- 
tions of  the  grant  were  deposited  with  solemnity  on  the  altar ; 
nor  was  this  practice  entirely  laid  aside  after  the  introduction 
of  title-deeds.  There  are  instances  of  it  as  late  as  the  time 
of  the  Conqueror.  It  is  not,  therefore,  quite  correct  to  say 
that  all  the  lands  of  the  Anglo-Saxons  were  either  folcland 
or  bocland.  When  land  was  granted  in  perpetuity  it  ceased 
to  be  folcland;  but  it  could  not  with  propriety  be  termed 
bocland,  unless  it  was  conveyed  by  a  written  instrument 

"Folcland  was  subject  to  many  burdens  and  exactions 
from  which  bocland  was  exempt.  The  possessors  of  folcland 
were  bound  to  assist  in  the  reparation  of  royal  vills  and  in 
other  public  works.  They  were  liable  to  have  travellers  and 
others  quartered  on  them  for  subsistence.  They  were  re- 
quired to  give  hospitality  to  kings  and  great  men  in  their 
progresses  through  the  country,  to  furnish  them  with  carriages 
and  relays  of  horses,  and  to  extend  the  same  assistance  to 
their  messengers,  followers,  and  servants,  and  even  to  the 
persons  who  had  charge  of  their  hawks,  horses,  and  hounds. 
Such  at  least  are  the  burdens  from  which  lands  are  liberated 
when  converted  by  charter  into  bocland. 

"  Bocland  was  liable  to  none  of  these  exactions.  It  was 
released  from  all  services  to  the  public,  with  the  exception  of 
contributing  to  miUtary  expeditions,  and  to  the  reparation  of 
castles  and  bridges.  These  duties  or  services  were  comprised 
in  the  phrase  of  trinoda  necessitaSy  which  were  said  to  be  in- 
cumbent on  all  persons,  so  that  none  could  be  excused  from 
them.  The  church  indeed  contrived,  in  some  cases,  to  obtain 
an  exemption  from  them  ;  but  in  general  its  lands,  like  those 
of  others,  were  subject  to  them.  Some  of  the  charters  grant- 
ing to  the  possessions  of  tlie  church  an  exemption  firom  all 


services  whatsoever  were  genuine ;  but  the  greater  part  are 
forgeries."  —  (p.  142.) 

Bocland,  we  perceive  by  this  extract,  was  not  necessarily 
alodial,  m  the  sense  of  absolute  propriety.  It  might  be 
granted  for  lives,  as  was  often  the  case ;  and  then  it  seems  to 
have  been  called  lien-land  (praestita),  lent  or  leased.  (Pal- 
grave,  ii.  361.)  Such  land,  however,  was  not  feudal,  as  I 
conceive,  if  we  use  that  word  in  its  legitimate  European 
sense  ;  though  lehn  is  the  only  Grerman  word  for. a  fief.  Mr. 
Allen  has  found  no  traces  of  this  use  of  the  word  among  th ' 
Anglo-Saxons.  (Appendix,  p.  57.)  Sir  F.  Palgrave  aereea 
m  general  with  Mr.  Allen.* 

We  find  another  great  living  authority  on  Anglo-Saxon 
and  Teutomc  law  concurring  in  the  same  luminous  solution 
of  this  long-disputed  problem.  "  The  natural  origin  of  folc- 
land IS  the  superabundance  of  good  land  above  what  was  at 
once  appropriated  by  the  tribes,  families,  or  gentes  (msegburg, 
gelondan),  who  first  settled  in  a  waste  or  conquered  land ; 
but  its  existence  enters  into  and  modifies  the  system  of  law, 
and  on  it  depends  the  definition  of  the  march  and  the  gau 
with  their  boundaries.  Over  the  folcland  at  first  the  king 
alone  had  no  control ;  it  must  have  been  apportioned  by  the 
nation  in  its  solemn  meeting ;  earlier,  by  the  shire  or  other 
collection  of  freemen.  In  Beowulf,  the  king  determines  to 
build  a  palace,  and  distribute  in  it  to  his  comites  such  gold, 
silver,  arms,  and  other  valuables  as  God  had  given  him,  save 
tibe  folcsceare  and  the  lives  of  men  — « butan  folcsceare  and 
feorum  gumena'  — which  he  had  no  authority  to  dispose  of. 
This  relative  position  of  folcland  to  bocland  is  not  confined 
to  the  Anglo-Saxon  institutions.  The  Frisians,  a  race  from 
whom  we  took  more  than  has  generally  been  recognized,  had 
the  same  distinction.  At  the  same  time  I  differ  from  Grimm, 
who  seems  to  consider  folcland  as  the  pure  alod,  bocland  as 
the  fief.  *  Folcland  im  Gegensatz  zu  beneficium.  Leges  Edv. 
IL ;  das  ist,  reine  alod,  im  Gegensatz  zu  beneficium,  Lehen. 
Vgl.  das  Friesische  caplond  und  bocland.  As.  p.  15.'  (D 
R.  A.  p.  463.)  I  think  the  reverse  is  the  case ;  and  indeei 
we  have  one  instance  where  a  king  exchanged  a  certain  por 

i«\?**A^T**£"^^P"*P^'"*^'°'*^<^^°<*'  '^«  ^5*  ancient  precedents,  and  is  of 

£.  .If^*        *.?"  P*""*^'  "  ^^®^  »•*  *  *^o""e  studied,  to  the  disregard,  where 

nmi-^^M***^*^'^  succinct  and   lumi-  necessary,  of  more  defectiye  authorities, 

SSS   Th^P  J*^^-.   ^'**'?'*-  J""'?-  P-  »>y  t»^ose  who  regard  this  portion  of  lega^ 

w-«.   The  Codex  Diplomaticus  furnishes  histoiy 
VOL.  II.                             25 


1 


d86 


BIGHT  OF  LEGISLATION. 


NOTBt  TO 


Chap.  Vm. 


RIGHT  OF  LEGISLATION. 


387 


tion  of  folcland  for  an  equal  portion  of  bocland  with  one  of 
his  comites.  He  then  gave  the  exchanged  folcland  all  the 
privileges  of  bocland,  and  proceeded  to  make  the  bocland  he 
had  received  in  exchange /ofc/anrf."  (Kemble's  Codex  Dip- 
lomaticus,  i.  p.  104.) 

It  is  of  importance  to  mention  that  Mr.  K.,  when  he  wrote 
this  passage,  had  not  seen  Mr.  Allen's  work ;  so  that  the  in- 
dependent concurrence  of  two  such  antiquaries  in  the  same 
theory  lends  it  very  great  support.  In  the  second  volume  of 
the  Codex  Diplomaticus  the  editor  adduces  fresh  evidence  as 
to  the  nature  of  folcland,  "  the  terra  facalis,  or  public  land 
grantable  by  the  king  or  his  council,  as  the  representatives  of 
the  nation."  (p.  9.)  Mr.  Thorpe,  in  the  glossary  to  his  edition 
of  "Ancient  Laws"  (v.  Folcland),  quotes  part  of  the  same 
extract  from  Allen  which  I  have  given,  and,  making  no  re- 
mark, must  be  understood  to  concur  in  it.  Thus  we  may 
consider  this  interpretation  in  possession  of  the  field.^ 

The  word  folcland  fell  by  degrees  into  disuse,  and  gave 
place  to  the  term  terra  regisy  or  crown-land.  (Allen,  p.  160.) 
This  indicates  the  growth  of  a  monarchical  theory  which 
reached  its  climax,  in  this  application  of  it,  after  the  Con- 
quest, when  the  entire  land  of  England  was  supposed  to  have 
been  the  demesne  land  of  the  king,  held  under  him  by  a 
feudal  tenure. 

Note  X.    Page  305. 

"  Amongst  the  prerogatives  of  the  crown,  the  Conqueror 
and  many  of  his  successors  appear  to  have  assumed  the  power 
of  making  laws  to  a  certain  extent,  without  the  authority  of 
their  greater  council,  especially  when  operating  only  in  re- 
straint of  the  king's  prerogative,  for  the  benefit  of  his  sub- 
jects, or  explaining,  amending,  or  adding  to  the  existing  law 
of  the  land,  as  administered  between  subject  and  subject ; 
and  this  prerogative  was  commonly  exercised  with  the  advice 
of  the  king's  ordinary  or  select  council,  though  frequently  the 
edict  was  expressed  in  the  king's  name  alone.  But  as  far  as 
can  be  judged  from  existing  documents  or  from  history,  it 
was  generally  conceived  that  beyond  these  limits  the  consent 

*  It  seems  to  be  a  necessary  inference  exception  of  the  terra  regis,  If  that  wor» 

from  tlie   eridence  of  Domesday  Book  truly  the  representative  of  ancient  tolo- 

that  all  England  had  been  converted  into  land,  as  Allen  suppoMM. 
bocland  before  the  Conquest,  with  the 


of  a  larger  assembly,  of  that  which  was  deemed  the  '  Com- 
mune concilium  regni,'  was  in  strictness  necessary ;  thoueh 
sometimes  the  monarch  on  the  throne  ventured  to  stretch  Ws 
prerogative  further,  even  to  the  imposition  of  taxes  to  answer 
his  necessities,  without  the  common  consent ;  and  the  creat 
struggles  between  the  kings  of  England  and  their  people 
have  generally  been  produced  by  such  stretches  of  the  royal 
prerogative,  till  at  length  it  has  been  established  that  no 
tegislative  act  can  be  done  without  the  concurrence  of  that 
assembly,  now  emphaticaUy  called  the  king's  parliament" 

^^"^A^!:  ^L^f"^^'  Committee  on  the  Dignity  of  a  Peer,  p. 
^^,  edit*  loiy.) 

"  It  appears,"  says  the  committee  afterwards,  «  from  all  the 
diarters  taken  together,  that  during  the  reigns  of  William 
Kufus,  his  brother  Henry,  and  Stephen,  many  things  had 
been  done  contrary  to  law;  but  that  there  did  exist  some 
legal  constitution  of  government,  of  which  a  legislative  coun- 
cil (for  some  purposes  at  least)  formed  a  part;  and  particu- 
larly that  all  impositions  and  exactions  by  the  mere  authority 
of  the  crown,  not  warranted  by  the  existing  law,  were  rep- 
robated as  infringements  of  the  just  rights  of  the  subjects  of 
the  realm,  though  the  existing  law  left  a  large  portion  of  the 
kmg  s  subjects  liable  to  tallage  imposed  at  the  will  of  the 
crown ;  and  the  tenants  of  the  mesne  lords  were  in  many 
cases  exposed  to  similar  exaction."  (p.  42.) 

These  passages  appeared  to  Mr.  Allen  so  inadequate  a 
representation  of  the  Anglo-Norman  constitution,  that  he 
commented  upon  the  ignorance  of  the  committee  with  no 
slight  severity  in  the  Edinburgh  Review.  The  principal 
charges  against  the  Report  in  this  respect  are,  that  the  com- 
mittee have  confounded  the  ordinary  or  select  council  of  the 
king  with  the  commune  concilium^  and  supposed  that  the 
former  alone  was  intended  by  historians,  as  the  advisers  of 
the  crown  in  its  prerogative  of  altering  the  law  of  the  land, 
when,  m  fact,  the  great  council  of  the  national  aristocracy  is 
clearly  pointed  out ;  and  that  they  have  disregarded  a  great 
deal  of  historical  testimony  to  the  political  importance  of  the 
latter.  It  appears  to  be  clearly  shown,  from  the  Saxon  Chron- 
icle and  other  writers,  that  assemblies  of  bishops  and  nobles 
sometimes  very  large,  were  held  by  custom,  "de  more,"  three 
times  in  the  year,  by  William  the  Conqueror  and  by  both  his 
sons;   that  they  were,   however,  graduaUy  intermitted  by 


i 


388 


RIGHT  OF  LEGISLATION. 


Notes  t« 


Henry  I.,  and  ceased  early  in  the  reign  of  Stephen.  In  these 
councils,  which  were  legislative  so  far  as  new  statutes  were 
ever  required,  a  matter  of  somewhat  rare  occurrence,  but 
more  frequently  rendering  their  advice  on  measures  to  be 
adopted,  or  their  judgment  in  criminal  charges  against  men 
of  high  rank,  and  even  in  civil  litigation,  we  have,  at  least  in 
theory,  the  acknowledged  limitations  of  royal  authority.  I 
refer  the  reader  to  this  article  in  the  Edinburgh  Review  (vol. 
XXXV.),  to  which  we  must  generally  assent;  observing,  how- 
ever, that  the  committee,  though  in  all  probability  mistaken  in 
ascribing  proceedings  of  the  Norman  sovereigns  to  the  advice 
of  a  select  council,  which  really  emanated  from  one  much 
larger,  did  not  call  in  question,  but  positively  assert,  the  con- 
stitutional necessity  of  the  latter  for  general  taxation,  and 
perhaps  for  legislative  enactments  of  an  important  kind. 
And,  when  we  consider  the  improbability  that  **  all  the  great 
men  over  all  England,  archbishops  and  bishops,  abbots  and 
earls,  thanes  and  knights,"  as  the  Saxon  chronicler  pretends, 
could  have  been  regularly  present  thrice  a  year,  at  Winches- 
ter, Westminster,  and  Gloucester,  when  William,  as  he  informs 
us,  "  wore  his  crown,"  we  may  well  suspect  that,  in  the  ordi- 
nary exercise  of  his  prerogative,  and  even  in  such  provisions 
as  might  appear  to  him  necessary,  he  did  not  wait  for  a  very 
full  assembly  of  his  tenants  in  chief.  The  main  question  is, 
whether  this  council  of  advice  and  assent  was  altogether  of 
his  own  nomination,  and  this  we  may  confidently  deny. 

The  custom  of  the  Anglo-Saxon  kings  had  been  to  hold 
meetings  of  their  witan  very  frequently,  at  least  in  the  regu- 
lar course  of  their  government.  And  this  was  also  the  rule 
in  the  grand  fiefs  of  France.  The  pomp  of  their  court,  the 
maintenance  of  loyal  respect,  the  power  of  keeping  a  vigilant 
eye  over  the  behavior  of  the  chief  men,  were  sufficient  mo- 
tives for  the  Norman  kings  to  preserve  this  custom ;  and  the 
nobility  of  course  saw  in  it  the  security  of  their  privileges  as 
well  as  the  exhibition  of  their  importance.  Hence  we  find 
that  William  and  his  sons  held  their  courts  de  mcyre,  as  a  reg 
ular  usage,  three  times  a  year,  and  generally  at  the  great 
festivals,  and  in  diflferent  parts  of  the  kingdom.  Instances 
are  collected  by  the  Edinburgh  Reviewer  (vol.  xxxv.  p.  5). 
And  here  the  public  business  was  transacted ;  though,  if  these 
meetings  were  so  frequent,  it  is  probable  that  for  the  most 
part  they  passed  oif  in  a  banquet  or  a  tournament. 


Chap.  Vni. 


RIGHT  OF  LEGISLATION. 


389 


The  Lords*  Committee,  in  notes  on  the  Second  Report,  when 
reprinted  in  1829,  do  not  acquiesce  in  the  positions  of  their 
hardy  critic,  to  whom,  without  direct  mention,  they  manifestly 
allude.     "From  the  relations  of  annalists  and  historians," 
they  observe,  « it  has  been  inferred  that  during  the  reign  of 
tiie  Conqueror,  and  during  a  long  course  of  time  from  the 
Conquest,  the  archbishops,  bishops,  abbots  and  priors,  earls 
and  barons  of  the  reahn  were  regularly  convened  three  times 
in  every  year,  at  three  different  and  distinct  places  in  the 
kmgdom,  to  a  general  council  of  the  realm.    Considering  the 
state  of  the  country,  and  the  habits  and  dispositions  of  the 
people,  this  seems  highly  improbable ;  especially  if  the  word 
barones,  or  the  words  proceres  or  magnates,  often  used  by 
writers  in  describing  such  assemblies,  were  intended  to  include 
all  the  persons  holding  immediately  of  the  crown,  who,  accord- 
ing to  the  charter  of  John,  were  required  to  be  summoned  to 
constitute  the  great  council  of  the  realm,  for  the  purpose  of 
granting  aids  to  the  crown."  (p.  449.)    But  it  is  not  necessary 
to  suppose  this ;  those  might  have  attended  who  lived  near,  or 
who  were  specially  summoned.    The  committee  argue  on  the 
supposition  that  all  tenants  in  chief  must  have  attended  thrice 
a  year,  which  no  one  probably  ever   asserted.      But  that 
William  and  his  sons  did  hold  public  meetings,  de  more, 
at  three  several  places  in  every  year,  or  at  least  very  fre- 
quently, cannot  be  controverted  without  denying  what  re- 
spected historical  testimonies  affirm;  and  the  language  of 
these  early  writers   intimates   that  they  were   numerously 
attended.     Aids  were  not  regularly  granted,  and  laws  much 
more  rarely  enacted  in  them ;  but  they  might  still  be  a  na- 
tional council.    But  the  constituent  parts  of  such  councils  will 
be  discussed  in  a  subsequent  note. 

It  is  to  be  here  remarked  that,  with  the  exception  of  the 
charters  granted  by  William,  Henry,  and  Stephen,  which  are 
m  general  rather  like  confirmations  of  existing  privileges  than 
novel  enactments,  though  some  clauses  appear  to  be  of  the 
latter  kind,  little  authentic  evidence  can  be  found  of  any  leg- 
islative proceedings  from  the  Conquest  to  the  reign  of  Henry 
n.  The  laws  of  the  Conqueror,  which  we  find  in  Ingulfus, 
do  not  come  within  this  category ;  they  are  a  confirmation  of 
English  usages,  granted  by  William  to  his  subjects.  "  Cez 
sunt  les  leis  et  les  custumes  que  li  reis  William  grantad  el 
pople  de  Engleterre  apres  le  conquest  de  la  terre.    Iceles 


890 


lUGHT  OF  LEGISLATION. 


Notes  to 


mesmes  que  li  reis  Edward  sun  cusin  tint  devant  lui."  These, 
published  by  Gale  (Script  Rer.  Anglic,  vol.  i.),  and  more 
accurately  than  before  from  the  Holkham  manuscript  by  Sir 
Francis  Palgrave,  have  sometimes  passed  for  genuine.  The 
real  original,  however,  is  the  Latin  text,  first  published  by 
him  with  the  French.  (Eng.  Commonw.  vol.  ii.  p.  89.)  The 
French  translation  he  refers  to  the  early  part  of  the  reign  of 
Henry  III.  At  the  time  when  Ingulfus  is  supposed  to  have 
lived,  soon  after  the  Conquest,  no  laws,  as  Sir  F.  Palgrave 
justly  observes,  were  written  in  French,  and  he  might  have 
added  that  we  cannot  produce  any  other  specimen  of  the  lan- 
guage which  is  certainly  of  that  age.  (See  Quarterly  Review, 
xxxiv.  260.)  It  is  said  in  the  charter  of  Henry  I.  that  the 
laws  of  Edward  were  renewed  by  William  with  the  same 
emendation. 

But  the  changes  introduced  by  William  in  the  tenure  of 
land  were  so  momentous  that  the  most  cauti9us  inquirers 
have  been  induced  to  presume  some  degree  of  common  con- 
sent by  those  whom  they  so  much  affected.  "  There  seems 
to  be  evidence  to  show  that  the  great  change  in  the  tenure 
of  land,  and  particularly  the  very  extensive  introduction  of 
tenure  by  knight-service,  was  made  by  the  consent  of  those 
principally  interested  in  the  land  charged  with  the  burdens 
of  that  tenure ;  and  that  the  general  changes  made  in  the 
Saxon  laws  by  the  Conqueror,  forming  of  the  two  one  people, 
was  also  effected  by  common  consent ;  namely,  in  the  language 
of  the  charter  of  William  with  respect  to  the  tenures, '  per 
commune  concilium  tocius  regni,*  and  with  respect  to  both, 
as  expressed  in  the  charter  of  his  son  Henry,  *  concilio  ba- 
ronum ;  *  though  it  is  far  from  clear  who  were  the  persons 
intended  to  be  so  described."  (Report  of  Lords*  Committee, 
p.  50.) 

The  separation  of  the  civil  and  ecclesiastical  jurisdictions 
was  another  great  innovation  in  the  reign  of  the  Conqueror. 
This  the  Lords*  Committee  incline  to  refer  to  his  sole  author- 
ity. But  Allen  has  shown  by  a  writ  of  William  addressed 
to  the  bishop  of  Lincoln  that  it  was  done  "  communi  concilio, 
et  concilio  archiepiscoporum  meorum,  et  caeterorum  episcopo- 
rum  et  abbatum,  et  omnium  principum  regni  mei.**  (Edinb. 
Rev.  p.  15.)  And  the  Dome-day  survey  was  determined 
upon,  after  a  consultation  of  William  with  his  great  council 
at  Gloucester,  in  1084.     This  would  of  course  be  reckoned  a 


Chap.  VIII. 


CHARTER  OF  WILLIAM  I. 


391 


legislative  measure  in  the  present  day  ;  but  it  might  not  pass 
for  more  than  a  temporary  ordinance.  The  only  laws  under 
Henry  L,  except  his  charter,  of  which  any  account  remains 
in  history  (there  are  none  on  record),  fall  under  the  same 
description. 

The  Constitutions  of  Clarendon,  in  1164,  are  certainly  a 
regular  statute ;  whoever  might  be  the  consenting  parties,  a 
subject  to  be  presently  discussed,  these  famous  provisions  were 
enacted  in  the  great  council  of  the  nation.  This  is  equally 
true  of  the  Assizes  of  Northampton,  in  1178.  But  the  ear- 
liest Anglo-Norman  law  which  is  extant  in  a  regular  form  is 
the  assize  made  at  Clarendon  for  the  preservation  of  the 
peace,  probably  between  1165  and  1176.  This  remarkable 
statute,  "  quam  dominus  rex  Henricus,  consilio  archiepiscopo- 
rum et  episcoporum  et  abbatum,  caeterorumque  baronum 
suorum  constituit,"  was  first  published  by  Sir  F.  Palgrave 
from  a  manuscript  in  the  British  Museum.  (Engl.  Commonw. 
i.  257 ;  ii.  168.)  In  other  instances  the  royal  prerogative 
may  perhaps  have  been  held  sufficient  for  innovations  which, 
after  the  constitution  became  settled,  would  have  required  the 
sanction  of  the  whole  legislature.  No  act  of  parliament  is 
known  to  have  been  made  under  Richard  I. ;  but  an  ordi- 
nance, setting  the  assize  of  bread,  in  the  fifth  of  John,  is 
recited  to  be  established  "  communi  concilio  baronum  nostro- 
rum."  Whether  these  words  afford  sufficient  ground  for 
believing  that  the  assize  was  set  in  a  full  council  of  the  realm, 
may  possibly  be  doubtful.  The  committee  incline  to  the 
affirmative,  and  remark  that  a  general  proclamation  to  the 
same  effect  is  mentioned  in  history,  but  merely  as  proceeding 
from  the  king,  so  that  "  the  omission  of  the  words  *  communi 
concilio  baronum  *  in  the  proclamation  mentioned  by  the  his- 
torian, though  appearing  in  the  ordinance,  tends  also  to  show 
that,  though  similar  words  may  not  be  found  in  other  similar 
documents,  the  absence  of  those  words  ought  not  to  lead  to  a 
certain  conclusion  that  the  act  done  had  not  the  authority  of 
the  same  common  council.**     (p.  84.) 

Note  XI.    Page  305. 

This  charter  has  been  introduced  into  the  new  edition  of 
Rymer's  Foedera,  and  heads  that  collection.  The  Conmiittee 
of  the  Lords'  on  the  Dignity  of  a  Peer,  in  their  Second  Re- 


892 


MAGNA  CHARTA  OF 


Notes  to 


port,  have  the  following  observations:  —  "The  printed  copy 
is  taken  from  the  Red  Book  of  the  Exchequer,  a  document 
which  has  long  been  admitted  in  the  Court  of  Exchequer  as 
evidence  of  authority  for  certain  purposes ;  but  no  trace  has 
been  hitherto  found  of  the  original  charter  of  William,  though 
the  insertion  of  a  copy  in  a  book  in  the  custody  of  the  king's 
Exchequer,  resorted  to  by  the  judges  of  that  court  for  other 
purposes,  seems  to  afford  reasonable  ground  for  supposing  that 
such  a  charter  was  issued,  and  that  the  copy  so  preserved  is 
probably  correct,  or  nearly  correct.  The  copy  in  the  Red 
Book  is  without  date,  and  no  circumstance  tending  to  show  its 
true  date  has  occurred  to  the  committee  ;  but  it  may  be  col- 
lected from  its  contents  that  it  was  probably  issued  in  the 
latter  part  of  that  king's  reign  ;  about  which  time  it  appears 
from  history  that  he  confirmed  to  his  subjects  in  England  the 
ancient  Saxon  laws,  with  alterations."  (p.  28.) 

I  once  thought,  and  have  said,  that  this  charter  seems  to 
comprehend  merely  the  feudal  tenants  of  the  crown.  This 
may  be  true  of  one  clause ;  but  it  is  impossible  to  construe 
"  omnes  liberi  homines  totius  monarchiae  "  in  so  contracted  a 
sense.  The  committee  indeed  observe  that  many  of  the  king's 
tenants  were  long  after  subject  to  tallage.  But  I  do  not  sup- 
pose these  to  have  been  included  in  "  liberi  homines."  The 
charter  involves  a  promise  of  the  crown  to  abstain  from  ex- 
actions frequent  in  the  Conqueror's  reign,  and  fallmg  on  mesne 
tenants  and  others  not  liable  to  arbitrary  taxation. 

This  charter  contains  a  clause — "  Hoc  quoque  praecipimus 
at  omnes  habeant  et  teneant  legem  Edwardi  Regis  in  omnibus 
rebus  adjunctis  his  quae  constituimus  ad  ultilitatem  Anglorum." 
And  as  there  is  apparent  reference  to  these  words  in  the 
charter  of  Henry  I.—  "  Legem  Edwardi  Regis  vobis  reddo 
cum  illis  emendationibus  quibus  pater  mens  cam  emendavit 
consilio  baronum  suorum" — the  committee  are  sufficiently 
moderate  in  calling  this  "  a  clause,  tending  to  give  in  some  de- 
gree authenticity  to  the  copy  of  the  charter  of  William  the 
Conqueror  mserted  in  the  Red  Book  of  the  Exchequer."  (p. 
39.)  This  charter  seems  to  be  fully  established ;  it  deserves 
to  be  accounted  the  first  remedial  concession  by  the  crown ; 
for  it  indicates,  especially  taken  in  connection  with  public 
history,  an  arbitrary  exercise  of  royal  power  which  neither  the 
new  nor  the  old  subjects  of  the  English  monarchy  reckoned 
lawful.    It  is  also  the  earliest  recognition  of  the  Anglo-Saxon 


Chap.  Vm. 


WILLIAM  THE  CONQUEROR. 


393 


laws,  such  as  they  subsisted  under  the  Confessor,  and  a  proof 
both  that  the  English  were  now  endeavoring  to  raise  their  heads 
from  servitude,  and  that  the  Normans  had  discovered  some 
immunities  from  taxation,  or  some  securities  from  absolute 
power,  among  the  conquered  people,  in  which  they  desired  to 
participate.  It  is  deserving  of  remark  that  the  distinction  of 
personal  law,  which,  indeed,  had  almost  expired  on  the  conti- 
nent, was  never  observed  in  England ;  at  least,  we  have  no 
evidence  of  it,  and  the  contrary  is  almost  demonstrable.  The 
conquerors  fell  at  once  into  the  laws  of  the  conquered,  and 
this  continued  for  more  than  a  century. 

The  charter  of  William,  like  many  others,  was  more  ample 
than  effectual.  "  The  committee  have  found  no  document  to 
show,  nor  does  it  appear  probable  from  any  relation  in  his- 
tory that  William  ever  obtained  any  general  aid  from  his  sub- 
jects by  grant  of  a  legislative  assembly ;  though  according  to 
history,  even  after  the  charter  before  mentioned,  he  extorted 
great  sums  from  individuals  by  various  means  and  under 
various  pretences.  Towards  the  close  of  his  reign,  when  he 
had  exacted,  as  stated  by  the  editor  of  the  first  part  of  the 
Annals  called  the  Annals  of  Waverley,  the  oath  of  fealty  from 
the  principal  landholders  of  every  description,  the  same  his- 
torian adds  that  William  passed  into  Normandy,  *  adquisitis 
magnis  thesauris  ab  hominibus  suis,  super  quos  aliquam  cau- 
sam  invenire  poterat,  sive  juste  sive  inique  *  (words  which 
import  exaction  and  not  grant),  and  he  died  the  year  following 
in  Normandy."     (p.  35.) 

The  deeply  learned  reviewer  of  this  Report  has  shown  that 
the  Annals  of  Waverley  are  of  very  little  authority,  and 
merely  in  this  part  a  translation  from  the  Saxon  Chronicle. 
But  the  translation  of  the  passage  quoted  by  the  committee  is 
correct ;  and  it  was  perhaps  rather  hypercritical  to  cavil  at 
their  phrase  that  William  obtained  this  money  "by  exaction 
and  not  by  grant."  They  never  meant  that  he  imposed  a 
general  tax.  That  it  was  not  by  grant  is  all  that  their  pur-j 
pose  required;  the  passage  which  they  quote  shows  that  it 
was  under  some  pretext,  and  often  an  unjust  one,  which  is  not 
very  unlike  exaction. 

It  is  highly  probable  that,  in  promising  this  immunity  from 
unjust  exactions,  William  did  not  intend  to  abolish  the  ancient 
tax  of  Danegelt,  or  to  demand  the  consent  of  his  great  coun- 
cil when  it  was  thought  necessary  to  impose  it     We  read  in 


394 


DURATION  OF  DISTINCTION 


NoTKa  TO 


the  Saxon  Chronicle  that  the  king  in  1083  exacted  a  heavy 
tribute  all  over  England,  that  is,  seventy-two  pence  for  each 
hyde.  This  looks  like  a  Danegelt.  The  rumor  of  invasion 
from  Denmark  is  set  down  by  the  chronicler  under  the  year 
1085 ;  but  probably  William  had  reason  to  be  prepared.  He 
may  have  had  the  consent  of  his  great  council  in  this  instance. 
But  as  the  tax  had  formerly  been  perpetual,  so  that  it  was  a 
relaxation  in  favor  of  the  subject  to  reserve  it  for  an  emer- 
gency, we  may  think  it  more  likely  that  this  imposition  was 
within  his  prerogative ;  that  he,  in  other  words,  was  sole  judge 
of  the  danger  that  required  it  It  was,  however,  in  truth,  a 
heavy  tribute,  being  six  shillings  for  every  hyde,  in  many 
cases,  as  we  see  by  Domesday,  no  small  proportion  of  the 
annual  value,  and  would  have  been  a  grievous  burden  as  an 
annual  payment. 


Note  Xn.     Page  307. 

This  passage  in  a  contemporary  writer,  being  so  unequivo- 
cal as  it  is,  ought  to  have  much  weight  in  the  question  which 
an  eminent  foreigner  has  lately  raised  as  to  the  duration  of 
the  distinction  between  the  Norman  and  English  races.  It  is 
the  favorite  theory  of  M.  Thierry,  pushed  to  an  extreme 
length  both  as  to  his  own  country  and  ours,  that  the  conquer- 
ing nation,  Franks  in  one  case,  Normans  in  the  other,  remained 
down  to  a  late  period  —  a  period  indeed  to  which  he  assigns 
no  conclusion — unmingled,  or  at  least  undistinguishable,  con- 
stituting a  double  people  of  sovereigns  and  subjects,  becoming 
a  noble  order  in  the  state,  haughty,  oppressive,  powerful,  or, 
what  is  in  one  word  most  odious  to  a  French  ear  in  the  nine- 
teenth century,  aristocratic. 

It  may  be  worthy  of  consideration,  since  the  authority  of 
this  writer  is  not  to  be  disregarded,  whether  the  Norman 
blood  were  really  blended  with  the  native  quite  so  soon  as  the 
reign  of  Henry  II. ;  that  is,  whether  intermarriages  in  the 
superior  classes  of  society  had  become  so  frequent  as  to  efface 
the  distinction.  M.  Thierry  produces  a  few  passages  which 
seem  to  intimate  its  continuance.  But  these  are  too  loosely 
worded  to  warrant  much  regard  ;  and  he  admits  that  after  the 
reign  of  Henry  I.  we  have  no  proof  of  any  hostile  spirit  on  the 
part  of  the  English  towards  the  new  dynasty ;  and  that  some 
efforts  were  made  to  conciliate  them  by  representing  Henry 


Chap.  VHI.       BETWEEN  SAXON  AND  NORMAN. 


395 


II.  as  the  descendant  of  the  Saxon  line.  (VoL  ii.  p.  374.) 
This,  in  fact,  was  true ;  and  it  was  stiU  more  important  that 
the  name  of  English  was  studiously  assumed  by  our  kings 
(ignorant  though  they  might  be,  in  M.  Thierry's  phrase,  what 
was  the  vernacular  word  for  that  dignity),  and  that  the  Anglo^ 
Normans  are  seldom,  if  ever,  mentioned  by  that  separate 
designation.  England  was  their  dwelling-place,  English  theif 
name,  the  English  law  their  inheritance;  if  this  was  not 
wholly  the  case  before  the  separation  of  the  mother  country 
under  John,  and  yet  we  do  not  perceive  much  limitation  neo 
essary,  it  can  admit  of  no  question  afterwards. 

It  is,  nevertheless,  manifest  that  the  descendants  of 
William's  tenants  in  capite,  and  of  others  who  seized  on  so 
large  a  portion  of  our  fair  country  from  the  Channel  to  the 
Tweed,  formed  the  chief  part  of  that  aristocracy  which 
secured  the  liberties  of  the  Anglo-Saxon  race,  as  well  as 
their  own,  at  Runnymede ;  and  which,  sometimes  as  peers  of 
the  realm,  sometimes  as  well-born  commoners,  placed  suc- 
cessive barriers  against  the  exorbitances  of  power,  and  pre- 
pared the  way  for  that  expanded  scheme  of  government 
which  we  call  the  English  constitution.  The  names  in  Dug- 
dale's  Baronage  and  in  his  Summonitiones  ad  Parliamentum 
speak  for  themselves ;  in  all  the  earlier  periods,  and  perhaps 
almost  through  the  Plantagenet  dynasty,  we  find  a  great  pre- 
ponderance of  such  as  indicate  a  French  source.  New  fami- 
lies sprung  up  by  degrees,  and  are  now  sometimes  among  our 
chief  nobility  ;  but  in  general,  if  we  find  any  at  this  day  who 
have  tolerable  pretensions  to  deduce  their  lineage  from  the 
Conquest,  they  are  of  Norman  descent ;  the  very  few  Saxon 
families  that  may  remain  with  an  authentic  pedigree  in  the 
male  line  are  seldom  found  in  the  wealthier  class  of  gentry. 
This  is  of  course  to  be  taken  with  deference  to  the  genealo- 
gists. And  on  this  account  I  must  confess  that  M.  Thierry's 
opinion  of  a  long-continued  distinction  of  races  has  more 
semblance  of  truth  as  to  this  kingdom  than  can  be  pretended 
as  to  France,  without  a  blind  sacrifice  of  undeniable  facts  at 
the  altar  of  plebeian  malignity.  In  the  celebrated  Lettres 
sur  I'Histoire  de  France,  published  about  1820,  there  seems 
to  be  no  other  aim  than  to  excite  a  factious  animosity  against 
the  ancient  nobility  of  France,  on  the  preposterous  hypoth- 
esis that  they  are  descended  from  the  followers  of  Clovis, 
that  Frank  and  Gaul  have  never  been  truly  intermingled ; 


I 


396 


THE  CURIA  REGIS. 


Notes  to 


Chap.  Vni. 


THE  CURIA  REGIS. 


397 


and  that  a  conquering  race  was,  even  in  this  age,  attempting 
to  rivet  its  yoke  on  a  people  who  disdained  it.  This  strange 
theory,  or  something  like  it,  had  been  announced  in  a  very 
different  spirit  by  Boulainvilliers  in  the  last  century.  But 
of  what  family  in  France,  unless  possibly  in  the  eastern  part, 
can  it  be  determined  with  confidence  whether  the  founder 
were  Frank  or  Gallo-Roman  ?  Is  it  not  a  moral  certainty 
that  many  of  the  most  ancient,  especially  in  the  south,  must 
have  been  of  the  latter  origin  ?  It  would  be  highly  wrong 
to  revive  such  obsolete  distinctions  in  order  to  keep  up  social 
hatreds  were  they  founded  in  truth ;  but  what  shall  we  say 
if  they  are  purely  chimerical  ? 

Note  Xm.    Page  318. 

It  appears  to  have  been  the  opinion  of  Madox,  and  proba- 
bly has  been  taken  for  granted  by  most  other  antiquaries, 
that  this  court,  denominated  Aula  or  Curia  Regis,  adminis- 
tered justice  when  called  upon,  as  well  as  advised  the  crown 
in  public  affairs,  during  the  first  four  Norman  reigns  as  much 
as  afterwards.  Allen,  however,  maintained  (Edinb.  Rev. 
xxvi.  p.  364)  that  "  the  administration  of  justice  in  the  last 
resort  belonged  originally  to  the  great  council.  It  was  the 
king's  baronial  court,  and  his  tenants  in  chief  were  the  suitors 
and  judges."  Their  unwillingness  and  inability  to  deal  with 
intricate  questions  of  law,  which,  after  the  simpler  rules  of 
Anglo-Saxon  jurisprudence  were  superseded  by  the  subtle- 
ties of  Normandy,  became  continually  more  troublesome,  led 
to  the  separation  of  an  inferior  council  from  that  of  the 
legislature,  to  both  which  the  name  Cfuria  Regis  is  for  some 
time  indifferently  applied  by  historians.  This  was  done  by 
Henry  II.,  as  Allen  conjectures,  at  the  great  council  of 
Clarendon  in  1164. 

The  Lords'  Committee  took  another  view,  and  one,  it  must 
be  confessed,  more  consonant  to  the  prevailing  opinion. 
"  The  ordinary  council  of  the  king,  properly  denominated 
by  the  word  *  concilium  *  simply,  seems  always  to  have  con- 
sisted of  persons  selected  by  hun  for  that  purpose  ;  and  these 
persons  in  later  times,  if  not  always,  took  an  oath  of  office, 
and  were  assisted  by  the  king's  justiciaries  or  judges,  who 
seem  to  have  been  considered  as  members  of  this  council ; 
and  the  chief  justiciar,  the  treasurer  and  chancellor,  and  some 


other  great  officers  of  the  crown,  who  might  be  styled  the 
king's  confidential  ministers,  seem  also  to  have  been  always 
members  of  this  select  council ;  the  chief  justiciar,  from  the 
high  rank  attributed  to  his  office,  generally  acting  as  presi- 
dent This  select  council  was  not  only  the  king's  ordinary 
council  of  state,  but  formed  the  supreme  court  of  justice, 
denominated  Curia  Regis,  which  commonly  assembled  three 
times  in  every  year,  wherever  the  king  held  his  court,  at  the 
three  great  feasts  of  Easter,  Whitsuntide,  and  Christmas,  and 
sometimes  also  at  Michaelmas.  Its  constant  and  important 
duty  at  those  times  was  the  administration  of  justice." 
(p.  20.) 

It  has  been  seen  in  a  former  note  that  the  meetings  de  more. 
three  times  in  the  year,  are  supposed  by  Mr.  Allen  to  have 
been  of  the  great  council,  composed  of  the  baronial  aristoc- 
racy. The  positions,  therefore,  of  the  Lords'  committee  were 
of  course  disputed  in  his  celebrated  review  of  their  Report. 
"  So  far  is  it,"  he  says,  "  from  being  true  that  the  term  Curia 
Regis,  in  the  time  of  the  Conqueror  and  his  immediate  suc- 
cessors, meant  the  king's  high  court  of  justice,  as  distinguish- 
ed from  the  legislature,  that  it  is  doubtful  whether  such  a 
court  then  existed."  (Ed.  Rev.  xxxv.  6.)  This  is  express- 
ed with  more  hesitation  than  in  the  earlier  article,  and  in  a 
subsequent  passage  we  read  that  "  the  high  court  of  justice, 
to  which  the  committee  would  restrict  the  appellation  of  Curia 
Regis,  and  of  which  such  frequent  mention  is  made  under 
that  name  in  our  early  records  and  courts  of  law,  was  con- 
firmed and  fully  established  by  Henry  II.,  if  not  originally 
instituted  by  that  prince."     (p.  8.) 

The  argument  of  Mr.  Allen  rests  very  much  on  the  judi- 
cial functions  of  the  witenagemot,  which  he  would  consider  as 
maintained  in  its  substantial  character  by  the  great  councils 
or  parliaments  of  the  Norman  dynasty.  In  this  we  may 
justly  concur ;  but  we  have  already  seen  how  far  he  is  from 
having  a  right  to  assume  that  the  Anglo-Saxon  kings,  though 
they  might  administer  justice  in  the  full  meetings  called 
witenagemots,  were  restrained  from  its  exercise  before  a 
smaller  body  more  permanently  attached  to  their  residence. 
It  is  certain  that  there  was  an  appeal  to  the  king's  court  for 
denial  of  justice  in  that  of  the  lord  having  territorial  jurisdic- 
tion, and,  as  the  words  and  the  reason  imply,  from  that  of 
the  sheriff.     (Leg.  Hen.  I.  c.  58.)     This  was  also  the  law 


I 


! 


i 


398 


THE  CURU  REGIS. 


KOTIS  TO 


before  the  Conquest.  But  the  plaintiff  incurred  a  fine  if 
he  brought  his  cause  in  the  first  instance  before  the  king, 
(Thorpe's  Ancient  Laws,  p.  85 ;  and  see  Edinb.  Rev.  xxxv. 
10.)  It  hardly  appears  evident  that  these  cases,  rare  proba- 
bly and  not  generally  interesting,  might  not  be  determined 
ostensibly,  as  they  would  on  any  hypothesis  be  in  reality,  by 
the  chancellor,  the  high  justiciar,  and  other  great  officers  of 
the  crown,  during  the  intervals  of  the  national  council ;  and 
this  is  confirmed  by  the  analogy  of  the  royal  courts  in  France, 
which  were  certainly  not  constituted  on  a  very  broad  basis. 
The  feudal  court  of  a  single  barony  might  contain  all  the  vas- 
sals ;  but  the  inconvenience  would  have  become  too  great  if  the 
principle  had  been  extended  to  all  the  tenants  in  chief  of  the 
realm.  This  relates  to  the  first  four  reigns,  for  which  we  are 
reduced  to  these  grounds  of  probable  and  analogical  reasoning, 
since  no  proof  of  the  distinct  e3dstence  of  a  judicial  court 
seems  to  be  producible. 

In  the  reign  of  Henry  II.  a  court  of  justice  is  manifestly 
distinguishable  both  from  the  select  and  from  the  greater 
council.  "  In  the  Curia  Regis  were  discussed  and  tried  all 
pleas  immediately  concerning  the  king  and  the  realm ;  and 
suitors  were  allowed,  on  payment  of  fines,  to  remove  their 
plaints  from  inferior  jurisdictions  of  Anglo-Saxon  creation 
into  this  court,  by  which  a  variety  of  business  was  wi'ested 
from  the  ignorance  and  partiality  of  lower  tribunals,  to  be 
more  confidently  submitted  to  the  decision  of  judges  of  high 
reputation.  Some  plaints  were  also  removed  into  the  Curia 
Regis  by  the  express  order  of  the  king,  others  by  the  justices, 
then  itinerant,  who  not  imfrequently  felt  themselves  incom- 
petent to  decide  upon  difficult  points  of  law.  Matters  of  a 
fiscal  nature,  together  with  the  business  performed  by  the 
Chancery,  were  also  transacted  in  the  Curia  Regis.  Such  a 
quantity  of  miscellaneous  business  was  at  length  found  to  be 
so  perplexing  and  impracticable,  not  only  to  the  officers  of 
the  Curia  Regis,  but  also  to  the  suitors  themselves,  that  it 
became  absolutely  necessary  to  devise  a  remedy  for  the  in- 
creasing evil.  A  division  of  that  court  into  distinct  depart- 
ments was  the  consequence ;  and  thenceforth  pleas  touching 
the  crown,  together  with  common  pleas  of  a  civil  and  crim- 
inal nature,  were  continued  to  the  Curia  Regis ;  plaints  of  a 
fiscal  kind  were  transferred  to  the  Exchequer ;  and  for  the 
Court  of  Chancery  were  reserved  all  matters  unappropriated 


Chap.  YIII. 


THE  CURIA  REGIS. 


399 


to  the  other  courts."     (Hardy's  Introduction  to  Close  Rolls 
p.  23.) 

Mr.  Hardy  quotes  a  passage  from  Benedict  Abbas,  a 
contemporary  historian,  which  illustrates  very  remarkably 
the  development  of  our  judicial  polity.  Henry  II.,  in  1176, 
reduced  the  justices  in  the  Curia  Regis  from  eighteen  to 
five ;  and  ordered  that  they  should  hear  and  determine  all 
writs  of  the  kingdom  —  not  leaving  the  king's  court,  but 
remaining  there  for  that  purpose;  so  that,  if  any  question 
should  arise  which  they  could  not  settle,  it  should  be  referred 
to  the  king  himself,  and  be  decided  as  it  might  please  him 
and  the  wisest  men  of  the  realm.  And  this  reduction  of  the 
justices  from  eighteen  to  five  is  said  to  have  been  made  per 
consilium  sapientium  regni  sui ;  which  may,  perhaps,  be 
understood  of  parliament.  But  we  have  here  a  distinct 
mention  of  the  Curia  Regis,  as  a  standing  council  of  the 
king,  neither  to  be  confounded  with  the  great  council  or  par- 
liament, nor  with  the  select  body  of  judges,  which  was  now 
created  as  an  inferior,  though  most  important  tribunal.  From 
this  time,  and  probably  from  none  earlier,  we  may  date  the 
commencement  of  the  Court  of  King's  Bench,  which  very 
soon  acquired,  at  first  indifferently  with  the  council,  and  then 
exclusively,  the  appellation  of  Curia  Regis. 

The  rolls  of  the  Curia  Regis,  or  Court  of  King's  Bench, 
begin  in  the  sixth  year  of  Richard  I.  They  are  regularly 
extant  from  that  time ;  but  the  usage  of  preserving  a  regular 
written  record  of  judicial  proceedings  was  certainly  practised 
in  England  during  the  preceding  reign.  The  roll  of  Michael- 
mas Term,  in  9  John,  contains  a  short  transcript  of  certain 
pleadings  in  7  Hen.  II.,  "  proving  that  the  mode  of  enrol- 
ment was  then  entirely  settled."  (Palgrave's  Introduction  to 
Rot.  Cur.  Regis,  p.  2.)  This  authentic  precedent  (in  1161), 
though  not  itself  extant,  must  lead  us  to  carry  back  the 
judicial  character  of  the  Curia  Regis,  and  that  in  a  perfectly 
regular  form,  at  least  to  an  early  part  of  the  reign  of  Henry 
11. ;  and  this  is  more  probable  than  the  date  conjectured  by 
Allen,  the  assembly  at  Clarendon  in  1164.^  But  in  fact  the 
interruption  of  the  regular  assemblies  of  the  great  council, 
thrice  a  year,  which  he  admits  to  date  from  the  reign  of 

1  This  discovery  has  led  SirF.  Palgrave  Qlanvil  giving  us  no  reason  to  presume 

to  correct  his  former  opinion,  that  the  any  written  records  in  his  time.   English 

tolls  of  Curia  llegis   under  Richard  I.  Commonw.  vol.  11.  p.  1. 
an  probably  the  first  that  ever  existed, 


400 


THE  CURIA  REGIS. 


Notes  to 


Stephen,  would  necessitate,  even  on  his  hypothesis,  the  insti- 
tution of  a  separate  court  or  council,  lest  justice  should  be 
denied  or  delayed.  I  do  not  mean  that  in  the  seventh  year 
of  Henry  II.  there  was  a  Court  of  King's  Bench,  distinct 
from  the  select  council,  which  we  have  not  any  grounds  for 
affirming,  and  the  date  of  which  I,  on  the  authority  of  Bene- 
dict Abbas,  have  inclined  to  place  several  years  lower,  but 
that  suits  were  brought  before  the  king's  judges  by  regular 
process,  and  recorded  by  regular  enrolment. 

These  rolls  of  the  Curia  Regis,  or  the  King's  Court,  held 
before  his  justices  or  justiciars,  are  the  earliest  consecutive 
judicial  records  in  existence.  The  Olim  Registers  of  the 
Parliament  of  Paris,  next  to  our  own  in  antiquity,  begin  in 
1254.*  (Palgrave's  Introduction,  p.  1.)  Every  reader,  he 
observes,  will  be  struck  by  the  great  quantity  of  business 
transacted  before  the  justiciars.  "And  when  we  recollect 
the  heavy  expenses  which,  even  at  this  period,  were  attend- 
ant upon  legal  proceedings,  and  the  difficulties  of  communi- 
cation between  the  remote  parts  of  the  kingdom  and  the 
central  tribunal,  it  must  appear  evident  that  so  many  cases 
would  not  have  been  prosecuted  in  the  king's  court  had  not 
some  very  decided  advantage  been  derived  from  this  source." 
(p.  6.)  The  issues  of  fact,  however,  were  remitted  to  be 
tried  by  a  jury  of  the  vicinage ;  so  that,  possibly,  the  ex- 
pense might  not  be  quite  so  considerable  as  is  here  suggested. 
And  the  jurisdiction  of  the  county  and  hundred  courts  was 
so  limited  in  real  actions,  or  those  affecting  land,  by  the 
assizes  of  novel  disseizin  and  mort  d'ancestor,  that  there  was 
no  alternative  but  to  sue  before  the  courts  at  Westminster. 

It  would  be  travelling  beyond  the  limits  of  my  design  to 
dwell  longer  on  these  legal  antiquities.  The  reader  will 
keep  in  mind  the  threefold  meaning  of  Curia  Regis:  the 
common  council  of  the  realm,  already  mentioned  in  a  former 
note,  and  to  be  discussed  again ;  the  select  council  for  judi- 
cial as  well  as  administrative  purposes ;  and  the  Court  of 
King's  Bench,  separated  from  the  last  in  the  reign  of  Henry 
II.,  and  soon  afterwards  acquiring,  exclusively,  the  denomi- 
nation Curia  Regis. 

In  treating  the  judges  of  the  Court  of  Exchequer  as 
officers  of  the  crown,  rather  than  nobles,  I  have  followed  the 


t  They  axe  published  in  the  Docomens  InMits,  1839,  \>j  M.  Beugnot. 


Chap.  Vin. 


SUCCESSION  TO  THE  CROWN. 


401 


usual  opinion.  But  Allen  contends  that  they  were  "  barons 
selected  from  the  common  council  of  the  realm  on  account 
of  their  rank  or  reputed  qualifications  for  the  office.'*  They 
met  in  the  palace ;  and  their  court  was  called  Curia  Regis, 
with  the  addition  "  ad  scaccarium."  Hence  Fleta  observes 
that,  after  the  Court  of  Exchequer  was  tilled  with  mere 
lawyers,  they  were  styled  barons,  because  formerly  real 
barons  had  been  the  judges;  "justiciarios  ibidem  commo- 
rantes  barones  esse  dicimus,  eo  quod  suis  locis  barones  sedere 
Bolcbant."  (Edinb.  Rev.  xxxv.  11.)  This  is  certainly  an 
important  remark.  But  in  practice  it  is  to  be  presumed  that 
the  king  selected  such  barons  (a  numerous  body,  we  should 
remember)  as  were  likely  to  look  well  after  the  rights  of  the 
crown.  The  Court  of  Exchequer  is  distinctly  traced  to  the 
reign  of  Henry  I. 


Note  XIV.    Page  326. 

The  theory  of  succession  to  the  crown  in  the  Norman 
period  intimated  in  the  text  has  now  been  extensively  re- 
ceived. "It  does  not  appear,"  says  Mr.  Hardy,  " that  any 
of  the  early  English  monarchs  exercised  any  act  of  sovereign 
power,  or  disposed  of  public  affairs,  till  after  their  election 
and  coronation.  .  .  .  These  few  examples  appear  to  be 
undeniable  proofs  that  the  fundamental  laws  and  institutions 
of  this  kingdom,  based  on  the  Anglo-Saxon  custom,  were  at 
that  time  against  an  hereditary  succession  unless  by  common 
consent  of  the  realm."  (Introduction  to  Close  Rolls,  p.  35.) 
It  will  be  seen  that  this  abstinence  from  all  exercise  of  power 
cannot  be  asserted  without  limitation. 

The  early  kings  always  date  their  reign  from  their  coro- 
nation, and  not  from  the  decease  of  their  predecessor,  as  is 
shown  by  Sir  Harris  Nicolas  in  his  Chronology  of  History 
(p.  272).  It  had  been  with  less  elaborate  research  pointed 
out  by  Mr.  Allen  in  his  Inquiry  into  the  Royal  Prerogative. 
The  former  has  even  shown  that  an  exception  wliich  Mr. 
Allen  had  made  in  respect  of  Richard  I.,  of  whom  he  sup- 
poses public  acts  to  exist,  dated  in  the  first  year  of  his  reign, 
but  before  his  coronation,  ought  not  to  have  been  made ; 
having  no  authority  but  a  blunder  made  by  the  editors  of 
Rymer's  Foedera  in  antedating  by  one  month  the  decease 
of  Henry  II.,  and  following  up  that  mistake  by  the  usual 

VOL.  u.  26 


402 


SUCCESSION  TO  THE  CROWN. 


Notes  to 


assumption  that  the  successor's  reign  commenced  immedi- 
ately, in  placing  some  instruments  bearing  date  in  the  first 
year  of  Richard  just  twelve  months  too  early.  This  dis- 
covery has  been  confirmed  by  Mr.  W.  Hardy  in  the  27th 
volume  of  the  Archaeologia  (p.  109),  by  means  of  a  charter 
in  the  archives  of  the  duchy  of  Lancaster,  where  Richard, 
before  his  coronation,  confirms  the  right  of  Gemld  de  Cam- 
ville  and  his  wife  Nichola  to  the  inheritance  of  the  said 
Nichola  in  England  and  Normandy,  with  an  additional  grant 
of  lands.  In  this  he  only  calls  himself  "  Ricardus  Dei 
gratia  dominits  Anglioe."  It  has  been  observed,  as  another 
slighter  circumstance,  that  he  uses  the  form  ego  and  mens 
instead  of  nos  and  noster. 

Whatever,  therefore,  may  have  been  the  case  in  earlier 
reigns,  all  the  kings,  indeed,  except  Henry  II.,  having  come 
in  by  a  doubtful  title,  we  perceive  that,  as  has  been  before 
said  in  the  text  on  the  authority  of  an  historian,  Richard  I. 
acted  in  some  respects  as  king  before  the  title  was  constitu- 
tionally his  by  his  coronation.  It  is  now  known  that  John's 
reign  began  with  his  coronation,  and  that  this  is  the  date 
fet)m  which  his  charters,  like  those  of  his  predecessors,  are 
reckoned.  But  he  seems  to  have  acted  as  king  before. 
(Palgrave's  Introduction  to  Rot.  Cur.  Regis,  vol.  i.  p.  91 ; 
and  further  proof  is  adduced  in  the  Introduction  to  the 
second  volume.)  Palgrave  thinks  the  reign  virtually  began 
with  the  proclamation  of  the  king's  peace,  which  was  at  some 
short  interval  after  the  demise  of  the  predecessor.  He  is 
positive  indeed  that  the  Anglo-Saxon  kings  had  no  right 
before  their  acceptance  by  the  people  at  their  coronation. 
But,  "  after  the  Conquest,"  he  proceeds,  "  it  is  probable,  for 
we  can  only  speak  doubtingly  and  hypothetically,  that  the 
heir  obtained  the  royal  authority,  at  least  for  the  purposes  of 
administering  the  law,  from  the  day  that  his  peace  was 
proclaimed.  He  was  obeyed  as  chief  magistrate  so  soon  as 
he  was  admitted  to  the  high  ofiice  of  protector  of  the  public 
tranquillity.  But  he  was  not  honored  as  the  king  until  the 
sacred  oil  had  been  poured  upon  him,  and  the  crown  set 
upon  his  head,  and  the  sceptre  grasped  in  his  hand."  (In- 
troduct.  to  Rot.  Cur.  Reg.  p.  92.) 

This  hypothesis,  extremely  probable  in  all  cases  where  no 
opposition  was  contemplated,  is  not  entirely  that  of  Allen, 
Hardy,  and  Nicolas ;  and  it  seems  to  imply  an  admitted  right, 


Chap.  VIII. 


PRIVATE  WARFARE. 


403 


which  indeed  cannot  be  disputed  in  the  case  of  Henry  11., 
who  succeeded  by  virtue  of  a  treaty  assented  to  by  the  baro- 
nage, nor  is  it  likely  to  have  been  in  the  least  doubtful  when 
Richard  I.  and  Henry  III.  came  to  the  throne.  It  is  impor- 
tant, however,  for  the  unlearned  reader  to  be  informed  that  he 
has  been  deceived  by  the  almanacs  and  even  the  historians, 
who  lay  it  down  that  a  king's  reign  has  always  begun  from 
the  death  of  his  predecessor  :  and  yet,  that,  although  he  bore 
not  the  royal  name  before  his  coronation,  the  interval  of  a  va- 
cant throne  was  virtually  but  of  a  few  days ;  the  successor 
taking  on  himself  the  administration  without  the  royal  title, 
by  causing  public  peace  to  be  proclaimed. 

The  original  principle  of  the  necessity  of  consent  to  a  king's 
succession  was  in  some  measure  preserved,  even  at  the  death 
of  Henry  III.  in  1272,  when  fifty-six  years  of  a  single  reign 
might  have  extinguished  almost  all  personal  recollections  of 
precedent.  "  On  the  day  of  the  king's  burial  the  barons  swore 
fealty  to  Edward  I.,  then  absent  from  the  realm,  and  from 
this  his  reign  is  dated."  Four  days  having  elapsed  between 
the  death  of  Henry  and  the  recognition  of  Edward  as  king, 
the  accession  of  the  latter  was  dated,  not  from  his  father's 
death,  but  from  his  own  recognition.  Henry  died  on  the  16th 
of  November,  and  his  son  was  not  acknowledged  king  till  the 
20th.  (Allen's  Inquiry,  p.  44,  quoting  Palgrave's  Parlia- 
mentary Writs.)  Thus  this  recognition  by  the  oath  of  fealty 
came  in  and  was  in  the  place  of  the  coronation,  though  with 
the  important  difference  that  there  was  no  reciprocity. 


Note  XV.     Page  329. 

Mr.  Allen  has  differed  from  me  on  the  lawfulness  of  private 
war,  quoting  another  passage  from  Glanvil  and  one  from 
Bracton  (Edinb.  Rev.  xxx.  168)  ;  and  I  modified  the  passage 
after  the  first  edition  in  consequence  of  his  remarks.  But  I 
adhere  to  the  substance  of  what  I  have  said.  It  appears,  in- 
deed, that  the  king's  peace  was  originally  a  personal  security, 
granted  by  charter  under  his  hand  and  seal,  which  could  not 
be  violated  without  incurring  a  penalty.  Proofs  of  this  are 
found  in  Domesday,  and  it  was  a  Saxon  usage  derived  from 
the  old  Teutonic  inundehurde.  William  I.,  if  we  are  to  believe 
what  is  written,  maintained  the  peace  throughout  the  realm. 
But  the  general  proclamation  of  the  king's  peace  at  his  acces- 


404 


PRIVATE  WARFARE.     Notes  to  Chap  VIIL 


sion,  which  became  the  regular  law,  may  have  been  intro- 
duced by  Henry  II.  Palgrave,  to  whom  I  am  indebted,  states 
this  clearly  enough.  "  Peace  is  stated  in  Domesday  to  have 
been  given  by  the  king's  seal,  that  is,  by  a  writ  under  seal. 
This  practice,  which  is  not  noticed  in  the  Anglo-Saxon  laws, 
continued  in  the  protections  granted  at  a  much  later  period , 
though  after  the  general  law  of  the  king's  peace  was  estab 
lished  such  a  charter  had  ceased  to  afford  any  special  privilege 
All  the  immunities  arising  from  residence  witliin  the  verge  or 
ambit  of  the  king's  presence  —  from  the  truces,  as  they  are 
termed  in  the  continental  laws,  which  recurred  at  the  stated 
tunes  and  seasons  —  and  also  from  the  '  handselled '  protection 
of  the  king,  were  then  absorbed  in  the  general  declaration  of 
the  peace  upon  the  accession  of  the  new  monarch.  This 
custom  was  probably  introduced  by  Henry  II.  It  is  inconsistr 
ent  with  the  laws  of  Heniy  I. ;  which,  whether  an  authonzed 
collection  or  not,  exhibit  the  jurisprudence  of  that  period,  but 
it  is  wholly  accordant  with  the  subsequent  tenor  of  the  pro- 
ceedings of  the  Curia  Regis."  (English  Commonwealth,  vol. 
ii.  p.  105.) 

A  few  words  in  Glanvil  (those  in  Bracton  are  more  am- 
biguous), which  may  have  been  written  before  the  king's 
peace  was  become  a  matter  of  permanent  law,  or  may  rather 
refer  to  Normandy  than  England,  ought  not,  in  my  opinion,  to 
be  set  against  so  clear  a  declaration.  The  right  of  private 
war  in  the  time  of  Henry  II.  was  giving  way  in  France  ;  and 
we  should  always  remember  that  the  Anglo-Norman  govern- 
ment was  one  of  high  prerogative.  The  paucity  of  historical 
evidence  or  that  for  records  for  private  war,  as  an  usual  prac- 
tice, is  certainly  not  to  be  overlooked. 


END   OF  THE   SECOND   VOLUME, 


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COLUMBIA   UNIVERSITY  LIBRARIES 

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1 


YIEW 


GV 


THE  STATE  OF  EUROPE 


mmisQ 


§ 

i 


THE  MIDDLE  AGES. 


I 


Bt  henry  KALLAM,  LL.D.,  F.E.A.S. 

fOBKIQlT  A880CUTK   OF  THE   UfSTITUTK   OF  rBAlTCB. 


,      IN  THREE  VOLUMES. 


VOLUME  in. 


NEW    YORK: 
W.   J.   WIDDLETON,    PUBLISHER. 

1870. 


CONTENTS 


ov 


THE   THIRD  VOLUME. 


CHAPTER  Vm. 


Part  IIL 


THE  ENGLISH  CONSTITUTION. 


Cambridge :  Presswork  by  John  WlUon  and  Son. 


Reign  of  Edward  I.  —  Confirmatio  Chartarum  —  Constitution  of  Ptrlia- 
ment  — the  Prelates  — the  temporal  Peers  — Tenure  by  Barony  —  its 
Changes  —  Difficulty  of  the  Subject  —  Origin  of  Representation  of  the 
Commons— Knights  of  Shires  —  their  Existence  doubtfully  traced 
through  the  Reign  of  Henry  HI.  —  Question  whether  Representation 
was  confined  to  Tenants  in  capite  discussed  —  State  of  English  Towns 
at  the  Conquest  and  afterwards  —  their  Progress  —  Representatives 
from  them  summoned  to  Parliament  by  Earl  of  Leicester  —  Improba- 
bility of  an  earlier  Origin  —  Cases  of  St  Albans  and  Barnstaple  con- 
sidered—Parliaments under  Edward  I.  —  Separation  of  Knights  and 
Burgesses  from  the  Peers  —  Edward  II.  —  Gradual  Progress  of  the 
Authority  of  Parliament  traced  through  the  reigns  of  Edward  HI.  and 
his  Successors  down  to  Henry  TV.  —  Privilege  of  Parliament— the 
early  Instances  of  it  noticed — Nature  of  Borough  Representation  — 
Right  of  Election  —  other  Particulars  relative  to  Election  —  House  of 
Lords  —  Baronies  by  Tenure  —  by  Writ  —  Nature  of  the  latter  dis- 
cussed—  Creation  of  Peers  by  Act  of  Parliament  and  by  Patent  — 
Summons  of  Clergy  to  Parliament — King's  Ordinary  Council — its 
Judicial  and  other  Power  —  Character  of  the  Plantagenet  Grovemment 

—  Prerogative  —  its  Excesses — erroneous  Views  corrected  —  Testimony 
of  Sir  John  Fortescue  to  the  Freedom  of  the  Constitution  —  Causes  of 
the  superior  Liberty  of  England  considered  —  State  of  Society  in  Eng- 
land—  Want  of  Police  —  Villenage  —  its  gradual  Extinction — Latter 
Tears  of  Henry  VI. — Regencies  —  Instances  of  them  enumerated  — 
Pretensions  of  the  House  of  York,  and  War  of  the  Hoses  —  Edward  IV. 

—  Conclusion Page  5 

Notes  to  Chapter  VIH.,  PaetHI 194 


CONTENTS  OF  THE  THIRD  VOLUME. 


CHAPTER  rx. 


VIEW 


ON  THE  STATE  OF  SOCIETY  IN  EUBOFE  DUBINO  THE  MIDDLE  AOB8. 

Part  I. 

Introduction  —  Decline  of  Literature  in  the  latter  Period  of  the  Roman 
Empire —  Its  Causes  —  Corruption  of  the  Latin  Language  —  Means  by 
which  it  was  effected  —  Formation  of  new  Languages  —  General  Igno- 
rance of  the  Dark  Ages  —  Scarcity  of  Books — Causes  that  prevented 
the  total  Extinction  of  Learning  —  Prevalence  of  Superstition  and  Fa- 
naticism —  General  Corruption  of  Religion  —  Monasteries  —  their  Effects 
—  Pilgrimages  —  Love  of  Field  Sports  —  State  of  Agriculture  —  of  In- 
ternal and  Foreign  Trade  down  to  the  end  of  the  Eleventh  Century  — 
Improvement  of  Europe  dated  from  that  Age Page  254 


or 


THE    STATE    OF    EUROPE 


DURING  THE  MIDDLE  AGES. 


CHAPTER   Vni. 


Part  H. 

Progress  of  Commercial  Improvement  in  Germany,  Flanders,  and  Eng- 
land —  in  the  North  of  Europe  —  in  the  Countries  upon  the  Mediter- 
ranean Sea — Maritime  Laws  —  Usury — Banking  Companies  — -Progress 
of  Refinement  in  Manners  —  Domestic  Architecture  —  Ecclesiastical  Ar- 
chitecture —  State  of  Agriculture  in  England  —  Value  of  Money  —  Im- 
provement of  the  Moral  Character  of  Society  —  its  Causes  —  Police  — 
Changes  in  Religious  Opinion — Various  Sects — Chivalry — its  Progress, 
Character,  and  Influence  —  Causes  of  the  Intellectual  Improvement  of 
European  Society  —  1.  The  Study  of  Civil  Law  —  2.  Institution  of 
Universities  —  their  Celebrity  —  Scholastic  Philosophy  —  3.  Cultivation 
of  Modem  Languages  —  Proven9al  Poets  —  Norman  Poets  —  French 
Prose  "Writers  —  Italian  —  early  Poets  in  that  Language  —  Dante  — 
Petrarch  —  English  language  —  its  Progress  —  Chaucer  —  4.  Revival  of 
Classical  Learning  —  Latin  Writers  of  the  Twelfth  Century  —  Literature 
of  the  Fourteenth  Century  —  Greek  Literature  —  its  Restoration  in  Italy 
—  Invention  of  Printing 301 

Notes  to  Chaftek  IX 446 

Index 450 


I 


PART  in. 

THE   ENGLISH    CONSTITUTION. 

Reiimof  Edward  I.  — Confirmatio  Chartarum  —  Constitution  of  ParUament -- th« 
Prelates  — the  Temporal  Peers  — Tenure  by  Barony  — its  Changes —  Difficulty 
of  the  Subject— Origin  of  Representation  of  the  Commons  —  Knights  of  Shires  — 
their  ExUtence  doubtfully  traced  through  the  Reign  of  Henry  III.  —  Question 
whether  Representation  was  confined  to  Tenants  in  capite  discussed  — State  of 
Enslish  Towns  at  the  Conquest  and  afterwards  —  their  Progress  —  Represento- 
^^  fh)m  them  sununoned  to  ParUament  by  Earl  of  Leicester  —  Improbability 
of  an  earlier  Origin  — Cases  of  St.  Albans  and  Barnstaple  considered —  Parlia 
ments  under  Edward  I.  —  Separation  of  Knights  and  Burgesses  from  the  Peers  — 
Edward  II.  —  gradual  Progress  of  the  Authority  of  Parliament  traced  through 
the  Reigns  of  Edward  III.  and  his  Successors  down  to  Henry  IV.  — Privilege  of 
Parliament  —  the  early  Instances  of  it  noticed  —  Nature  of  Borough  Representa- 
tion—Rights of  Election  — other  Particulars  relative  to  Election  —  House  of 
Lords- Baronies  by  Tenure  — by  Writ  — Nature  of  the  latter  discussed  — 
Creation  of  Peers  by  Act  of  ParUament  and  by  Patent  —  Summons  of  Clergy  to 
Parliament  — King's  Ordinary  Council  — its  Judicial  and  other  Power  — Charac- 
ter of  the  Plantagenet  Government— Prerogative  — its  Excesses  —  erroneous 
Views  corrected  — Testimony  of  Sir  John  Fortescue  to  the  Freedom  of  the  Con- 
stitution —  Causes  of  the  superior  Liberty  of  England  considered  —  State  of 
Society  in  England  —  Want  of  PoUce— VUlenage— its  gradual  Extinction  — 
latter  Years  of  Henry  VI.— Regencies  — Instances  of  them  enumerated  — 
Pretensions  of  the  House  of  York,  and  War  of  the  Roses  — Edward  IV.  —Con- 
clusion. 

Though  the  undisputed  accession  of  a  prince  like  Edward 
I.  to  the  throne  of  his  father  does  not  seem  so  con-  Accession  of 
venient  a  resting-place  in  history  as  one  of  those  Edward  i. 
revolutions  which  interrupt  the  natural  chain  of  events,  yet 
the  changes  wrought  during  his  reign  make  it  properly  an 
epoch  in  the  progress  of  these  inquiries.  And,  indeed,  as  ours 
is  emphatically  styled  a  government  by  king,  lords,  and  com 


f 


CONFIRMATION  OF      Chap.  VHI.  Part  HI. 


EKOLI8H  Const. 


THE  CHARTERS. 


I! 


mons,  we  cannot,  perhaps,  in  strictness  carry  it  further  back 
than  the  admission  of  the  latter  into  parliament ;  so  that  if 
the  constant  representation  of  the  conmions  is  to  be  referred 
to  the  age  of  Edward  I.,  it  will  be  nearer  the  truth  to  date 
the  English  constitution  from  that  than  from  any  earlier  era. 
The  various   statutes  affecting  the  law  of  property  and 
administration  of  justice  which  have  caused  Edward  I.  to  be 
named,  rather  hyperboUcally,  the  English  Justinian,  bear  no 
immediate  relation  to  our  present  inquiries.     In  a  constitu- 
Conflrma-      tioual  point  of  vicw  the  principal  object  is  that 
cSrtJw^*     ^^^^^  entitled  the  Confirmation  of  the  Charters, 
which  was  very  reluctantly  conceded  by  the  king 
in  the  25th  year  of  his  reign.    I  do  not  know  that  England 
has  ever  produced  any  patriots  to  whose  memory  she  owes 
more  gratitude  than  Humphrey  Bohun,  earl  of  Hereford  and 
Essex,  and  Roger  Bigod,  earl  of  Norfolk.     In  the  Great 
Charter  the  base  spirit  and  deserted  condition  of  John  take 
off  something  from  the  glory  of  the  triumph,  though  they 
enhance  the  moderation  of  those  who  pressed  no  further  upon 
an  abject  tyrant.     But  to  withstand  the  measures  of  Edward, 
a  prince  unequalled  by  any  who  had  reigned  in  England  since 
the  Conqueror,  for  prudence,  valor,  and  success,  required  a  far 
more  intrepid  patriotism.    Their  provocations,  if  less  outrage- 
ous than  those  received  from  John,  were  such  as  evidently 
manifested  a  disposition  in  Edward  to  reign  without  any  con- 
trol; a  constant  refusal  to  confirm  the  charters,  which  in  that 
age  were  hardly  deemed  to  bind  the  king  without  his  actual 
consent ;  heavy  impositions,  especially  one  on  the  export  of 
wool,  and  other  unwarrantable  demands.     He  had  acted  with 
such  unmeasured  violence  towards  the  clergy,  on  account  of 
their  refusal  of  further  subsidies,  that,  although  the  ill-judged 
policy  of  that  class  kept  their  interests  too  distinct  from  those 
of  the  people,  it  was  natural  for  all  to  be  akrmed  at  the  prec- 
edent of  despotism.!    These  encroachments  made  resistance 
justifiable,  and  the  circumstances  of  Edward  made  it  prudent. 
His  ambition,  luckily  for  the  people,  had  involved  him  in  for- 
eign warfare,  from  which  he  could  not  recede  without  disap- 
pointment and  dishonor.     Thus  was  wrested  from  him  that 

1  The  fullest  account  we  posseM  of  Carte,  but  extremely  well  told  by  Hume, 

these  dom^tic  transactions  from  1294  to  the  first  writer  who  had  the  merit  of  ex- 

J^  18  m  Walter  Hemmgford,  one  of  the  posing  the  character  of  Edward  I.    8m 

historians  edited  by  Heame,  p.  52-168.  too  Knyghton  in  Twysden's  Decern  Scrip, 

iney   have    been    Tllely    perverted   by  tores,  col.  2492. 


famous  statute,  inadequately  denominated  the  Confirmation 
of  the  Charters,  because  it  added  another  pillar  to  our  con- 
stitution,  not  less  important  than  the  Great  Charter  itself.^ 

It  was  enacted  by  the  25  Edw.  I.  that  the  charter  of  liber- 
ties, and  that  of  the  forest,  besides  being  explicitly  confirmed,^ 
should  be  sent  to  all  sheriffs,  justices  in  eyre,  and  other  mag- 
istrates throughout  the  realm,  in  order  to  their  publication 
before  the  people ;  that  copies  of  them  should  be  kept  in 
cathedral  churches,  and  publicly  read  twice  in  the  year,  ac- 
companied by  a  solemn  sentence  of  excommunication  agamst 
all  who  should  infringe  them ;  that  any  judgment  given  con- 
trary to  these  charters  should  be  invalid,  and  holden  for  nought. 
This  authentic  promulgation,  those  awful  sanctions  of  the 
Great  Charter,  would  alone  render  the  statute  of  which  we 
are  speaking  illustrious.     But  it  went  a  great  deal  further. 
Hitherto  the  king's  prerogative  of  levying  money  by  name  of 
tallage  or  prize  from  his  towns  and  tenants  in  demesne  had 
passed  unquestioned.      Some  impositions,  that  especially  on 
the  export  of  wool,  affected  all  his  subjects.     It  was  now  the 
moment  to  enfranchise  the  people,  and  give  that  security  to 
private  property  which  Magna  Charta  had  given  to  personal 
liberty.    By  the  5th  and  6th  sections  of  this  statute  "the  aids, 
tasks,  and  prizes,"  before  taken  are  renounced  as  precedents ; 
and  the  king  "  grants  for  him  and  his  heirs,  as  well  to  arch- 
bishops, bishops,  abbots,  priors,  and  other  folk  of  holy  church, 
as  also  to  earls,  barons,  and  to  all  commonalty  of  the  land, 
that  for  no  business  from  henceforth  we  shall  take  such  man- 
ner of  aids,  tasks,  nor  prizes,  but  by  the  common  assent  of  the 
reahn,  and  for  the  common  profit  thereof,  saving  the  ancient 
aids  and  prizes  due  and  accustomed."     The  toll  upon  wool, 
60  far  as  levied  by  the  king's  mere  prerogative,  is  expressly 
released  by  the  seventh  section.' 


1  Walsingham,  In  Camden's  Scriptores 
Her.  AngUcarum,  p.  71-78. 

a  Edward  would  not  confirm  the  char- 
ters, notwithstanding  his  promise,  with- 
out the  words,  salvo  jure  coronas  nostrae ; 
on   which    the    two  earls  retired   from 
court.    When  the  confirmation  was  read 
to  the  people  at  St.  Paul's,  says  Ileming- 
ford,  they  blessed  the  king  on  seeing  the 
eharters  with  the  great  seal  affixed ;  but 
when  they  heard  the  captious  conclusion, 
tiiey  cursed  him  instead.    At  the  next 
meeting  of  parliament,  the  king  agreed 
to  omit  these  insidious  viords,  p.  168. 


3  The  supposed  statute,  De  Tallagio 
non  concedendo,  is  considered  by  Black- 
stone  (Introduction  to  Charters,  p.  67) 
as  merely  an  abstract  of  the  Confirmatio 
Chartarum.    By  that  entitled   Articuli 
super  Chartas,  28  Edw.  I.,  a  court  was 
erected  in  every  county,  of  three  kmghts 
or  others,  to  be  elected  by  the  commons 
of  the  shire,  whose  sole  province  was  to 
determine  offences  against  the  two  char- 
ters, with  the  power  of  punishing  by  fine 
and  Imprisonment ;  but  not  to  extend  U 
any  case  wherein  a  remedy  by  writ  wa- 
already  provided.    The  Confirmatio  Char 


1. 


8         CONSTITUTION  OF  PARLIAMENT.    Chap.  VHI.  Part  Itt 

We  come  now  to  a  part  of  our  subject  exceedingly  impor- 
Constitu-  ^^^y  ^"^  ™ore  intricate  and  controverted  than  any 
SSilent  ^^^^^'  *^^  constitution  of  parliament.  I  have  taken 
no  notice  of  this  in  the  last  section,  in  order  to 
present  unmterruptedly  to  the  reader  the  gradual  procn-ess  of 
our  legislature  down  to  its  complete  establishment  under  the 
Edwards.  No  excuse  need  be  made  for  the  dry  and  critical 
disquisition  of  the  following  pages ;  but  among  such  obscure 
mqumes  I  cannot  feel  myself  as  secure  from  error  as  I  cer- 
tainly  do  from  partiality. 

One   constituent  branch   of  the   great   councils  held    by 
The  spiritual  William  the  Conqueror  and  all  his  successors  was 
r^'      ^  ,  composed  of  the  bishops  and  the  heads  of  religious 
houses  holdmg  their  temporalities  immediately  of  the  crown. 
It  has  been  frequently  maintained  that  these  spiritual  lords 
sat  in  parliament  only  by  virtue  of  their  baronial  tenure. 
And  certamly  they  did  all  hold  baronies,  which,  according  to 
the  analogy  of  lay  peerages,  were  sufficient  to  give  them  such 
a  share  in  the  legislature.     Nevertheless,  I  think  that  tliis  is 
rather  too  contracted  a  view  of  the  rights  of  the  Enrrlish  hie- 
rarchy, and,  indeed,  by  implication,  of  the  peerage?    For  a 
great  council  of  advice  and  assent  in  matters  of  legislation  or 
national  importance  was  essential  to  all  the  northern  ffovem- 
ments.     And  all  of  them,  except,  perhaps,  the  Lombards, 
mvited  the  superior  ecclesiastics  to  their  councils ;  not  upon 
any  feudal  notions,  which  at  that  time  had  hardly  berrun  to 
prevail,  but  chiefly  as  representatives  of  the  church  iSid  of 
rehgion  itself ;  next,  as  more  learned  and  enlightened  counsel- 
lors  than  the  lay  nobiUty ;  and  in  some  degree,  no  doubt,  as 
nch  propnetors  of  land.     It  will  be  remembered  also  that 
ecclesiastical  and  temporal  affairs  were  originally  decided  in 
the  same  assemblies,  both  upon  the  continent  and  in  En-land. 


English  Const.         THE  SPIRITUAL  PEERS. 


9 


tarum  is  properly  denominated  a  statute, 
and  always  printed  as  such;  but  in 
form,  like  Magna  Charta,  it  is  a  charter 
or  letters  patent,  proceeding  from  the 
crown,  without  even  reciting  the  consent 
of  the  reahn.  And  its  "  teste »  is  at 
Ghent,  2  Nov.  1297 ;  Edward  having  en- 
gaged, conjointly  with  the  count  of 
Flanders,  in  a  war  with  PhiUp  the  Fair. 
But  a  parliament  had  been  held  at  Lon- 
don,  when  the  barons  insisted  on  these 
concessions.  The  circumstances  are  not 
^°o|ly  unlike  those  of  Magna  Charta. 

The  Lorda'  Committee  do  not  seem  to 
ndwt  the  statute  "  de  tallagio  non  con- 


cedendo  »  altogether,  but  gay  that,  ♦•  if 
the  manuscript  containing  it  (in  Corpus 
Christi  College,  Cambridge)  is  a  true 
copy  of  a  statute,  it  is  undoubtedly  a 
copy  of  a  statute  of  the  25th,  and  not 
of  »  statute  of  the  34th  of  Edward  I." 
p.  230.  It  seems  to  me  on  comparing  tha 
two,  that  the  supposed  statute  de  tallagio 
Is  but  an  imperfect  transcript  of  the 
king's  charter  at  Ghent.  But  at  least,  as 
one  exists  in  an  authentic  form,  and  the 
other  is  only  found  in  an  unauthorized 
copy,  there  can  be  no  Question  which 
ought  to  be  quoted. 


The  Norman  Conquest,  which  destroyed  the  Anglo-Saxon 
nobility,  and  substituted  a  new  race  in  their  stead,  could  not 
affect  the  immortality  of  church  possessions.    The  bishops  of 
William's  age  were  entitled  to  sit  in  his  councils  by  the  gen- 
eral custom  of  Europe,  and  by  the  common  law  of  England, 
which  the  Conquest  did  not  overturn.^     Some  smaUer  argu- 
ments might  be  urged  against  the  supposition  that  their  legis- 
lative rights  are  merely  baronial;  such  as  that  the  guardian 
of  the  spiritualities  was  commonly  summoned  to  parliament 
during  the  vacancy  of  a  bishopric,  and  that  the  five  sees 
created  by  Henry  VIII.  have  no  baronies  annexed  to  them  ;^ 
but  the  former  reasoning  appears  less  technical  and  confined. 
Next  to  these  spiritual  lords  are  the  earis  and  barons,  or 
lay  peerage  of  England.     The  former  dignity  was,  perhaps, 
not  so  merely  official  as  in  the  Saxon  times,  although  the  earl 
was  entitled  to  the  thmi  penny  of  all  emoluments  ansmg 
from  the  administration  of  justice  in  the  county  courts,  and 
might,  perhaps,  command  the  militia  of  his  county,  when  it 
was  called  forth.*     Every  eari  was  also  a  baron,  and  held  an 
honor  or  barony  of  the  crown,  for  which  he  paid  a  higher 
relief  than  an  ordinary  baron,  probably  on  account  of  the 
profits  of  his  earldom.      I  wiU  not  pretend  to  say  whether 
titular  earidoms,  absolutely  distmct  from  the  lieutenancy  of  a 
county,  were  as  ancient  as  the  Conquest,  which  Madox  seems 
to  think,  or  were  considered  as  irregular  so  late  as  Henry 
n.,  according  to  Lord  Lyttelton.     In  Dugdale's  Baronage  I 
find  none  of  this  description  in  the  first  Norman  reigns ;  for 
even  that  of  Clare  was  connected  with  the  local  earldom  of 

Hertford.  .  ^ 

It  is  universally  agreed  that  the  only  baronies  known  tor 


1  Hody  (Treatise  on  Convocations,  p. 
126)  states  the  matter  thus :  in  the  Saxon 
times  all  bishops  and  abbots  sat  and  vot- 
•d  in  the  state  councils,  or  parliament, 
•s  such,  and  not  on  account  of  their  ten- 
ures. After  the  Conquest  the  abbots  sat 
there  not  as  such,  but  by  virtue  of  their 
tenures,  as  barons ;  and  the  bishops  sat 
in  a  double  capacity,  as  bishops,  and  as 
barons. 

*  Hody,  p.  128. 

»  [NOTB  I.]  ,„ 

4  Madox,  Baronia  Anglica,  p.  138. 
Dialogus  de  Scaccario,  1.  i.  c.  17.  Lyt- 
telton's  Henry  II.  vol.  ii.  p.  217.  The 
last  of  these  writers  supposes,  contrary 
to  Selden,  that  the  earls  continued  to 


be  governors  of  their  counties  under 
Henry  II.  Stephen  created  a  few  titular 
earls,  with  grants  of  crown  lands  to  sup- 
port them  ;  but  his  successor  resumed 
the  grants,  and  deprived  them  of  their 
earldoms. 

In  Rymer's  Foedera,  vol.  i.  p.  d,  we 
find  a  grant  of  Matilda,  creating  Miloof 
Gloucester  earl  of  Hereford,  with  the 
moat  and  castle  of  that  city  in  fee  to  him 
and  his  heirs,  the  third  penny  of  the 
rent  of  the  city,  and  of  the  pleas  in  the 
county,  three  manors  and  a  forest,  and 
the  service  of  three  tenants  in  chief,  with 
all  their  fiefs  ;  to  be  held  with  all  privi- 
leges and  liberties  as  fully  as  ever  any 
earl  in  England  had  possessed  them. 


I 


( 


'It 


I 


10  QUESTION  AS  TO  THE      Chap.  Vm.  Part  HI 

Qoctionu  ^'^  centuries  after  the  Conquest  were  incident  to 
^-of  '^J^°"^  "'■  l^d  held  immediately  fn,m  the 
barouie..       prown.     Ihere  are,  however,  material  difficulties 

„!,•  I.  ,.?  "^fy  °^  "S""'^  understanding  their  nature 
whidi  ought  not  to  be  passed  oyer,  because  the  consideration 
of  baronial  tenures  will  best  develop  the  formation  of  our 
parhamentary  system^  Two  of  our  most  eminent  legal  an" 
quar.es  Selden  and  Madox,  have  entertained  differem  opin- 
ions as  to  the  characteristics  and  attributes  of  this  tenure 

Accordmg  to  the  first,  every  tenant  in  chief  by  knight. 
S?.?:"'      r™^  ^^  an  honorary  or  parliamentary  hLm 

m„n»,i  .  ,1  ^l^f  "^  *"'  '^"'"■«-  ^  these  were  sum- 
moned  to  the  kmgs  councils,  and  were  peers  of  his  court 
Iheir  baronies,  or  honors,  as  they  were  frequently  called, 
consisted  of  a  number  of  knight's  fees;  that  is,  of  estates^ 
fixmi  each  of  which  the  feudal  service  of  a  knight  was  due- 
not  fixed  to  thirteen  fees  and  a  third,  as  has  been%rroreousi; 
conceived,  but  varying  according  to  the  extent  of  the  barony 
mi  the  reservation  of  service  at  the  time  of  its  creation. 
Were  they  more  or  fewer,  however,  their  owner  was  equally 
a  baron,  and  summoned  to  serve  the  king  in  parliament  with 
his  advice  and  judgment,  as  appears  by  many  records  and 
passages  in  history. 

But  about  the  latter  end  of  John's  reign,  some  only  of  the 
most  eminent  tenants  in  chief  were  summoned  by  particular 
wnte ;  the  rest  by  one  general  summons  through  the  sheriffs 

Chl^T  TTf  P°""''*'f-  This  is  deckred  in  the  Great 
Chm-ter  of  tha  pnnce  wherein  he  promises  that,  whenever 
an  aid  or  scutage  shaU  be  required,  faciemus  summoned 
archiepiscopos,  episcopos,  abbates,  comites  et  majores  barones 

^Zln!  ^-  P''  "^""^  "°''™'-  E'  P^'^"^  fociemus 
1^  nr  '°  -^'""^^  P""  ^i«««»»ites  et  ballivos  nostixis 
omnes  ahos  qui  in  cap.te  tenent  de  nobis.  Thus  the  barons 
are  distinguished  from  other  tenants  in  chief,  as  if  the  former 
name  were  only  applicable  to  a  particukr  number  of™he 
kings  immediate  vassals.  But  it  is  reasonable  to  think  that, 
before  this  charter  was  made,  it  had  been  settled  by  the  law 
of  some  other  p^lmment,  how  these  greater  barons  should 
be  disunguished  from  the  lesser  tenante  in  chief ;  else  what 

pnde  with  which  the  ancient  and  wealthy  barons  of  the  reahn 


Enolibh  Const. 


NATURE  OF  BAEONIES. 


11 


would  regard  those  newly  created  by  grants  of  escheated 
honors,  or  those  decayed  in  estate,  who  yet  were  by  their 
tenures  on  an  equality   with  themselves.      They  procured 
therefore  two  innovations  in  their  condition ;  first  that  these 
inferior  barons  should  be  summoned  generally  by  the  sheriff, 
instead  of  receiving  their  particular  writs,  which  made  an 
honorary  distmction ;  and  next,  that  they  should  pay  relief, 
not,  as  for  an  entire  barony,  one  hundred  marks  ;  but  at  the 
rate  of  five  pounds  for  each  knight's  fee  which  they  held  of 
the  crown.   This  changed  their  tenure  to  one  by  mere  knight- 
service,  and  their  denomination  to  tenants  in  chief.      It  was 
not  difficult,   afterwards,  for  the  greater  barons  to  exclude 
any  from  coming    to   parhament   as   such   without    partic- 
ular writs    directed  to  them,  for  which  purpose  some  law 
was  probably  enacted  in  the  reign  of  Henry  III.     K  indeed 
we  could  place  reliance  on  a  nameless  author  whom  Camden 
has  quoted,  this  limitation  of  the  peerage  to  such  as  were 
expressly  summoned  depended  upon  a  statute  made  soon  after 
the  battle  of  Evesham.     But  no  one  has  ever  been  able  to 
discover  Camden's  authority,  and  the  change  was,  probably, 
of  a  much  earUer  date.* 

Such  is  the  theory  of  Selden,  which,  if  it  rested  less  upon 
conjectural  alterations  in  the  law,  would  undoubt-  ^^^  jj^^^ 
edly  solve  some  material  difficulties  that  occur  in 
the  opposite  view  of  the  subject.     According  to  Madox,  ten- 
ure by  knight-service  in  chief  was  always  distmct  andobser- 
from  that  by  barony.     It  is  not  easy,  however,  to  JJtwiw 
point  out  the  characteristic  differences  of  the  two ;  *>^  °   • 
nor  has  that  eminent  antiquary,  in  his  large  work,  the  Bar 
ronia  Anglica,  laid  down  any  definition,  or  attempted  to  ex- 
plain the  real  nature  of  a  barony.     The  distinction  could  not 
consist  in  the  number  of  knight's  fees ;   for  the  barony  of 
Hwayton  consisted  of  only  three ;  while  John  de  Baliol  held 
thirty  fees  by  mere  knight-service.*     Nor  does  it  seem  to 
have  consisted  in  the  privilege  or  service  of  attending  par- 
liament, since  all  tenants  in  chief  were  usually  summoned. 
But  whatever  may  have  been  the  line  between  these  modes 
of  tenure,  there  seems  complete  proof  of  their  separation 
long  before  the  reign  of  John.     Tenants  in  chief  are  enu- 
merated distinctly  from  earls  and  barons  in  the  charter  of 

i  gelden't  Works,  vol.  iii.  p.  718-748.       «  Lyttelton's  Henry  H.  vol.  tt.  p.  112^ 


12  NATURE  OF  BARONIES.    Chap.  VHI.  Part  III. 

Hemy  I.     Knights,  as  well  as  barons,  are  named  as  present 
m  the  parHament  of  Northampton  in  1165,  in  that  held  at 
the  same  town  in  1176,  and  upon  other  occasions.^     Several 
persons  appear  in  the  Liber  Niger  Scaccarii,  a  roll  of  military 
tenan^  made  in  the  age  of  Henry  IL,  who  held  single  knight's 
tees  of  the  crown.     It  is,  however,  highly  probable,  that,  in  a 
lax  sense  of  the  word,  these  knights  may  sometimes  have 
been  termed  barons.     The  author  of  the  Dialogus  de  Scao- 
cario  speaks  of  those  holding  greater  or  lesser  baronies,  in- 
cludmg,  as  appears  by  the  context,  all  tenants  in  chief.^     The 
former  of  these  seem  to  be  the  majores  barones  of   Kins 
John  s   Charter.     And  the  secunda  dignitatis  barones,  said 
by  a  contemporary  historian  to  have  been  present  in  the  par- 
liament of  Northampton,  were  in  all  probability  no  other 
than  the  knightly  tenants  of  the  crown.«    For  the  word  baro, 
ongmally  meaning  only  a  man,  was  of  verv  large  signifi- 
cance, and  IS  not  unfrequently  applied  to  common  freeholders, 
as  m  the  phrase  of  court-baron.     It  was  used  too  for  the 
ma^strates  or  chief  men  of  cities,  as  it  is  still  for  the  jud-es 
Por    4  ^^^^^^"^^'  ^^  ^e   representatives  of  the  Cinque 

The  passage  however  before  cited  from  the  Great  Charter 
ot  John  affords  one  spot  of  firm  footing  in  the  course  of  our 
progress.  Then,  at  least,  it  is  evident  that  aU  tenants  in  chief 
were  entitled  to  their  summons  ;  the  greater  barons  by  par- 
ticular writs,  the  rest  through  one  directed  to  their  sheriff. 
Ihe  epoch  when  all,  who,  though  tenants  in  chief,  had  not 
been  actually  summoned,  were  deprived  of  their  right  of  at- 
tendance m  parliament,  is  again  involved  in  uncertainty  and 
conjec^re.  The  unknown  writer  quoted  by  Camden  seems 
not  sufficient  authority  to  establish  his  assertion,  that  thev 
were  excluded  by  a  statute  made  after  the  battle  of  Evesham, 
ihe  pnnciple  was  most  Kkely  acknowledged  at  an  earlier 
time.  Simon  de  Montfort  summoned  only  twenty-three  tem- 
poral peers  to  his  famous  parliament.     In  the  year  1255  the 


1  Hody  on  Convocations,  n.  222.  234 
3  Lib.  ii.  c.  9.  '  ^         ' 

»  Hody  and  Lord  Lyttelton  maintain 
these  barons  of  the  second  rank"  to 
have  been  the  sub-vassals  of  the  crown  ; 
tenants  of  the  great  barons  to  whom  the 
name  was  sometimes  improperly  applied. 
EMS  was  very  consistent  with  their  opin- 
ion, that  the  commons  were  a  part  of 


parliament  at  that  time.  But  Hume 
assuming  at  once  the  truth  of  their  in- 
terpretation in  this  instance,  and  the 
falsehood  of  their  system,  treats  it  as  a 
deviation  from  the  established  rule,  and 
a  proof  of  the  unsettled  state  of  the  con- 
stitution. 
«  [Note  n.J 


Ehglisb  Const. 


TENANTS  IN  CHIEF. 


13 


barons  complained  that  many  of  their  number  had  not  receiv- 
ed their  writs  according  to  the  tenor  of  the  charter,  and  re- 
fused to  grant  an  aid  to  the  king  till  they  were  issued.^  But 
it  would  have  been  easy  to  disappoint  this  mode  of  packing  a 
parliament,  if  an  unsummoned  baron  could  have  sat  by  mere 
right  of  his  tenure.  The  opinion  of  Selden,  that  a  law  of  ex- 
clusion was  enacted  towards  the  begmning  of  Henry's  reign 
is  not  liable  to  so  much  objection.  But  perhaps  it  is  unne- 
cessary to  frame  an  hypothesis  of  this  nature.  Writs  of 
summons  seem  to  have  been  older  than  the  time  of  John ;  ^ 
and  when  this  had  become  the  customary  and  regular  prelim- 
inary of  a  baron's  coming  to  parliament,  it  was  a  natural  tran- 
sition to  look  upon  it  as  an  indispensable  condition ;  in  times 
when  the  prerogative  was  high,  the  law  unsettled,  and  the 
service  in  parliament  deemed  by  many  still  more  burden- 
some than  honorable.  Some  omissions  in  summoning  the 
king's  tenants  to  former  parliaments  may  perhaps  have  pro- 
duced the  above-mentioned  provision  of  the  Great  Charter, 
which  had  a  relation  to  the  imposition  of  taxes  wherein  it  was 
deemed  essential  to  obtain  a  more  universal  consent  than  was 
required  in  councils  held  for  state,  or  even  for  advice.* 

It  is  not  easy  to  determine  how  long  the  inferior  tenants  in 
chief  continued  to  sit  personally  in  parliament.    In  whether 
the  charters  of  Henry  III.,  the  clause  which  we  S'cwS 
have  been   considering  is  omitted :  and  I  think  ^tte^^^ 
there  is  no  express  proof  remaining  that  the  sher-  ^nder 
iff  was  ever  directed  to  summon  the  king's  military  Henry  m. 
tenants  within  his  county,  in  the  manner  which  the  charter  of 
John  required.     It  appears  however  that  they  were  in  fact 
members  of  parliament  on  many  occasions  during  Henry's 
reign,  which  shows  that  they  were  summoned  either  by  par- 
ticular writs  or  through  the  sheriff;  and  the  latter  is  the  more 
plausible  conjecture.     There  is  indeed  great  obscurity  as  to 
the  constitution  of  parliament  in  this  reign ;  and  the  passages 
which  I  am  about  to  produce  may  lead  some  to  conceive  that 


I  M.  Paris,  p.  785.  The  barons  even 
tell  the  king  that  this  was  contrary  to 
his  charter,  in  which  nevertheless  the 
clause  to  that  effect,  contained  In  his 
other's  charter,  had  been  omitted. 

*  Henry  II.,  in  1176,  forbade  any  of 
those  who  had  been  concerned  in  the 
Ute  rebellion  to  come  to  his  court  with- 


out a  particular  summons.    Carte,  rol. 

U.    p.  249.  ^    ^ 

8  Upon  the  subject  of  tenure  by  ba^ 
ony,  besides  the  writers  already  quoted, 
see  West's  Inquiry  into  the  Method  of 
creating  Peers,  and  Carte's  History  of 
England,  vol.  U  p.  247. 


1 1 


14  ORIGIN  AND  PROGRESS  OF    Chap.  VHI.  Pakt  HI. 

Uie  freeholders  were  represented  even  from  its  be«niminff. 
I  rather  incline  to  a  different  opinion.  ° 

In  the  Magna  Charta  of  1  Henry  HI.  it  is  said :  Pro  h&c 

donationeetconcessione archiepiscopi,  episcopi,  com- 

ites,  barones,  milites,  et  libere  tenentes,  et  omnes  de  regno 
nostro,  dederunt  nobis  quintam  decimam  partem  omnium  bo- 
nonim  suorum  mobilium.^     So  in  a  record  of  19  Henry  HI  • 
Comites,  et  barones,  et  omnes  alii  de  toto  regno  nostro  A^^ 
gliffi,  spontanea  voluntate  sua  concesserunt  nobis  efficax  aux- 
Umm.      The  largeness  of  these  words  is,  however,  controlled 
by  a  subsequent  passage,  which  declares  the  tax  to  be  im- 
posed  ad  mandatum  omnium  comitum  et  baronum  et  omnium 
ahorum  qm  de  nobis  tenmt  in  capite.    And  it  seems  to  have 
been  a  general  practice  to  assume  the  common  consent  of  aU 
ranks  to  that  which  had  actually  been  agreed  by  the  hi-her. 
In  a  similar  writ  21  Henry  HI,  the  ranks  of  men  are  enu- 
merated specifically  ;  archiepiscopi,  episcopi,  abbates,  priores, 
et  clenci  terras  habentes  quae  ad  ecclesias  suas  non  pertinent* 
oomites,  barones,  milites,  et  liberi  homines,  pro  se  et  suis  vU- 
lanis,  nobis  concesserunt  in  auxilium  tricesimam  partem  om- 
nium mobihum. »    In  the  close  roU  of  the  same  year,  we 
have  a  writ  directed  to  the  archbishops,  bishops,  abbols,  priors, 
earls,  barons,  knights,  and  freeholders  (liberi  homines)  of 
teland,  in  which  an  aid  is  desired  of  them,  and  it  is  urffcd 
that  one  had  been  granted  by  his  fideles  Angliae.  * 

But  this  attendance  in  parliament  of  inferior  tenants  in 
chief,  some  of  them  too  poor  to  have  received  knicrhthood 
^7ri'°',T''l*^^!^  vexatious  to  themselves,  and  was  not 
weU  hked  by  the  kmg.  He  knew  them  to  be  dependent  up- 
on the  barons,  and  dreaded  the  confluence  of  a  multitude,  who 
assumed  the  privilege  of  coming  in  arms  to  the  appointed 
place.  So  inconvenient  and  mischievous  a  scheme  could  not 
ong  subsist  among  an  advancing  people,  and  fortunately  the 
true  remedy  was  discovered  with  httle  difficulty 

The  principle  of  representation,  in  its  widest  sense,  can 
?^ro^f  A  ^  ^  unknown  to  any  government  not  purely 
JSKent     democratical.     In  ahnost  every  country  the  sense 

StaZS:      fJX     A^' "'  "^^7«^  to  ^  spoken  by  a  part, 
and  the  decisions  of  a  part  are  bmding  upon  the 

\  Hody  on  Convocations,  p.  293.  »  Bradv'«  TTUtyinr  «*•  w     i     ^ 

■ngland.    Appendix,  p.  43.  *  BradyV  mSoducUon,  p.  94 


Ekoush  Const.    PARLIAMENTARY  REPRESENTATION. 


15 


whole.     Among  our  ancestors  the  lord  stood  in  the  place  of 
his  vassals,  and,  still  more  unquestionably,  the  abbot  in  that 
of  his  monks.     The  system  indeed  of  ecclesiastical  councils, 
considered  as  organs  of  the  church,  rested  upon  the  principle 
of  a  virtual  or  an  express  representation,  and  had  a  tendency 
to  render  its  application  to  national  assemblies  more  familiar. 
The  first  instance  of  actual  representation  which  occurs  in  our 
history  is  only  four  years  after  the  Conquest ;  when  William, 
if  we  may  rely  on  Hoveden,  caused  twelve  persons  skilled  in 
the  customs  of  England  to  be  chosen  from  each  county,  who 
were  sworn  to  inform  him  rightly  of  their  laws ;  and  these, 
so  ascertained,  were  ratified  by  the  consent  of  the  great  coun- 
cil.    This,  Sir  Matthew  Hale  asserts  to  be  "  as  sufficient  and 
effectual  a  parliament  as  ever  was  held  in  England."  ^    But 
there   is  no  appearance  that  these  twelve  deputies  of  each 
county  were  invested  with  any  higher  authority  than  that  of 
declaring  their  ancient  usages.     No  stress  can  be  laid  at  least 
on  this  insulated  and  anomalous  assembly,  the  existence  of 
which  is  only  learned  from  an  historian  of  a  century  later.J' 

We  find  nothing  that  can  arrest  our  attention,  in  searching 
out  the  origin  of  county  representation,  till  we  come  to  a  writ 
in  the  fifteenth  year  of  John,  directed  to  all  the  sheriffs  in 
the  following  terms :  Rex  Vicecomiti  N.,  salutem.  Praecipi- 
mus  tibi  quod  omnes  milites  ballivse  tuae  qui  summoniti  fue- 
runt  esse  apud  Oxonian  ad  Nos  a  die  Omnium  Sanctorum  in 


1  Hist,  of  Common  Law,  vol.  i.  p.  202. 
s  This  assembly  is  mentioned  in  the 

Ereamble,  and  afterwards,  of  the  spurious 
iws  of  Edward  the  Confessor;   and  I 
bare  been  accused  of  passing  it  over  too 
slightly.     The  fact   certainly  does  not 
xcst  on  the  authority  of  Hoveden,  who 
transcribes  these  laws  verbatim ;  and  they 
u«  in  substance  an  ancient  document. 
There   seems    to  me    somewhat   rather 
suspicious  in  this  assembly  of  delegates ; 
it  looks  like  a  pious  fraud  to  maintain 
the  old  Saxon  jurisprudence,  which  was 
giving  way.    But  even  if  we  admit  the 
bet  as  here  told,  I  still  adhere  to  the 
assertion  that  there  is  no  appearance  that 
these  twelve  deputies  of  each    county 
were  invested  with  any  higher  authority 
than    tliat    of  declaring    their    ancient 
VMges.    Any  supposition  of  a  real  legis- 
lative parliament  would  be  inconsistent 
with  all  that  we  know  of  the  state  of  Eng- 
land under  the  Conqueror.     And  what 
an  anomaly,  upon  every  constitutional 
principle,  Anglo-Saxon  or  Norman,  would 
be  a  parliament  of  twelve   firom   each 


county !  Nor  is  it  perfectly  manifest  that 
they  were  chosen  by  the  people;  the 
word  summoneri  fecit  is  first  used  ;  and 
afterwards,  electis  de  (not  t»)  singulis 
totius  patriae  comitatibus.  This  might 
be  construed  of  the  king's  selection ;  but 
perhaps  the  common  interpretation  is 
rather  the  better. 

William,  the  compiler  informs  us,  hav- 
ing heard  some  of  the  Danish  laws,  was 
disposed  to  confirm  them  in  preference 
to  those  of  England ;  but  yielded  to  the 
supplication  of  the  delegates,  omnes  com- 
patriotae,  qui  leges  narraverant,  that  he 
would  permit  them  to  retain  the  customs 
of  their  ancestors,  imploring  him  by  the 
soul  of  King  Edward,  cujus  erant  leges, 
nee  aliorum  exterorum.  The  king  at 
length  gave  way,  by  the  advice  and  re- 
quest of  his  barons,  consilio  et  precatu 
baronum.  These  of  course  were  Nor- 
mans ;  but  what  inference  can  be  drawn 
in  favor  of  parliamentary  representation 
in  England  from  the  behavior  of  the 
rest  ?  They  were  supplicants,  not  legis- 
lators. 


Ill 


16  ORIGIN  AND  PROGRESS  OF    Chap.  VHI.  Pakt  m. 

quindecim  dies  venire  facias  cum  armis  suis :  corpora  vero  ba- 
ronum  sine  armis  singulariter,  et  qv4ituor  discretos  milites  de 
comitatu  tuo,  lUuc  venire  facias  ad  emidem  terminum,  ad  lo- 
quendum  nobiscum  de  negotiis  regni  nostri.  For  the  explana- 
tion of  this  obscure  writ  I  must  refer  to  what  Piynne  has  said  •  ^ 
but  It  remains  problematical  whether  these  four  knights  (the 
only  clause  which  concerns  our  purpose)  were  to  be  elected  by 
tiie  county  or  returned  in  the  nature  of  a  jury,  at  the  discre- 
tion of  the  sheriff.  Smce  there  is  no  sufficient  proof  whereon 
to  decide,  we  can  only  say  with  hesitation,  that  there  may  have 
been  an  instance  of  county  representation  in  the  fifteenth 
year  oi  John. 

We  may  next  advert  to  a  practice,  of  which  there  is  very 
clear  proof  m  the  reign  of  Henry  III.  Subsidies  granted  in 
parliament  were  assessed,  not  as  in  former  times  by  the  ius- 
tices  upon  their  circuits,  but  by  knights  freely  chosen  in  the 
county  court.  This  appears  by  two  writs,  one  of  the  fourth 
and  one  of  the  ninth  year  of  Henry  in.«  At  a  subsequent 
penod,  by  a  provision  of  the  Oxford  parliament  in  1258 
eveiy  county  elected  four  knights  to  inquire  into  grievances,' 
and  dehver  their  inquisition  into  parliament' 

The- next  writ  now  extant,  that  wears  the  appearance  of 
p^ham^ntary  representation,  is  in  the  thirty-eighth  of  Henry 
lU.     This,  after  reciting  that  the  earls,  barons,  and  other 


Ehglish  Const.    PARLIAMENTARY  REPRESENTATION. 


17 


1  2Pryiine's  Reguter,  p.  16. 

a  Brady'8  Introduction,  Appendix,  pp. 
1  and  44.  "The  language  of  th^ 
writs  implies  a  distinction  between  such 
M  were  styled  barons,  apparently  includ- 
ing the  earls  and  the  four  knights  who 
were  to  come  from  the  several  counties 
ad  loquendum,  and  who  were  also  dis- 
tinguished from  the  knights  summoned 
to  attend  with  arms,  in  performance,  it 
should  seem,  of  the  military  service  due 
by  their  respective  tenures ;  and  the 
writs,  therefore,  apparently  distinguished 
certain  tenants  in  chief  by  knight-service 
from  barons,  if  the  knights  so  summoned 
to  attend  with  arms  were  required  to  at- 
tend by  reason  of  their  respective  ten- 
ures in  chief  of  the  king.  How  the  four 
knights  of  each  county  who  were  thus 
summoned  to  confer  with  the  king  were 
to  be  chosen,  whether  by  the  county,  or 
according  to  the  mere  will  of  the  sheriff, 
does  not  appear ;  but  it  seems  most  prob- 
able that  they  were  intended  by  the  king 
M  representatives  of  the  freeholders  of 
each  county,  and  to  balance  the  power 
or  the  hostile  nobles,  who  were   then 


leagued  against  him ;  and  the  measun 
might  lead  to  conciliate  the  minds  of 
those  who  would  otherwise  have  had  no 
voice  in  the  legislative  assembly."  Be- 
port  of  Lords'  Committee,  p.  61. 

This  would  be  a  remarkable  fact,  and 
the  motive  is  by  no  means  improbable, 
being  perhaps  that  which  led  to  the  large 
provisions  for  summoning  tenants  in 
chief,  contained  in  the  charter  of  John 
and  afterwards  passed  over.  But  this 
parley  of  the  four  knights  from  each 
county,  for  they  are  only  summoned  ad 
loquendum,  may  not  amount  to  bestow- 
ing on  them  any  legislative  power.  It  is 
nevertheless  to  be  remembered  that  the 
word  parliament  meant,  by  its  etymolojry, 
nothing  more ;  and  the  words,  ad  loquen' 
dum,  may  have  been  used  in  reference  to 
that.  It  is  probable  that  these  writs 
were  not  obeyed ;  we  have  no  evidence 
that  they  were,  and  it  was  a  season  of 
great  confusion,  very  little  before  the 
granting  of  the  charter  of  Henry  in. 

3  Brady'sHist.  of  England,  TOl.  I.  Ap- 
pendix,  p.  227.  '^ 


great  men  (caeteri  magnates)  were  to  meet  at  London  three 
weeks  after  Easter,  with  horses  and  arms,  for  the  purpose  of 
sailing  into  Gascony,  requires  the  sheriff  to  compel  all  within 
his  jurisdiction,  who  hold  twenty  pounds  a  year  of  the  king 
in  chief,  or  of  those  in  ward  of  the  king,  to  appear  at  the 
same  time  and  place.  And  that  besides  those  mentioned  he 
shall  cause  to  come  before  the  king's  council  at  Westminster, 
on  the  fifteenth  day  after  Easter,  two  good  and  discreet 
knights  of  his  county,  whom  the  men  of  the  county  shall  have 
chosen  for  this  purpose,  in  the  stead  of  all  and  each  of  them, 
to  consider,  along  with  the  knights  of  other  counties,  what  aid 
they  will  grant  the  king  in  such  an  emergency.^  In  the 
principle  of  election,  and  in  the  object  of  the  assembly,  which 
was  to  grant  money,  this  certainly  resembles  a  summons  to 
parliament.  There  are  indeed  anomalies  sufficiently  remark- 
able upon  the  face  of  the  writ  which  distinguish  this  meeting 
fix)m  a  regular  parliament.  But  when  the  scheme  of  obtain- 
ing money  from  the  commons  of  shires  through  the  consent 
of  their  representatives  had  once  been  entertained,  it  was 
easily  applicable  to  more  formal  councils  of  the  nation.^ 

A  few  years  later  there  appears  another  writ  analogous  to 
a  summons.  During  the  contest  between  Henry  HI.  and  the 
confederate  barons  in  1261,  they  presumed  to  call  a  sort  of 
parliament,  summoning  three  knights  out  of  every  county, 
secum  tractaturos  super  communibus  negotiis  regni.  This  we 
learn  only  by  an  opposite  writ  issued  by  the  king,  directing 
the  sheriff  to  enjoin  these  knights  who  had  been  convened  by 
the  earls  of  Leicester  and  Gloucester  to  their  meeting  at  St. 
Alban's,  that  they  should  repair  instead  to  the  king  at  Wind- 
sor, and  to  no  other  place,  nobiscum  super  praemissis  collo- 
quium habituros.*  It  is  not  absolutely  certain  that  these 
knights  were  elected  by  their  respective  counties.  But  even 
if  they  were  so,  this  assembly  has  much  less  the  appearance 
of  a  parliament,  than  that  in  the  thirty-eighth  of  Henry  HI. 

At  length,  in  the  year  1265,  the  forty-ninth  of  Henry  IH., 


1  2  Prynne,  p.  23. 

*  "  This  writ  tends  strongly  to  show 
that  there  then  existed  no  law  by  which 
a  representation  either  of  the  king's 
tenants  in  capite  or  of  others,  for  the 
purpose  of  constituting  a  legislative  as- 
sembly, or  for  granting  an  aid,  was  spe- 
etally  provided  ;  and  it  seems  to  have 
been  the  first  instance  appearing  on  any 

VOL.  HI.  2 


record  now  extant,  of  an  attempt  to  sub 
stitute  representatives  elected  by  bodieii 
of  men  for  the  attendance  of  the  indi- 
vidual so  to  be  represented,  personally 
or  by  their  several  procurators,  in  an 
assembly  convened  for  the  purpose  of  ob- 
taining an  aid."  Report,  p.  95. 
8  2  Prynne,  p.  27. 


18 


ORIGIN  AND  PROGRESS  OF    Chap.  VHI.  Part  UL 


English  Cohst.      PARLIAMENTARY  REPRESENTATION.  19 


I 


•) . 


1^ 


while  he  was  a  captive  in  the  hands  of  Simon  de  Montfort, 
writs  were  issued  in  his  name  to  all  the  sheriffs,  directing 
them  to  return  two  knights  for  the  body  of  their  county,  with 
two  citizens  or  burgesses  for  every  city  and  borough  contained 
within  it.  This  therefore  is  the  epoch  at  which  the  represen- 
tation of  the  commons  becomes  indisputably  manifest ;  even 
should  we  reject  altogether  the  more  equivocal  instances  of  it 
which  have  just  been  enumerated. 

If  indeed  the  knights  were  still  elected  by  none  but  the 
Whether  the  king's  military  tenants,  if  the  mode  of  representa- 
^^ahy"^  tion  was  merely  adopted  to  spare  them  the  incon- 
freehoiders     veniencc  of  person^   attendance,  the   immediate 

in  seneral.        •  .•         •  f 

mnovation  m  our  polity  was  not  very  extensive. 
This  is  an  interesting,  but  very  obscure,  topic  of  inquiry. 
Spelman  and  Brady,  with  other  writers,  have  restrained  the 
original  right  of  election  to  tenants  in  chief,  among  whom,  in 
process  of  time,  those  holding  under  mesne  lords,  not  being 
readily  distinguishable  in  the  hurry  of  an  election,  contrived  to 
slide  in,  till  at  length  their  encroachments  were  rendered  legit^ 
imate  by  the  statute  7  Hen.  IV.  c.  15,  which  put  all  suitors 
to  the  county  court  on  an  equal  footing  as  to  the  elective 
franchise.  The  argument  on  this  side  might  be  plausibly 
urged  with  the  following  reasoning. 

The  spirit  of  a  feudal  monarchy,  which  compelled  every 
lord  to  act  by  the  advice  and  assent  of  his  immediate  vassals, 
estabUshed  no  relation  between  him  and  those  who  held  noth- 
ing at  his  hands.  They  were  included,  so  far  as  he  was 
concerned,  in  their  superiors ;  and  the  feudal  incidents  were 
due  to  him  from  the  whole  of  his  vassal's  fief,  whatever  ten- 
ants might  possess  it  by  sub-infeudation.  In  England  the 
tenants  in  chief  alone  were  called  to  the  great  councils  before 
representation  was  thought  of,  as  is  evident  both  by  the  charter 
of  John,  and  by  the  language  of  many  records ;  nor  were  any 
others  concerned  in  levying  aids  or  escuages,  which  were 
only  due  by  virtue  of  their  tenure.  These  military  tenants 
were  become,  in  the  reign  of  Henry  III.,  far  more  numerous 
than  they  had  been  under  the  Conqueror.  If  we  include 
those  who  held  of  the  king  ut  de  honore,  that  is,  the  tenants 
of  baronies  escheated  or  in  ward,  who  may  probably  have 
enjoyed  the  same  privileges,  being  subject  in  general  to  the 
same  burdens,  their  number  will  be  greatly  augmented,  and 
form  no  inconsiderable  portion  of  the  freeholders  of  the  king- 


dom. After  the  statute  commonly  called  Quia  emptores  in 
the  eighteenth  of  Edward  I.  they  were  likely  to  increase  much 
more,  as  every  licensed  alienation  of  any  portion  of  a  fief  by 
a  tenant  in  chief  would  create  a  new  freehold  immediately 
depending  upon  the  crown.  Many  of  these  tenants  in  capite 
held  very  small  fractions  of  knight's  fees,  and  were  conse- 
quently not  called  upon  to  receive  knighthood.  They  were 
plain  freeholders  holding  in  chief,  and  the  hberi  homines  or 
libere  tenentes  of  those  writs  which  have  been  already  quoted. 
The  common  form  indeed  of  writs  to  the  sheriff  directs  the 
knights  to  be  chosen  de  conmiunitate  comitatus.  But  the 
word  communitas,  as  in  boroughs,  denotes  only  the  superior 
part :  it  is  not  unusual  to  find  mention  in  records  of  commu- 
nitas populi  or  omnes  de  regno,  where  none  are  intended  but 
the  barons,  or  at  most  the  tenants  in  chief.  If  we  look  atten- 
tively at  the  earliest  instance  of  summoning  knights  of  shires 
to  parliament,  that  in  38  Henry  III.,  which  has  been  noticed 
above,  it  will  appear  that  they  could  only  have  been  chosen 
by  military  tenants  in  chief.  The  object  of  calling  this  par- 
liament, if  parliament  it  were,  was  to  obtain  an  aid  from  the 
military  tenants,  who,  holding  less  than  a  knight's  fee,  were 
not  required  to  do  personal  service.  None  then,  surely,  but 
the  tenants  in  chief  could  be  electors  upon  this  occasion,  which 
merely  respected  their  feudal  duties.  Again,  to  come  much 
lower  down,  we  find  a  series  of  petitions  in  the  reigns  of 
Edward  HI.  and  Richard  II.,  which  seem  to  lead  us  to  a  con- 
clusion that  only  tenants  in  chief  were  represented  by  the 
knights  of  shires.  The  writ  for  wages  directed  the  sheriff  to 
levy  them  on  the  commons  of  the  county,  both  within  fran- 
chises and  without  (tarn  intra  libertates  quam  extra).  But 
the  tenants  of  lords  holding  by  barony  endeavored  to  exempt 
themselves  from  this  burden,  in  which  they  seem  to  have 
been  countenanced  by  the  king.  This  led  to  frequent  remon- 
strances from  the  commons,  who  finally  procured  a  statute, 
that  all  lands  which  had  been  accustomed  to  contribute  towards 
the  wages  of  members  should  continue  to  do  so,  even  though 
they  should  be  purchased  by  a  lord.^  But,  if  these  mesne 
tenants  had  possessed  equal  rights  of  voting  with  tenants  in 
chief,  it  is  impossible  to  conceive  that  they  would  have  thought 
of  claiming  so  unreasonable  an  exemption.     Tet^  as  it  would 

1 12  Bio.  n.  c.  12.    Prynne's  4th  B«giflter. 


i 

4 


20 


ORIGIN  AND  PROGRESS  OF    Chap.  VHI.  Pakt  IIL 


Ehglish  Cohst.    parliamentary  REPRESENTATION. 


21 


appear  harsh  to  make  any  distinction  between  the  rights  of 
those  who  sustained  an  equal  burden,  we  may  perceive  hoir 
the  freeholders  holding  of  mesne  lords  might  on  that  account 
obtain  after  the  statute  a  participation  in  the  privilege  of  ten- 
ants in  chief.  And  without  supposing  any  partiality  or  con- 
nivance, it  is  easy  to  comprehend  that,  while  the  nature  of 
tenures  and  services  was  so  obscure  as  to  give  rise  to  con- 
tinual disputes,  of  which  the  ancient  records  of  the  Eng's 
Bench  are  full,  no  sheriff  could  be  very  accurate  in  rejecting 
the  votes  of  common  freeholders  repairing  to  the  county  court, 
and  undistinguishable,  as  must  be  allowed,  from  tenants  in 
capite  upon  other  occasions,  such  as  serving  on  juries,  or 
voting  on  the  election  of  coroners.  To  all  this  it  yields  some 
corroboration,  that  a  neighboring  though  long  hostile  king- 
dom, who  borrowed  much  of  her  law  from  our  own,  has  never 
admitted  any  freeholders,  except  tenants  in  chief  of  the 
crown,  to  a  suffrage  in  county  elections.  These  attended  the 
parHament  of  Scotland  in  person  till  1428,  when  a  law  of 
James  I.  permitted  them  to  send  representatives.^ 

Such  is,  I  think,  a  fair  statement  of  the  arguments  that 
might  be  alleged  by  those  who  would  restrain  the  right  of 
election  to  tenants  of  the  crown.  It  may  be  urged  on  the 
other  side  that  the  genius  of  the  feudal  system  was  never 
completely  displayed  in  England ;  much  less  can  we  make 
use  of  that  policy  to  explain  institutions  that  prevailed  under 
Edward  I.  Instead  of  aids  and  scutages  levied  upon  the 
king's  military  tenants,  the  crown  found  ample  resources  in 
subsidies  upon  movables,  from  which  no  class  of  men  was 
exempted.  But  the  statute  that  abolished  all  unparliament- 
ary taxation  led,  at  least  in  theoretical  principle,  to  extend  the 
elective  franchise  to  as  large  a  mass  of  the  people  as  could 
conveniently  exercise  it.  It  was  even  in  the  mouth  of  our 
kings  that  what  concerned  all  should  be  approved  by  all.  Nor 
is  the  language  of  all  extant  writs  less  adverse  to  the  supposi- 
tion that  the  right  of  suffrage  in  county  elections  was  limited 
to  tenants  in  chief.  It  seems  extraordinary  that  such  a  re- 
striction, if  it  existed,  should  never  be  deducible  from  these 
instruments;  that  their  terms  should  invariably  be  large 
enough  to  comprise  all  freeholders.  Yet  no  more  is  ever  re- 
quired of  the  sheriff  than  to  return  two  knights  chosen  by  the 


»  Pinkerton's  Hist,  of  Scotland,  vol.  i.  p.  120,  367. 
iKly  acted  upon  tUl  1587.    p.  868. 


But  thia  law  was  not  regu- 


body  of  the  county.  For  they  are  not  only  said  to  be  re- 
turned pro  communitate,  but  **  per  communitatem,"  and  "  de 
assensu  totius  communitatis."  Nor  is  it  satisfactory  to  allege, 
without  any  proof,  that  this  word  should  be  restricted  to  the 
tenants  in  chief,  contrary  to  what  must  appear  to  be  its  ob- 
vious meaning.^  Certainly,  if  these  tenants  of  the  crown  had 
found  inferior  freeholds  usurping  a  right  of  suffrage,  we  might 
expect  to  find  it  the  subject  of  some  legislative  provision,  or 
at  least  of  some  petition  and  complaint.  And,  on  the  other 
hand,  it  would  have  been  considered  as  unreasonable  to  levy 
the  wages  due  to  knights  of  the  shire  for  their  service  in  par- 
hament  on  those  who  had  no  share  in  their  election.  But  it 
appears  by  writs  at  the  very  beginning  of  Edward  II.'s  reign, 
that  wages  were  levied  "  de  communitate  comitatus.^  "  It  will 
scarcely  be  contended  that  no  one  was  to  contribute  under 
this  writ  but  tenants  in  chief;  and  yet  the  word  communitas 
can  hardly  be  applied  to  different  persons,  when  it  occurs  in 
the  same  instrument  and  upon  the  same  matter.  The  series 
of  petitions  above  mentioned  relative  to  the  payment  of  wages 
rather  tends  to  support  a  conclusion  that  all  mesne  tenants 
had  the  right  of  suffrage,  if  they  thought  fit  to  exercise  it, 
since  it  was  earnestly  contended  that  they  were  liable  to  con- 
tribute towards  that  expense.  Nor  does  there  appear  any 
reason  to  doubt  that  all  freeholders,  except  those  within  par- 
ticular franchises,  were  suitors  to  the  county  court — an  insti- 
tution of  no  feudal  nature,  and  in  which  elections  were  to  be 
made  by  those  present.  As  to  the  meeting  to  which  knights 
of  shires  were  summoned  in  38  Henry  III.,  it  ought  not  to  be 
reckoned  a  parliament,  but  rather  one  of  those  anomalous 
conventions  which  sometimes  occurred  in  the  unfixed  state  of 
government.  It  is  at  least  the  earliest  known  instance  of 
representation,  and  leads  us  to  no  conclusion  in  respect  of  later 
times,  when  the  commons  had  become  an  essential  part  of  the 


^  What  can  one  who  adopts  this 
opinion  of  Dr.  Brady  say  to  the  follow- 
ing record?  Rex  multibus,  liberis  ho- 
minihus,  et  toti  communitati  comitatua 
Wygornia  tam  intra  libertates  quam 
extra,  salutem.  Cum  comites,  barones, 
miUtefl,  liberi  homines,  et  communita- 
tes  comitatuum  regni  nostri  Ticeslmam 
omnium  bonorum  Buorum  mobilium, 
clvesque  et  burgenses  et  communitates 
omnium  civitatum  etburRorum  cjusdem 
ngni,  uecnon  tenentes  de  antiquis  do- 
nuiicis  coronsB  nostrse  quindecimam  bo- 


norum suorum  mobilium  nobis  concesse- 
runt.  Pat.  Rot.  1  E  II.  in  Rot.  Pari, 
vol.  i.  p.  442.  See  also  p.  241  and  p.  2^. 
If  the  word  communitas  is  here  used  in 
any  precise  sense,  which,  when  possible, 
we  are  to  suppose  in  construing  a  legal 
instrument,  it  must  designate,  not  the 
tenants  in  chief,  but  the  inferior  class, 
who,  though  neither  freeholders  nor  free 
burgesses,  were  yet  contributable  to  the 
subsidy  on  their  goods. 

3  Madox,  Firma  Burgi,  p.  99  and  p.  103 
noteZ. 


PROGRESS  OF  TOWNS.    Chap.  Vm.  Part  m 

legislature,   and  their  consent   was    required  to  all   public 
burdens. 

This  question,  upon  the  whole,  is  certainly  not  free  from 
considerable  difficulty.  The  legal  antiquaries  are  divided. 
Prynne  does  not  seem  to  have  doubted  but  that  the  knights 
were  "elected  in  the  full  county,  by  and  for  the  whole 
county,"  without  respect  to  the  tenure  of  the  freeholders.* 
But  Brady  and  Carte  are  of  a  different  opinion.^  Yet  their 
disposition  to  narrow  the  basis  of  the  constitution  is  so  strong, 
that  it  creates  a  sort  of  prejudice  against  their  authority. 
And  if  I  might  offer  an  opinion  on  so  obscure  a  subject,  I 
should  be  much  inclined  to  believe  that,  even  from  the  reiga 
of  Henry  III.,  the  election  of  knights  by  all  freeholders  in  the 
county  court,  without  regard  to  tenure,  was  little,  if  at  all, 
different  from  what  it  is  at  present.' 

The  progress  of  towns  in  several  continental  countries, 
Progress  of  from  a  Condition  bordering  upon  servitude  to 
^^^'  wealth  and  Hberty,  has  more  than  once  attracted 

our  attention  in  other  parts  of  the  present  work.  Their 
growth  in  England,  both  from  general  causes  and  imitative 
policy,  was  very  similar  and  nearly  coincident.  Under  the 
Anglo-Saxon  line  of  sovereigns  we  scarcely  can  discover  in 
our  scanty  records  the  condition  of  their  inhabitants,  except 
retrospectively  from  the  great  survey  of  Domesday  Book, 
which  displays  the  state  of  England  under  Edward  the  Con- 
fessor. Some  attention  to  commerce  had  been  shown  by 
Alfred  and  Athelstan  ;  and  a  merchant  who  had  made  three 
voyages  beyond  sea  was  raised  by  law  of  the  latter  monarch 
to  the  dignity  of  a  Thane.*  This  privilege  was  not  perhaps 
often  claimed ;  but  the  burgesses  of  towns  were  already  a 
distinct  class  from  the  ceoris  or  rustics,  and,  though  hardly 
free  according  to  our  estimation,  seem  to  have  laid^'the  foun- 
dation of  more  extensive  immunities.  It  is  probable,  at  least, 
that  the  English  towns  had  made  full  as  great  advances 
towards  emancipation  as  those  of  France.  At  the  Conquest 
we  find  the  burgesses  or  inhabitants  of  towns  living  under  the 
superiority  or  protection  of  the  king,  or  of  some°other  lord, 
to  whom  they  paid  annual  rents,  and  determinate  dues  or 
customs.     Sometimes  they  belonged  to  different  lords,  and 


Enoush  Const. 


PROGRESS  OF  TOWNS. 


23 


1  Prynne's  2d  Refjister,  p.  60. 
*  Carte's  mat.  of  England,  ii.  250. 
»  The  present  question  has  been  dis- 
eossed  with  much  ability  in  the  Edin- 


burgh Reriew,  rol.  xxri.  p.  341.    fNow 
♦WUkina,  p.  71. 


sometimes  the  same  burgess  paid  customs  to  one  master, 
while  he  was  under  the  jurisdiction  of  another.  They  fre- 
quently enjoyed  special  privileges  as  to  inheritance  ;  and  in 
two  or  three  instances  they  seem  to  have  possessed  common 
property,  belonging  to  a  sort  of  guild  or  corporation,  and  in 
some  instances,  perhaps,  had  a  municipal  administration  by 
magistrates  of  their  own  choice.^  Besides  the  regular  pay- 
ments, which  were  in  general  not  heavy,  they  were  liable  to 
tallages  at  the  discretion  of  their  lords.  This  burden  con- 
tinued for  two  centuries,  with  no  limitation,  except  that  the 
barons  were  latterly  forced  to  ask  permission  of  the  king  be- 
fore they  set  a  tallage  on  their  tenants,  which  was  commonly 
done  when  he  imposed  one  upon  his  own.^  Still  the  towns 
became  considerably  richer ;  for  the  profits  of  their  traffic 
were  undiminished  by  competition,  and  the  consciousness  that 
they  could  not  be  individually  despoiled  of  theu-  possessions, 


I  Burgensis  Exoniae  urbis  habcnt  extra 
civitatem  terram  duodecim  carucatarum: 
quie  nuUam  consuetudinem  reddunt  nisi 
ad  ipsam  civitatem.    Domesday,  p.  100. 
At  Canterbury  the  burgesses  had  forty- 
five  houses  without  the  city,  dc  quibus 
ipsi  habebant  gablum  et  consuetudinem, 
rex  autem  Bocam  ct  sacam ;  ipsi  quoque 
burgenses  habebant  de  rego  triginta  tres 
acras  prati  in  gildam,  suam.    p.  2.    In 
Lincoln  and  Stamford  some  resident  pro- 
prietors, called  Lagemanni,  had  jurisdic- 
tion (socam  et  sacam)  over  their  tenants. 
But  nowhere  have  I  been  able  to  discover 
any  trace  of  municipal  self-government ; 
unless  Chester  may  be  deemed  an  excep- 
tion, where  we  read  of   twelve  judices 
civitatis ;  but  by  whom  constituted  does 
not  appear.      The  word  lageman  seems 
equivalent  to  judex.      The  guild  men- 
tioned above  at  Canterbury   was.  in  all 
probability,  a  voluntary   association :  bo 
at  Dover  we  find  the  burgesses'  guildhall, 
gihalla  burgensium.  p.  1. 

Many  of  the  passages  in  Domesday 
relative  to  the  state  of  burgesses  are  col- 
lected in  Brady's  History  of  Boroughs ; 
a  work  which,  if  read  with  due  suspicion 
of  the  author's  honesty,  will  convey  a 
great  deal  of  knowledge. 

Since  the  former  part  of  this  note  was 
written,  I  have  met  with  a  charter 
granted  by  Henry  II.  to  Lincoln,  which 
seems  to  refer,  more  explicitly  than  any 
similar  instrument,  to  municipal  privi- 
leges of  jurisdiction  enjoyed  by  the  citi- 
■ens  under  Edward  the  Confessor.  These 
charters,  it  Is  well  known,  do  not  always 
recite  what  is  true ;  yet  it  is  possible 
th&t  the  citizens  of  Lincoln,  which  had 


been  one  of  the  five  Danish  towns,  some- 
times mentioned  with  a  sort  of  distinc- 
tion by  writers  before  the  Conquest,  might 
be  in  a  more  advantageous  situation  than 
the  generality  of  burgesses.    Sciatis  me 
concessisse  civibus  meis  Lincoln,  omnes 
libertates  et  consuetudines  et  leges  suas, 
quas    habuerunt    tempore    Edwardi   et 
Will,  et  Henr.  regum  Angliae  et  gildam 
suam  mercatoriam  de  hominibus  civitatis 
et  de  aliis  mercatoribus  comitatua,  sicut 
illam  habuerunt  tempore  prcdictomm, 
antecessorum  nostrorum,  regum  Angliee, 
melius  et  liberius.    Et  omnes  homines 
qui  infra  quatuor  divisas  civitates  m_a- 
nent  et  mercatum  deducunt,  sint  ad  gil- 
das,  et  consuetudines  et  assisas  civitatis, 
sicut  melius  fuerunt  temp.  Edw.  et  Will, 
et  Hen.  regum  Angliae.     Rymer,  t.  i.  p. 
40  (edit.  1816). 

I  am  indebted  to  the  friendly  remarks 
of  the  periodical  critic  whom  I  have  be- 
fore mentioned  for  reminding  me  of  other 
charters  of  the  same  age,  expressed  in  a 
similar  manner,  which  in  my  haste  I  had 
overlooked,  though  printed  in  common 
books.  But  whether  these  general  words 
ought  to  outweigh  the  silence  of  Domes- 
day Book  I  am  not  prepared  to  decide. 
I  have  admitted  below  that  the  posses- 
sion of  corporate  property  implies  an 
elective  government  for  its  administra- 
tion, and  I  think  it  perfectly  clear  tha* 
the  guilds  made  by-laws  for  the  regu- 
lation of  their  members.  Yet  this  is 
something  different  from  municipal  juris- 
diction over  all  the  inhabitants  of  a  town- 
[NOTK  IV.] 

*  Madox,  Hist,  of  Exchequer,  o.  17 


24 


TOWNS  LET  IN  FEE-FARM.    Chap.  VHI.  Pakt  m. 


like  the  villeins  of  the  country  around,  inspired  an  industry 
and  perseverance  which  all  the  rapacity  of  Norman  kings  and 
barons  was  unable  to  daunt  or  overcome. 

One  of  the  earliest  and  most  important  changes  in  the  con- 
Towna  let  dition  of  the  burgesses  was  the  conversion  of  their 
In  fee-fiinn.  individual  tributes  into  a  perpetual  rent  from  the 
whole  borough.  The  town  was  then  said  to  be  affirmed,  or 
let  in  fee-farm,  to  the  burgesses  and  their  successors  forever.* 
Previously  to  such  a  grant  the  lord  held  the  town  in  his 
demesne,  and  was  the  legal  proprietor  of  the  soil  and  tene- 
ments ;  though  I  by  no  means  apprehend  that  the  burgesses 
were  destitute  of  a  certain  estate  in  their  possessions.  But 
of  a  town  in  fee-farm  he  only  kept  the  superiority  and  the 
inheritance  of  the  annual  rent,  which  he  might  recover  by 
distress.^  The  burgesses  held  their  lands  by  burgage-tenure, 
nearly  analogous  to,  or  rather  a  species  of,  free  socage.* 
Perhaps  before  the  grant  they  might  correspond  to  modem 
copyholders.  It  is  of  some  importance  to  observe  that  the 
lord,  by  such  a  grant  of  the  town  in  fee-farm,  whatever  we 
may  think  of  its  previous  condition,  divested  himself  of  his 
property,  or  lucrative  dominion  over  the  soil,  in  return  for  the 
perpetual  rent ;  so  that  tallages  subsequently  set  at  his  own 
discretion  upon  the  inhabitants,  however  common,  can  hardly 
be  considered  as  a  just  exercise  of  the  rights  of  proprietor- 
ship. 

Under  such  a  system  of  arbitrary  taxation,  however,  it  was 
Charters  of  evident  to  the  most  selfish  tyrant  that  the  wealth 
^corpora,  of  his  burgesscs  was  his  wealth,  and  their  pros- 
perity his  interest;  much  more  were  liberal  and 
sagacious  monarchs,  like  Henry  11.,  inchned  to  encourage 
them  by  privileges.  From  the  time  of  William  Rufus  there 
was  no  reign  m  which  charters  were  not  granted  to  different 
towns  of  exemption  from  tolls  on  rivers  and  at  markets,  those 
lighter  manacles  of  feudal  tyranny ;  or  of  commercial  fran- 
chises ;  or  of  immunity  from  the  ordinary  jurisdictions ;  or, 
lastly,  of  internal  self-regulation.  Thus  the  original  charter 
of  Henry  I.  to  the  city  of  London  *  concedes  to  the  citizens,  in 


1  Madox,  Jlrma  Bargi,  p.  1.  There  is 
one  instance,  I  know  not  if  any  more 
could  be  found,  of  a  firma  burgi  before 
the  Conquest.  It  was  at  Huntingdon. 
Domesday,  p.  203. 

»  Madox,  p.  12, 13. 

»  Id.  p.  21. 


*  I  hare  read  somewhere  that  this 
charter  was  granted  in  1101.  But  the 
instrument  itself,  which  is  only  preserred 
by  an  Inspeximus  of  Edward  IV.,  does 
not  contain  any  date.  Rymer,  t.  i.  p.  11 
(edit.  1816).  Could  it  be  traced  so  high, 
the  circumstance  would  be  remarkablet 


Bboush  Const.      CHARTERS  OF  INCORPORATION. 


25 


addition  to  valuable  commercial  and  fiscal  immunities,  the 
right  of  choosing  their  own  sheriff  and  justice,  to  the  exclusion 
of  every  foreign  jurisdiction.^  These  grants,  however,  were 
not  in  general  so  extensive  till  the  reign  of  John.^  Before 
that  time  the  interior  arrangement  of  towns  had  received  a 
new  organization.  In  the  Saxon  period  we  find  voluntary 
associations,  sometimes  religious,  sometimes  secular ;  in  some 
cases  for  mutual  defence  against  injury,  in  others  for  mutual 
relief  in  poverty.  These  were  called  guilds,  from  the  Saxon 
verb  gildan,  to  pay  or  contribute,  and  exhibited  the  natural, 
if  not  the  legal,  character  of  corporations.*  At  the  time  of 
the  Conquest,  as  has  been  mentioned  above,  such  voluntary 
incorporations  of  the  burgesses  possessed  in  some  towns  either 


as  the  earliest  charters  granted  by 
Louis  VI.,  supposed  to  be  the  &ther  of 
these  institutions,  are  several  years  later. 
It  is  said  bv  Mr.  Thorpe  (Ancient 
Laws  of  England  p.  267),  that,  though 
there  are  ten  witnesses,  he  only  finds  one 
who  throws  any  light  on  the  date :  namely 
Hugh  Bigod.  who  succeeded  his  brother 
William  in  1120.  But  Mr.  Thorpe  does 
not  mention  in  what  respect  he  succeeded. 
It  was  as  dapifer  regis;  but  he  is  not  so 
named  in  the  charter.  Dugdale's  Bar- 
onage, p.  132.  The  date,  therefore,  still 
seems  problematical. 

»  This  did  not,  however,  save  the  citl- 
aens  from  paying  one  hundred  marks 
to  the  king  for  this  privilege.  Mag. 
Rot.  5  Steph.  apud  Madox,  Hist.  Ex- 
chequer, t.  xi.  I  do  not  know  that  the 
charter  of  Henry  Lean  be  suspected; 
but  Brady,  in  his  treatise  of  Boroughs 
(p.  38,  edit.  1777),  does  not  think  proper 
once  to  mention  it;  and  indeed  uses 
many  expressions  incompatible  with  its 
existence. 

2  Blomefleld,  Hist,  of  Norfolk,  vol.  ii. 
p.  16,  savs  that  Henry  I.  granted  the 
same  privileges  by  charter  to  Norwich  in 
1122  which  London  possessed.  Yet  it 
appears  that  the  king  named  the  port- 
reeve or  provost;  but  Blomefleld  suggests 
that  he  was  probably  recommended  by 
•  the  citizens,  the  office  being  annual. 

»  Madox,  Firma  Burgi,  p.  23.  Hlckes 
has  given  us  a  bond  of  fellowship  among 
the  thanes  of  Cambridgeshire,  containing 
several  curious  particulars.  A  composi- 
tion of  eight  pounds,  exclusive,  I  con- 
ceive, of  the  usual  weregild,  was  to  be 
enforced  from  the  sUyerof  any  fellow. 
If  a  fellow  (gllda)  killed  a  man  of  1200 
Shillings  weregild,  each  of  the  society  was 
to  contribute  half  a  marc  ;  for  a  ceorl, 
two  orae  (perhaps  ten  shillings) ;  for  a 
Welshman,  one.   If  however  this  act  was 


committed  wantonly,  the  fellow  had  no 
right  to  call  on  the  society  for  contribu- 
tion. If  one  fellow  killed  another,  he 
was  to  pay  the  legal  weregild  to  his  kin- 
dred, and  also  eight  pounds  to  the  society. 
Harsh  words  used  by  one  feUow  towards 
another,  or  even  towards  a  stranger,  in- 
curred a  fine.  No  one  was  to  eat  or 
drink  in  the  company  of  one  who  had 
killed  his  brother  fellow,  unless  in  the 
presence  of  the  king,  bishop,  or  alderman. 
Dissertatio  Epistolaris,  p.  21. 

We  find  in  Wilkins's  Anglo-Saxon 
Laws,  p.  65,  a  number  of  ordinances 
sworn  to  by  persons  both  of  noble  and 
ignoble  rank  (ge  eorlisce  ge  ceorlisce), 
and  confirmed  by  king  Athelstan.  These 
are  in  the  nature  of  by-laws  for  the  reg- 
ulation of  certain  societies  that  had  been 
formed  for  the  preservation  of  public 
order.  Their  remedy  was  rather  violent : 
to  kill  and  seize  the  effects  of  all  who 
should  rob  any  member  of  the  associa- 
tion. This  property,  after  deducting  the 
value  of  the  things  stolen,  was  to  be 
divided  into  two  parts  ;  one  given  to  the 
criminal's  wife  if  not  an  accomplice,  the 
other  shared  between  the  king  and  the 
society. 

In  another  fraternity  among  the  clergy 
and  laity  of  Exeter  every  fellow  was  en- 
titled to  a  contribution  in  case  of  taking 
a  journey,  or  if  his  house  was  burned. 
Thus  thev  resembled,  in  some  degree, 
our  friendly  societies  ;  and  display  an  in- 
teresting picture  of  manners,  which  has 
induced  me  to  insert  this  note,  though 
not  greatly  to  the  present  purpose.  See 
more  of  the  Anglo-Saxon  guilds  in 
Turner's  History,  vol.  ii.  p.  102.  Socie- 
ties of  the  same  kind,  for  purposes  of 
religion,  charity,  or  mutual  assistance, 
rather  than  trade,  may  be  found  long  af- 
terwards. Blomefleld's  Hist,  of  Norfolk, 
vol.  iu.  p.  494. 


26    PROSPERITY  OF  ENGLISH  TOWNS.    Chap.  VHI.  Part  IIL 

landed  property  of  their  own,  or  rights  of  superiority  over 
that  of  others.     An  internal  elective  government  seems  to 
have  been  required  for  the  administration  of  a  common  reve- 
nue, and  of  other  business   incident  to    their  association.* 
They  became  more  numerous  and  more  peculiarly  commercial 
after  that  era,  as  well  from  the  increase  of  trade  as  through 
imitation  of  similar  fraternities  existing  in  many  towns  of 
France.     The  spirit  of  monopoly  gave  strength  to  those  in- 
stitutions, each  class  of  traders  forming  itself  into  a  body,  in 
order  to  exclude  competition.      Thus  were  estabUshed  the 
companies  in  corporate  towns,  that  of  the  Weavers  in  London 
being  perhaps  the  earUest ;  ^  and  these  were  successively  con- 
solidated and  sanctioned  by  charters  from  the  crown.     In 
towns  not  large  enough  to  admit  of  distinct  companies,  one 
merchant  guild  comprehended  the  traders  in  general,  or  the 
chief  of  them;  and  this,  from  the  reign  of  Henry  11.  down- 
wards, became  the  subject  of  incorporating  charters.     The 
management  of  their  internal  concerns,  previously  to  any  in- 
corporation, fell  naturally  enough  into  a  sort  of  oligarchy, 
which  the  tenor  of  the  charter  generally  presei-ved.     Though 
the  immunities  might  be  very  extensive,  the  powers  were  more 
or  less  restrained  to  a  small  number.     Except  in  a  few  places, 
the  right  of  choosing  magistrates  was  first  given  by  king  John ; 
and  certainly  must  rather  be  ascribed  to  his  poverty  than  to 
any  enlarged  policy,  of  which  he  was  utterly  incapable.* 

From  the  middle  of  the  twelfth  century  to  that  of  the  thir- 
Prosperity  teenth  the  traders  of  England  became  more  and 
cf^giiah  more  prosperous.  The  towns  on  the  southern 
coast  exported  tin  and  other  metals  in  exchange 
for  the  wmes  of  France ;  those  on  the  eastern  sent  com  to 
Norway  — the  Cinque  Ports  bartered  wool  against  the  stuffs 
of  Flanders.^  Though  bearing  no  comparison  with  the  cities 
of  Italy  or  the  Empire,  they  increased  sufficiently  to  acquire 
importance  at  home.  That  vigorous  prerogative  of  the  Nor- 
man monarchs,  which  kept  down  the  feudal  aristocracy, 
compensated  for  whatever  inferiority  there  might  be  in  the 
population  and  defensible  strength  of  the  Englisli  towns,  com- 


Ehoush  Const. 


LONDON. 


27 


1  See  a  grant  from  Turstin,  archbishop 
of  York,  in  the  reign  of  Henry  I.,  to  the 
burgesses  of  Beverly,  that  they  may 
hare  their  hanshus  (i.  e.  guildhall)  like 
those  of  York,  et  ibi  sua  statuta  pertrac- 


«  Madox,  Firma  Burgi,  p.  189. 

3  Idem,  passim.  A  few  of  an  earlier 
date  may  be  found  in  the  new  edition  of 
Rymer. 

*  Lyttelton's  History  of  Henry  H., 
Tol.  ii.  p.  170.  Macpherson's  Annals  rtP 
Commerce,  yol.  i.  p.  381. 


pared  with  those  on  the  continent.  They  had  to  fear  no  petty 
oppressors,  no  local  hostility ;  and  if  they  could  satisfy  the 
rapacity  of  the  crown,  were  secure  from  all  other  grievances 
London,  far  above  the  rest,  our  ancient  and  noble 
capital,  might,  even  in  those  early  times,  be  justly 
termed  a  member  of  the  political  system.  This  great  city, 
80  admirably  situated,  was  rich  and  populous  long  before  the 
Conquest  Bede,  at  the  beginning  of  the  eighth  century, 
speaks  of  London  as  a  great  market,  which  traders  frequented 
by  land  and  sea.^  It  paid  15,000/.  out  of  82,000/.,  raised  by 
Canute  upon  the  kingdom.^  If  we  believe  Roger  Hoveden, 
the  citizens  of  London,  on  the  death  of  Ethelred  II.,  joined 
with  part  of  the  nobility  in  raising  Edmund  Ironside  to  the 
throne.*  Harold  I.,  according  to  better  authority,  the  Saxon 
Chronicle  and  William  of  Malmsbury,  was  elected  by  their 
concurrence.*  Descending  to  later  history,  we  find  them 
active  in  the  civil  war  of  Stephen  and  Matilda.  The  famous 
bishop  of  Winchester  tells  the  Londoners  that  they  are  almost 
accounted  as  noblemen  on  account  of  the  greatness  of  their 
city;  into  the  community  of  which  it  appears  that  some 
barons  had  been  received.^  Indeed,  the  citizens  themselves, 
or  at  least  the  principal  of  them,  were  called  barons.     It  was 


*■  Macpherson,  p.  245. 

«  Id.  p.  282. 

s  Gives  Lundincnses,  et  pars  nobilium 
qui  eo  tempore  consistebant  Lundonite, 
Clitonem  Eadmundum  unanimi  con- 
sensu iu  regem  levavere.  p.  249. 

«  Chron.  Saxon,  p.  154.  Malmsbury, 
p.  76.  He  says  the  people  of  London 
were  become  almost  barbarians  through 
their  intercourse  with  the  Danes;  propter 
frequeutem  conTictum. 

^  Londinenses,  qui  sunt  quasi  opti- 
mates  pro  magnitudine  ciritatis  in  An- 
glil.  Malmsb.  p.  189.  Thus  too  Matthew 
Paris :  cives  Londinenses,  quos  propter 
civitatis  dignitatem  et  civium  antiquam 
libertatem  Barones  consueviinus  appel- 
laro.  p.  744.  And  in  another  place :  to- 
tius  civitatis  cives,  quos  barones  vocant. 
p.  835.  Spelman  says  that  the  magis- 
trates of  several  other  towns  were  called 
barons.    Glossary,  Barones  de   London. 

A  singular  proof  of  the  estimation  in 
Which  the  citizens  of  London  held  them- 
selves in  the  reign  of  Richard  I.  occurs 
in  the  Chronicle  of  Jocelyn  de  Brake- 
londe  {p.  66— Camden  Society,  1840). 
They  claimed  to  be  free  from  toll  in 
•very  part  of  England,  and  in  every  ju- 
tiidiction,  resting  their   immunity    on 


the  antiquity  of  London  (which  was 
coeval,  they  said,  with  Rome),  and  on  its 
rank  as  metropolis  of  the  kingdom.  Et 
dicebant  cives  Lundonenses  fuisse  quietos 
de  theloneo  in  omni  foro,  et  semper  et 
ubique,  per  totam  Angliam,  4  tempore 
quo  Roma  primo  fun  lata  fuit,  et  civita- 
tem  Lundoniae,  eodein  tempore  funda- 
tam,  talem  debere  habere  libertatem  per 
totam  Angliam,  et  ratione  civitatis  privi- 
legiataa  quae  olim  metropolis  fuit  et 
caput  regni,  et  ratione  autiquitatis.  Pal- 
grave  inclines  to  think  that  London 
never  formed  part  of  :iny  kingdom  of  the 
Heptarchy.  Introduction  to  Rot.  Cur. 
Regis,  p.  95.  But  this  seems  to  imply  a 
republican  city  in  the  midst  of  so  many 
royal  states,  which  seems  hardly  proba- 
ble. Certainly  it  seems  strange,  though 
I  cannot  explain  it  away,  that  the  capi- 
tal of  England  should  have  fallen,  as  wo 
generally  suppose,  to  the  small  and  ob- 
scure kingdom  of  Essex.  Winchester, 
indeed,  may  be  considered  as  having  be- 
come afterwards  the  capital  during  the 
Anglo-Saxon  monarchy,  so  far  as  that  it 
was  for  the  most  part  the  residence  of 
our  kings.  But  London  was  always 
more  populous. 


28 


LONDON. 


Chap.  VIII.  Part,  in 


certainly  by  far  the  greatest  city  in  England.  There  have 
been  different  estimates  of  its  population,  some  of  which  are 
extravagant ;  but  I  think  it  could  hardly  have  contained  less 
than  thirty  or  forty  thousand  souls  within  its  walls ;  and  the 
suburbs  were  very  populous.*  These  numbers,  the  enjoyment 
of  privileges,  and  the  consciousness  of  strength,  infused  a  free 
and  even  a  mutinous  spirit  into  their  conduct.^  The  Lon- 
doners were  always  on  the  barons*  side  in  their  contests  with 
the  crown.  They  bore  a  part  in  deposing  William  Long- 
champ,  the  chancellor  and  justiciary  of  Richard  L*  They 
were  distinguished  in  the  great  struggle  for  Magna  Charta ; 
the  privileges  of  their  city  are  expressly  confirmed  in  it ;  and 
the  mayor  of  London  was  one  of  the  twenty-five  barons  to 
whom  the  maintenance  of  its  provisions  was  delegated.  In  the 
subsequent  reign  the  citizens  of  London  were  regarded  with 
much  dislike  and  jealousy  by  the  court,  and  sometimes  suf- 
fered pretty  severely  at  its  hands,  especially  after  the  battle 
of  Evesham.* 

Notwithstanding  the  influence  of  London  in  these  seasons 


1  Drake,  the  historian  of  York,  main- 
tains that  London  was  less  populous, 
about  the  time  of  the  Conquest,  than 
that  city ;  and  quotes  Uardynge,  a  writer 
of  Henry  V.'s  age,  to  prove  that  the  in- 
terior part  of  the  former  was  not  closely 
built.  Eboracum,  p.  91.  York  however 
does  not  appear  to  liave  contained  more 
than  10,000  inhabitants  at  the  accession 
of  the  Conqueror;  and  the  very  exagger- 
ations as  to  the  populousness  of  London 
prove  that  it  must  have  far  exceeded  that 
number.  Fitz-Stephen,  the  contempo- 
rary biographer  of  Thomas  k  Becket, 
tells  us  of  80,000  men  capable  of  bearing 
arms  within  its  precincts;  where  how- 
ever his  translator,  Pegge,  suspects  a 
mistake  of  the  MS.  in  the  numerals. 
And  this,  with  similar  hyperboles,  so  im- 
posed on  the  judicious  mind  of  Lord 
Lyttelton,  that,  finding  in  Peter  of  Blois 
the  inhabitants  of  London  reckoned  at 
quadraginta  mi  Ilia,  he  has  actually  pro- 
posed to  read  quadringenta.  Hist.  Henry 
II.,  vol.  iv.  ad  flnem.  It  is  hardly  neces- 
sary to  observe  that  the  condition  of 
agriculture  and  internal  communication 
would  not  have  allowed  half  that  number 
to  subsist. 

The  subsidy-roll  of  1377,  published  In 
the  Archaeologia,  vol  vii.,  would  lead  to 
a  conclusion  that  all  the  inhabitants  of 
London  did  not  even  then  exceed  35.000. 
If  this  be  true,  they  could  not  have 
amounted,  probably,  to  so  great  a  num- 
ber two  or  three  centuries  earlier.    But 


the  numbers  given  in  that  document 
have  been  questioned  as  to  Norwich  upon 
very  plausible  grounds,  and  seem  rather 
suspicious  in  the  present  instance. 
[Note  V.] 

a  This  seditious,  or  at  least  refractory 
character  of  the  Londoners,  was  displayed 
in  the  tumult  headed  by  William  Long- 
beard  in  the  time  of  Richard  I.,  and  that 
under  Constantine  in  1222,  the  patriarchs 
of  a  long  line  of  city  demagogues. 
Hoveden,  p.  765.    M.  Paris,  p.  154. 

8  Hoveden^s  expressions  are  very  pre- 
cise, and  show  that  the  share  taken  by 
the  citizens  of  London  (probably  the 
mayor  and  aldermen)  in  this  measure 
was  no  tumultuary  acclamation,  but  a 
deliberate  concurrence  with  the  nobility. 
Comes  Johannes,  et  fere  omnes  episcopl, 
et  comites  Angliae  eldem  die  intrarerunt 
Londonias ;  et  in  crastino  pra?dictu8  Jo- 
hannes frater  regis,  et  archiepiscopus 
Rothomagensis,  et  omnes  episcopi,  et 
comites  et  barones,  et  cives  Londonienses 
cum  illis  convenerunt  in  atrio  ecclesia) 
S.  Pauli  .  .  .  Placuitergo  Johannifratri 
regis,  et  omnibus  episcopis,  et  comitibus 
et  baronibus  regni,  et  civibus  Londonia- 
rum,  quod  cancellarius  ille  deponerctur, 
et  deposuerunt  eum,  &c.    p.  701. 

*  The  reader  may  consult,  for  a  more 
full  account  of  the  English  towns  iMfore 
the  middle  of  the  thirteenth  centunr, 
Lyttelton's  History  of  Henry  II.  vol.  U 
p.  174;  and  Macpherson's  Annals  of 
Commerce. 


Ekoush  Const.   EAKLIEST  WRITS  TO  TOWNS. 


29 


of  disturbance,  we  do  not  perceive  that  it  was  distinguished 
from  the  most  insignificant  town  by  greater  participation  in 
national  councils.  Rich,  powerful,  honorable,  and  high-spirited 
as  its  citizens  had  become,  it  was  very  long  before  they  found 
a  regular  place  in  parliament.  The  prerogative  of  imposing 
tallages  at  pleasure,  unsparingly  exercised  by  Henry  III. 
even  over  London,^  left  the  crown  no  inducement  to  summon 
the  inhabitants  of  cities  and  boroughs.  As  these  indeed  were 
daily  growing  more  considerable,  they  were  certain,  in  a  mon- 
archy so  limited  as  that  of  England  became  in  the  thirteenth 
century,  of  attaining,  sooner  or  later,  this  eminent  privilege. 
Although  therefore  the  object  of  Simon  de  Montfort  in  calling 
them  to  his  parliament  after  the  battle  of  Lewes  was  merely 
to  strengthen  his  own  faction,  which  prevailed  among  the 
commonalty,  yet  their  permanent  admission  into  the  legisla- 
ture, may  be  ascribed  to  a  more  general  cause.  For  otherwise 
it  is  not  easy  to  see  why  the  innovation  of  an  usurper  should 
have  been  drawn  into  precedent,  though  it  might  perhaps 
accelerate  what  the  course  of  affairs  was  gradually  preparing. 
It  is  well  known  that  the  earliest  writs  of  summons  to  cities 
and  boroughs,  of  which  we  can  prove  the  existence,  Fi^gt  sum- 
are  those  of  Simon  de  Montfort,  earl  of  Leicester,  moning  of 
bearing  date  12th  of  December,  1264,  in  the  forty-  parUament, 
ninth  year  of  Henry  III.^  After  a  long  contro-  »^  ^^  h.  lit. 
versy  almost  all  judicious  inquirers  seem  to  have  acquiesced 
in  admitting  this  origin  of  popular  representation.'*  The 
argument  may  be  very  concisely  stated.    We  find  from  innu- 


1  Frequent  proofs  of  this  may  be 
found  in  Madox,  Hist,  of  Exchequer, 
c.  17,  as  well  as  in  Matt.  Paris,  who  la- 
ments it  with  indignation.  Cives  Lon- 
dinenses,  contra  consuetudinem  et  liber- 
tatem  civitatis,  quasi  servi  ultimse  con- 
ditionis,  non  sub  nomine  aut  titulo  liberi 
adjutorii,  sed  tallagii,  quod  multum  eos 
angebat,  regi,  licet  inviti  et  renitentes, 
nume  rare  suntcoacti.  p.  492.  Heu  ubi 
est  Londinensls,  toties  empta,  toties  con- 
cessa,  toties  scripta,  toties  jurata  libertas  I 
&c.  p.  627.  The  king  sometimes  sus- 
pended their  market,  that  is,  I  suppose, 
their  right  of  toll,  till  his  demands  were 
paid. 

3  These  writs  are  not  extant,  having 
perhaps  never  been  returned ;  and  conse- 
quently we  cannot  tell  to  what  particu- 
lar places  they  were  addressed.  It  ap- 
pears however  that  the  assembly  was 
intended  to  be  numerous ;  for  the  entry 
runs:    8cribitur  civibus  Ebor,  civibua 


Lincoln,  et  cseteris  burgis  Anglise.  It  is 
singular  that  no  mention  is  made  of 
London,  which  must  have  had  some 
special  summons.  Rymer,  t.  i.  p.  803. 
Dugdale,  Summonitiones  ad  Parliamen- 
tum,  p.  1. 

3  It  would  ill  repay  any  reader's  dili- 
gence to  wade  through  the  vapid  and 
diluted  pages  of  Tyrrell ;  but  whoever 
would  know  what  can  be  best  pleaded 
for  a  higher  antiquity  of  our  present 
parliamentary  constitution  may  have 
recourse  to  Hody  on  Convocations,  and 
Lord  Lyttelton's  History  of  Henry  II. 
vol.  ii.  p.  276,  and  vol.  iv.  p.  79-106.  I 
do  not  conceive  it  possible  to  argue  the 
question  more  ingeniously  than  has  been 
done  by  the  noble  writer  last  quoted. 
Whitelocke,  in  his  commentary  on  the 
parliamentary  writ,  has  treated  it  very 
much  at  length,  but  with  no  critical  dis. 
crimination. 


no 


EARLIEST  WRITS  TO  TOWNS.    Chap.  VUI.  Part  m. 


Ehglish  Const. 


ST.  ALBANS. 


31 


merable  records  that  the  king  imposed  tallages  upon  his 
demesne  towns  at  discretion.^  No  public  instrument  previous 
to  the  forty-ninth  of  Henry  HI.  names  the  citizens  and  bur- 
gesses as  constituent  parts  of  parliament;  though  prelates, 
barons,  knights,  and  sometimes  freeholders,  are  enumerated;* 
while,  since  the  undoubted  admission  of  the  commons,  they 
are  almost  invariably  mentioned.  No  historian  speaks  of 
representatives  appearing  for  the  people,  or  uses  the  word 
citizen  or  burgess  in  describing  those  present  in  parliament. 
Such  convincing,  though  negative,  evidence  is  not  to  be  inval- 
idated by  some  general  and  ambiguous  phrases,  whether  in 
writs  and  records  or  in  historians.^  Those  monkish  annalists 
are  poor  authorities  upon  any  point  where  their  language  is 
to  be  delicately  measured.  But  it  is  hardly  possible  that, 
writing  circumstantially,  as  Roger  de  Hoveden  and  Matthew 
Paris  sometimes  did,  concerning  proceedings  in  parliament, 
they  could  have  failed  to  mention  the  commons  in  unequivocal 
expressions,  if  any  representatives  from  that  order  had  actu- 
ally formed  a  part  of  the  assembly. 

Two  authorities,  however,  which  had  been  supposed  to 
Authorities  prove  a  greater  antiquity  than  we  have  assigned 
inSief  ^  *^®  representation  of  the  commons,  are  deserv- 
date.  ing  of  particular  consideration;  the  cases  of  St. 

st.Aibanfl.  Albans  and  Barnstaple.  The  burgesses  of  St. 
Albans  complained  to  the  council  in  the  eighth  year  of 
Edward  11.,  that,  although  they  held  of  the  king  in  capite, 
and  ought  to  attend  his  parliaments  whenever  they  are  sum- 
moned, by  two  of  their  number,  instead  of  all  other  services, 
as  had  been  their  custom  in  all  past  times,  which  services  the 
said  burgesses  and  their  predecessors  had  performed  as  well 
in  the  time  of  the  late  king  Edward  and  his  ancestors  as  in 
that  of  the  present  king  until  the  parliament  now  sitting,  the 
names  of  their  deputies  having  been  constantly  enrolled  in 
chancery,  yet  the  sheriff  of  Hertfordshire,  at  the  instigation 


1  Jiadox,  Hist,  of  Exchequer,  c.  17. 

2  The  only  apparent  exception  to  this 
is  in  the  letter  addressed  to  the  pope  by 
the  parliament  of  1246 ;  the  salutation 
of  which  runs  thus :  Barones,  proceres, 
et  magnates,  ae  nobiles  portuum  maris 
habitatores,  necnon  et  clerus  et  populus 
unirersus,  salutem.  Matt.  Paris,  p.  696. 
It  is  plain,  I  think,  from  these  words, 
that  some  of  the  chief  inhabitants  of  the 
Cinque  Ports,  at  that  time  very  flourish 


ing  towns,  were  present  in  this  psrlla 
ment.    But  whether  they  sat  as  repre- 
sentatives, or  by  a  peculiar  writ  of  sum- 
mons, is  not  so  evident  j  and  the  latter 
may  be  the  more  probable  hypothesis  of 
the  two. 

'Thus  Matthew  Paris  tells  us  that  in 
1237  the  whole  kingdom,  regni  totiua 
universita.*),  repaired  to  a  parliament  of 
Henry  lU.  p.  367 


of  the  abbot  of  St.  Albans,  had  neglected  to  cause  on  election 
and  return  to  be  made ;  and  prayed  remedy.  To  this  petition 
it  was  answered,  "  Let  the  rolls  of  chancery  be  examined, 
that  it  may  appear  whether  the  said  burgesses  were  accus- 
tomed to  come  to  parliament,  or  not,  in  the  time  of  the  king's 
ancestors ;  and  let  right  be  done  to  them,  vocatis  evocandis, 
si  necesse  fuerit."  I  do  not  translate  these  words,  concerning 
the  sense  of  which  there  has  been  some  dispute,  though  not, 
apparently,  very  material  to  the  principal  subject.^ 

This  is,  in  my  opinion,  by  far  the  most  plausible  testimony 
for  the  early  representation  of  boroughs.     The  burgesses  of 
St  Albans  claim  a  prescriptive  right  from  the  usage  of  all 
past  times,  and  more  especially  those  of  the  late  Edward  and 
his  ancestors.     Could  this  be  alleged,  it  has  been  said,  of  a 
privilege  at  the  utmost  of  fifty  years'  standing,  once  granted 
by  an  usurper,  in  the  days  of  the  late  king's  father,  and  after- 
wards discontinued  till  about  twenty  years  before  the  date  of 
their  petition,  according  to  those  who  refer  the  regular  appear- 
ance of  the  commons  in  parliament  to  the  twenty-third  of 
Edward  I.  ?     Brady,  who  obviously  felt  the  strength  of  this 
authority,  has  shown  little  of  his  usual  ardor  and  acuteness  in 
repelling  it.     It  was  observed,  however,  by  Madox,  that  the 
petition  of  St.  Albans  contains  two  very  singular  allegations: 
it  asserts  that  the  town  was   part  of  the   king's  demesne, 
whereas  it  had  invariably  belonged  to  the  adjoining  abbey ; 
and  that  its  burgesses  held  by  the  tenure  of  attending  parlia- 
ment, instead  of  all  other  services,  contrary  to  all  analogy, 
and  without  parallel  in  the  condition  of  any  tenant  in  capite 
throughout  the  kingdom.     "  It  is  no  wonder,  therefore,"  says 
Hume,  "  that  a  petition  which  advances  two  falsehoods  should 
contain  one  historical  mistake,  which  indeed  amounts  only  to 
an  inaccurate  expression."     But  it  must  be  confessed  that  we 
cannot  so  easily  set  aside  the  whole  authority  of  this  record. 
For  whatever  assurance  the  people  of  St.  Albans  might  show 
in  asserting  what  was  untrue,  the  king's  council  must  have 
been  aware  how  recently  the  deputies  of  any  towns  had  been 
admitted  into  parliament.     If  the  lawful  birth  of  the  House 
of  Commons  were  in  1295,  as  is  maintained  by  Brady  and  his 
disciples,  is  it  conceivable  that,  in  1315,  the  council  would 
have  received  a  petition,  claiming  the  elective  franchise  by 

»  Brady's  Introduction  to  Hist,  of  England,  p.  88 


^ 


32 


It 


EARLIEST  WRITS  TO  TOWNS.    Chap.  VHI.  Pabt  IH. 


prescription,  and  have  referred  to  the  rolls  of  chancery  to 
inquire  whether  this  had  been  used  in  the  days  of  the  king's 
progenitors  ?    I  confess  that  I  see  no  answer  which  can  easily 
be  given  to  this  objection  by  such  as  adopt  the  latest  epoch 
of  borough  representation,  namely,  the  parliament  of  23  E.  I. 
But  they  are  by  no  means  equally  conclusive  against  the  sup- 
position that  the  communities  of  cities  and  towns,  having  been 
first  introduced  into  the  legislature  during  Leicester's  usurpa- 
tion, in  the  forty-ninth  year  of  Henry  III.,  were  summoned, 
not  perhaps  uniformly,  but  without  any  long  intermission,  to 
succeeding  parliaments.    There  is  a  strong  presumption,  from 
the  language  of  a  contemporary  historian,  that  they  sat  in  the 
parliament  of  1269,  four  years  after  that  convened  by  Leices- 
ter.*   It  is  more  unequivocally  stated  by  another  annalist  that 
they  were  present  in  the  first  parliament  of  Edward  L  held 
in  1271.2     Nor  does  a  similar  inference  want  some  degree  of 
support  from  the  preambles  of  the  statute  of  Marlebridge  in 
51  H.  III.,  of  Westminster  I.  in  the  third,  and  of  Gloucester 
in  the  sixth,  year  of  Edward  L»     And  the  writs  are  extant 
which  summon  every  city,  borough,  and  market  town  to  send 
two  deputies  to  a  council  in  the  eleventh  year  of  his  reign. 
I  call  this  a  council,  for  it  undoubtedly  was  not  a  parliament. 
The  sheriffs  were  directed  to  summon  personally  all  who  held 
more  than  twenty  pounds  a  year  of  the  crown,  as  well  as  four 
knights  for  each  county  invested  with  full  powers  to  act  for 
the  commons  thereof.    The  knights  and  burgesses  thus  chosen, 
as  well  as  the  clergy  within  the  province  of  Canterbury,  met 
at  Northampton;  those  within  the  province  of  York,  at  that 


1  Convocatis  unlTersis  Anglise  prelatia 
et  magnatibus,  necnon  cunctatum  regni 
8ui  civitatum  et  burj^orum  potentioribus. 
Wykes,  in  Gale,  XV  Scriptores,  t.  ii. 
p.  88.  I  am  indebted  to  Hody  on  Con- 
vocations for  thii  reference,  which  seems 
to  have  escaped  most  of  our  constitu- 
tional writers. 

2  Hoc  anno  .  .  .  convenerunt  archi- 
episcopi,  episcopi,  comites  et  barones, 
abbates  ct  priores.  et  de  quolibet  comi- 
tatu  quatuor  milites,  et  de  quSlIibet 
civitate  quatuor.  Annales  Waverleienses 
in  Gale,  t.  ii.  p.  227.  I  was  led  to  this 
passage  by  Atterbury,  Rights  of  Convo- 
cations, p.  310,  where  some  other  au- 
thorities less  unquestionable  are  adduced 
for  the  same  purpose.  Both  this  as.«cmbly 
and  that  mentioned  by  Wykes  in  1269 
were  certainly  parliaments,  and  acted  as 


Buch,  particularly  the  former,  though 
summoned  for  purposes  not  strictly  par- 
liamentary. 

3  The  statute  of  Marlebridge  is  said 
to  be  made  convocatis  discretioribus, 
tarn  majoribua  quim  minoribus ;  that 
of  Westminster  primer,  par  .^on  conseil, 
et  par  rasscntcments  des  archievesques, 
evesques,  abbes,  priors,  countes,  barons, 
et  tout  le  comminality  de  la  terre  illonquea 
Bummones.  The  statute  of  Gloucester 
runs,  appelles  les  plus  discretes  de  son 
royaume,  auxibien  des  grandes  come  dea 
meinders.  These  preambles  seem  to 
have  satisfied  Mr.  Prynne  that  the  com- 
mons were  then  represented,  though  the 
writs  are  wanting  ;  and  certainly  no  one 
could  be  less  disposed  to  exaggerate  their 
antiquity.    2d  Register,  p.  SO. 


English  Const. 


BARNSTAPLE. 


38 


city.  And  neither  assembly  was  opened  by  the  king.^  This 
anomalous  convention  was  nevertheless  one  means  of  estab- 
lishing the  representative  system,  and,  to  an  inquirer  free 
from  technical  prejudice,  is  little  less  important  than  a  regular 
parliament.  Nor  have  we  long  to  look  even  for  this.  In  the 
same  year,  about  eight  months  after  the  councils  at  Northamp- 
ton and  York,  writs  were  issued  summoning  to  a  parliament 
at  Shrewsbury  two  citizens  from  London,  and  as  many  from 
each  of  twenty  other  considerable  towns.'^  It  is  a  slight  cavil 
to  object  that  these  were  not  directed  as  usual  to  the  sheriff 
of  each  county,  but  to  the  magistrates  of  each  place.  Though 
a  very  imperfect,  this  was  a  regular  and  unequivocal  repre- 
sentation of  the  commons  in  parliament.  But  their  attendance 
seems  to  have  intermitted  from  this  time  to  the  twenty-third 
year  of  Edward's  reign.* 

Those  to  whom  the  petition  of  St.  Albans  is  not  satisfac- 
tory will  hardly  yield  their  conviction  to  that  of  gamBtapie. 
Barnstaple.     This  town  set  forth  in  the  eighteenth 


1  Brady's  Hist,  of  England,  vol.  ii. 
Appendix  ;  Carte,  vol.  ii.  p.  247. 

3  This  is  commonly  denominated  the 
parliament  of  Acton  Bumell ;  the  clergy 
and  commons  having  sat  in  that  town, 
while  the  barons  passed  judgment  upon 
David  prince  of  Wales  at  Shrewsbury. 
The  towns  which  were  honored  with 
the  privilege  of  representation,  and  may 
consequently  be  supposed  to  have  been 
at  that  time  the  most  considerable  in 
England,  were  York,  Carlisle,  Scar- 
borough, Nottingham,  Grimsby,  Lincoln, 
Northampton,  Lynn,  Yarmouth,  Col- 
chester, Norwich,  Chester,  Shrewsbury, 
Worcester,  Hereford,  Bristol,Canterbury, 
Winchester,  and  Exeter.  Rymer,  t.  ii. 
p.  247. 

"This  [the  trial  and  judgment  of 
Llewellin]  seems  to  have  been  the  only 
business  transacted  at  Shrewsbury  ;  for 
the  bishops  and  abbots,  and  four  knights 
of  each  shire,  and  two  representatives 
of  London  and  nineteen  other  trading 
towns,  summoned  to  meet  the  same  day 
in  parliament,  are  said  to  have  sat  at 
Acton  Bumell ;  and  thence  the  law  made 
for  the  more  easy  recovery  of  the  debts 
of  merchants  is  called  the  Statute  of 
Acton  Bumell.  It  was  probably  made 
at  the  request  of  the  representatives  of 
the  cities  and  boroughs  present  in  that 
parliament,  authentic  copies  in  the  king's 
name  being  sent  to  seven  of  those  trading 
towns ;  but  it  runs  only  in  the  name 


of  the  king  and  his  council."  Carte,  ii. 
195,  referring  to  Rot.  WaU.  11  Edw.  I. 
m.  2d. 

As  the  parliament  was  summoned  to 
meet  at  Shrewsbury,  it  may  be  presumed 
that  the  Commons  adjourned  to  Acton 
Bumell.  The  word  "statute"  implies 
that  some  consent  was  given,  though 
the  enactment  came  from  the  king  and 
council.  It  is  entitled  in  the  Book  of 
the  Exchequer —  des  Estatus  de  Slopbury 
ke  sunt  appele  Actone  Burnel.  Ces 
sunt  les  Estatus  fez  at  Salopsebur,  al 
parlement  prochein  apres  la  fete  Seint 
Michel,  I'an  del  reigne  le  Rey  Edward, 
Fitz  le  Rey  Henry,  unzime.  Report  of 
Lords'  Committee,  p.  191.  The  enact- 
ment by  the  king  and  council  founded 
on  the  consent  of  the  estates  was  at 
Acton  Bumell.  And  the  Statute  of 
Merchants,  13  Edw.  I.,  refers  to  that  of 
the  11th,  as  made  by  the  king,  a  son 
parlement  que  il  tint  k  Acton  Bumell, 
and  again  mentions  I'avant  dit  statut 
fait  k  Acton  Bumell.  This  seems  to 
afford  a  voucher  for  what  is  said  in  my 
text,  which  has  been  controverted  by  a 
learned  antiquary.*  It  is  certain  that 
the  lords  were  at  Shrewsbury  in  their 
judicial  character  condemning  Llewellin ; 
but  whether  they  proceeded  afterward* 
to  Acton  Burnell,  and  joined  m  the  stat- 
ute, is  not  quite  so  clear. 

8  [Note  VI.] 


*  Archseological  Journal,  vol.  ii.  p.  837,  by  the  Bev.  W.  Hartshonw. 
VOL.  III.  8 


34 


EARLIEST  WRITS  TO  TOWNS.    Chap.  VHI.  Part  Itt 


English  Const. 


BARNSTAPLE. 


35 


»i 


i! 


,    I 


II 


n 


of  Edward  HI.  that,  among  other  franchises  granted  to  them 
by  a  charter  of  Athelstan,  they  had  ever  since  excercised 
the  right  of  sending  two  burgesses  to  parliament.  The  said 
charter,  indeed,  was  unfortunately  mislaid ;  and  the  prayer 
of  their  petition  was  to  obtain  one  of  the  like  import  in  its 
stead.  Barnstaple,  it  must  be  observed,  was  a  town  belong- 
ing to  Lord  Audley,  and  had  actually  returned  members  ever 
since  the  twenty-third  of  Edward  I.  Upon  an  inquisition 
directed  by  the  king  to  be  made  into  the  truth  of  these  al- 
legations, it  was  found  that  "  the  burgesses  of  the  said  town 
were  wont  to  send  two  burgesses  to  parliament  for  the  com- 
monalty of  the  borough ; "  but  nothing  appeared  as  to  the 
pretended  charter  of  Athelstan,  or  the  liberties  which  it  was 
alleged  to  contain.  The  burgesses,  dissatisfied  with  this 
inquest,  prevailed  that  another  should  be  taken,  which  cer- 
tainly answered  better  their  wishes.  The  second  jury  found 
that  Barnstaple  was  a  free  borough  from  time  immemorial ; 
that  the  burgesses  had  enjoyed  under  a  charter  of  Athelstan, 
which  had  been  casually  lost,  certain  franchises  by  them 
enumerated,  and  particularly  that  they  should  send  two 
burgesses  to  parliament ;  and  that  it  would  not  be  to  the 
king's  prejudice  if  he  should  grant  them  a  fresh  charter  in 
terms  equally  ample  with  that  of  his  predecessor  Athelstan. 
But  the  foUowing  year  we  have  another  writ  and  another 
inquest ;  the  former  reciting  that  the  second  return  had  been 
unduly  and  fraudulently  made ;  and  the  latter  expressly  con- 
tradicting the  previous  inquest  in  many  points,  and  especially 
finding  no  proof  of  Athelstan*s  supposed  charter.  Comparing 
the  various  parts  of  this  business,  we  shall  probably  be  in- 
duced to  agree  with  Willis,  that  it  was  but  an  attempt  of  the 
inhabitants  of  Barnstaple  to  withdraw  themselves  from  the 
jurisdiction  of  their  lord.  For  the  right  of  returning  bur- 
gesses, though  it  is  the  main  point  of  our  inquiries,  was  by 
no  means  the  most  prominent  part  of  their  petition,  which 
rather  went  to  establish  some  civil  privileges  of  devising 
their  tenements  and  electing  their  own  mayor.  The  first  and 
fairest  return  finds  only  that  they  were  accustomed  to  send 
members  to  parliament,  which  an  usage  of  fifty  years  (from 
23  E.  I.  to  18  E.  ni.)  was  fully  sufficient  to  establish,  with- 
out searching  into  more  remote  antiquity.  * 

1  Willis,  Notitia  Parliamentaria,  vol.  ii.  p.  312 ;  Lyttelton's  Hist,  of  Hen.  !!.« 
I9i.  It.  p.  89. 


It  has,  however,  probably  occurred  to  the  reader  of  these 
two  cases,  St.  Albans  and  Barnstaple,  that  the  representation 
of  the  commons  in  parliament  was  not  treated  as  a  novelty, 
even  in  times  httle  posterior  to  those  in  which  we  have  been 
supposing  it  to  have  originated.  In  this  consists,  I  think,  the 
sole  strength  of  the  opposite  argument.  An  act  in  the  fifth 
year  of  Richard  IL  declares  that,  if  any  sheriff"  shall  leave 
out  of  his  returns  any  cities  or  boroughs  which  be  bound  and 
of  old  times  were  wont  to  come  to  the  parliament,  he  shall 
be  punished  as  was  accustomed  to  be  done  in  the  like  case  in 
time  past  *  In  the  memorable  assertion  of  legislative  right 
by  the  commons  in  the  second  of  Henry  V.  (which  will  be 
quoted  hereafter)  they  affirm  that  "  the  commune  of  the  land 
is,  and  ever  has  been,  a  member  of  parliament."  ^  And  the 
consenting  suffrage  of  our  older  law-books  must  be  placed  in 
the  same  sctde.  The  first  gainsayers,  I  think,  were  Camden 
and  Sir  Henry  Spelman,  who,  upon  probing  the  antiquities 
of  our  constitution  somewhat  more  exactly  than  their  prede- 
cessors, declared  that  they  could  find  no  signs  of  the  com- 
mons in  parliament  till  the  forty-ninth  of  Henry  III. 
Prynne,  some  years  afterwards,  with  much  vigor  and  learn- 
ing, maintained  the  same  argument,  and  Brady  completed  the 
victory.  But  the  current  doctrine  of  Westminster  Hall,  and 
still  more  of  the  two  chambers  of  parliament,  was  certainly 
much  against  these  antiquaries ;  and  it  passed  at  one  time  for 
a  surrender  of  popular  principles,  and  almost  a  breach  of 
privilege,  to  dispute  the  lineal  descent  of  the  House  of  Com- 
mons from  the  witenagemot.' 


1  6  Rio.  n.  Stat.  2,  c.  It. 

«  Rot.  Pari.  vol.  iv.  p.  22. 

'  Though  such  an  argument  would 
not  be  conclusive,  it  might  afford  some 
ground  for  hesitation,  if  the  royal  burghs 
of  Scotland  were  actually  represented  in 
their  parliament  more  than  lialf  a  cen- 
tury before  the  date  assigned  to  the  first 
reprasentation  of  English  towns.  Lord 
Hailes  concludes  from  a  passage  in 
Fordun  *'  that  as  early  as  1211  bur- 
gesses gave  suit  and  presence  in  the  great 
council  of  the  king's  vassals  ;  though  the 
contrary  has  been  asserted  with  much 
confidence  by  various  authors."  Annals 
of  Scotland,vol.  i,  p.  139.  Fordun's  words, 
however,  so  far  from  importing  that  they 
formed  a  member  of  the  legislature, 
which  perhaps  Lord  Hailes  did  not  mean 
by  the  quaint  expression  "  gave  suit  and 


presence,"  do  not  appear  to  me  concIosiTe 
to  prove  that  they  were  actually  present. 
Hoc  anno  Rex  Scotiae  Willelmus  magnum 
tenuit  consilium.  Ubi,  petito  ab  opti- 
matibus  auxilio,  promiserunt  se  daturos 
decern  mille  marcas :  prseter  burgenses 
regni,  qui  sex  millia  promiserunt.  Those 
who  know  the  brief  and  incorrect  style 
of  chronicles  will  not  think  it  unlikely 
that  the  offer  of  6000  marks  by  the  bur- 
gesses was  not  made  in  parliament,  but 
in  consequence  of  separate  requisitions 
from  the  crown.  Pinkerton  is  of  opinion 
that  the  magistrates  of  royal  burghs 
might  upon  this,  and  perhaps  other  occa- 
sions, have  attended  at  the  bar  of  parlia- 
ment with  their  offers  of  money.  But 
the  deputies  of  towns  do  not  appear  as  a 
part  of  parliament  till  1326.  Hist,  of 
Scotland,  vol.  i.  p.  352^  871. 


36 


DEPUTIES  FROM  BOROUGHS.    Chap.  VUI.  Pakt  HI. 


Eholish  Const.     DEPUTIES  FROM  BOROUGHS. 


37 


i 


:i 


The  true  ground  of  these  pretensions  to  antiquity  was  a 
very  well-founded  persuasion  that  no  other  argument  would 
be  so  conclusive  to  ordinary  minds,  or  cut  short  so  eflfectually 
all  encroachments  of  the  prerogative.  The  populace  of 
every  country,  but  none  so  much  as  the  English,  easily  grasp 
the  notion  of  right,  meaning  thereby  something  positive  and 
definite;  while  the  maxims  of  expediency  or  theoretical 
reasoning  pass  slightly  over  their  minds.  Happy  indeed  for 
England  that  it  is  so !  But  we  have  here  to  do  with  the 
fact  alone.  And  it  may  be  observed  that  several  pious 
frauds  were  practised  to  exalt  the  antiquity  of  our  constitu- 
tional hberties.  These  began,  perhaps,  very  early,  when  the 
imaginary  laws  of  Edward  the  Confessor  were  so  earnestly 
demanded.  They  were  carried  further  under  Edward  I.  and 
his  successor,  when  the  fable  of  privileges  granted  by  the 
Conqueror  to  the  men  of  Kent  was  devised ;  when  Andrew 
Horn  filled  his  Mirror  of  Justices  with  fictitious  tales  of 
Alfred ;  and,  above  all,  when  the  "  Method  of  holding  parlia- 
ments in  the  time  of  Ethelred"  was  fabricated,  about  the 
end  of  Richard  II.'s  reign  ;  an  imposture  which  was  not  too 
gross  to  deceive  Sir  Edward  Coke.* 

There  is  no  great  difficulty  in  answering  the  question  why 
Cauaes  of  t^^  deputies  of  boroughs  were  finally  and  perma- 
Bummoning  ncntly  ingrafted  upon  parliament  by  Edward  I.* 
ftoni  *^*  The  government  was  becoming  constantly  more 
boroughs.  attentive  to  the  wealth  that  commerce  brought  into 
the  kingdom,  and  the  towns  were  becoming  more  flourishing 
and  more  independent  But  chiefly  there  was  a  much 
stronger  spirit  of  general  liberty  and  a  greater  discontent  at 
violent  acts  of  prerogative  from  the  era  of  Magna  Charta ; 
after  which  authentic  recognition  of  free  principles  many 
acts  which  had  seemed  before  but  the  regular  exercise  of 
authority  were  looked  upon  as  infringements  of  the  subject's 
right     Among  these  the  custom  of  setting  tallages  at  discre- 


i  [NoTK  vn.] 

2  These  expressions  cannot  appear  too 
strong  But  it  is  very  remarkable  that 
to  the  parliament  of  18  Edward  III.  the 
writs  appear  to  haye  summoned  none  of 
the  towns,  but  only  the  counties.  Willis, 
Notit.  Parliament,  vol.  i.  Preface,  p.  13. 
Prynne's  Register,  3d  part,  p.  144.  Yet 
the  citizens  and  burgesses  are  once,  but 
only  once,  named  as  present  in  the  par- 
liamentary roll ;  and  there  is,  in  general, 


a  chasm  in  place  of  their  names,  whers 
the  different  ranks  present  are  enumer* 
ated.  Rot.  Pari.  vol.  ii.  p.  146.  A  sub- 
sidy was  granted  at  this  parliament;  so 
that,  if  the  citizens  and  burgesses  were 
really  not  summoned,  it  is  by  for  the 
most  violent  stretch  of  power  during  the 
reign  of  Edward  III.  But  I  know  of 
no  collateral  evidence  to  illustrate  or  dil 
prove  it. 


tion  would  naturally  appear  the  most  intolerable ;  and  men 
were   unwilling   to   remember  that  the  burgesses  who  paid 
them  were  indebted  for  the  rest  of  their  possessions  to  the 
bounty  of  the  crown.     In  Edward  I.'s  reign,  even  before  the 
great  act  of  Confirmation  of  the  Charters  had  rendered  arbi- 
trary   impositions    absolutely    unconstitutional,   they    might 
perhaps  excite  louder  murmurs  than  a  discreet  administra- 
tion would  risk.     Though  the  necessities  of  the  king,  there- 
fore, and  his  imperious  temper  often  led  him  to  this  course,^ 
it  was  a  more  prudent  counsel  to  try  the  willingness  of  his 
people  before  he  forced  their  reluctance.     And  the  success 
of  his  innovation  rendered  it  worth  repetition.     Whether  it 
were  from  the  complacency  of  the  commons  at  being  thus 
admitted  among  the  peers  of  the  reahn,  or  from  a  persuasion 
that  the  king  would  take  their  money  if  they  refused  it,  or 
from  inability  to  withstand  the  plausible  reasons  of  his  minis- 
ters, or  from  the  private  influence  to  which  the  leaders  of 
every  popular  assembly  have  been  accessible,  much  more  was 
granted  in  subsidies  after  the  representation  of  the  towns 
commenced  than  had  ever  been  extorted  in  tallages. 

To  grant  money  was,  therefore,  the  main  object  of  their 
meeting ;  and    if  the  exigencies  of  the  administration  could 
have  been  relieved  without  subsidies,  the  citizens  and  bur- 
gesses  might   still  have  sat  at  home  and  obeyed  the  laws 
which  a  council  of  prelates  and  barons  enacted  for  their  gov- 
ernment    But  it  is  a  difficult  question  whether  the  king  and 
the  peers  designed  to  make  room  for  them,  as  it  were,  in 
legislation;  and  whether  the  power  of  the  purse  drew  after' 
it  immediately,  or  only  by  degrees,  those  indispensable  rights 
of  consenting  to  laws  which  they  now  possess.     There  are 
no  sufficient  means  of  solving  this  doubt  during  the  reign  of 
Edward  I.     The  writ  in  22  E.  I.  directs  two  knights  to  be 
chosen  cum  plena  potestate  pro  se  et  tota  communitate  comi- 
tatiis  prsedicti  ad  consulendum  et  conseutiendum  pro  se  et 
communitate   ilia,   his   quae   comites,   barones,    et    proceres 
praedicti  concorditer  ordinaverint  in  praemissis.     That  of  the 
next  year  runs,  ad  faciendum  tunc  quod  de  communi  consilio 
ordinabitur  in  praemissis.     The  same  words  are  inserted  in 

»  Tallaws  were  imposed  without  con-  spiritual  nobiUty  to  seta  talUge  on  their 

sent  of  Dwli^Srnt  inl7  E.  I.    Wvkes,  own  tenants.    This  was  subsequent  to 

Ml? •  Tnd  in  ffl  E    I.    Brady's  Hist!  the  Confinnatio  Chartarum,  and  unqUM- 

of  Eng.  vol.  ii.    In  the  latter  instance  tionably  illegal, 
the  king  also  gave  leave  to  the  lay  and 


88 


DIVISION  OF  PARLIAMENT  Chap.  Vni.  Part  UL 


Ekoush  Const. 


INTO   TWO    HOUSES. 


89 


1 1 


:l 


the  writ  of  26  E.  I.  In  that  of  28  E.  I.  the  knights  are 
directed  to  he  sent  cum  plena  potestate  audiendi  et  faciendi 
quae  ibidem  ordinari  contigerint  pro  communi  commodo. 
Several  others  of  the  same  reign  have  the  words  ad 
faciendum.  The  difficulty  is  to  pronounce  whether  this  term 
is  to  be  interpreted  in  the  sense  of  performing  or  of  enact- 
ing;  whether  the  representatives  of  the  commons  were 
merely  to  learn  from  the  lords  what  was  to  be  done,  or  to 
bear  their  part  in  advising  upon  it  The  earliest  writ,  that 
of  22  E.  I.,  certainly  implies  the  latter ;  and  I  do  not  know 
that  any  of  the  rest  are  conclusive  to  the  contrary.  In  the 
reign  of  Edward  11.  the  words  ad  consentiendum  alone,  or 
ad  faciendum  et  consentiendum,  begin;  and  from  that  of 
Edward  III.  this  form  has  been  constantly  used.^  It  must 
still,  however,  be  highly  questionable  whether  the  commons, 
who  had  so  recently  taken  their  place  in  parliament,  gave 
anything  more  than  a  constructive  assent  to  the  laws  enacted 
during  this  reign.  They  are  not  even  named  in  the  pream- 
ble of  any  statute  till  the  last  year  of  Edward  I,  Upon 
more  than  one  occasion  the  sheriffs  were  directed  to  return 
the  same  members  who  had  sat  in  the  last  parliament,  unless 
prevented  by  death  or  infirmity.* 

It  has  been  a  very  prevailing  opinion  that  parliament  was  not 
divided  into  two  houses  at  the  first  admission  of  the 
commons.  If  by  this  is  only  meant  that  the  com- 
mons did  not  occupy  a  separate  chamber  till  some 
time  in  the  reign  of  Edward  III.,  the  proposition, 
true  or  false,  will  be  of  little  importance.  They 
may  have  sat  at  the  bottom  of  Westminster  Hall,  while  the 
lords  occupied  the  upper  end.  But  that  they  were  ever  in- 
termingled in  voting  appears  inconsistent  with  likelihood  and 
authority.  The  usual  object  of  calhng  a  parliament  was  to 
impose  taxes ;  and  these  for  many  years  after  the  introduc- 
tion of  the  commons  were  laid  in  different  proportions  upon 
the  three  estates  of  the  realm.  Thus  in  the  23  E.  I.  the 
earls,  barons,  and  knights  gave  the  king  an  eleventh,  the  cler- 
gy a  tenth ;  while  he  obtained  a  seventh  from  the  citizens  and 
burgesses ;  in  the  twenty-fourth  of  the  same  king  the  two 


At  what 
time  parlia' 
ment  was 
diTided 
into  two 
houses. 


^  Prynne's  2d  Register.  It  may  be 
remarked  that  writs  of  summons  to  great 
councils  never  ran  ad  faciendum,  but  ad 
tractandum,  consulendum  et  consentien- 
dum ;  from  which  some  would  infer  that 


fiiciendum  had  the  sense  of  enacting; 
since  statutes  could  not  be  passed  in  such 
assemblies.    Id.  p.  92. 

2  28  £.  I.,  in  Prynne's  4th  Register, 
p.  12;  9  E.  n.  (a  great  councU),  p.  48. 


former  of  these  orders  gave  a  twelfth,  the  last  an  eighth ;  in 
the  thirty-third  year  a  thirtieth  was  the  grant  of  the  barons 
and  knights  and  of  the  clergy,  a  twentieth  of  the  cities  and 
towns ;  in  the  first  of  Edward  II.  the  counties  paid  a  twen- 
tieth, the  towns  a  fifteenth  ;  in  the  sixth  of  Edward  III.  the 
rates  were  a  fifteenth  and  a  tenth.^     These  distinct  grants 
imply  distinct  grantors ;  for  it  is  not  to  be  imagined  that  the 
commons  intermeddled  in  those  affecting  the  lords,  or  the 
lords  in  those  of  the  commons.     In  fact,  however,  there  is 
abundant  proof  of  their  separate  existence  long  before  the 
seventeenth  of  Edward  III.,  which  is  the  epoch  assigned  by 
Carte,2  ^^  g^en  the  sixth  of  that  king,  which  has  been  chosen 
by  some  other  writers.   Thus  the  commons  sat  at  Acton  Bur- 
nell  in  the  eleventh  of  Edward  I.,  while  the  upper  house  was 
at  Shrewsbury.    In  the  eighth  of  Edward  H. "  the  commons 
of  England  complain  to  the  king  and  his  council,  &c."    These 
must  surely  have  been  the  commons  assembled  in  parliament, 
for  who  else  could  thus  have  entitled  themselves  ?    In  the 
nineteenth  of  the  same  king  we  find  several  petitions,  evident- 
ly proceeding  from  the  body  of  the  commons  in  parliament, 
and  complaining  of  public  grievances.*    The  roll  of  1  E.  lU., 
though  mutilated,  is  conclusive  to  show  that  separate  petitions 
were  then  presented  by  the  commons,  according  to  the  regu- 
lar usage  of  subsequent  times.*     And  indeed  the  preamble 
of  1  E.  in.,  Stat.  2,  is  apparently  capable  of  no  other  inter- 

ence 

As  the  knights  of  shires  correspond  to  the  lower  nobility 
of  other  feudal  countries,  we  have  less  cause  to  be  surprised 
that  they  belonged  originaUy  to  the  same  branch  of  parlia- 
ment as  the  barons,  than  at  their  subsequent  mtermixture 
with  men  so  inferior  in  station  as  the  citizens  and  burgesses. 
It  is  by  no  means  easy  to  define  the  point  of  time  when  this 
distribution  was  settled;  but  I  think  it  may  be  infeired  from 
the  rolls  of  parliament  that  the  houses  were  divided  as  they 
are  at  present  in  the  eighth,  ninth,  and  nineteenth  years  of 
Edward  II.*    This    appears,  however,  beyond  doubt  m  tne 
first  of  Edward  III.'     Yet  in  the  sixth  of  the  same  pnnce, 
thouc^h  the  knights  and  burgesses  are  expressly  mentioned  to 


1  Brady's  Hist,  of  England,  vol.  ii.  p. 
40;  Parliamentary  History,  TOl.  i.  p- 
206 ;  Rot.  Pari.  t.  ii.  p.  66. 

t  Carte,  vol.  U.  p.  461;  Parliamentary 
Qistory,  vol.  i.  p.  234. 


»  Rot.  Pari,  vol.  i.  p.  289. 
4  Id.  p.  490. 

6  Id.  vol.  ii.  p.  7. 

« Id.  p.  289, 351, 4aa 

7  Id.  p.  5. 


40 


TWO  HOUSES  OF  PARLIAMENT.    Chai».  VHI.  Part  HI. 


ElTOLISfl  COKST. 


EDWAED  n. 


41 


have  consulted  together,  the  former  taxed  themselves  in  a 
smaller  rate  of  subsidy  than  the  latter.* 

The  proper  business  of  the  House  of  Commons  was  to  pe- 
tition for  redress  of  grievances,  as  much  as  to  provide  for  the 
necessities  of  the  crown.  In  the  prudent  fiction  of  English 
law  no  wrong  is  supposed  to  proceed  from  the  source  of  right. 
The  throne  is  fixed  upon  a  pinnacle,  which  perpetual  beams 
of  truth  and  justice  irradiate,  though  corruption  and  partiality 
may  occupy  the  middle  region  and  cast  their  tjhill  shade  upon 
all  below.  In  his  high  court  of  parliament  a  king  of  Eng- 
land was  to  learn  where  injustice  had  been  unpunished  and 
where  right  had  been  delayed.  The  common  courts  of  law, 
if  they  were  sufficiently  honest,  were  not  sufficiently  strong, 
to  redress  the  subject's  injuries  where  the  officers  of  the  crown 
or  the  nobles  interfered.  To  parliament  he  looked  as  the 
great  remedial  court  for  relief  of  private  as  well  as  public 
grievances.  For  this  cause  it  was  ordained  in  the  fifth  of  Ed- 
ward U.  that  the  king  should  hold  a  parliament  once,  or,  if 
necessary,  twice  every  year;  "that  the  pleas  which  have 
been  thus  delayed,  and  those  where  the  justices  have  differed, 
may  be  brought  to  a  close."  ^  And  a  short  act  of  4  Edward 
III.,  which  was  not  very  strictly  regarded,  provides  that  a 
parliament  shall  be  held  "  every  year,  or  oftener,  if  need 
be."  *  By  what  persons,  and  under  what  limitations,  this  ju- 
risdiction in  parliament  was  exercised  will  come  under  our 
future  consideration. 


1  Rot.  Pari.  vol.  ii.  p.  86. 

«  Id.  Tol.  i.  p.  285. 

3  4  £.  III.  c.  14.  Annual  sessions  of 
parliament  seem  fully  to  satisfy  the 
words,  and  still  more  the  spirit,  of  this 
act,  and  of  36  E.  III.  c.  10 ;  which  how- 
ever are  repealed  by  implication  from  the 
provisions  of  6  WiU.  in.  c.  2.  But  it 
was  very  rare  under  the  Plantagenet  dy- 
nasty for  a  parliament  to  continue  more 
than  a  year. 

It  has  been  observed  that  this  provis- 
ion '^  had  probably  in  view  the  admin- 
istration of  justice  by  the  king's  court 
in  parliament."  Report  of  L.  C.  p.  901. 
And  in  another  place  :  —  "It  is  clear 
that  the  word  parliament  in  the  reign  of 
Edward  I.  was  not  used  only  to  describe 
a  legislative  assembly,  but  was  the  com- 
mon appellation  of  the  ordinary  assembly 
of  the  king's  great  court  or  council ;  and 
that  the  legislative  assembly  of  the  realm, 
composed  generally,  in  and  after  the  23d 
of  Eidward  I.,  of  lords  spiritual  and  tem- 
poral, and  representatives  of  the  com- 


mons, was  uanally  convened  to  meet  the 
king's  council  in  one  of  these  parlia- 
ments."   p.  171. 

Certainly  the  commons  could  not  de- 
sire to  have  an  annual  parliament  in 
order  to  make  new  statutes,  much  less  to 
grant  subsidies.  It  was,  however,  im- 
portant to  present  their  petitions,  and  to 
set  forth  their  grievances  to  this  high 
court.  We  may  easily  reconcile  the 
anxiety  so  often  expressed  by  the  com- 
mons to  have  frequent  sessions  of  parlia- 
ment, with  the  individual  reluctance  of 
members  to  attend.  A  few  active  men 
procured  these  petitions,  which  the  ma- 
jority could  not  with  decency  oppose, 
since  the  public  benefit  was  generally 
admitted.  But  when  the  writs  came 
down,  every  pretext  was  commonly  made 
use  of  to  avoid  a  troublesome  and  ill- 
remunerated  journey  to  Westminster. 
For  the  subject  of  annual  parliaments 
see  a  valuable  article  by  AUen  in  the 
28*h  volume  of  the  Edinborgh  Review. 


The  efficacy  of  a  king's  personal  character  in  so  imperfect 
a  state  of  government  was  never  more  strongly  exemplified 
than  in  the  first  two  Edwards.     The  father,  a  little  before  liis 
death,  had  humbled  his  boldest  opponents  among  the  nobility ; 
and  as  for  the  commons,  so  far  from  claiming  a  Edward  n. 
right  of  remonstrating,  we  have  seen  cause  to  doubt  ^^^^l^^ 
whether  they  were  accounted  effectual   members  during  his 
of  the  legislature  for  any  purposes  but  taxation.  «i«^- 
But  in  the  vefy  second  year  of  the  son's  reign  they  granted 
the  twenty-fifth  penny  of  their  goods,  "  upon  this  condition, 
that  the  king  should  take  advice  and  grant  redress  upon  cer- 
tain articles  wherein  they  are  aggrieved."      These  were  an- 
swered at  the  ensuing  parliament,  and  are  entered  with  the 
kin^r's  respective  promises  of  redress  upon  the  roll.     It  will 
be  worth  while  to  extract  part  of  this  record,  that  we  may 
see  what  were  the  complaints  of  the  commons  of  England, 
and  their  notions  of  right,  in  1309.     I  have  chosen  on  this 
as  on  other  occasions  to  translate  very  literally,  at  the  ex- 
pense of  some  stiffness,  and  perhaps  obscurity,  in  language. 
«  The  good  people  of  the  kingdom  who  are  come  hither  to 
parliament  pray  our  lord  the  king  that  he  will,  if  it  please 
him,  have  regard  to  his  poor  subjects,  who  are  much  ag- 
grieved by  reason  that  they  are  not  governed  as  they  should 
be,  especially  as  to  the  articles  of  the  Great  Charter ;  and  for 
this,  if  it  please  him,  they  pray  remedy.     Besides  which,  they 
pray  their  lord  the  king  to  hear  what  has  long  aggrieved  his 
people,  and  still  does  so  from  day  to  day,  on  the  part  of  those 
who  call  themselves  his  officers,  and  to  amend  it,  if  he  pleas- 
es."    The  articles,  eleven  in  number,  are  to  the   following 
purport:  —  !.  That  the  king's  purveyors  seize  great  quanti- 
ties of  victuals  without  payment ;  2.  That  new  customs  are 
set  on  wine,  cloth,  and  other  imports ;  3.  That  the  current 
coin  is  not  so  good  as  formerly ;  *  4,  5.     That  the  steward 
and  marshal  enlarge  their  jurisdiction  beyond  measure,  to  the 
oppression  of  the  people  ;  6.  That  the  commons  find  none  to 
receive  petitions  addressed  to  the  council ;  7.  That  the  col- 
lectors of  the  king's  dues  (pemours  des  prises)  in  towns  and 
at  fairs  take  more  than  is  lawful ;  8.  That  men  are  delayed 

I  Thla  article  is  so  expressed  as  to  currency,  and  the  whole  tenor  of  these 

«alMit  a^D^r  that  the^ievance  was  articles  relates  to  abuses  of  government, 

£t  Wgh  p^^  of  commodkies.    But  as  1  think  it  must  have  meant  what  I  hare 

this  ina  the  natural  effect  of  a  degraded  said  ir  the  text. 


lit 


42 


PETITIONS  OF  PARLIAMENT.    Chap.  VHI.  PARr  HI 


in  their  civil  suits  by  writs  of  protection ;  9.  That  felons  ea- 
cape  punishment  by  procuring  charters  of  pardon ;  10.  That 
the  constables  of  the  king's  castles  take  cognizance  of  common 
pleas;  11.  That  the  king's  escheators  oust  men  of  lands  lield 
by  good  title,  under  pretence  of  an  inquest  of  office.^ 

These  articles  display  in  a  short  compass  the  nature  of 
those  grievances  which  existed  under  almost  all  the  princes 
of  the  Plantagenet  dynasty,  and  are  spread  over  the  rolls  of 
parliament  for  more  than  a  century  after  this  time.     Edward 
gave  the  amplest  assurances  of  putting  an  end  to  them  all, 
except  in  one  instance,  the  augmented  customs  on  imports,  to 
which  he  answered,  rather  evasively,  that  he  would  take  them 
off  till  he  should  perceive  whether  himself  and  his  people 
derived  advantage  from  so  doing,  and  act  thereupon  as  he 
should  be  advised.     Accordingly,  the  next  year,  he   issued 
writs  to  collect  these  new  customs  again.     But  the  Lords  Or- 
dainers  superseded  the  writs,  having  entirely  abrogated  all  il- 
legal impositions.*    It  does  not  appear,  how'ever,  that,  regard 
had  to  the  times,  there  was  anything  very  tyrannical  in  'Ed- 
ward's government.     He  set  tallages  sometimes,  like  his  fa- 
ther, on  his  demesne  towns,  without  assent  of  pariiament.' 
In  the  nineteenth  year  of  his  reign  the  commons  show  that, 
"whereas  we  and  our  ancestors  have  given  many  tallages  to 
the  king's  ancestors  to  obtain  the  charter  of  the  forest,  which 
charter  we  have  had  confirmed  by  the  present  king,  paying 
him  largely  on  our  part ;  yet  the  king's  officers  of  The  forest 
seize  on  lands,  and  destroy  ditches,  and  oppress  the  people 
for  which  they  pray  remedy,  for  the  sake  of  God  and  his  fa- 
ther's soul."     They  complain  at  the  same  time  of  arbitrary 
unprisonment,  against  the  law  of  the  land.*     To  both  these 
petitions  the  king  returned  a   promise  of  redress ;  and  they 
complete  the  catalogue  of  customary  grievances  in  this  period 
of  our  constitution. 

^  During  the  reign  of  Edward  11.  the  rolls  of  parliament  are 
miperfect,  and  we  have  not  much  assistance  from  other 
sources.  The  assent  of  the  commons,  which  frequently  is 
not  specified  in  the  statutes  of  this  age,*  appears  in  a  remark- 

\  SPT®-r  ^  ^"^^^y  P-  68.  Stat.  7  Edw.  n.  and  in  12  Edw.  H.,  and 

SM^Z'J'v  T>  -_,  *      «x     «<l"^^e°t  words  are  found  in  other  stat- 

4  iJt  p„?"  ti?'  1  «  ^  °  «y*°  }^^  constituUon  of  parliament  to 

I  vf\'  ^"'  ^°*-  *•  P-  ^^-  sufficient  and  concluaiTe. 

•  It  ia  howeyer  distinctly  specified  ia 


Eholish  Const. 


EDWARD  ni. 


48 


able  and  revolutionary  proceeding,  the  appointment  of  the 
Lords  Ordainers  in  1312.^  In  this  case  it  indicates  that  the 
aristocratic  party  then  combined  against  the  crown  were  de- 
sirous of  conciliating  popularity.  An  historian  relates  that 
some  of  the  commons  were  consulted  upon  the  ordinances  to 
be  made  for  the  reformation  of  government.* 

During  the  long  and  prosperous  reign  of  Edward  III.  the 
efforts  of  parliament  in  behalf  of  their  country  Edward  m. 
were  rewarded  with  success  in  establishing  upon  ^^^^°^j;i^ 
a  firm  footing  three  essential  principles  of  our  gov-  lish  seyerai 
emment — the  illegality  of  raising  money  without  "K*^*^* 
consent ;  the  necessity  that  the  two  houses  should  concur  for 
any  alterations  in  the  law ;  and,  lastly,  the  right  of  the  com- 
mons to  inquire  into  public  abuses,  and  to  impeach  public 
counsellors.      By  exhibiting  proofs  of  each  of  these  from 
parliamentary  records  I  shall   be  able  to  substantiate  the 
progressive  improvement  of  our  free  constitution,  which  was 
principally  consolidated  during  the  reigns  of  Edward  III. 
and  his  next  two  successors.     Brady,  indeed,  Carte,  and  the 
authors  of  the   Parliamentary  History,  have   trod   already 
over  this  ground ;  but  none  of  the  three  can  be  considered  as 
fiuniliar  to  the  generality  of  readers,  and  I  may  at  least  take 
credit  for  a  sincerer  love  of  liberty  than  any  of  their  writings 

display. 

In  the  sixth  year  of  Edward  III.  a  parliament  was  called 
to  provide  for  the  emergency  of  an  Irish  rebellion,  Remon- 
wherein,  "because  the  king  could  not  send  troops  ^^^ 
and  money  to  Ireland  without  the  aid  of  his  people,  levying 
the  prelates,  earls,  barons,  and  other  great  men,  S^tSout 
and  the  knights  of  shires,  and  all  the  commons,  of  consent, 
their  free  will,  for  the  said  purpose,  and  also  in  order  that  the 
king  might  live  of  his  own,  and  not  vex  his  people  by  exces- 
sive prizes,  nor  in  other  manner,  grant  to  him  the  fifteenth 


1  Rot.  Pari.  vol.  i.  p.  281. 

2  Walsiopham,  p.  97.  Tlie  Lords' 
conunittec  ^'  have  found  no  evidence  of 
any  writ  issued  for  election  of  knights, 
citizens,  and  burgesses  to  attend  the  same 
meetings;  from  the  subsequent  docu- 
ments it  seems  probable  that  none  were 
issued,  and  that  the  parliament  which 
MWmbled  at  Westminster  consisted  only 
of  prelates,  earls,  and  barons."  p.  259. 
We  have  no  record  of  this  parliament ; 
bat  in  that  of  5  Edw.  11.  it  is  recited  — 


Come  le  seizieme  jour  de  Blarz  Pan  de 
notre  regno  tierce,  a  I'honeur  de  Dieu 
et  pour  le  bien  de  nous  et  de  nostre 
roiaume,  eussions  grante  de  notre  franche 
volont6,  par  nos  lettres  ouvertes  aux 
prelatz,  countes,  et  barons,  et  communes 
de  dit  roiaume,  qu'ils  puissent  eslire  cer- 
tain persones  des  prelatz,  comtes,  et 
barons,  &c.  Rot.  Pari.  i.  281.  The  in- 
ference therefore  of  the  committee  seema 
erroneous.    [Note  VIII.] 


'Hi 


!lll 


44    REMONSTRANCES  OF  PARLIAMENT.   Chap.  Vm.  Pabt  m. 

penny,  to  levy  of  the  commons,^  and  the  tenth  from  the  cities, 
towns,  and  royal  demesnes.  And  the  king,  at  the  request  of 
the  same,  in  ease  of  his  people,  grants  that  the  commissions 
lately  made  to  certain  persons  assigned  to  set  tallages  on  cities, 
towns,  and  demesnes  throughout  England  shall  be  immedi- 
ately repealed ;  and  that  in  time  to  come  he  will  not  set  such 
tallage,  except  as  it  has  been  done  in  the  time  of  his  ances- 
tors, and  as  he  may  reasonably  do."^ 

These  concluding  words  are  of  dangerous  implication  ;  and 
certainly  it  was  not  the  intention  of  Edward,  inferior  to  none 
of  his  predecessors  in  the  love  of  power,  to  divest  himself  of  that 
eminent  prerogative,  which,  however  illegally  since  the  Con- 
firmatio  Chartarum,  had  been  exercised  by  them  all.  But  the 
parliament  took  no  notice  of  this  reservation,  and  continued 
with  unshaken  perseverance  to  insist  on  this  incontestable 
and  fundamental  right,  which  he  was  prone  enough  to  violate. 

In  the  thirteenth  year  of  this  reign  the  lords  gave  their  an- 
swer to  commissioners  sent  to  open  the  parliament,  and  to 
treat  with  them  on  the  king's  part,  in  a  sealed  roll.  This 
contained  a  grant  of  the  tenth  sheaf,  fleece,  and  lamb.  But 
before  they  gave  it  they  took  care  to  have  letters  patent 
showed  them,  by  which  the  commissioners  had  power  "to 
grant  some  graces  to  the  great  and  small  of  the  kingdom." 
"  And  the  said  lords,"  the  roll  proceeds  to  say,  "  will  that  the 
imposition  (maletoste)  which  now  again  has  been  levied  upon 
wool  be  entirely  abolished,  that  the  old  customary  duty  be 
kept,  and  that  they  may  have  it  by  charter,  and  by  enrolment 
in  parliament,  that  such  custom  be  never  more  levied,  and 


Ehgush  Const.    REMONSTRANCES  OF  PARLIAMENT. 


41 


i  "La  commonalty"  seems  in  this 
place  to  mean  the  tenants  of  land,  or 
commons  of  the  counties,  in  contradis- 
tinction to  citizens  and  burgesses. 

a  Rot.  Pari.  vol.  ii.  p.  66.  The  Lords' 
committee  observe  on  this  passage  in  the 
roll  of  parliament,  that  "  the  king's  right 
to  tallage  his  cities,  boroughs,  and  de- 
mesnes seems  not  to  have  been  ques- 
Honed  by  the  parliament,  though  the 
commissions  for  setting  the  tallage  were 
objected  to."  p.  305.  But  how  can  we 
believe  that  after  the  representatives  of 
these  cities  and  boroughs  had  sat,  at  least 
at  times,  for  two  reigns,  and  after  the  ex- 
plicit renunciation  of  all  right  of  tallage 
by  Edward  I.  (for  it  was  never  pretended 
that  the  king  could  lay  a  tallage  on  any 
towns  which  did  not  hold  of  himself ), 
there  could  have  been  a  parliament  which 
"did  not  question"  the   legality  of  a 


tallage  set  without  their  consent  ?  The 
silence  of  the  rolls  of  parliament  would 
furnish  but  a  poor  argument.  But  in 
fact  their  language  is  expressive  enough. 
The  several  ranks  of  lords  and  commons 
grant  the  fifteenth  penny  from  the  com- 
monalty,  and  the  tenth  from  the  cities, 
boroughs,  and  demesnes  of  the  king,  "that 
our  lord  the  king  may  live  of  his  own, 
and  pay  for  his  expenses,  and  not  aggrieve 
his  people  by  excessive  (outraiouses) 
prixes,  or  otherwise."  And  upon  this 
the  king  revokes  the  commission  in  the 
words  of  the  text.  Can  anything  be  clear- 
er than  that  the  parliament,  though  in  a 
much  gentler  tone  than  they  came  after- 
wards to  assume,  intimate  the  illegality 
of  the  late  tallage?  As  to  any  other 
objection  to  the  commissions,  which  the 
committee  suppose  to  have  been  taken, 
nothing  appears  on  the  roll. 


that  this  grant  now  made  to  the  king,  or  any  other  made  m 
time  past,  shall  not  turn  hereafter  to  their  charge,  nor  be 
drawn  into  precedent."    The  commons,  who  gave  their  an- 
Bwer  in  a  separate  roU,  declared  that  they  could  grant  no 
subsidy  without  consulting  their  constituents ;  and  theretore 
beffged  that  another  parliament  might  be  summoned,  and  in  the 
mean  time  they  would  endeavor,  by  using  persuasion  with  the 
people  of  their  respective  counties,  to  procure  the  grant  ot  a 
reasonable  aid  in  the  next  parliament.^    They  demanded  also 
that  the  imposition  on  wool  and  lead  should  be  taken  as  it 
used  to  be  in  former  times,  "  inasmuch  as  it  is  enhanced 
without  assent  of  the  commons,  or  of  the  lords,  as  we  under- 
stand ;  and  if  it  be  otherwise  demanded,  that  any  one  ot  the 
commons  may  refuse  it  (le  puisse  arester),  without  bemg 
troubled  on  that  account  (saunz  estre  chalange). 

Wool,  however,  the  staple  export  of  that  age,  was  too  easy 
and  tempting  a  prey  to  be  relinquished  by  a  prince  engaged 
in  an  impoverishing  war.     Seven  years  afterwards,  in  20  b.- 
m.,  we  find  the  commons  praying  that  the  great  subsidy  ot 
forty  shillings  upon  the  sack  of  wool  be  taken  off;  and  the  old 
custom  paid  as  heretofore  was  assented  to  and  granted,     ihe 
government   spoke  tliis  time  in  a  more  authoritative  tone. 
"  As  to  this  point,"  the  answer  runs,  "  the  prelates  and  others, 
seeing  in  what  need  the  king  stood  of  an  aid  before  his  paa- 
sage  beyond  sea,  to  recover  his  rights  and  defend  his  king- 
dom of  England,  consented,  with  the   concurrence   ot   the 
merchants,  that  he  should  have  in  aid  of  his  said  war,  and  in 
defence  of  his  said  kingdom,  forty  shillings  of  subsidy  for 
each  sack  of  wool  that  should  be  exported  beyond  sea  for  two 
years  to  come.     And  upon  this  grant  divers  merchants  have 
made  many  advances  to  our  lord  the  king  in  aid  of  his  war; 
for  which  cause  this  subsidy  cannot  be  repealed  without  assent 

of  the  king  and  his  lords."  '  .  ,    w       ^  i.t  u 

It  is  probable  that  Edward's  counsellors  wished  to  estabhsh 
a  distinction,  long  afterwards  revived  by  those  of  James  1., 
between  customs  levied  on  merchandise  at  the  ports  and 
internal  taxes.  The  statute  entitled  Confirmatio  Chartarum 
had  manifestly  taken  away  the  prerogative  of  imposing  the 
latter,  which,  indeed,  had  never  extended  beyond  the  tenants 
of  the  royal  demesne.     But  its  language  was  not  quite  so  ex- 


1  Eot.  Pari.  vol.U.p.l01. 


*U 


s  Id.  p.  161. 


I(f 


46  REMONSTRANCES  OF  PARLIAMENT.    Chap.  VHI.  Part  HI. 

plicit  as  to  the  former,  although  no  reasonable  doubt  could  be 
entertained  that  the  intention  of  the  legislature  was  to  abro- 
gate every  species  of  imposition  unauthorized  by  pai^liament. 
The  thirtieth  section  of  Magna  Charta  had  provided  that 
foreign  merchants  should  be  free  from  all  tributes,  except  the 
ancient  customs ;  and  it  was  strange  to  suppose  that  natives 
were  excluded  from  the  benefit  of  that  enactment.  Yet, 
owing  to  the  ambiguous  and  elliptical  style  so  frequent  in  our 
older  laws,  this  was  open  to  dispute,  and  could,  perhaps,  only 
be  explained  by  usage.  Edward  I.,  in  despite  of  both  these 
statutes,  had  set  a  duty  of  threepence  in  the  pound  upon 
goods  imported  by  merchant  strangers.  This  imposition  was 
noticed  as  a  grievance  in  the  third  year  of  his  successor,  and 
repealed  by  the  Lords  Ordainers.  It  was  revived,  however, 
by  Edward  HI.,  and  continued  to  be  levied  ever  afterwards.* 
Edward  was  led  by  the  necessities  of  his  unjust  and  ex- 
pensive war  into  another  arbitrary  encroachment,  of  which  we 
find  as  many  complaints  as  of  his  pecuniary  extortions.  The 
commons  pray,  in  the  same  parliament  of  20  E.  IH.,  that 
commissions  should  not  issue  for  the  future  out  of  chancery 
to  charge  the  people  with  providing  men-at-arms,  hobelers 
(or  light  cavalry),  archers,  victuals,  or  in  any  other  manner, 
without  consent  of  parliament.  It  is  replied  to  this  petition, 
that  "  it  is  notorious  how  in  many  parliaments  the  lords  and 
commons  had  promised  to  aid  the  king  in  his  quarrel  with 
their  bodies  and  goods  as  far  as  was  in  their  power  ;  where- 
fore the  said  lords,  seeing  the  necessity  in  which  the  king 
stood  of  having  aid  of  men-at-arms,  hobelers,  and  archers, 
before  his  passage  to  recover  his  rights  beyond  sea,  and  to 
defend  Ids  realm  of  England,  ordained  that  such  as  had  five 
pounds  a  year,  or  more,  in  land  on  this  side  of  Trent  should 
furnish  men-at-arms,  hobelers,  and  archers,  according  to  the 
proportion  of  the  land  they  held,  to  attend  the  king  at  his 
cost;  and  some  who  would  neither  go  themselves  nor  find 
others  in  their  stead  were  wilUng  to  give  the  king  where- 
withal he  might  provide  himself  with  some  in  their  place. 
And  thus  the  thing  has  been  done,  and  no  otherwise.     And 

1  Case  of  impositions  in  Howell's  State 
Trials,  vol.  ii.  p.  371-519 ;  particularly 
the  argumeDt  of  Mr.  Hakewill.  Hale's 
Treatise  on  the  customs,  in  Hargrare's 
Tracts,  vol.  i. 

Edward  III.  imposed  another  duty  on 
•loth  exported,  on  the  pretence  that,  as 


English  Const.    REMONSTRANCES  OF  PARLUMENT. 


47 


the  wool  must  hare  paid  a  tax.  he  had  a 
right  to  place  the  wrought  and  unwrought 
article  on  an  equality.  The  commons 
remonstrated  a^inst  this;  but  it  was 
not  repealed.  This  took  place  about  22 
£.  ni.    Hale's  Treatise,  p.  176. 


the  king  wills  that  henceforth  what  has  been  thus  done^in  this 
necessity  be  not  drawn  into  consequence  or  example." 

The  commons  were  not  abashed  by  these  arbitrary  pre- 
tensions ;  they  knew  that  by  incessant  remonstrances    they 
should  gain  at  least  one  essential  point,  that  of  preventing  the 
crown  from  claiming  these  usurpations  as  uncontested  pre- 
rogatives.    The  roll  of  parliament  in  the  next  two  years,  the 
21st  and  22nd  of  Edw.  III.,  is  fuU  of  the  same  complaints  on 
one  side,  and  the  same  allegations  of  necessity  on  the  other. 
In  the  latter  year  the  commons  grant  a  subsidy,  on  condition 
that  no  illegal  levying  of  money  should  take  place,  with  sev- 
eral other  remedial  provisions ;  "  and  that  these  conditions 
should  be  entered  on  the  roll  of  parliament,  as  a  matter  ot 
record,  by  which  they  may  have  remedy,  if  anything  should 
be  attempted  to  the  contrary  in  time  to  come.       t  rom  this 
year  the  complaints  of  extortion  became  rather  less  frequent ; 
and  soon  afterwards  a  statute  was  passed,  « That  no  man 
shall  be  constrained  to  find  men-at-arms,  hobelers,  nor  archers, 
other  than  those  which  hold  by  such  services,  if  it  be  not  by 
common  assent  and  grant  made  in  parliament."       Yet,  even 
in  the  last  year  of  Edward's  reign,  when  the  boundaries  ot 
prerogative  and  the  rights  of  parliament  were  better  ascer- 
tained, the  king  lays  a  sort  of  claim  to  impose  charges  upon 
his  subjects  in  cases  of  great  necessity,  and  for  the  defence 
of  his  kincrdom.*     But  this  more  humble  language  indicates  a 
chancre  in  the  spirit  of  government,  which,  after  long  fretting 
impatiently  at  the  curb,  began  at  length  to  acknowledge  the 
controlling  hand  of  law. 

These  are  the  chief  instances  of  a  struggle  between  the 
crown  and  commons  as  to  arbitrary  taxation ;  but  there  are 
two  remarkable  proceedings  in  the  45th  and  46th  of  Edvvard, 
which,  though  they  would  not  have  been  endured  in  later 
times,  are  rather  anomalies  arising  out  of  the  unsettled  state 
of  the  constitution  and  the  recency  of  parliamentary  rights 
than  mere  encroachments  of  the  prerogative.  In  the  former 
year  parliament  had  granted  a  subsidy  of  fifty  thousand 
pounds,  to  be  collected  by  an  assessment  of  twenty-two  shil- 
lings  and  threepence  upon  every  parish,  on  a  presumption 
that  the  parishes  in  England  amounted  to  forty-five  thousand, 
whereas  they  were   hardly  a  fifth  of  that  number.     This 


1  Rot.  Pari.  p.  100. 
t  p.  161, 166,  201 


3  25  E.  III.  Stat.  V.  c.  8. 
♦  Rot.  Pari.  vol.  ii.  p.  366. 


48      CONCURRENCE  OF  BOTH  HOUSES    Chap.  VHI.  Part  HI. 


Eholish  Const.       IN  LEGISLATION  NECESSARY. 


49 


:i! 


amazing  mistake  was  not  discovered  till  the  parliament  had 
been  dissolved.  Upon  its  detection  the  king  summoned  a 
great  council,  consisting  of  one  knight,  citizen,  and  burgess, 
named  by  himself  out  of  two  that  had  been  returned  to  the 
last  parliament.^  To  this  assembly  the  chancellor  set  forth 
the  deficiency  of  the  last  subsidy,  and  proved  by  the  certifi- 
cates of  all  the  bishops  in  England  how  strangely  the  parlia- 
ment had  miscalculated  the  number  of  parishes  ;  whereupon 
they  increased  the  parochial  assessment,  by  their  own  author- 
ity, to  one  hundred  and  sixteen  shillings.^  It  is  obvious  that 
the  main  intention  of  parliament  was  carried  into  effect  by 
this  irregularity,  which  seems  to  have  been  the  subject  of 
no  complaint.  In  the  next  parliament  a  still  more  objection- 
able measure  was  resorted  to ;  after  the  petitions  of  the  com- 
mons had  been  answered,  and  the  knights  dismissed,  the 
citizens  and  burgesses  were  convened  before  the  prince  of 
Wales  and  the  lords  in  a  room  near  the  white  chamber,  and 
solicited  to  renew  their  subsidy  of  forty  shillings  upon  the  tun 
of  wine,  and  sixpence  in  the  pound  upon  other  imports,  for 
safe  convoy  of  shipping,  during  one  year  more,  to  which  they 
assented,  "  and  so  departed."  ® 

The  second  constitutional  principle  established  in  the  reign 
of  Edward  III.  was  that  the  king  and  two  houses 
of  parliament,  in  conjunction,  possessed  exclusively 
the  right  of  legislation.  Laws  were  now  declared 
to  be  made  by  the  king  at  the  request  of  the  com- 
mons, and  by  the  assent  of  the  lords  and  prelates. 
Such  at  least  was  the  general  form,  though  for  many  subse- 
quent ages  there  was  no  invariable  regularity  in  this  respect. 
The  commons,  who  till  this  reign  were  rarely  mentioned,  were 
now  as  rarely  omitted  in  the  enacting  clause.  In  fact,  it  is 
evident  from  the  rolls  of  parliament  that  statutes  were  almost 
always  founded  upon  their  petition.*     These  petitions,  with 


The  con- 
currence 
of  both 
houses  in 
legislation 
necessary. 


1  Prynne's  4th  Register,  p.  289. 

8  Rot.  Pari.  p.  304. 

»  Rot.  Pari.  p.  310.  In  the  mode  of 
levying  subsidies  a  remarkable  improve- 
ment took  place  early  in  the  reign  of 
Edward  III.  Originally  two  chief  taxors 
were  appointed  by  the  king  for  each 
county,  who  named  twelve  persons  in 
every  hundred  to  assess  the  movable 
estate  of  all  inhabitants  according  to  its 
real  value.  But  in  8  E.  III.,  on  complaint 
of  parliament  that  these  taxors  were  par- 
tial, commissioners  were  sent  round  to 


compound  with  every  town  and  parish 
for  a  gpross  sum,  which  was  from  thence- 
forth the  flx«d  quota  of  subsidy,  and 
raised  by  the  inhabitants  themselves. 
Brady  on  Boroughs,  p  81. 

*  ikws  appear  to  have  been  drawn  up, 
and  proposed  to  the  two  houses  by  the 
king,  down  to  the  time  of  Edward  I. 
Hale's  Hist,  of  Common  Law,  p.  16. 

Sometimes  the  representatives  of  par- 
ticular places  address  separate  petitions 
to  the  king  and  council ;  as  the  citizens 
of  London,  the  commons  of  Devonshirei 


the  respective  answers  made  to  them  in  the  king's  name,  were 
drawn  up  after  the  end  of  the  session  in  the  form  of  laws,  and 
entered  upon  the  statute-roll.  But  here  it  must  be  remarked 
that  the  petitions  were  often  extremely  qualified  and  altered 
by  the  answer,  insomuch  that  many  statutes  of  this  and  some 
later  reigns  by  no  means  express  the  true  sense  of  the  com- 
mons. Sometimes  they  contented  themselves  with  showing 
their  grievance,  and  praying  remedy  from  the  king  and  his 
council.  Of  this  one  eminent  instance  is  the  great  statute  of 
treasons.  In  the  petition  whereon  this  act  is  founded  it  is 
merely  prayed  that,  "  whereas  the  king's  justices  in  different 
counties  adjudge  persons  indicted  before  them  to  be  traitors 
for  sundry  matters  not  known  by  the  commons  to  be  treason, 
it  would  please  the  king  by  his  council,  and  by  the  great  and 
wise  men  of  the  land,  to  declare  what  are  treasons  in  this 
present  parliament."  The  answer  to  this  petition  contains 
the  existing  statute,  as  a  declaration  on  the  king's  part.^  But 
there  is  no  appearance  that  it  received  the  direct  assent  of 
the  lower  house.  In  the  next  reigns  we  shall  find  more  re- 
markable instances  of  assuming  a  consent  which  was  never 
positively  given. 

The  statute  of  treasons,  however,  was  supposed  to  be  de- 
claratory of  the  ancient  law  :  in  permanent  and  material  in- 
novations a  more  direct  concurrence  of  all  the  estates  was 
probably  required.  A  new  statute,  to  be  perpetually  incor- 
porated with  the  law  of  England,  was  regarded  as  no  light 
matter.  It  was  a  very  common  answer  to  a  petition  of  the 
commons,  in  the  early  part  of  this  reign,  that  it  could  not  be 
granted  without  making  a  new  law.  After  the  parliament 
of  14  E.  III.  a  certain  number  of  prelates,  barons,  and  coun- 
sellors, with  twelve  knights  and  six  burgesses,  were  appoint- 
ed to  sit  from  day  to  day  in  order  to  turn  such  petitions  and 
answers  as  were  fit  to  be  perpetual  into  a  statute ;  but  for 
such  as  were  of  a  temporary  nature  the  king  issued  his  let- 
ters-patent.^ This  reluctance  to  innovate  without  necessity, 
and  to  swell  the  number  of  laws  which  all  were  bound  to 
know  and  obey  with  an  accumulation  of  transitory  enact- 
ments, led  apparently  to  the  distinction  between  statutes  and 


&c.  These  are  intermingled  with  the 
general  petitions,  and  both  together  are 
for  the  most  part  very  numerous.  In  the 
rcll  of  50  Edw.  III.  they  amount  to  140. 
VOL.  III.  4 


1  Rot.  Pari.  p.  iSQ. 
s  Id.  p.  113. 


so 


STATUTES  DISTINGUISHED    Chap.  VIH.  Part  III. 


English  Const. 


FROM  ORDINANCES. 


M 


« 


ordinances.  The  latter  are  indeed  defined  by  some  lawyers 
statutes  difl-  ^  ^^  regulations  proceeding  from  the  king  and 
tinguished  lords  without  concurrcncc  of  the  commons.  But 
oiSiiancea.  ^  *^^  ^^  applicable  to  some  ordinances,  it  is  cer- 
tain that  the  word,  even  when  opposed  to  statute, 
with  which  it  is  often  synonymous,  sometimes  denotes  an  act 
of  the  whole  legislature.  In  the  37th  of  Edward  III.,  when 
divers  sumptuary  regulations  against  excess  of  apparel  were 
made  in  full  parliament,  "  it  was  demanded  of  the  lords  and 
commons,  inasmuch  as  the  matter  of  their  petitions  was  novel 
and  unheard  of  before,  whether  they  would  have  them  grant- 
ed by  way  of  ordinance  or  of  statute.  They  answered  that 
it  would  be  best  to  have  them  by  way  of  ordinance  and  not 
of  statute,  in  order  that  anything  which  should  need  amend- 
ment might  be  amended  at  the  next  parliament."  *  So  much 
scruple  did  they  entertain  about  tampermg  with  the  statute 
law  of  the  land. 

Ordinances  which,  if  it  were  not  for  their  partial  or  tem- 
porary operation,  could  not  well  be  distinguished  from  laws,* 
were  often  established  in  great  councils.  These  assembUes, 
which  frequently  occurred  in  Edward's  reign,  were  hardly 
distinguishable,  except  in  name,  from  parliaments ;  being 
constituted  not  only  of  those  who  were  regularly  summoned 
to  the  house  of  lords,  but  of  deputies  from  counties,  cities, 
and  boroughs.  Several  places  that  never  returned  burgesses 
to  parliament  have  sent  deputies  to  some  of  these  councils.* 
The  most  remarkable  of  these  was  that  held  in  the  27th  of 
Edward  III.,  consisting  of  one  knight  for  each  county,  and 
of  two  citizens  or  burgesses  from  every  city  or  borough 
wherein  the  ordinances  of  the  staple  were  established.*  Thele 
were  previously  agreed  upon  by  the  king  and  lords,  and 
copies  given,  one  to  the  knights,  another  to  the  burgesses. 
The  roll  tells  us  that  they  gave  their  opinion  in  writing  to 
the  council,  after  much  deliberation,  and  that  this  was  read 
and  discussed  by  the  great  men.     These  ordi.iances  fix  the 


»  Rot.  Pari.  p.  280. 

'  "  If  there  be  any  difference  between 
an  ordinance  and  a  statnte,  as  some  have 
collected,  it  is  but  only  this,  that  an 
ordinance  is  but  temporary  till  confirmed 
and  made  perpetual,  but  a  statute  is 
perpetual  at  first,  and  so  have  some  or- 
dinances also  been."  ^Vhltelocke  on  Par- 


liamentary Writ,  TOl.  a.  p.  297.  See  Eot. 
Pari.  TOl.  ill.  p.  17 ;  toI.  It.  p.  86. 

3  These  may  be  found  In  WUlis'i 
Notitia  Parliamentaria.  In  28  E.  I.  the 
universities  were  summoned  to  send 
members  to  a  great  council  in  order  to 
defend  the  king's  right  to  the  kingdom 
of  Scotland.    1  Prynne. 

<  Itot.  Pari.  U.  208. 


Staple  of  wool  in  particular  places  within  England,  prohibit 
English  merchants  from  exporting  that  article  under  pain  of 
death,  inflict  sundry  other  penalties,  create  jurisdictions,  and 
in  short  have  the  effect  of  a  new  and  important  law.  After 
they  were  passed  the  deputies  of  the  conunons  granted  a 
subsidy  for  three  years,  complained  of  grievances  and  receiv- 
ed answers,  as  if  in  a  regular  parliament.  But  they  were 
aware  that  these  proceedings  partook  of  some  irregularity, 
and  endeavored,  as  was  their  constant  method,  to  keep  up 
the  legal  forms  of  the  constitution.  In  the  last  petition  of 
this  council  the  commons  pray,  "  because  many  articles  touch- 
ing the  state  of  the  king  and  common  profit  of  his  kingdom 
have  been  agreed  by  him,  the  prelates,  lords,  and  commons 
of  his  land,  at  this  council,  that  the  said  articles  may  be  re- 
cited at  the  next  parliament,  and  entered  upon  the  roll ;  for 
this  cause,  that  ordinances  and  agreements  made  in  council 
are  not  of  record,  as  if  they  had  been  made  in  a  general 
parliament*'  This  accordingly  was  done  at  the  ensuing  par- 
lid.ment,  when  these  ordinances  were  expressly  confirmed, 
and  directed  to  be  "  holden  for  a  statute  to  endure  always."  * 

It  must  be  confessed  that  the  distinction  between  ordinances 
and  statutes  is  very  obscure,  and  perhaps  no  precise  and 
uniform  principle  can  be  laid  down  about  it.  But  it  suffi- 
ciently appears  that  whatever  provisions  altered  the  common 
law  or  any  former  statute,  and  were  entered  upon  the  statute- 
roU,  transmitted  to  the  sheriffs,  and  promulgated  to  the  peo- 
ple as  general  obligatory  enactments,  were  holden  to  require 
the  positive  assent  of  both  houses  of  parliament,  duly  and  for- 
mally summoned. 

Before  we  leave  this  subject  it  will  be  proper  to  take  no- 
tice of  a  remarkable  stretch  of  prerogative,  which,  if  drawn 
into  precedent,  would  have  effectually  subverted  this  princi- 
ple of  parliamentary  consent  in  legislation.  In  the  15th  of 
Edward  III.  petitions  were  presented  of  a  bolder  and  more 
innovating  cast  than  was  acceptable  to  the  court :  —  That  no 
peer  should  be  put  to  answer  for  any  trespass  except  before 
his  peers  ;  that  commissioners  should  be  assigned  to  examine 
the  accounts  of  such  as  had  received  public  moneys ;  that  the 
judges  and  ministers  should  be  sworn  to  observe  the  Great 
Charter  and  other  laws ;  and  that  they  should  be  appointed 

1  Rot.  Pari.  U.  253, 25^ 


52 


STATUTES  AND  ORDINANCES.   Chap.  VHI.  Pakt  HI 


in  parliament.  The  last  of  these  was  probably  the  most  ob- 
noxious ;  but  the  king,  unwilling  to  defer  a  supply  which  was 
granted  merely  upon  condition  that  these  petitions  should  pre- 
vail, suffered  them  to  pass  into  a  statute  with  an  alteration 
which  did  not  take  off  much  from  their  eflficacy  —  namely,  that 
these  officers  should  indeed  be  appointed  by  the  king  with  the 
advice  of  his  council,  but  should  surrender  their  charges  at 
the  next  parliament,  and  be  there  responsible  to  any  who 
should  have  cause  of  complaint  against  them.  The  chan- 
cellor, treasurer,  and  judges  entered  their  protestation  that 
they  had  not  assented  to  the  said  statutes,  nor  could  they  ob- 
serve them,  in  case  they  should  prove  contrary  to  the  laws 
and  customs  of  the  kingdom,  which  they  were  sworn  to  main- 
tain.^ This  is  the  first  instance  of  a  protest  on  the  roll  of 
parliament  against  the  passing  of  an  act.  Nevertheless  they 
were  compelled  to  swear  on  the  cross  of  Canterbury  to  its 
observance.2 

This  excellent  statute  was  attempted  too  early  for  complete 
success.     Edward's  ministers  plainly  saw  that  it  left  them  at 
the  mercy  of  future  parliaments,  who  would  readily  learn  the 
wholesome  and  constitutional  principle  of  sparing  the  sovereign 
while  they  punished  his  advisers.     They  had  recourse  there- 
fore to  a  violent  measure,  but  which  was  likely  in  those  times  to 
be  endured.     By  a  proclamation  addressed  to  all  the  sheriffs 
the  king  revokes  and  annuls  the  statute,  as  contrary  to  the 
laws  and  customs  of  England  and  to  his  own  just  rights  and 
prerogatives,  which  he  had  sworn  to  preserve ;  declaring  that 
he  had  never  consented  to  its  passing,  but,  having  previously 
protested  that  he  would  revoke  it,  lest  the  parliament  should 
have  been  separated  in  wrath,  had  dissembled,  as  was  his 
duty,  and  permitted  the  great  seal  to  be  affixed  ;  and  that  it 
appeared  to  the  earls,  barons,  and  other  learned  persons  of 
his  kingdom  with  whom  he  had  consulted,  that,  as  the  said 
statute  had  not  proceeded  from  his  own  good  will,  it  was  null, 
and  could  not  have  the  name  or  force  of  law.'    This  revocation 
of  a  statute,  as  the  price  of  which  a  subsidy  had  been  grant- 
ed, was  a  gross  infringement  of  law,  and  undoubtedly  passed 
for  such  at  that  time ;  for  the  right  was  already  clear,  though 


1  Bot.  Pari.  p.  131. 
«  Id.  ii.  p.  128. 

*  Rymer,  t.  ▼.  p.  282.     This  instrxi- 
ment  betrays  in  its  language  Edward's 


consciousness  of  the  violent  step  he  was 
taking ;  and  his  wish  to  excuse  it  as  much 
as  possible. 


EHOU8H  Const.    ADVICE  OF  PARLIAMENT  NECESSAJRY.       53 

the  remedy  was  not  always  attainable.  Two  years  after- 
wards Edward  met  his  parliament,  when  that  obnoxious  stat- 
ute was  formally  repealed.* 

Notwithstanding  the  king's  unwillingness  to  permit  this  con- 
trol of  parliament  over  his  administration,  he  suffered,  or 
rather  solicited,  their  interference  in  matters  which  have 
since  been  reckoned  the  exclusive  province  of  the  crown. 
This  was  an  unfair  trick  of  his  policy.  He  was  ^^j^^^  ^^ 
desirous,  in  order  to  prevent  any  murmuring  parUament 
about  subsidies,  to  throw  the  war  upon  parlia-  StS  of° 
ment  as  their  own  act,  though  none  could  have  ^^^  and 
been  commenced  more  selfishly  for  his  own  benefit, 
or  less  for  the  advantage  of  the  people  of  England.  It  is 
called  "  the  war  which  our  lord  the  king  has  undertaken 
against  his  adversary  of  France  by  common  assent  of  all  the 
lords  and  commons  of  his  realm  in  divers  parfiaments."* 
And  he  several  times  referred  it  to  them  to  advise  upon  the 
subject  of  peace.  But  the  commons  showed  their  humility 
or  discretion  by  treating  this  as  an  invitation  which  it  would 
show  good  manners  to  decline,  though  in  the  eighteenth  of 
the  king's  reign  they  had  joined  with  the  lords  in  imploring 
the  king  to  make  an  end  of  the  war  by  a  battle  or  by  a 
suitable  peace.*  "Most  dreaded  lord,"  they  say  upon  one 
occasion,  "  as  to  your  war,  and  the  equipment  necessary  for 
it,  we  are  so  ignorant  and  simple  that  we  know  not  how,  nor 
have  the  power,  to  devise;  wherefore  we  pray  your  grace 
to  excuse  us  in  this  matter,  and  that  it  please  you,  with  ad- 
vice of  the  great  and  wise  persons  of  your  council,  to  ordain 
what  seems  best  to  you  for  the  honor  and  profit  of  yourself 
and  your  kingdom ;  and  whatever  shall  be  thus  ordained  by 
assent  and  agreement  for  you  and  your  lords  we  readily  as- 
sent to,  and  will  hold  it  firmly  established."*  At  another 
time,  after  their  petitions  had  been  answered,  "  it  was  shewed 


1  The  commons  in  the  17th  of  Edw. 
III.  petition  that  the  statutes  made  two 
years  before  be  maintained  in  their  force, 
liaving  granted  for  them  the  subsidies 
which  they  enumerate,  "  which  was  a 
great  spoiling  (ranf;on)  and  grievous 
charge  for  them."  But  the  king  an- 
swered that,  "  perceiving  the  said  statute 
to  be  against  his  oath,  and  to  the  blem- 
ish of  his  crown  and  royaity,  and  against 
the  law  of  the  iand  in  many  points,  he 
had  repealed  it.  But  he  would  have  the 
articles  of  the  said  statute  examined. 


and  what  should  be  found  honorable  and 
profitable  to  the  king  and  his  people  put 
into  a  new  statute,  and  observed  in 
future."  Rot.  Pari.  ii.  189.  But  though 
this  is  inserted  among  the  petitions,  it 
appears  from  the  roll  a  little  before  (p. 
139,  n.  23),  that  the  statute  was  actuaUy 
repealed  by  common  consent ;  such  con- 
sent at  least  being  recited,  whether  truly 
or  not. 
a  Rymer,  t.  v.  p.  165. 

3  p.  148. 

4  21  £.  in.  p.  165. 


54 


MGHT  OF  COMMONS    Chap.  Vin.  Part  IH. 


English  Const.     TO  INQUIRE  INTO  ABUSES. 


55 


to  the  lords  and  commons  by  Bartholomew  de  Burghersh, 
the  king's  chamberlain,  how  a  treaty  had  been  set  on  foot 
between  the  kmg  and  his  adversary  of  France ;  and  how  he 
had  good  hope  of  a  final  and  agreeable  issue  with  GM's 
help;  to  which  he  would  not  come  without  assent  of  the 
lords  and  commons.  Wherefore  the  said  chamberlain  in- 
quu-ed  on  the  king's  part  of  the  said  lords  and  commons 
whether  they  would  assent  and  agree  to  the  peace,  in  case  it 
might  be  had  by  treaty  between  the  parties.  To  which  the 
said  commons  with  one  voice  replied,  that  whatever  end  it 
should  please  the  king  and  lords  to  make  of  the  treaty  would 
be  agreeable  to  them.  On  which  answer  the  chamberlain 
said  to  the  commons.  Then  you  will  assent  to  a  perpetual 
treaty  of  peace  if  it  can  be  had.  And  the  said  commons 
answered  at  once  and  unanimously,  Yes,  yes."^  The  lords 
were  not  so  diffident.  Their  great  station  as  hereditary  coun- 
cillors gave  them  weight  in  all  deliberations  of  government ; 
and  they  seem  to  have  pretended  to  a  negative  voice  in  the 
question  of  peace.  At  least  they  answer,  upon  the  proposals 
made  by  David  king  of  Scots  in  1368,  which  were  submitted 
to  them  in  parliament,  that,  "  saving  to  the  said  David  and 
his  heirs  the  articles  contained  therein,  they  saw  no  way  of 
making  a  treaty  which  would  not  openly  turn  to  the  disheri- 
son of  the  king  and  his  heirs,  to  which  they  would  on  no 
account  assent;  and  so  departed  for  that  day."^  A  few 
years  before  they  had  made  a  similar  answer  to  some  other 
propositions  from  Scotland.^  It  is  not  improbable  that,  in 
both  these  cases,  they  acted  with  the  concurrence  and  at  the 
instigation  of  the  kmg ;  but  the  precedents  might  have  been 
remembered  in  other  circumstances. 

A  third  important  acquisition  of  the  house  of  commons 
Right  of  the  during  this  reign  was  the  establishment  of  their 
commons  to  right  to  investigate  and  chastise  the  abuses  of  ad- 
inquire  Into  jj^i^istration.  In  the  fourteenth  of  Edward  HI.  a 
abuses.  committee  of  the  lords'  house  had  been  appointed 

to  examine  the  accounts  of  persons  responsible  for  the  receipt 
of  the  last  subsidy ;  but  it  does  not  appear  that  the  commons 
were  concerned  in  this.*     The  unfortunate   statute   of  the 

1  28  E.  m.  p.  261.  tion  of  the  eommons  doing  this  in  the 

«  28  E.  III.  p.  295.     Carte  says,  *'  the  roll  of  parliament. 

lord3  and  commons,  giving  this  advice  '  Rymer,  p.  269. 

separately,  declared."  &c      Hist.ofEng-  «  p.  114. 
iJUid,  Tol.  ii.  p.  518     I  can  find  no  men- 


next  year  contained  a  similar  provision,  which  was  annulled 
with  the  rest.  Many  years  elapsed  before  the  commons 
tried  the  force  of  their  vindictive  arm.  We  must  pass  on- 
ward an  entire  generation  of  man,  and  look  at  the  parhament 
assembled  in  the  fiftieth  of  Edward  III.  Nothing  memora- 
ble as  to  the  interference  of  the  commons  in  government 
occurs  before,  unless  it  be  their  request,  in  the  forty-fifth  of 
the  kin«r,  that  no  clergyman  should  be  made  chanceUor, 
treasure?,  or  other  great  officer ;  to  which  the  king  answered 
that  he  would  do  what  best  pleased  his  council.^ 

It  will  be  remembered  by  every  one  who  has  read  our 
history  that  in  the  latter  years  of  Edward's  life  his  ParUMaent 
fame  was  tarnished  by  the  ascendency  of  the  duke  ^^  ^J"-  ^ 
of  Lancaster  and  AUce  Ferrers.    The  former,  a  man  of  more 
ambition  than  his  capacity  seems  to  have  warranted,  even 
incurred  the  suspicion  of  meditating  to  set  aside  the  heir  ot 
the  crown  when  the  Black  Prince  should  have  sunk  mto  the 
grave.   Whether  he  were  wronged  or  not  by  these  conjectures, 
they  certainly  appear  to  have  operated  on  those  most  con- 
cerned to  take  alarm  at  them.     A  parliament  met  in  April, 
1376,  wherein  the  general  unpopularity  of  the  king's  admin- 
istration, or  the  influence  of  the  prince  of  Wales,  led  to  very 
remarkable   consequences.*    After  granting  a  subsidy,  the 
commons,  "  considering  the  evils  of  the  country,  through  so 
many  wars  and  other  causes,  and  that  the  officers  now  in  the 
king's  service  are  insufficient  without  further  assistance  for  so 
great  a  charge,  pray  that  the  council  be  strengthened  by  the 
addition  of  ten  or  twelve  bishops,  lords,  and  others,  to  be 
constantly  at  hand,  so  that  no  business  of  weight  should  be 
despatched  without  the  consent  of  all ;  nor  smaller  matters 
without  that  of  four  or  six.'"     The  king  pretended  to  come 
with  alacrity  into  this  measure,  which  was  followed  by  a  strict 
restraint  on  them  and  all  other  officers  from  taking  presents 
in  the  course  of  their  duty.     After  this,  "  the  said  commons 
appeared  in  parliament,  protesting  that  they  had  the  same 
good  will  as  ever  to  assist  the  king  with  their  lives  and  for- 


1  Rymer,  p.  804. 

«  Most  of  our  general  historians  hare 
slurted  over  this  important  session.  The 
best  view,  perhaps,  of  its  secret  history 
i»ill  be  found  in  Lowth's  Life  of  Wyke- 
ham ;  an  instructive  and  elegant  work, 
only  to  be  blamed  for  marks  of  that 
•cademical  point  of  honor  which  makes 


a  fellow  of  a  college  too  indiscrimiMte 
an  encomiast  of  its  founder.  Another 
modern  book  may  be  named  with  some 
commendation,  though  very  inferior  in 
its  execution,  Godwin's  Life  of  Chancer, 
of  which  the  duke  of  Lancaster  is  th« 
political  hero. 
3  Rymer,  p  322. 


56 


RIGHT  OF  COMMONS  •  Chap.  VHI.  Part  JH 


l|i 


tunes ;  but  that  it  seemed  to  them,  if  their  said  liege  lord  had 
always  possessed  about  him  faithful  counsellors  and  good 
officers,  he  would  have  been  so  rich  that  he  would  have  had 
no  need  of  charging  his  commons  with  subsidy  or  tallage, 
considering  the  great  ransoms  of  the  French  and  Scotch 
kings,  and  of  so  many  other  prisoners ;  and  that  it  appeared 
to  be  for  the  private  advantage  of  some  near  the  king,  and 
of  others  by  their  collusion,  that  the  king  and  kingdom  are  so 
impoverished,  and  the  commons  so  ruined.  And  they  prom- 
ised tlie  king  that,  if  he  would  do  speedy  justice  on  such  as 
should  be  found  guilty,  and  take  from  them  what  law  and 
reason  permit,  with  what  had  been  already  granted  in  parha- 
ment,  they  will  engage  that  he  should  be  rich  enough  to 
maintain  his  wars  for  a  long  time,  without  much  charging  his 
people  in  any  manner."  They  next  proceeded  to  allege  three 
particular  grievances ;  the  removal  of  the  staple  from  Calais, 
where  it  had  been  fixed  by  parliament,  through  the  procure- 
ment and  advice  of  the  said  private  counsellors  about  the 
king ;  the  participation  of  the  same  persons  in  lending  money 
to  the  king  at  exorbitant  usury;  and  their  purchasing  at 
a  low  rate,  for  theu-  own  benefit,  old  debts  from  the  crown, 
the  whole  of  which  they  had  afterwards  induced  the  king  to 
repay  to  themselves.  For  these  and  for  many  more  misde- 
meanors the  commons  accused  and  impeached  the  lords  Lati- 
mer and  Nevil,  with  four  merchants,  Lyons,  Ellis,  Peachey, 
and  Bury.i  Latimer  had  been  chamberlain,  and  Nevil  held 
another  office.  The  former  was  the  friend  and  creature  of 
the  duke  of  Lancaster.  Nor  was  this  parliament  at  all  nice 
in  touching  a  point  where  kings  least  endure  their  interfer- 
ence. An  orcfinance  was  made,  that,  "  whereas  many  women 
prosecute  the  suits  of  others  in  courts  of  justice  by  way  of 
maintenance,  and  to  get  profit  thereby,  which  is  displeasing  to 
the  king,  he  forbids  any  woman  henceforward,  and  especially 
Alice  Ferrers,  to  do  so,  on  pain  of  the  said  Alice  forfeiting 
all  her  goods,  and  suffering  banishment  from  the  kingdcm."^ 
The  part  which  the  prince  of  Wales,  who  had  ever  been 
distinguished  for  his  respectful  demeanor  towards  Edward, 
bore  in  this  unprecedented  opposition,  is  strong  evidence  of 
the  jealousy  with  which  he  regarded  the  duke  of  Lancaster , 
and  it  was  led  in  the  house  of  commons  by  Peter  de  la  Mare, 


1  Rymer,  p.  822. 


s  Id.  p.  W». 


Esousa  Const.      TO  INQUIRE  INTO  ABUSES.  57 

a  servant  of  the  earl  of  March,  who,  by  his  marriage  with 
Philippa,  heiress  of  Lionel  duke  of  Clarence,  stood  next 
after  the  young  prince  Richard  in  Uneal  succession  to  the 
crown.     The  proceedings  of  this  session  were  mdeed  highly 
popular.     But  no  house  of  commons  would  have  gone  such 
&ths  on  the  mere  support  of  popular  opinion,  unless  insti- 
gated and  encouraged  by  higher  authority.     Without  this 
Their  petitions  might  perhaps  have  obtained,  for  the  sake  ot 
subsidy,  an  immediate  consent;  but  those  who  took  the  lead 
in  preparing  them  must  have  remained  unsheltered  after  a 
dissolution,  to  abide  the  vengeance  of  the  crown,  with  no 
assurance  that  another  parliament  would  espouse  their  cause 
as  its  own.     Such,  indeed,  was  their  fate  in  the  present  m- 
stance.     Soon  after  the  dissolution  of  parUament,  the  pnncd 
of  Wales,  who,  long  sinking  by  fatal  decay,  had  rallied  hif 
expiring  energies  for  this  domestic  combat,  left  his  inheritance 
to  a  child  ten  years  old,  Richard  of  Bordeaux.    Immediately 
after  this  event  Lancaster  recovered  his  influence ;  and  the 
former  favorites  returned  to  court     Peter  de  la  Mare  was 
confined  at  Nottingham,  where  he  remamed  two  years,     ihe 
citizens  indeed  attempted  an  insurrection,  and  threatened  to 
bum  the  Savoy,  Lancaster's  residence,  if  de  la  Mare  was  not 
released ;  but  the  bishop  of  London  succeeded  in  appeasing 
them.*     A  parliament  met  next  year  which  overthrew  the 
work  of  its   predecessor,  restored  those  who  had  been  im- 
peached,  and  repealed  the  ordinance  against  Alice  Perrers. 
So  little  security  will  popukr  assemblies  ever  afford  against 
arbitrary  power,  when  deprived  of  regular  leaders  and  the 
consciousness  of  mutual  fidelity. 

The  poUcy  adopted  by  the  prince  of  Wales  and  earl  ot 
March,  in  employing  the  house  of  commons  as  an  engme 
of  attack  against  an  obnoxious  ministry,  was  perfectly  novel, 
and  indicates  a  sensible  change  in  the  character  of  our  con 
stitution.  In  the  reign  of  Edward  II.  parliament  had  little 
share  in  resisting  the  government ;  much  more  was  ettected 
by  the  barons  through  risings  of  their  feudal  tenantry,  titly 
years  of  authority  better  respected,  of  law  better  enforced, 
had  rendered  these  more  perilous,  and  of  a  more  violent  ap- 
pearance  than  formerly.     A  surer  resource  presented  itselt 

1  Anonym.  HiBt.  Edw.  HI.  ad  calcem  six  or  seven  of  the  ^^jK^t*  ^X^d"to 

Hemingfc^,  p.  444,  448.    WalBingham  in  f  e  ^as^^^^^^^^^^^      ^SS  S  P^^Se^ 

giTes  a  different  reason,  p.  192.  ^  ,  ^'.f  appears  uj- 

«  Rot.  Pari.  p.  374.     Not  more  than  4th  Regwter,  p.  302,  311 


W  INCREASE  OF  THE        Chap.  VHI.  Part  HI. 

in  the  increased  weight  of  the  lower  house  in  pariiament. 
And  this  indirect  aristocratical  influence  gave  a  surprising 
impulse  to  that  assembly,  and  particularly  tended  to  establish 
beyond  question  its  control  over  public  abuses.     It  is  no  less 
just  to  remark  that  it  also  tended  to  preserve  the  relation  and 
harmony  between  each  part  and  the  other,  and  to  prevent 
that  jamng  of  emulation  and  jealousy  which,  though  gener- 
ally  found  m  the  division  of  power  between  a  noble  and  a 
popular  estate,  has  scarcely  ever  caused  a  dissension,  except  in 
cases  of  little  moment,  between  our  two  houses  of  parliament 
Ihe  commons  had  sustained  with  equal  firmness  and  dis- 
Wchardn.     cretion  a  defensive  war  against  arbitrary  power 
Great  Under  Edward  III. :  they  advanced  with  very  dif- 

toeX'ef     ^r^l^  ^*^PS  ^^^ar^s  his  successor.    Upon  the  king's 
wii^^ons  though  Richard's  coronation  took  place  with- 

commons.      q-^^  ^^j^^^  ^^^  ^^  proper  regency  was  constituted, 
yet  a  council  of  twelve,  whom  the  great  officers  of  state  were 
to  obey,  suppUed  its  place  to  every  effectual  intent.     Among 
these  the  duke  of  Lancaster  was  not  numbered ;  and  he  re- 
tired  from  court  in  some  disgust.     In  the  first  parliament  of 
tne  young  king  a  large  proportion  of  the  knights  who  had 
sat  m  that  which  impeached  the  Lancastrian  party  were  re- 
turned.^    Peter  de  la  Mare,  now  released  from  prison,  was 
e  ected  speaker;  a  dignity  which,  according  to  some,  he  had 
mied  in  the  Good  Parliament,  as  that  of  the  fiftieth  of  Ed- 
ward in.  was  popularly  styled ;   though  the  rolls  do  not 
mention  either  him  or  any  other  as  bearing  that  honorable 
name  before  Sir  Thomas  Hungerford  in  the  parliament  of 
the  following  year.2     The  prosecution  against  Alice  Perrers 
was  now  revived;  not,  as  far  as  appears,  by  direct  impeach- 
ment  ot  the  commons ;  but  articles  were  exhibited  against 
her  m  the  house  of  lords  on  the  king's  part,  for  breaking  the 
ordinance  made  against  her  intermeddling  at  court ;  upon 
which  she  received  judgment  of  banishment  and  forfeiture.' 
At  the  request  of  the  lower  house,  the  lords,  in  the  kinc/g 
name,   appointed   nine   persons   of  different  ranks  — three 
bishops,  two  earls,  two   bannerets,  and  two  bachelors  — to 
be  a  permanent  council  about  the  king,  so  that  no  business 

wi-^uf^he'i^Ji  L^Jf'hf^^"  ^r^  °"!"    *°*^  *"  *•»«  lawyers  of  England ;  yet  by 
bribed,  he  teUa  us,  many  of  the  lords       8  toT  m  p.  12;      ^' 


Eholwh  Const.     POWER  OF  THE  COMMONS. 


59 


of  importance  should  be  transacted  without  their  unanimous 
consent.     The  king  was  even  compelled  to  consent  that,  dur- 
ing his  minority,  the  chancellor,  treasurer,  judges,  and  other 
chief  ofiicers,  should  be  made  in  parliament;  by  which  pro- 
vision, combined  with  that  of  the  parliamentary  council,  the 
whole  executive   government  was   transferred   to  the  two 
houses.      A  petition  that  none  might  be  employed  in  the 
king's  service,  nor  belong  to  his  council,  who  had  been  for- 
merly accused  upon  good  grounds,  struck  at  lord  Latimer, 
who  had  retained  some  degree  of  power  in  the  new  establish- 
ment    Another,  suggesting  that  Gascony,  Ireland,  Artois, 
and  the  Scottish  marches  were  in  danger  of  being  lost  for 
want  of  good  officers,  though  it  was  so  generaUy  worded  as  to 
leave  the  means  of  remedy  to  the  king's  pleasure,  yet  shows 
a  growing  energy  and  self-confidence  in  that  assembly  which 
not  many  years  before  had  thought  the  question  of  peace  or 
war  too  high  for  their  deliberation.     Their  subsidy  was  suffi- 
ciently liberal ;  but  they  took  care  to  pray  the  king  that  fit 
persons  might  be  assigned  for  its  receipt  and  disbursement, 
lest  it  should  any  way  be  diverted  from  the  purposes  of  the 
war.     Accordingly  Walworth  and  Philpot,  two  eminent  citi- 
zens of  London,  were  appointed  to  this  office,  and  sworn  in 
parliament  to  its  execution.^ 

But  whether  through  the  wastefulness  of  government,  or 
rather  because  Edward's  legacy,  the  French  war,  like  a  ruin- 
ous and  interminable  lawsuit,  exhausted  all  public  contribu- 
tions, there  was  an  equally  craving  demand  for  subsidy  at 
the  next  meeting  of  parliament.     The  commons  now  made  a 
more  serious  stand.     The  speaker,  Sir  James  Pickering,  after 
the  protestation  against  giving  offence  which  has  since  become 
more  matter  of  form  than,  perhaps,  it  was  then  considered, 
reminded  the  lords  of  the  council  of  a  promise  made  to  the 
last  parliament,  that,  if  they  would  help  the  king  for  once 
with  a  large  subsidy,  so  as  to  enable  him  to  undertake  an 
expedition  against  the  enemy,  he  trusted  not  to  call  on  them 
again,  but  to  support  the  war  from  his  own  revenues ;  in 
faith  of  which  promise  there  had  been  granted  the  largest 
sum  that  any  king  of  England  had  ever  been  suffered  to  levy 
within  so  short  a  time,  to  the  utmost  loss  and  inconvenience 
of  the  commons,  part  of  which  ought  still  to  remain  in  the 

1  Eot.  Pari.  vol.  iii  p.  12 


60 


INCREASE  OF  THE      Chap.  VHI.  Part  IIL 


treasury,  and  render  it  unnecessary  to  burden  anew  the  ex- 
hausted people.     To  this  Scrope,  lord  steward  of  the  house- 
hold,  protesting  that  he  knew  not  of  any  such  promise,  made 
answer  by  order  of  the  king,  that,  "  saving  the  honor  and 
reverence  of  our  lord  the  king,  and  the  lords  there  present, 
the  commons  did  not  speak  truth  in  asserting  that  part  of  the 
last  subsidy  should  be  still  in  the  treasury ;  it  being  notorious 
toat  every  penny  had  gone  into  the  hands  of  Walworth  and 
Fhilpot,  appointed  and  sworn  treasurers  in  the  last  parlia- 
ment,  to  receive  and  expend  it  upon  the  purposes  of  the  war, 
for  which  they  had  in   effect   disbursed   the   whole."    Not 
satisfied  with  this  general  justification,  the  commons  pressed 
tor  an  account  of  the  expenditure.     Scrope  was  again  com- 
missioned  to  answer,  that,  "  though  it  had  never  been  seen 
that  of  a  subsidy  or  other  grant  made  to  the  king  in  parlia- 
naent  or  out  of  parUament  by  the  commons  any  account  had 
afterwards  been  rendered  to  the  commons,  or  to  any  other 
except  the  king  and  his  officers,  yet  the  king,  to  gratify  them, 
ot  his  own  accord,  without  doing  it  by  way  of  right,  would 
have  Walworth,  along  with  certain  persons  of  the  council, 
exhibit  to  them  m  writing  a  clear  account  of  the  receipt  and 
expenditure,  upon  condition  that  this  should  never  be  used  as 
a  precedent,  nor  inferred  to  be  done  otherwise  than  by  the 
kmg^s  spontaneous  command."     The  commons  were   again 
urged  to  provide  for  the  public  defence,  being  their  own  con- 
cern  as  much  as  that  of  the  king.     But  they  merely  shifted 
theu-  ground  and  had  recourse  to  other  pretences.     They  re- 
quested that  five  or  six  peers  might  come  to  them,  in  order  to 
«hscuss  this  question  of  subsidy.     The  lords  entirely  rejected 
this  proposal,  and  affirmed  that  such  a  proceeding  had  never 
been  known  except  in  the  three  last  parhaments  ;1)ut  allowed 
that  it  had  been  the  course  to  elect  a  committee  of  eight  or 
ten  from  each  house,  to  confer  easily  and   without  noise  to- 
gether.    The  commons  acceded  to  this,  and  a  committee  of 
conference  was  appointed,  though  no  result  of  their  discussion 
appears  upon  the  roll. 

Upon  examining  the  accounts  submitted  to  them,  these 
sturdy  commoners  raised  a  new  objection.  It  appeared  that 
large  sums  had  been  expended  upon  garrisons  in  France  and 
Ireland  and  other  pkces  beyond  the  kingdom,  of  which  they 
protested  themselves  not  liable  to  bear  the  charge.  It 
was  answered  that  Gascony  and  the  king's  other  dominions 


English  Const.      POWER  OF  THE  COMMONS. 


61 


beyond  sea  were  the  outworks  of  England,  nor  could  the 
Dcople  ever  be  secure  from  war  at  their  thresholds,  unless 
tiiese  were  maintained.  They  lastly  insisted  that  the  kmg 
ought  to  be  rich  through  the  wealth  that  had  devolved  on 
him  from  his  grandfather.  But  this  was  affirmed,  m  reply, 
to  be  merely  sufficient  for  the  payment  of  Edward's  creditors. 
Thus  driven  from  all  their  arguments,  the  commons  finaUy 
consented  to  a  moderate  additional  imposition  upon  the  export 
of  wool  and  leather,  which  were  akeady  subject  to  consider- 
able duties,  apologizing  on  account  of  their  poverty  for  the 

slendemess  of  their  grant.*  ,     .,    •  u^ 

The  necessities  of  government,  however,  let  their  cause  be 
what  it  might,  were  by  no  means  feigned ;  and  a  new  par- 
Uament was  assembled  about  seven  months  after  the  last, 
wherein  the  king,  without  waiting  for  a  petition,  informed  the 
commons  that  the  treasurers  were  ready  to  exhibit  their  ac- 
counts before   them.     This  was  a  signal  victory   after  the 
reluctant  and  ungracious  concession  made  to  the  last  parlia- 
ment    Nine  persons  of  different  ranks  were  appointed  at 
the  request  of  the  commons  to  investigate  the  state  of  the 
revenue  and  the  disposition  which  had  been  made  of  the  late 
kin^s  personal  estate.     They  ended  by  grantmg  a  poll-tax, 
which  they  pretended  to  think  adequate  to  the  supply  re- 
quired.2     But  in  those  times  no  one  possessed  any  statistical 
knowledge,  and  every  calculation  which  required  it  was  sub- 
ject to  enormous  error,  of  which  we  have  already  seen  an 
eminent  example.*     In  the  next  parliament  (3  Kic.  11.)  it 
was  set  forth  that  only  22,000Z.  had  been  collected  by  the 
poll-tax,  while  the  pay  of  the  king's  troops  hired  for  the  ex- 
pedition to  Britany,  the  pretext  of  the  grant,  had  amounted 
for  but  half  a  year  to  50,000/.     The  king,  in  short,  was  more 
straitened  than  ever.     His  distresses  gave  no  sma  1  advantage 
to  the  commons.     Their  speaker  was  instructed  to  declare 
that,  as  it  appeared  to  them,  if  the  affairs  of  their  liege  lord 
had  been  properly  conducted  at  home  and  abroad,  he  could 
not  have  wanted  aid  of  his  commons,  who  now  are  poorer 
than  before.     They  pray  that,  as  the  king  was  so  much  ad- 
vanced in  age  and  discretion,  his  perpetual  council  (appointed 
in  his  first  parliament)  might  be  discharged  of  their  labors, 
and  that,  instead  of  them,  the  five  chief  officers  of  state,  to  wit, 

I  Rot.  Pari.  p.  35-38.  ,       '  ^^'  P'  ^^• 

8  See  p.  48  of  this  yolume. 


62 


INCREASE  OF  THE      Chap.  VHI.  Pam  HI. 


EuoLisH  Const.      POWER  OF  THE  COMMONS. 


63 


the  cliancellor,  treasurer,  keeper  of  the  privy  seal,  chamher- 
lain,  and  steward  of  the  household,  might  be  named  in  par- 
liament, and  declared  to  the  commons,  as  the  king's  sole 
counsellors,  not  removable  before  the  next  parliament.  They 
required  also  a  general  commission  to  be  made  out,  similar  to 
that  in  the  last  session,  giving  powers  to  a  certain  number  of 
peers  and  other  distinguished  persons  to  inquire  into  the  state 
of  the  household,  as  well  as  into  all  receipts  and  expenses 
since  the  king's  accession.  The  former  petition  seems  to  have 
been  passed  over ;  *  but  a  commission  as  requested  was  made 
out  to  three  prelates,  three  earls,  three  bannerets,  three 
knights,  and  three  citizens.^  After  guarding  thus,  as  they 
conceived,  against  malversation,  but  in  effect  rather  protect- 
ing their  posterity  than  themselves,  the  commons  prolonged 
the  last  imposition  on  wool  and  leather  for  another  year. 

It  would  be  but  repetition  to  make  extracts  from  the  rolls 
of  the  two  next  years ;  we  have  still  the  same  tale  — demand 
of  subsidy  on  one  side,  remonstrance  and  endeavors  at  refer- 
mation  on  the  other.  After  the  tremendous  insurrection  of  the 
villeins  in  1382  a  parliament  was  convened  to  advise  about 
repealing  the  charters  of  general  manumission,  extorted  from 
the  king  by  the  pressure  of  circumstances.  In  this  measure 
all  concurred ;  but  the  commons  were  not  afraid  to  say  that 
the  late  risings  had  been  provoked  by  the  burdens  which  a 
prodigal  court  had  called  for  in  the  preceding  session.  Their 
language  is  unusually  bold.  « It  seemed  to  them,  after  full 
deliberation,"  they  said,  "that,  unless  the  administration  of 
the  kingdom  were  speedily  reformed,  the  kingdom  itself  would 
be  utterly  lost  and  ruined  forever,  and  therein  their  lord  the 
king,  with  all  the  peers  and  commons,  which  God  forbid. 
For  true  it  is  that  there  are  such  defects  in  the  said  adminis- 
tration, as  well  about  the  king's  person  and  his  household  as 
in  his  courts  of  justice ;  and  by  grievous  oppressions  in  the 
country  through  maintainers  of  suits,  who  are,  as  it  were, 
kings  in  the  country,  that  right  and  law  are  come  to  nothing, 
and  the  poor  commons  are  from  time  to  time  so  pillaged  and 
rumed,  partly  by  the  king's  purveyors  of  the  household,  and 


1  Neyertheless,  the  commons  repeated 
it  in  their  schedule  of  petitions ;  and  re- 
ceived an  evasive  answer,  referring  to  an 
ordinance  made  in  the  first  parliament  of 
the  king,  the  application  of  which  is  in- 
definite.   Rot.  Pari.  p.  82. 


«  p.  73.  In  Rymer,  t.  viii.  p.  250,  the 
archbishop  of  York's  name  appears  among 
these  commissioners,  which  makes  their 
number  sixteen.  But  it  is  plain  by  th« 
instrument  that  only  fifteen  were  meant 
to  be  appointed 


Others  who  pay  nothing  for  what  they  take,  partly  by  the 
subsidies  and  tallages  raised  upon  them,  and  besides  by  the 
oppressive  behavior  of  the  servants  of  the  king  and  other 
lords,  and  especially  of  the  aforesaid  maintainers  of  suits, 
that  they  are  reduced  to  greater  poverty  and  discomiort  than 
ever  they  were  before.     And  moreover,  though  great  sums 
have  been  continually  granted  by  and  levied  upon  them,  for 
the  defence  of  the  kingdom,  yet  they  are  not  the  better  de- 
fended  against  their  enemies,  but  every  year  are  plundered 
and  wasted  by  sea  and  land,  without  any  relief.     Winch  ca- 
lamities the  said  poor  commons,  who  lately  used  to  hve  in 
honor  and  prosperity,  can  no  longer  endure.     And  to  speak 
the  real  truth,  these  injuries  lately  done  to  the  poorer  com- 
mons, more  than  they  ever  suffered  before,  caused  them  to 
rise  and  to  commit  the  mischief  done  in  their  late  not ;  and 
there  is  still  cause  to  fear  greater  evils,  if  sufficient  remedy 
be  not  timely  provided  against  the  outrages  and  oppressions 
aforesaid.     Wherefore  may  it  please  our  lord  the  king,  and 
the  noble  peers  of  the  realm  now  assembled  m  this  parlia- 
ment, to  provide  such  remedy  and  amendment  as  to  the  said 
administration  that  the  state  and  dignity  of  the  king  m  the 
first  place,  and  of  the  lords,  may  be  preserved,  as  the  com- 
mons  have  always  desired,  and  the  commons  may  be  put  in 
peace ;  removing,  as  soon  as  they  can  be  detected,  evil  minis- 
ters and  counsellors,  and  putting  in  their  stead  the  best  and 
most  sufficient,  and  taking  away  all  the  bad  practices  which 
have  led  to  the  last  rising,  or  else  none  can  imagine  that  this 
kingdom  can  longer  subsist  without  greater  misfortunes  than 
it  ever  endured.     And  for  God's  sake  let  it  not  be  forgotten 
that  there  be  put  about  the  king,  and  of  his  council,  the  best 
lords  and  knights  that  can  be  found  in  the  kingdom. 

"  And  be  it  known  (the  entry  proceeds)  that,  after  the 

king  our  lord  with  the  peers  of  the  realm  and  his  council 

had  taken  advice  upon  these  requests  made  to  him  for  his 

good  and  his  kingdom's  as  it  really  appeared  to  him,  willed 

and  granted  that  certain  bishops,  lords,  and  others  should  be 

appointed  to  survey  and  examine  in  privy  council  both  the 

government  of  the  king's  person  and  of  his  household,  and 

to  suggest  proper  remedies  wherever  necessary,  and  report 

them  to  the  king.     And  it  was  said  by  the  peers  m  parha- 

ment,  that,  as  it  seemed  to  them,  if  reform  of  government 

were  to  take  place  throughout  the  kingdom,  it  should  begin 


64 


POWER  OF  THE  COMMONS.     Chap.  VHI.  Part  UI. 


B»GLi8H  Const.     CHARACTER  OF  RICHARD  H. 


65 


bj  the  chief  member,  which  is  the  king  himself,  and  so  from 
person  to  person,  as  well  churchmen  as  others,  and  place 
to  place,  from  higher  to  lower,  without  sparing  any  degree."^ 
A  considerable  number  of  commissioners  were  accordingly 
appointed,  whether  by  the  king  alone,  or  in  parliament,  does 
not  appear;  the  latter,  however,  is  more  probable.  They 
seem  to  have  made  some  progress  in  the  work  of  reforma- 
tion, for  we  find  that  the  officers  of  the  household  were 
sworn  to  observe  their  regulations.  But  in  all  likelihood 
these  were  soon  neglected. 

It  is  not  wonderful  that,  with  such  feelings  of  resentment 
towards  the  crown,  the  commons  were  backward  in  granting 
subsidies.  Perhaps  the  king  would  not  have  obtained  one  at 
all  if  he  had  not  withheld  his  charter  of  pardon  for  all  of- 
fences committed  during  the  insurrection.  This  was  absolutely 
necessary  to  restore  quiet  among  the  people ;  and  though 
the  members  of  the  commons  had  certainly  not  been  insur- 
gents, yet  inevitable  irregularities  had  occurred  in  quelling 
the  tumults,  which  would  have  put  them  too  much  in  the 
power  of  those  unworthy  men  who  filled  the  benches  of 
justice  under  Richard.  The  king  declared  that  it  was  unu- 
sual to  grant  a  pardon  without  a  subsidy ;  the  commons  still 
answered  that  they  would  consider  about  that  matter ;  and 
the  king  instantly  rejoined  that  he  would  consider  about  his 
pardon  (s*aviseroit  de  sa  dite  grace)  till  they  had  done  what 
they  ought.  They  renewed  at  length  the  usual  tax  on  wool 
and  leather.^ 

This  extraordinary  assumption  of  power  by  the  commons 
was  not  merely  owing  to  the  king*s  poverty.  It  was  encour- 
aged by  the  natural  feebleness  of  a  disunited  government. 
The  high  rank  and  ambitious  spirit  of  Lancaster  gave  him 
no  little  influence,  though  contending  with  many  enemies  at 
court  as  well  as  the  ill-will  of  the  people.  Thomas  of  Wood- 
stock, the  king's  youngest  uncle,  more  able  and  turbulent 
than  Lancaster,  became,  as  he  grew  older,  an  eager  competi- 
tor for  power,  which  he  sought  through  the  channel  of  popu- 
larity. The  earls  of  March,  Arundel,  and  Warwick  bore  a 
considerable  part,  and  were  the  favorites  of  parliament. 
Even  Lancaster,  after  a  few  years,  seems  to  have  fallen  into 
popular  courses,  and  recovered  some  share  of  public  esteem. 


»  Rot.  Pari.  5R.  n.  p.  100. 


S  Id.  p.  104. 


He  was  at  the  head  of  the  reforming  commission  in  the  fifth 
of  Richard  II.,  though  he  had  been  studiously  excluded  from 
those  preceding.  We  cannot  hope  to  disentangle  the  in- 
trigues of  this  remote  age>  as  to  which  our  records  are  of  no 
service,  and  the  chroniclers  are  very  slightly  mformed.  bo 
far  as  we  may  conjecture,  Lancaster,  finding  his  station  inse- 
cure at  court,  began  to  solicit  the  favor  of  the  commons, 
whose  hatred  of  the  administration  abated  their  former  hos- 
tility towards  him.* 

The  character  of  Richard  IL  was  now  developing  itselt 
and  the  hopes  excited  by  his  remarkable  presence  character 
of  mind  in  confronting  the  rioters  on  Blackheath  <>'  J^«^"<^- 
were  rapidly  destroyed.     Not  that  he  was  wanting  m  capac- 
ity, as  has  been  sometimes  imagined.     For  if  we  measure 
intellectual  power  by  the  greatest  exertion  it  ever  displays, 
rather  than  by  its  average  results,  Richard  II.  was  a  man  ot 
considerable  talents.     He  possessed,  along  with  much  dis- 
simulation, a  decisive   promptitude  in   seizing  the    critical 
moment  for  action.     Of  this  quality,  besides  his  celebrated 
behavior  towards  the  insurgents,  he  gave  striking  evidence 
in  several  circumstances  which  we  shall  have  shortly  to  no- 
tice.    But  his  ordinary  conduct  belied  the  abilities  which  on 
tiiese  rare  occasions  shone  forth,  and  rendered  them  ineffectual 
for  his  security.     Extreme  pride  and  violence,  with  an  inor- 
dinate partiaUty  for  the  most  worthless  favorites,  were  his 
predominant  characteristics.     In  the  latter  quaUty,  and  m 
tiie  events  of  his  reign,  he  forms  a  pretty  exact  parallel  to 
Edward   II.     Scrope,   lord   chancellor,   who   had  been  ap- 
pointed in  parliament,  and  was  understood  to  be  irremovable 
without  its  concurrence,  lost  the  great  seal  for  refusing  to  set 
it  to  some  prodigal  grants.     Upon  a  slight  quarrel  with  arch- 
bishop Courtney  the  king  ordered  his  temporahties  to   be 
seized,  the  execution  of  which,  Michael  de  la  Pole,  his  new 
chancellor,  and  a  favorite  of  his  own,  could  hardly  prevent. 
This  was  accompanied  with  indecent  and  outrageous  expres- 
sions of  anger,  unworthy  of  his  station  and  of  those  whom 
he  insulted.* 

1  The  common,  granted  a  Bubsidy,  7  R.  said  to  have  compelled  ^«  J  ^^J'^'/JfJ 

n.,  to  support  Uncaster's  war  in  Castile,  they  would  ^^^^  ^V^f  Richara  ana      e 

R.'P.  p    284.      Whether  the  populace  commons,  and  \^»'  '^^^^Cl^.  P 

Changed   their  opinion  of  him   I  know  no  king  named  John.     Walsingnam,  p 

not.    He  was  still  disliked  by  them  two  248.                 «  oort  aifi  217 

years  before.    The  insurgents  of  1382  are  i  Walsing.  p.  290,  815, 817. 

VOL.  III.  5 


66 


PROCEEDINGS  OF  PARLIAMENT.    Chap.  Vin.  Pabt  III 


Though  no  king  could  be  less  respectable  than  Richard, 
yet  the  constitution  invested  a  sovereign  with  such 
Sore  poiTr  ample  prerogative,  that  it  was  far  less  easy  to 
on  his  resist  his  personal  exercise  of  power  than  the  un- 

mnjority.  settled  councils  of  a  minority.  In  the  parliament 
6  R  II.,  sess.  2,  the  commons  pray  certain  lords,  whom  they 
name,  to  be  assigned  as  their  advisers.  This  had  been  per- 
mitted in  the  two  last  sessions  without  exception.^  But  the 
king,  in  granting  their  request,  reserved  his  right  of  naming 
any  others.^  Though  the  commons  did  not  relax  in  their 
importunities  for  the  redress  of  general  grievances,  they  did 
not  venture  to  intermeddle  as  before  with  the  conduct  of  ad- 
ministration. They  did  not  even  object  to  the  grant  of  the 
marquisate  of  Dubhn,  with  almost  a  princely  dominion  over 
Ireland;  which  enormous  donation  was  confirmed  by  act  of 
parliament  to  Vere,  a  favorite  of  the  king.*  A  petition  that 
the  officers  of  state  should  annually  visit  and  inquire  into  his 
household  was  answered  that  the  king  would  do  what  he 
pleased.^  Yet  this  was  little  in  comparison  of  their  former 
proceedings. 

There  is  nothing,  however,  more  deceitful  to  a  monarch, 
Proceedings  unsupported  by  an  armed  force,  and  destitute  of 
of  pariia-       wary  adviscrs,  than  this  submission  of  his  people. 

ment  in  the       .r,,v.  i.  .  !.• 

tenth  of  A  smgle  effort  was  enough  to  overturn  his  govem- 
Richard.  ment.  Parliament  met  in  the  tenth  year  of  his 
reign,  steadily  determined  to  reform  the  administration,  and 
especially  to  punish  its  chief  leader,  Michael  de  la  Pole,  earl 
of  Suffolk  and  lord  chancellor.  According  to  the  remarkable 
narration  of  a  contemporary  historian,*  too  circumstantial  to 
be  rejected,  but  rendered  somewhat  doubtful  by  the  silence 
of  all  other  writers  and  of  the  parliamentary  roll,  the  king 
was  loitering  at  his  palace  at  Eltham  when  he  received  a  mes- 
sage from  the  two  houses,  requesting  the  dismissal  of  Suffolk, 
since  they  had  matter  to  allege  against  him  that  they  could  not 
move  while  he  kept  the  office  of  chancellor.  Richard,  with  his 
usual  intemperance,  answered  that  he  would  not  for  their  re- 


1  Rot.  Pari.  5  R.  n.  p.  100 ;  6  R.  U.  that  nine  lords  had  been  appointed  in 

B.  1,  p.  134.  the  last  parliament,  viz.  9  R.  II.,  to  in 

*  p.  145.  quire  into  the  state  of  the  household,  and 

*  Rot.  Pari.  9  R.  n.  p.  209.  reform  whatever  was  amiss.  But  nothing 

*  lb.  p.  213.     It  is  however  asserted  of  this  appears  In  the  roll. 

in  the  articles  of  impeachment  against  !>  Knyghton,  in  Twysden  z.  Script.  c<^ 

Suffolk,  and  admitted  by  his  defence,  2680. 


English  Const.     IMPEACHMENT  OF  SUFFOLK.  67 

quest  remove  the  meanest  scullion  from  his  kitchen.     They 
returned  a  positive  refusal  to  proceed  on  any  public  business 
until  the  king  should  appear  personally  in  parliament  and 
displace  the  chancellor.     The  king  required  forty  knights  to 
be  deputed  from  the  rest  to  inform  him  clearly  of  their  wish- 
es.    But  the  commons  declined  a  proposal   m  which   they 
feared,  or  affected  to  fear,  some  treachery.     At  length  the 
duke  of  Gloucester  and  Arundel  bishop  of  Ely  were  com- 
missioned  to  speak  the  sense  of  parliament ;  and  they  de- 
livered it,  if  we  may  still  believe  what  we  read,  in  very  extra- 
ordinary language,  asserting  that  there  was  an  ancient  statute, 
according  to  which,  if  the  king  absented  himself  from  parlia- 
ment without  just  cause  during  forty  days,  which  he  had  now 
exceeded,  every  man  might  return  without  permission  to  his 
own  country  j  and,  moreover,  there  was  another  statute,  and 
(as  they  might  more  truly  say)  a  precedent  of  no  remote 
date,  that  if  a  king,  by  bad  counsel,  or  his  own  folly  and  ob- 
stinacy, alienated  himself  from  his  people,  and  would  not  gov- 
em  according  to  the  laws  of  the  land  and  the  advice  of  the 
peers,  but  madly  and  wantonly  followed  his  own  single  will,  it 
should  be  lawful  for  them,  with  the  common  assent  of  the 
people,  to  expel  him  from  his  throne,  and  elevate  to  it  some 
iear  kinsman  of  the  royal  blood.     By  this  discourse  the  kmg 
was  induced  to  meet  his  parUament,  where  Suffolk  was  re- 
moved from  his  office,  and  the  impeachment  agamst  hun 

commenced.^  ,, 

The  charges  against  this  minister,  without  bemg  wholly 
frivolous,  were  not  so  weighty  as  the  clamor  of  the  i^^peach- 
commons  might  have  led  us  to  expect     Besides  m^^^f 
forfeiting  all  his  grants  from  the  crown,  he  was 
committed  to  prison,  there  to  remain  tiU  he  should  have  paid 
such  fine  as  the  king  might  impose ;  a  sentence  that  would 


1  Upon  full  consideratiouj  I  am  much 
inclined  to  give  credit  to  this  passage  of 
Knyghton,  as  to  the  main  facts;   and 
perhaps  even  the  speech  of  Gloucester 
and  the  bishop  of  Ely  is  more  likely  to 
have  been  made  public  by  them  than  in- 
Tented  by  so  jejune  an  hiptorian.    Wal- 
slngham  indeed  says   nothing   of    the 
matter;  but  he  is  so  unequally  informed 
and  so  frequently  defective,  that  we  can 
dra«v  no  strong  inference  from  his  silence. 
What  most  weighs  with  me  is  that  par- 
liament met  on  Oct.  1,  1387,  and  was 
not  dissolved    till  Nov.  28;    a   longer 
period  than  the  business  done  in  it  seems 


to  have  required ;  and  also  that  Suffolk, 
who  opened  the  session  as  chancellor^ 
styled  "  darrein  chancellor  "  in  the  arti- 
cles of  impeachment  against  him ;  so 
that  he  must  have  been  removed  in  tne 
interval,  which  tallies  with  Knyghton'fl 
story.  Besides,  it  is  plain,  from  the  a- 
mous  questions  subsequently  put  oj  Uie 
king  to  his  judges  at  Nottingham,  that 
both  the  right  of  retiring  without  & 
regular  dissolution,  and  the  precedent  of 
Edward  II.,  had  been  discussed  m  pwli*- 
ment,  which  does  not  appear  anywhew 
else  than  in  Knyghton. 


e8 


COMMISSION  OF  REFORM.    Chap.  Vin.  Pabt  IIL 


have  been  outrageously  severe  in  many  cases,  though  little 
more  than  nugatory  in  the  present.^ 

This  was  the  second  precedent  of  that  grand  constitutional 
Commission  resourcc,  parliamentary  impeachment :  and  more  re- 
ef reform.  markablc  from  the  eminence  of  the  person  attacked 
than  that  of  lord  Latimer  in  the  fiftieth  year  of  Edward  III.'* 
The  commons  were  content  to  waive  the  prosecution  of  any 
other  ministers ;  but  they  rather  chose  a  scheme  of  reforming 
the  administration,  which  should  avert  both  the  necessity  of 
punishment  and  the  malversations  that  provoked  it.  They  pe- 
titioned the  king  to  ordain  in  parliament  certain  chief  officers 
of  his  household  and  other  lords  of  his  council,  with  power 
to  reform  those  abuses,  by  which  his  crown  was  so  much 
blemished  that  the  laws  were  not  kept  and  his  revenues  were 
dilapidated,  confirming  by  a  statute  a  commission  for  a  year, 
and  forbidding,  under  heavy  penalties,  any  one  from  oppos- 
ing, in  private  or  openly,  what  they  should  advise.'  With 
this  the  king  complied,  and  a  commission  founded  upon  the 
prayer  of  parhament  was  established  by  statute.  It  compre- 
hended fourteen  persons  of  the  highest  eminence  for  rank 
and  general  estimation;  princes  of  the  blood  and  ancient 
servants  of  the  crown,  by  whom  its  prerogatives  were  not 
likely  to  be  unnecessarily  impaired.  In  fact  the  principle  of 
this  commission,  without  looking  back  at  the  precedents  in  the 
reign  of  John,  Henry  III.,  and  Edward  11.,  which  yet  were 
not  without  their  weight  as  constitutional  analogies,  was  mere- 
ly that  which  the  commons  had  repeatedly  maintained  during 
the  minority  of  the  present  king,  and  which  had  produced 
the  former  commissions  of  reform  in  the  third  and  fifth  years 
of  his  reign.  These  were  upon  the  whole  nearly  the  same 
in  their  operation.  It  must  be  owned  there  was  a  more  ex- 
tensive sway  virtually  given  to  the  lords  now  appointed,  by 
the  penalties  imposed  on  any  who  should  endeavor  to  obstruct 
what  they  might  advise ;  the  design  as  well  as  tendency  of 
which  was  no  doubt  to  throw  the  whole  administration  into 
their  hands  during  the  period  of  this  commission. 

Those  who  have  written  our  history  with  more  or  less  of 

1  Rot.  Pari.  vol.  iii.   p.  219.  Clement  in  the  schism.    This  crusade 

*  Articles  had  been  exhibited  by  the  had  been  exceedingly  popular,  but  its  ill 

chancellor  before  the  peers,  in  the  seventh  success  had  the  usual  effect.    The  com- 

of  the  king,  against  Spencer,  bishop  of  mons  were  not  parties  in  this  proceeding 

Norwich,   who   had  led  a  considerable  Rot.  Pari.  p.  1&3. 

army  in  a  disastrous  expedition  against  3  Rot.  Pari.  p.  221. 

the  Flemings,  adherents  to  the  autipope 


Ehgush  Const.       COMMISSION  OF  REFORM. 


60 


a  Tory  bias  exclaim  against  this  parliamentary  commission 
as  an  unwarrantable  violation  of  the  king's  sovereignty,  and 
even  impartial  men  are  struck  at  first  sight  by  a  measure 
that  seems  to  overset  the  natural  balance  of  our  constitution. 
But  it  would  be  unfair  to  blame  either  those  concerned  in  this 
commission,  some  of  whose  names  at  least  have  been  handed 
down  with  unquestioned  respect,  or  those  high-spirited  repre- 
sentatives of  the  people  whose  patriot  firmness  has  been  hith- 
erto commanding  all  our  sympathy  and  gratitude,  unless  we 
could  distinctly  pronounce  by  what  gentler  means  they  could 
restrain  the  excesses  of  government.     Thu^een  parliaments 
had  already  met  since  the  accession  of  Richard ;  in  all  the 
same  remonstrances  had  been  repeated,  and  the  same  prom- 
ises renewed.     Subsidies,  more  frequent  than  in  any  former 
reign,  had  been  granted  for  the  supposed  exigencies  of  the 
war;  but  this  was  no  longer  illummated  by  those  dazzling 
victories  which  give  to  fortune  the  mien  of   wisdom;  the 
coasts  of  England  were  perpetually  ravaged,  and  her  trade 
destroyed ;  while  the  administration  incurred  the  suspicion  of 
diverting  to  private  uses  that  treasure  which  they  so  feebly 
and  unsuccessfully  applied  to  the  pubUc  service.     No  voice 
of  his  people,  until  it  spoke  in  thunder,  would  stop  an  intoxi- 
cated boy  in  the  wasteful  career  of  dissipation.     He  loved 
festivals  and  pageants,  the  prevaiUng  folly  of  his  time,  with 
unusual  frivolity  ;  and  his  ordinary  living  is  represented  as 
beyond  comparison  more  showy  and  sumptuous  than  even 
that  of  his  magnificent  and  chivalrous  predecessor.     Acts  of 
parliament  were  no  adequate  barriers  to  his  misgovemment 
**0f  what  avail  are  statutes,"  says  Walsingham,  "smce  the 
king  with  his  privy  council  is  wont  to  abolish  what  parliar 
ment  has  just  enacted  ?  "  ^     The  constant  prayer  of  the  com- 
mons in  every  session,  that  former  statutes  might  be  kept  m 
force,  is  no  slight  presumption  that  they  were  not  secure  of 
being  regarded.     It  may  be  true  that  Edward  III.'s  govern- 
ment h^  been  full  as  arbitrary,  though  not  so  unwise,  as  his 
grandson's ;  but  this  is  the  strongest  argument  that  nothing 
less  than  an  extraordinary  remedy  could  preserve  the  still 
unstable  liberties  of  England.  . 

The  best  plea  that  could  be  made  for  Richard  was  his  inex- 
perience, and  the  misguided  suggestions  of  favorites.  This, 
however,  made  it  more  necessary  to  remove  those  false  ad- 

1  Rot.  Pari.  p.  281. 


I 


70 


COMMISSION  OF  REFORM.    Chap.  VHI.  Part  HL 


visers,  and  to  supply  that  inexperience.  Unquestionably  the 
choice  of  ministers  is  reposed  in  the  sovereign  ;  a  trust,  like 
every  other  attribute  of  legitimate  power,  for  the  public  good ; 
not,  what  no  legitimate  power  can  ever  be,  the  instrument 
of  selfishness  or  caprice.  There  is  something  more  sacred 
than  the  prerogative,  or  even  than  the  constitution ;  the  pub- 
lic weal,  for  which  all  powers  are  granted,  and  to  which 
they  must  all  be  referred.  For  this  public  weal  it  is  con- 
fessed to  be  sometimes  necessary  to  shake  the  possessor  of  the 
throne  out  of  his  seat ;  could  it  never  be  permitted  to  suspend, 
though  but  indirectly  and  for  a  time,  the  positive  exercise  of 
misapplied  prerogatives  ?  He  has  learned  in  a  very  differ- 
ent school  from  myself,  who  denies  to  parliament  at  the  pres- 
ent day  a  preventive  as  well  as  vindictive  control  over  the 
administration  of  affairs  ;  a  right  of  resisting,  by  those  means 
which  lie  within  its  sphere,  the  appointment  of  unfit  minis- 
ters. These  means  are  now  indirect ;  they  need  not  to  be 
the  less  effectual,  and  they  are  certainly  more  salutary  on 
that  account.  But  we  must  not  make  our  notions  of  the  con- 
stitution in  its  perfect  symmetry  of  manhood  the  measure  of 
its  infantine  proportions,  nor  expect  from  a  parliament  just 
struggling  into  life,  and  "  pawing  to  get  free  its  hinder  parts," 
the  regularity  of  definite  and  habitual  power. 

It  is  assumed  rather  too  lightly  by  some  of  those  historians 
to  whom  I  have  alluded  that  these  commissioners,  though  but 
appointed  for  a  twelvemonth,  designed  to  retain  longer,  or 
would  not  in  fact  have  surrendered,  their  authority.  There 
is  certainly  a  danger  in  these  delegations  of  preeminent  trust ; 
but  I  think  it  more  formidable  in  a  republican  form  than  un- 
der such  a  government  as  our  own.  The  spirit  of  the  peo- 
ple, the  letter  of  the  law,  were  both  so  decidedly  monarchi- 
cal, that  no  glaring  attempt  of  the  commissioners  to  keep  the 
helm  continually  in  their  hands,  though  it  had  been  in  the 
^  king's  name,  would  have  had  a  fair  probability  of  success. 
And  an  oligarchy  of  fourteen  persons,  different  in  rank  and 
profession,  even  if  we  should  impute  criminal  designs  to 
all  of  them,  was  ill  calculated  for  permanent  union.  Indeed 
the  facility  with  which  Richard  reassumed  his  full  powers 
two  years  afterwards,  when  misconduct  had  rendered  his  cir- 
cumstances far  more  unfavorable,  gives  the  corroboration  of 
experience  to  this  reasoning.  By  yielding  to  the  will  of  his 
fMurliament  and  to  a  temporary  suspension  of  prerogative,  this 


English  C^msT.    ANSWERS  TO  RICHARD'S  QUESTIONS.        71 

unfortunate  prince  might  probably  have  reigned  long  and 
peacefully ;  the  contrary  course  of  acting  led  eventuaUy  to 
his  deposition  and  miserable  death. 

Befbre  the  dissolution  of  parliament  Richard  made  a  verbal 
protestation  that  nothing  done  therein  should  be  m  prejudice 
of  his  rights ;  a  reservation  not  unusual  when  any  remarka- 
ble concession  was  made,  but  which  could  not  de-  ^^^^^^^  ^^ 
cently  be  interpreted,  whatever  he  might  mean,  as  the  judges  to 
a  dissent  from   the  statute  just  passed.      Some  «;X  J. 
months  had  intervened  when  the  king,  who  had 
already  released  Suffolk  from  prison  and  restored  him  to  his 
favor,  procured  from  the  judges,  whom  he  had  summoned  to 
Nottingham,  a  most  convenient  set  of  answers  to  questions 
concerning  the  late  proceedings  in  parliament.     Tresilian  and 
Belknap,  chief  justices  of  the  King's  Bench   and  Common 
Pleas,  with  several  other  judges,  gave  it  under  their  seals  that 
the  late  statute  and  commission  were  derogatory  to  the  prerog- 
ative ;  that  all  who  procured  it  to  be  passed,  or  persuaded  or 
compelled  the  king  to  consent  to  it,  were  guilty  of  treason ; 
that  the  king's  business  must  be  proceeded  upon  before  any 
other  in  pariiament ;  that  he  may  put  an  end  to  the  session 
at  his  pleasure ;  that  his  ministers  cannot  be  impeached  with- 
out  his  consent ;  that  any  members  of  pariiament  contravening 
the  three  last  articles  incur  the  penalties  of  treason,  and  espe- 
cially he  who  moved  for  the  sentence  of  deposition  against 
Edward  II.  to  be  read ;  and  that  the  judgment  against  the 
earl  of  Suffolk  might  be  revoked  as  altogether  erroneous. 

These  answers,  perhaps  extorted  by  menaces,  as  aU  the 
judges,  except  Tresilian,  protested  before  the  next  subsequent 
parliament,  were  for  the  most  part  servile  and  un-  '^^^^^ '  ^- 
constitutional.     The   indignation   which    they   excited,   and 
the  measures  successfully  taken  to  withstand  the  king  s  desi^, 
belong  to  general  history ;  but  I  shall  pass  slightly  over  that 
season  of  turbulence,  which  afforded  no  legitimate  precedent 
to  our  constitutional  annals.     Of  the  five  lords  app^ants,  as 
they  were  called,  Gloucester,  Derby,  Nottingham,  Warwick, 
and  Arundel,  the  three  former,  at  least,  have  little  claim  to  our 
esteem ;  but  in  every  age  it  is  the  sophism  of  malignant  and 
peevish  men  to  traduce  the  cause  of  freedom  itseK,on  axi- 
count  of  the  interested  motives  by  which  its  ostensible  advo- 
cates have  frequently  been  actuated.     The  parliament,  who 
had  the  country  thoroughly  with  them,  acted  no  doubt  hon- 


I 


l|: 


72 


SUBSEQUENT  REVOLUTION.    Chap.  VHI.  Part  in. 


estly,  but  with  an  inattention  to  the  rules  of  law,  culpable  in- 
deed, yet  from  which  the  most  civilized  of  their  successors, 
in  the  heat  of  passion  and  triumph,  have  scarcely  been  ex- 
empt. Whether  all  with  whom  they  dealt  severely,  some 
of  them  apparently  of  good  previous  reputation,  merited  such 
punishment,  is  more  than,  upon  uncertain  evidence,  a  modem 
writer  can  profess  to  decide.^ 

Notwithstanding  the  death  or  exile  of  all  Richard's  favor- 
ites, and  the  oath  taken  not  only  by  parliament,  but  by  every 
class  of  the  people,  to  stand  by  the  lords  appellants,  we  find 
him,  after  about  a  year,  suddenly  annihilating  their  preten- 
sions, and  snatching  the  reins  again  without  obstruction. 
The  secret  cause  of  this  event  is  among  the  many  obscurities 
that  attend  the  history  of  his  reign.  It  was  conducted  with 
a  spirit  and  activity  which  broke  out  two  or  three  times  in 
the  course  of  his  imprudent  life ;  but  we  may  conjecture 
that  he  had  the  advantage  of  disunion  among  his  enemies. 
For  some  years  after  this  the  king's  administration  was  pru- 
dent. The  great  seal,  which  he  took  away  from  archbishop 
Arundel,  he  gave  to  Wykeham  bishop  of  Winchester,  another 
member  of  the  reforming  commission,  but  a  man  of  great  mod- 
eration and  political  experience.  Some  time  after  he  restored 
the  seal  to  Arundel,  and  reinstated  the  duke  of  Gloucester  in 
the  council.  The  duke  of  Lancaster,  who  had  been  absent 
during  the  transactions  of  the  tenth  and  eleventh  years  of 
the  king,  in  prosecution  of  his  Castilian  war,  formed  a  link 
between  the  parties,  and  seems  to  have  maintained  some 
share  of  public  favor. 

There  was  now  a  more  apparent  harmony  between  the 
court  and  the  parliament.  It  seems  to  have  been 
hl^ly  ta.citly  agreed  that  they  should  not  interfere  with 
betw^n  the  the  king's  household  expenses ;  and  they  gratified 
pwSament.  ^^^  i^  ^  point  where  his  honor  had  been  most 
wounded,  declaring  his  prerogative  to  be  as  high 
and  unimpaired  as  that  of  his  predecessors,  and  repealing  the 
pretended  statute  by  virtue  of  which  Edward  II.  was  said  to 
have  been  deposed.^  They  were  provident  enough,  however 
to  grant  conditional  subsidies,  to  be  levied  only  in  case  of  a 

»  The    judgment    against   Simon   de  IV.;  a  &ir  presxunption  of  its  ioJastice. 

Bnrley,  one  of  those  who  were  executed  Rot.  Pari.  toI.  ili.  p.  464. 

on  this  occasion,  upon  impeachment  of  a  Rot  Pari.  14  B.  II.  p.  279 ,  15  B.  U. 

the  commons,  was  rerersed  under  Henry  p.  286. 


E,OLi8B  C0»8i.    DISUNION  AMONG  LEADING  PEERS.  73 

^imief  rTcS   never  ventured  to  recall  his  favorites, 
SSke  SSShis  unabated  affection  for  Vere  by  a  pom- 
^n«°funeral     Few  complaints,  unequivocally  affecting  the 
Cstt,^re  pLented  by  the  commons.     In  one  p^l^ 
ment^e  chancellor,  treasurer,  and  counsel  resigned  their 
offlcL   submHting  themselves  to  its  judgment  m  case  any 
matter  of  rcusation  should  be  alleged  agamst  them.    The 
"„Xr  a  day's  deliberation,  probably  to  mje^^^^^^^ 
appiobat  on  appear  more  solemn,  declared  m  f»^  Pf^'" 
ttot  nothin"  amiss  had  been  found  m  the  cof^et  «  these 
m^isters  and  that  they  held  them  to  have  faithfully  d^ 
ZShdr  duties.    The  king  reinstated  them  according^, 
S  a  protestation  that  this  should  not  be  made  a  precedent- 
and  that  it  was  his  right  to  change  his  servants  at  pl^^ 
But  this  summer  season  was  not  to  last  forever.     Richard 
had  but  dissembled  with  those  concerned  in  the  ^^^^ 
transactions  of  1388,  none  of  whom  he  could  ever  ^^s^ 
forgive.    These  lords  in  lapse  of  time^ere  di-  j^„.« 
yid°d  among  each  other.    The  earls  of  Derby  and 
NottinMiam  were  brought  into  the  king's  interest.    The  earl 
of  Arundel  came  to  an  open  breach  with  the  duke  of  Lan- 
L^   whose  pardon  he  was  compelled  to  ask  for  an  un- 
founded awusadon  in  parliament.'     Gloucester's  ungovemed 
SSnrrCdbypop'ularity  could  not  brookth^^^^^^^ 
of  his  brother  Lancaster,  who  was  much  less  odious  to  the 
inf  He  had  constantly  urged  and  defended  the  concession 
orSuienne  to  this  prince  to  be  held  for  life,  reserving  only 
Ws  Uerhomage  to  Richard  as  king  of  France;/  a  grant  as 
SpopSlar  amo^ng  the  natives  of  that  country  as  it  was  derog- 
ar/"o  the  crown ;  but  Lancaster  was  not  much  indebted  to 
his  brother  for  assistance  which  was  only  given  in  order  to 
imSus  influence  in  England.    The  truce  with  France, 
andX  king's  French  marriage  which  Lanc^ter  supported 
were  passionately  opposed  by  Gloucester.    -^dAe  latter 
had  iven  keener  provocation  by  speakmg  contemptuously 
natt  given  Keeirei   j.        „    ,     .  •'  g^jneford  which  contam- 
of  that  misalhance  with  Katherme  owine.o 
inated  the  blood  of  Plantagenet.    To  the  Pf  I'^l  ^^"^ 
moned  in  the  20th  of  Richard,  one  object  of  which  was  to 

.B.t.P«i.X8K.n.p.268.  ..  ^^era'"""'^'^ 

8  Rymer,  t.  vu.  p.  6W,  oW. 


74 


PKOSECUTION  OF  HAXET.    Chap.  VIII.  Part  HI 


legitimate  the  duke  of  Lancaster's  antenuptial  children  by 
this  lady,  neither  Gloucester  nor  Arundel  would  repair. 
There  passed  in  this  assembly  something  remarkable,  as  it 
exhibits  not  only  the  arbitrary  temper  of  the  king,  a  point  by 
no  means  doubtful,  but  the  inefficiency  of  the  commons  to 
resist  it  without  support  from  political  confederacies  of  the 
nobility.     The  circumstances  are  thus  related  in  the  record. 

During  the  session  the  king  sent  for  the  lords  into  parlia- 
Richard'8  ™®^*  ^"®  aftemoon,  and  told  them  how  he  had 
P«M«c"ti<"»  heard  of  certain  articles  of  complaint  made  by  the 
^^'  commons  in  conference  with  them  a  few  days  be- 
fore, some  of  which  appeared  to  the  king  against  his  royalty, 
estate,  and  liberty,  and  commanded  the  chancellor  to  inform 
him  fully  as  to  this.  The  chancellor  accordingly  related  the 
whole  matter,  which  consisted  of  four  alleged  grievances ; 
namely,  that  sheriffs  and  escheators,  notwithstanding  a  stat- 
ute, are  continued  in  their  offices  beyond  a  year ;  ^  that  the 
Scottish  marches  were  not  well  kept ;  that  the  statute  against 
wearing  great  men's  liveries  was  disregarded ;  and,  lastly, 
that  the  excessive  charges  of  the  king's  household  ought  to 
be  diminished,  arising  from  the  multitude  of  bishops  and  of 
ladies  who  are  there  maintained  at  his  cost. 

Upon  this  information  the  king  declared  to  the  lords  that 
through  God's  gift  he  is  by  Hneal  right  of  inheritance  king  of 
England,  and  will  have  the  royalty  and  freedom  of  his  crown, 
from  which  some  of  these  articles  derogate.  The  first  peti- 
tion, that  sheriffs  should  never  remain  in  office  beyond  a  year, 
he  rejected ;  but,  passing  lightly  over  the  rest,  took  most  of- 
fence that  the  commons,  who  are  his  lieges,  should  take  on 
themselves  to  make  any  ordinance  respecting  his  royal  per- 
son or  household,  or  those  whom  he  might  please  to  have 
about  him.  He  enjoined  therefore  the  lords  to  declare  plainly 
to  the  conmions  his  pleasure  in  this  matter ;  and  especially 
directed  the  duke  of  Lancaster  to  make  the  speaker  give  up 
the  name  of  the  person  who  presented  a  bill  for  this  last  ar- 
ticle in  the  lower  house. 


1  Hume  has  represented  this  as  if  the 
commons  had  petitioned  for  the  continu- 
ance of  sheriffs  beyond  a  year,  and 
grounds  upon  this  mistake  part  of  his 
defence  of  Richard  II.  (Note  to  vol,  ii. 
p  270,  4to.  edit.)  For  this  he  refers  to 
Cotton's  Abridgment ;  whether  rightly  or 
not  I  cannot  say,  being  little  acquainted 
with  that  inaccurate  book,  upon  wliich  it 


is  unfortunate  that  Hume  relied  so  much. 
The  passage  from  Walsingham  in  the 
same  note  is  also  wholly  perrerted ;  as 
the  reader  will  discover  without  further 
observation.  An  historian  must  be 
strangely  warped  who  quotes  a  passage 
explicitly  complaining  of  illegal  acts  Tn 
order  to  infer  that  those  very  acts  wew 
legal. 


English  Const.    ARBITRARY  MEASURES  OF  RICHARD  H.    75 

The  commons  were  in  no  state  to  resist  this  unexpected 
promptitude  of  action  in  the  king.      They  surrendered  the 
obnoxious  bill,  with  its  proposer,  one  Thomas  Haxey,  and 
with  great  humility  made  excuse  that  they  never  designed  to 
ffive  offence  to  his  majesty,  nor  to  interfere  with  his  house- 
hold or  attendants,  knowing  well  that  such  things  do  not  be- 
long to  them,  but  to  the  king  alone  ;  but  merely  to  draw  his 
attention,  that  he  might  act  therein  as  should  please  him  best. 
The  king  forgave  these  pitiful  suppliants;  but  Haxey  was 
adiudired^in  parliament  to  suffer  death  as  a  traitor.     As,  how- 
ever he  was  a  clerk,^  the  archbishop  of  Canterbury,  at  the 
head  of  the  prelates,  obtained  of  the  ting  that  his  life  might 
be  spared,  and  that  they  might  have  the  custody  of  his  per- 
son ;  protesting  that  this  was  not  claimed  by  way  of  right,  but 
merely  of  the  king's  grace.^ 

This  was  an  open  defiance  of  parliament,  and  a  declara- 
tion of  arbitrary  power.     For  it  would  be  impossible  to  con- 
tend that,  after  the  repeated  instances  of  control  over  public 
expenditure  by  the  commons  since  the  50th  of  Edward  III., 
this  principle  was  novel  and  unauthorized  by  the  constitution, 
or  that  the  right  of  free  speech  demanded  by  them  in  every 
parliament  was  not  a  real  and  indisputable  privilege.     The 
king,  however,  was  completely  successful,  and,  having  proved 
the  feebleness  of  the  commons,  fell  next  upon  those  ^^itrary 
he  more  dreaded.     By  a  skilful  piece  of  treachery  measures  of 
he  seized  the  duke  of  Gloucester,  and  spread  con- 
sternation among  all  his   party.      A  parliament  was  sum- 
moned, in  which  the  only  struggle  was  to  outdo  the  king  s 
wishes,   and    thus    to   efface   their  former   transgressions.' 
Gloucester,  who  had  been  murdered  at  Calais,  was  attainted 


I  The  church  would  perhaps  have  in- 
terfered in  behalf  of  Haxey  if  he  had 
only  received  the  tonsure.  But  it  seems 
that  he  was  actually  in  orders  ;  for  the 
record  calls  him  Sir  Thomas  Haxey,  a 
title  at  that  time  regularly  given  to  the 
parson  of  a  parish.  If  this  be  so,  it  is  a 
remarkable  authority  for  the  clergy's  ca- 
pacity of  sitting  In  parliament. 

a  Rot.  Pari.  20  R.  II.  p.  339.  In 
Henry  IV. 's  first  parliament  the  com- 
mons petitioned  for  Uaxey's  restoration, 
and  truly  sav  that  his  sentence  was  en 
aneantisseraent  des  custumes  de  la  com- 
mune, p.  4»t.  His  judgment  was  re- 
versed by  both  houses,  as  having  passed 
de  volonte  du  roy  Richard  en  contre  droit 
et  la  course  quel  avoit  este  devant  en 


parlement.  p.  480.  There  can  be  no 
doubt  with  any  man  who  looks  atten- 
tively at  the  passages  relative  to  Haxey, 
that  he  was  a  member  of  parliament; 
though  this  was  questioned  a  few  years 
ago  by  the  committee  of  the  house  of 
commons,  who  made  a  report  on  the  right 
of  the  clergy  to  be  elected ;  a  right  which, 
I  am  inclined  to  believe,  did  exist  down 
to  the  Reformation,  as  the  grounds  al- 
leged for  Nowell's  expulsion  in  the  first, 
of  Mary,  besides  this  instance  of  Haxey, 
conspire  to  prove,  though  it  has  since 
been  lost  by  disuse. 

3  This  assembly,  if  we  may  trust  the 
anonymous  author  of  the  Life  of  Richard 
II.,  published  by  Heame,  was  sur- 
rounded by  the  king's  troops,    p.  183 


76    ARBITRARY  MEASURES  OF  RICHARD  H.  Ch.  VHI.  Pt.  m, 


after  his  death ;  Arundel  was  beheaded,  his  brother  the  arch- 
bishop of  Canterbury  deposed  and  banished,  Warwick  and 
Cobham  sent  beyond  sea.  The  commission  of  the  tenth,  the 
proceedings  in  parliament  of  the  eleventh  year  of  the  king, 
were  annulled.  The  answers  of  the  judges  to  the  questions 
put  at  Nottingham,  which  had  been  punished  with  death  and 
exile,  were  pronounced  by  parliament  to  be  just  and  legal. 
It  was  declared  high-treason  to  procure  the  repeal  of  any 
judgment  against  persons  therein  impeached.  Their  issue 
male  were  disabled  from  ever  sitting  in  parliament  or  hold- 
ing place  in  council.  These  violent  ordinances,  as  if  the 
precedent  they  were  then  overturning  had  not  shielded  itself 
with  the  same  sanction,  were  sworn  to  by  parliament  upon 
the  cross  of  Canterbury,  and  confirmed  by  a  national  oath, 
with  the  penalty  of  excommunication  denounced  against  its 
infringers.  Of  those  recorded  to  have  bound  themselves  by 
this  adjuration  to  Richard,  far  the  greater  part  had  touched 
the  same  relics  for  Gloucester  and  Arundel  ten  years  before, 
and  two  years  afterwards  swore  allegiance  to  Henry  of  Lan- 
caster.^ 

In  the  fervor  of  prosecution  this  parliament  could  hardly 
go  beyond  that  whose  acts  they  were  annulling ;  and  each  is 
alike  unworthy  to  be  remembered  in  the  way  of  precedent. 
But  the  leaders  of  the  former,  though  vindictive  and  turbu- 
lent, had  a  concern  for  the  public  interest ;  and,  after  pun- 
ishing their  enemies,  left  the  government  upon  its  right 
foundation.  In  this  all  regard  for  liberty  was  extinct ;  and 
the  commons  set  the  dangerous  precedent  of  granting  the 
king  a  subsidy  upon  wool  during  his  life.  Their  remarkable 
act  of  severity  was  accompanied  by  another,  less  unexampled, 
but,  as  it  proved,  of  more  ruinous  tendency.  The  petitions 
of  the  commons  not  having  been  answered  during  the  ses- 
sion, which  they  were  always  anxious  to  conclude,  a  commis- 
sion was  granted  for  twelve  peers  and  six  commoners  to  sit 
after  the  dissolution,  and  "  examine,  answer,  and  fully  deter- 
mine, as  well  all  the  said  petitions,  and  the  matters  therein 
comprised,  as  all  other  matters  and  things  moved  in  the  king's 
presence,  and  all  things  incident  thereto  not  yet  determined, 
as  shall  seem  best  to  them."^  The  "other  matters"  men- 
tioned above  were,  I  suppose,  private  petitions  to  the  king's 


»  Rot.  Pari.  21  R.  n.  p.  847. 


s  21 R.  n.  p. 


BirousH  Const.    ARBITRARY  MEASURES  OF  RICHARD  H.    77 


council  in  parliament,  which  had  been  frequently  despatched 
afi^r  a  dissolution.     For  in  the  statute  which  establishes  this 
commission,  21  R.  II.  c.  16,  no  powers  are  committed  but 
those  of  examining  petitions :  which,  if  it  does  not  confirm  the 
charge  afterwards  alleged  against  Richard,  of  falsifying  the 
parliament  roll,  must  at  least  be  considered  as  limiting  and 
explaining  the  terms  of  the  latter.     Such  a  trust  had  been 
committed  to  some  lords  of  the  council  eight  years  before,  in 
very  peaceful  times  ;  and  it  was  even  requested  that  the  same 
might  be  done  in  future  parliaments.*      But    it  is  obvious 
what   a  latitude   this  gave  to  a  prevailing  faction.     These 
eighteen  commissioners,  or  some  of  them  (for  there  were  who 
disliked  the  turn  of  affairs),  usurped  the  full  rights  of  the 
legislature,  which  undoubtedly  were  only   delegated  in  re- 
spect of  business  already  commenced.^     They  imposed  a  per- 
petual oath  on  prelates  and  lords  for  all  time  to  come,  to  be 
taken  before  obtaining  livery  of  their  lands,  that  they  would 
maintain  the  statutes  and  ordinances  made  by  this  parliament, 
or  "  afterwards  by  the  lords  and  kniglits  having  power  com- 
mitted to  them  by  the  same."     They  declared  it  high  treason 
to  disobey  their  ordinances.     They  annulled  the  patents  of 
the  dukes  of  Hereford  and  Norfolk,  and  adjudged  Henry 
Bowet,  the  former's  chaplain,  who  had  advised  him  to  petition 
for  his  inheritance,  to  the  penalties  of  treason.'*     And  thus, 
having  obtained  a  revenue  for  life,  and  the  power  of  parliament 
being  notoriously  usurped  by  a  knot  of  his  creatures,  the  king 
was  little  likely  to  meet  his  people  again,  and  became  as  truly 
absolute  as  his  ambition  could  require. 

It  had  been  necessary  for  this  purpose  to  subjugate  the 
ancient  nobility.      For  the  English    constitution  gave  them 


1  18  R.  II.  p.  266. 

*  This  proceeding  was  made  one  of  the 

articles  of  charge  against  Richard  in  the 

following  terms :    Item,  in    parliamento 

ultimo  ceiebrato   apud   Salopiam,  idem 

rex  proponens  opprimere  populum  suum 

procuravit  subtillter  et  fecit  concedi,quod 

potestas  parliament!  de  consensu  omnium 

Btatuuni  regni  sui  remaneret  apud  quas- 

dam  certas  personas   ad  terminandum, 

dinoluto  parliamento,  certas  petitiones 

In  eodem  parliamento  porrectas  protunc 

minimi  expeditas.      Cujus  concessionis 

colore  personae  sic  deputatae  processerunt 

ad  alia  generaliter  parliamentum  illud 

tuigentia ;  et  hoc  de  voluntate  regis  ;  in 

derogationem  states  parliament!,  et  in 

lum  incommodum  totius  n^ni  et 


perniciosum  exemplum.  Et  ut  super 
factis  eorum  hujusmodi  aliquem  colorem 
et  auctoritatem  viderentur  habere,  rex 
fecit  rotulos  parliamenti  pro  voto  bu« 
mutari  et  deleri,  contra  effectum  con- 
sensionis  praedictae.  Rot.  Pari.  1  H.  IV. 
Tol.  iii.  p.  418.  Whether  the  last  accusa- 
tion, of  altering  the  parliamentary  roll, 
be  true  or  not,  there  is  enough  left  in  it 
to  prove  everything  I  have  asserted  in 
the  text.  From  this  it  is  suflBciently 
manifest  how  unfairly  Carte  and  Hume 
have  drawn  a  parallel  between  this  self- 
deputed  legislative  commission  and  that 
appointed  by  parliament  to  reform  tht 
administration  eleven  years  before. 
8  Rot.  Pari.  p.  372,  885. 


!>l 


!♦ 


|! 


78        HEREFORD  AND  NORFOLK.  Chap.  VHl.  Part  HI. 

tti^JSes'of   ^"u^    paramount    rights   that  it  was   impossible 
Hereford        Cither  to  make  them  surrender  their  country's  free- 
and  Norfolk,   dom,  or  to  destroy  it  without  their  consent.     But 
several  of  the  chief  men  had  fallen  or  were  involved  with 
the  party  of  Gloucester.     Two  who,  having  once  belonged 
to  it,  had  lately  plunged  into  the  depths  of  infamy  to  ruin 
their  former  friends,  were  still  perfectly  obnoxious  to  the  king, 
who  never  forgave  their  original  sin.     These  two,  Henry  of 
Bolingbroke,  earl  of  Derby,  and  Mowbray,  earl  of  Notting- 
ham, now  dukes  of  Hereford  and  Norfolk,  the  most  powerful 
of  the  remaining  nobility,  were,  by  a  singular  conjuncture, 
thrown,  as  it  were,  at  the  king's  feet.     Of  the  political  mys- 
teries which  this  reign  affords,  none  is  more  inexplicable  than 
the  quarrel  of  these  peers.    In  the  parliament  at  Shrewsbury, 
in  1398,  Hereford  was  called  upon  by  the  king  to  relate  what 
had  passed  between  the  duke  of  Norfolk  and   himself  in 
slander  of  his  majesty.     He  detailed  a  pretty  long  and  not 
improbable  conversation,  in  which  Norfolk  had  asserted  the 
king's  intention  of  destroying  them  both  for  their  old  offence 
m  impeaching  his  ministers.     Norfolk  had  only  to  deny  the 
charge  and  throw  his  gauntlet  at  the  accuser.    It  was  referred 
to  the  eighteen  commissioners  who  sat  after  the  dissolution, 
and  a  trial  by  combat  was  awarded.     But  when  this,  after 
many  delays,  was  about  to  take  place  at  Coventry,  Richard 
mterfered  and  settled  the  dispute  by  condemning  Hereford  to 
banishment  for  ten  years  and  Norfolk  for  Ufe.     This  strange 
determination,  which  treated  both  as  guilty  where  only  one 
could  be  so,  seems  to  admit  no  other  solution  than  the  kin^^'s 
desire  to  rid  himself  of  two  peers  whom  he  feared  and  hated 
at  a  blow.     But  it  is  difficult  to  understand  by  what  means 
he  drew  the  crafty  Bolingbroke  into  his  snare.^     However 
this  might  have  been,  he  now  threw  away  all  appearance  of 
moderate  government.     The  indignities  be  had  suffered  in 
the  eleventh  year  of  his  reign  were  still  at  his  heart,  a  desire 
to  revenge  which  seems  to  have  been  the  mainspring  of  his 
conduct.    Though  a  general  pardon  of  those  proceedings  had 

1  Besides  the  contemporary  historians,    ishment  of  his  accuser  was  whollv  nn- 

;i><?edUl'the"LroTr?'''T  i?"^'^^^^  branrrtWeTthlt'wJJan 

JJTm  n  W°n!„^"ifu^fl^T°^  discoYer.    It  is  strange  that  Carte  should 

l««  Ih-^mSf,.  JL  ^^^"^  *?*'  Mowbray  express  surprise  at  the  sentence  upon  th« 

Ii^nHpSffnf  S°'^V°^',P"*^'  '^°f^'  ^^-  ^""^^  °f  Norfolk,  while  he  .eems  to  con- 

dependently of  Hereford's  accusation,  he  sider  that  upon  Hereford  aaVerv  eaulta- 

^^^XJ21^  T''}^^"'^^*f^'''''^  '^"^  ^'«-  Buthe\iewenje"hol7of  thS 
thfeWp^?^  of  /i?\^''®  parliament  of  reign,  and  of  those  that  ensued,  with  the 
the  eleventh  of  the  lung.    But  the  ban-    jaundiced  eye  of  Jacobitism. 


Ehgush  Const.    NECESSITY  FOR  DEPOSING  RICHARD.         79 

been  granted,  not  only  at  the  time,  but  in  his  own  last  parlia- 
ment, he  made  use  of  them  as  a  pretence  to  extort  money 
fi-om  seventeen  counties,  to  whom  he  imputed  a  share  in  the 
rebellion.     He  compelled  men  to  confess  under  their  seals 
that  they  had  been  guilty  of  treason,  and  to  give  blank  obli- 
gations, which  his  officers  filled  up  with  large  sums.^     Upon 
the  death  of  the  duke  of  Lancaster,  who  had  passively  com- 
plied throughout  all  these  transactions,  Richard  refused  livery 
of  his  inheritance  to  Hereford,  whose  exile  implied  no  crime, 
and  who  had  letters-patent  enabling  him  to  make  his  attorney 
for  that  purpose  during  its  continuance.     In  short.  Necessity 
his  government  for  nearly  two  years  was  altogether  ^^^^^'l^^ 
tyrannical;    and,  upon  the  same  principles  that 
cost  James  II.  his  throne,  it  was  unquestionably  far  more 
necessary,  unless  our   fathers    would   have   abandoned   aU 
thought  of  liberty,  to  expel  Richard  11.     Far  be  it  from  us 
to  extenuate  the  treachery  of  the  Percies  towards  this  un- 
happy prince,  or  the  cruel  circumstances  of  his  death,  or  m 
any  way  to  extol  either  his  successor  or  the  chief  men  of 
that  time,  most  of  whom  were  ambitious  and  faithless ;  but 
after  such  long  experience  of  the  king's  arbitrary,  dissembUng, 
and  revengeful  temper,  I  see  no  other  safe  course,  in  the  ac- 
tual state  of  the  constitution,  than  what  the  nation  concurred 

in  pursuing.  ,  ,.  i       i. 

The  reign  of  Richard  II.  is,  in  a  constitutional  light,  the 
most  interesting  part  of  our  earlier  history ;  and  it  has  been 
the  most  imperfectly  written.     Some  have  misrepresented 
the  truth  through  prejudice,  and  others  through  carelessness. 
It  is  only  to  be  understood,  and,  indeed,  there  are  great  diffi- 
culties in  the  way  of  understanding  it  at  all,  by  a  perusal  of 
the  rolls  of  parliament,  with  some  assistance  from  the  con- 
temporary historians,  Walsingham,    Knyghton,  the  anony- 
mous biographer  published  by  Hearne,  and  Froissart.  These, 
I  must  remark,  except  occasionally  the  last,  are  extremely 
hostile  to  Richard;    and   although  we  are  far  from  bemg 
bound  to  acquiesce  in  their  opinions,  it  is  at  least  unwarrant- 
able  in  modern  writers  to  sprinkle  their  margins  with  refer- 
ences to  such  authority  in  support   of   positions  decidedly 
opposite.^ 

1  Rot.  Pari.  1  n.  IV.  p.  420,  426;  «  It  is  fair  to  observe  that  Froissart's 
Walsingham,  p.  353,  357 ;  Otterburn,  p.  testimony  makes  most  in  fe^o'  of  the 
19?Vito  mc  11^.  147.  king,  or  rather  against  hia  enemies,  where 


!* 


80 


CIRCUMSTANCES  ATTENDING    Chap.  VIII.  Pabt  m. 


The  revolution  which  elevated  Henry  FV.  to  the  throne 
Circum-  was  certainly  so  far  accomplished  by  force,  that 
attendSnK  '^®  ^^^  ^^  ^"  Captivity,  and  those  who  might  still 
Henry  iv.'s  adhere  to  him  in  no  condition  to  support  his  au- 
accession.  thority.  But  the  sincere  concurrence  which  most 
of  the  prelates  and  nobility,  with  the  mass  of  the  people,  gave 
to  changes  that  could  not  have  been  otherwise  effected  by  one 
so  unprovided  with  foreign  support  as  Henry,  proves  this 
revolution  to  have  been,  if  not  an  indispensable,  yet  a  na- 
tional act,  and  should  prevent  our  considering  the  Lancastrian 
kings  as  usurpers  of  the  throne.  Nothing  indeed  looks  so 
much  like  usurpation  in  the  whole  transaction  as  Henry's 
remarkable  chsdlenge  of  the  crown,  insinuating,  though  not 
avowing,  as  Hume  has  justly  animadverted  upon  it,  a  false 
and  ridiculous  title  by  right  line  of  descent,  and  one  equally 
unwarrantable  by  conquest.  The  course  of  proceedings  is 
worthy  of  notice.  As  the  renunciation  of  Richard  might 
well  pass  for  the  effect  of  compulsion,  there  was  a  strong 
reason  for  propping  up  its  instability  by  a  solemn  deposition 
from  the  throne,  founded  upon  specific  charges  of  misgovem- 
ment.  Again,  as  the  right  of  dethroning  a  monarch  was  no- 
where found  in  the  law,  it  was  equally  requisite  to  support  this 
assumption  of  power  by  an  actual  abdication.  But  as  neither 
one  nor  the  other  filled  up  the  duke  of  Lancaster's  wishes, 
who  was  not  contented  with  owing  a  crown  to  election,  nor 
seemed  altogether  to  account  for  the  exclusion  of  the  house 
of  March,  he  devised  this  claim,  which  was  preferred  in  the 
vacancy  of  the  throne,  Richard's  cession  havmg  been  read 
and  approved  in  parliament,  and  the  sentence  of  deposition, 
"  out  of  abundant  caution,  and  to  remove  all  scruple,"  sol- 
emnly passed  by  seven  commissioners  appointed  out  of  the 
several  estates.  "After  which  challenge  and  claim,"  says 
the  record,  "the  lords  spiritual  and  temporal,  and  all  the 
estates  there  present,  being  asked,  separately  and  togeth- 
er, what  they  thought  of  the  said  challenge  and  claim, 
the  said  estates,  with  the  whole  people,  without  any 
difficulty  or  delay,  consented  that  the  said  duke  should 
reign  over  them."  *    The  claim  of   Henry,  as  opposed  to 

It  b  most  valuable ;  that  is,  in  his  account  Gloucester.    In  general  this  writer  is  ill* 

of  what  he  beard  in  the  English  court  in  informed  of  English  aiSairs,  and  un(to> 

1896,  1.  It.  c.  62,  where  he  gives  a  very  serving  to  be  quoted  a«  an  authoiitj. 

indifferent   character   of   the   duke   of  i  Rot.  Pari.  p.  428. 


English  Const.        HENRY  IV.'S  ACCESSION. 


81 


that  of  the  earl  of  INIarch,  was  indeed  ridiculous ;  but  it  is 
by  no  means  evident  that,  in  such  cases  of  extreme  urgency 
as  leave  no  security  for  the  common  weal  but  the  deposition 
of  a  reigning  prince,  there  rests  any  positive  obligation  upon 
the  estates  of  the  realm  to  fill  his  place  with  the  nearest  heir. 
A  revolution  of  this  kind  seems  rather  to  defeat  and  con- 
found all  prior  titles;  though  in  the  new  settlement  it  will 
commonly  be  prudent,  as  well  as  equitable,  to  treat  them  with 
some  regard.  Were  this  otherwise  it  would  be  hard  to  say 
why  WUliam  III.  reigned  to  the  exclusion  of  Anne,  or  even 
of  the  Pretender,  who  had  surely  committed  no  offence  at 
that  time ;  or  why  (if  such  indeed  be  the  true  construction 
of  the  Act  of  Settlement)  the  more  distant  branches  of  the 
royal  stock,  descendants  of  Henry  VH.  and  earlier  kings, 
have  been  cut  off  from  their  hope  of  succession  by  the  re- 
striction to  the  heirs  of  the  princess  Sophia. 

In  this  revolution  of  1399  there  was  as  remarkable  an 
attention  shown  to  the  formalities  of  the  constitution,  allow- 
ance made  for  the  men  and  the  times,  as  in  that  of  1688. 
The  parliament  was  not  opened  by  commission ;  no  one  took 
the  office  of  president ;  the  commons  did  not  adjourn  to  their 
own  chamber ;  they  chose  no  speaker ;  the  name  of  parlia- 
ment was  not  taken,  but  that  only  of  estates  of  the  realm. 
But  as  it  would  have  been  a  violation  of  constitutional  prin- 
ciples to  assume  a  parliamentary  character  without  the  king's 
commission,  though  summoned  by  his  writ,  so  it  was  still 
more  essential  to  limit  their  exercise  of  power  to  the  neces- 
sity of  circumstances.  Upon  the  cession  of  the  king,  as  upon 
his  death,  the  parliament  was  no  more ;  its  existence,  as  the 
council  of  the  sovereign,  being  dependent  upon  his  will.  The 
actual  convention  summoned  by  the  writs  of  Richard  could  not 
legally  become  the  parliament  of  Henry;  and  the  validity 
of  a  statute  declaring  it  to  be  such  would  probably  have  been 
questionable  in  that  age,  when  the  power  of  statuses  to  alter 
the  original  principles  of  the  common  law  was  by  no  means 
80  thoroughly  recognized  as  at  the  Restoration  and  Revolu- 
tion.    Yet  Henry  was  too  well  pleased  with  his  friends  to 
part  with  them  so  readily  ;  and  he  had  much  to  effect  before 
the  fervor  of  their  spirits  should  abate.     Hence  an  expedient 
was  devised  of  issuing  writs  for  a  new  parliament,  returnable 
in  six  days.     These  neither  were  nor  could  be  complied  with ; 
but  the  same  members  as  had  deposed  Richard  sat  in  the 

VOL.  III.  6 


t 


82    ADVANCES  OF  THE  CONSTITUTION    Chap.  VHI.  Pakt  HI 


English  Const.    UNDER  THE  HOUSE  OF  LANCASTER.         83 


'■■' 


I'y 


Retrospect 
of  the  prog- 
ress of  the 
constitutioa 
under 
Richard  U. 


new  parliament,  which  was  regularly  opened  by  Henry's 
commissioner  as  if  they  had  been  duly  elected.*  In  this 
contrivance,  more  than  in  all  the  rest,  we  may  trace  the  hand 
of  lawyers. 

If  we  look  back  from  the  accession  of  Henry  IV.  to  tliat 
of  his  predecessor,  the  constitutional  authority  of 
the  house  of  commons  will  be  perceived  to  have 
made  surprising  progress  during  the   course   of 
twenty-two  years.     Of  the  three  capital  points  in 
contest  while  Edward  reigned,  that  money  could 
not  be  levied,  or  laws  enacted,  without  the  commons'  consent, 
and  that  the  administration  of  government  was  subject  to 
their  inspection  and  control,  the  first  was  absolutely  decid- 
ed in  their  favor,  the  second  was  at  least  perfectly  admitted 
in  principle,  and  the  last  was  confirmed  by  frequent  exercise. 
The  commons  had  acquired  two  additional  engines  of  im- 
mense efficiency ;  one,  the  right  of  directing  the  application 
of  subsidies,  and  calling  accountants  before  them ;  the  other, 
that  of  impeaching  the  king's  ministers  for  misconduct.     All 
these  vigorous  shoots  of  liberty  throve  more  and 
inderThe*'''^    more  Under  the  three  kings  of  the  house  of  Lan- 
house  of        caster,  and  drew  such  strength  and  nourishment 
ncas  e .      ^^.^j^  ^^^q  geucrous  heart  of  England,  that  in  after- 
times,  and  in  a  less  prosperous  season,  though  checked  and 
obstructed  in  their  growth,  neither  the  blasts  of   arbitrary 
power  could  break  them  off,  nor  the  mildew  of  servile  opin- 
ion cause  them  to  wither.     I  shall  trace  the  progress  of  par- 
liament till  the  civil  wars  of  York  and  Lancaster:  1.  in 
maintaining  the  exclusive  right  of  taxation ;  2.  in  directing 
and  checking  the  public  expenditure  ;  3.  in  making  supplies 
depend  on  the  redress  of  grievances;  4.  in  securing  the  peo- 
ple against  illegal  ordinances  and  interpolations  of  the  stat- 
utes ;  5.  in  controlling  the  royal  administration ;  6.  in  pun- 
ishing bad  ministers;  and  lastly,  in  establishing  their  own 
immunities  and  privileges. 

1.  The  pretence  of  levying  money  without  consent  of  par- 
liament expired  with  Edward  III.,  who  had  asserted  it,  as 
we  have  seen,  in  the  very  last  year  of  his  reign.  A  great 
council  of  lords  and  prelates,  summoned  in  the  second  year 

1  If  proof  could  be  required  of  any-  persons,  it  may  be  found  in  their  irAii 
thing  so  self-evident  as  that  these  as-  of  expenses,  as  published  by  Prynne,  4th 
•cmblies  consisted  of  exactly  the  same    Register,  p.  450. 


of  his  successor,  declared  that  they  could  advise  no  remedy 
for  the  king's  necessities  without  laying  taxes  on  the  people, 
which  could  only  be  granted  in  parliament.^     Nor  was  Rich- 
ard ever  accused  of  illegal  tallages,  the  frequent  theme  of 
remonstrance  under  Edward,  unless  we  may  conjecture  that 
this  charge  is  implied  in  an  act  (11  R.  II.  c.  9)  which  annuls 
all  impositions  on  wool  and  leather,  without  consent  of  par- 
liament, if  any  there  he,^     Doubtless  his  innocence  in  this 
respect  was  the  effect  of  weakness  ;  and  if  the  revolution  of 
1399  had  not  put  an  end  to  his  newly-acquired  despotism, 
this,  like  every  other  right  of  his  people,  would  have  been 
swept  away.     A  less  palpable  means  of  evading  the  consent 
of  the  commons  was  by  the  extortion  of  loans,  and  harassing 
those  who  refused  to  pay  by  summonses  before  the  council. 
These  loans,  the  frequent  resource  of  arbitrary  sovereigns  in 
later  times,  are  first  complained  of  in  an  early  parliament 
of  Richard  II. ;  and  a  petition  is  granted  that  no  man  shall 
be  compelled  to  lend  the  king  money .^     But  how  little  this 
was  regarded  we  may  infer  from  a  writ  directed,  in  1386,  to 
some  persons  in  Boston,  enjoining  them  to  assess  every  person 
who  had  goods  and  chattels  to  the  amount  of  twenty  pounds, 
in  his  proportion  of  two  hundred  pounds,  which  the  town  had 
promised  to  lend  the  king ;  and  giving  an  assurance  that  this 
shall  be  deducted  from  the  next  subsidy  to  be  granted  by 
parliament.     Among  other  extraordinary  parts  of  this  letter 
is  a  menace  of  forfeiting  life,  limbs,  and  property,  held  out 
against  such  as  should  not  obey  these  commissioners.*    After 
his  triumph  over  the  popular  party  towards  the  end  of  his 
reign,  he  obtained  large  sums  in  this  way. 

Under  the  Lancastrian  kings  there  is  much  less  appearance 
of  raising  money  in  an  unparliamentary  course.  Henry  IV. 
obtained  an  aid  from  a  great  council  in  the  year  1400 ;  but 
they  did  not  pretend  to  charge  any  besides  themselves; 
though  it  seems  that  some  towns  afterwards  gave  the  king  a 
contribution.*  A  few  years  afterwards  he  directs  the  sheriffs 
to  call  on  the  richest  men  in  their  counties  to  advance  the 


1 2  R.  n.  p.  56. 

'  It  is  positively  laid  down  by  the 
asserters  of  civil  liberty,  in  the  great 
ease  of  impositions  (Uoweirs  State  Trials, 
Tol.  ii.  p.  443,  507),  that  no  precedents 
for  arbitrary  taxation  of  exports  or  im- 
ports occur  from  the  accession  of  Rich- 
ard II.  to  the  reign  of  Marv 


•  2  R.  n.  p.  62.  This  did  not  find  its 
way  to  the  statute-book. 

4  Rymer,  t.  vii.  p.  544. 

6  Carte,  vol.  ii.  p.  640.  Sir  M.  Hale 
observes  that  he  finds  no  complaints  of 
illefral  impositions  under  the  kings  of  the 
house  of  Lancaster.  Hargrave'a  Tracts, 
vol.  i.  p.  184 


a4 


CONDITIONS  OF  SUPPLY.    Chap.  VHI.  Part  III 


Kkolish  Const.      RIGHTS  OF  THE  COMMONS. 


85 


i  : 
'.)  ■ 
.1 

•V 

r 


money  voted  by  parliament.  This,  if  any  compulsion  was 
threatened,  is  an  instance  of  overstrained  prerogative,  though 
consonant  to  the  practice  of  the  late  reign.*  There  is,  how- 
ever, an  instance  of  very  arbitrary  conduct  with  respect  to  a 
grant  of  money  in  the  minority  of  Henry  VI.  A  subsidy 
had  been  granted  by  parliament  upon  goods  imported  under 
certain  restrictions  in  favor  of  the  merchants,  with  a  provision 
that,  if  these  conditions  be  not  observed  on  the  king's  part, 
then  the  grant  should  be  void  and  of  no  effect^  But  an 
entry  is  made  on  the  roll  of  the  next  parliament,  that,  "  where- 
as some  disputes  have  arisen  about  the  grant  of  the  last  sub- 
sidy, it  is  declared  by  the  duke  of  Bedford  and  other  lords 
in  parliament,  with  advice  of  the  judges  and  others  learned 
in  the  law,  that  the  said  subsidy  was  at  all  events  to  be  col- 
lected and  levied  for  the  king's  use;  notwithstanding  any 
conditions  in  the  grant  of  the  said  subsidy  contained."  *  The 
commons,  however,  in  making  the  grant  of  a  fresh  subsidy 
in  this  parliament,  renewed  their  former  conditions,  with  the 
addition  of  another,  that  "  it  ne  no  part  thereof  be  beset  ne 
dispensed  to  no  other  use,  but  only  in  and  for  the  defense  of 
the  said  roialme."  * 

2.  The  right  of  granting  supplies  would  have  been  very 
A  TO  ria-  incomplete,  had  it  not  been  accompanied  with 
tiSnoF^'  that  of  directing  their  application.  The  principle 
supplies.  Q^  appropriating  public  moneys  began,  as  we  have 
seen,  in  the  minority  of  Richard ;  and  was  among  the  best 
fruits  of  that  period.  It  was  steadily  maintained  under  the 
new  dynasty.  The  parliament  of  6  H.  IV.  granted  two  fif- 
teenths and  two  tenths,  with  a  tax  on  skins  and  wool,  on  con- 
dition that  it  should  be  expended  in  the  defence  of  the  kmg 
dom,  and  not  otherwise,  as  Thomas  lord  Furnival  and  Sir 
John  Pelham,  ordained  treasurers  of  war  for  this  parliament, 
to  receive  the  said  subsidies,  shall  account  and  answer  to  the 
commons  at  the  next  parliament.  These  treasurers  were 
sworn  in  parliament  to  execute  their  trusts.*  A  similar  pre- 
caution was  adopted  in  the  next  session.' 
Attempt  to  3.  The  commons  made  a  bold  attempt  in  the 
^ke  supply  second  year  of  Henry  IV.  to  give  the  strongest 
red^  o?  security  to  their  claims  of  redress,  by  inverting 
grierances.     ^^le  usual   course   of  parliamentary   proceedings. 


1  Rymer,  t.  viii.  p.  412,  488. 
*  Rot.  Pari.  vol.  ir.  p.  216. 
s  Id.  p.  301. 


«  Id.  p.  S02. 

ft  Id.  Tol.  iii.  p.  546. 

«  Id.  p.  568 


It  was  usual  to  answer  their  petitions  on  the  last  day  of 
the  session,  which  put  an  end  to  all  further  discussion  upon 
them,  and  prevented  their  making  the  redress  of  grievances 
a  necessary  condition  of  supply.  They  now  requested  that 
an  answer  might  be  given  before  they  made  their  grant  of 
subsidy.  This  was  one  of  the  articles  which  Richard  II.'s 
judges  had  declared  it  high  treason  to  attempt.  Henry  was 
notlnclined  to  make  a  concession  which  would  virtually  have 
removed  the  chief  impediment  to  the  ascendency  of  parlia- 
ment He  first  said  that  he  would  consult  with  the  lords, 
and  answer  according  to  their  advice.  On  the  last  day  of 
the  session  the  commons  were  informed  that  "  it  had  never 
been  known  in  the  time  of  his  ancestors  that  they  should  have 
their  petitions  answered  before  they  had  done  all  their  busi- 
ness in  parliament,  whether  of  granting  money  or  any  other 
concern  ;  wherefore  the  king  will  not  alter  the  good  customs 
and  usages  of  ancient  times."  ^ 

Notwithstanding  the  just  views  these  parliaments  appear 
generally  to  have  entertained  of  their  power  over  the  public 
purse,  that  of  the  third  of  Henry  V.  followed  a  precedent 
from  the  worst  times  of  Richard  II.,  by  granting  the  king  a 
subsidy  on  wool  and  leather  during  his  life.  *  This,  an  histo- 
rian tells  us,  Henry  IV.  had  vainly  labored  to  obtain  f  but  the 
taking  of  Harfleur  intoxicated  the  English  with  new  dreams 
of  conquest  in  France,  which  their  good  sense  and  constitu- 
tional jealousy  were  not  firm  enough  to  resist.  The  con- 
tinued expenses  of  the  war,  however,  prevented  this  grant 
from  becoming  so  dangerous  as  it  might  have  been  in  a  sea- 
son of  tranquillity.  Henry  V.,  like  his  father,  convoked  par- 
liament almost  in  every  year  of  his  reign. 

4.  It  had  long  been  out  of  all  question  that  the  legislature 
consisted  of  the  king,  lords,  and  commons ;  or,  in  j^g-^j^^.^^ 
stricter  language,  that  the  king  could  not  make  or  rights  of  the 
repeal  statutes  without  the  consent  of  parliament.  ^°SSd. 
But  this  fundamental  maxim  was  still  frequently 
defeated  by  various  acts  of  evasion  or  violence ;  which,  though 
protested  against  as  illegal,  it  was  a  difficult  task  to  prevent. 
The  king  sometimes  exerted  a  power  of  suspending  the  ob- 
servance of  statutes,  as  in  the  ninth  of  Richard  II.,  when  a 
petition  that  all  statutes  might  be  confirmed  is  granted,  with 

I  Rot.  Pari.  vol.  iii.  p.  458.  ^  Id.  vol.  iv.  p.  68. 

s  WalsiDgham,  p.  379 


86 


DISPENSING  POWER   Chap.  VIII.  Part.  III. 


English  Const. 


OF  THE  CROWN. 


87 


H 


1:M 


an  exception  as  to  one  passed  in  the  last  parliament,  forbid- 
ding the  judges  to  take  tees,  or  give  counsel  in  cases  where 
the  king  was  a  party ;  which,  "  because  it  was  too  severe  and 
needs  declaration,  the  king  would  have  of  no  effect  till  it 
should  be  declared  in  pai-liament."  ^  The  apprehension  of 
the  dispensing  prerogative  and  sense  of  its  illegaUty  are  man- 
ifested by  the  wary  terms  wherein  the  commons,  in  one  of 
Ricliard's  parliaments,  "  assent  that  the  king  make  such  suf- 
ferance respecting  the  statute  of  provisors  as  shall  seem  rea- 
sonable to  him,  so  that  the  said  statute  be  not  repealed ;  and, 
moreover,  that  the  commons  may  disagree  thereto  at  the  next 
parliament,  and  resort  to  the  statute ; "  with  a  protestiition  that 
this  assent,  which  is  a  novelty  and  never  done  before,  shall 
not  be  drawn  into  precedent ;  praying  the  king  that  this  prot- 
estation may  be  entered  on  the  roll  of  parliament.^  A  peti- 
tion, in  one  of  Henry  IV.'s  parliaments,  to  limit  the  num- 
ber of  attorneys,  and  forbid  tilazers  and  prothonotaries  from 
practising,  having  been  answered  favorably  as  to  the  first 
point,  we  find  a  marginal  entry  in  the  roll  that  the  prince 
and  council  had  respited  the  execution  of  this  act.'* 

The  dispensing  power,  as  exercised  in  favor  of  individuals, 
_.  .  is  quite  of  a  different  character  from  this  general 
power  of  the  suspcusion  of  Statutes,  but  indirectly  weakens  the 
crown.  sovereignty  of  the    legislature.     Tiiis  power   was 

exerted,  and  even  recognized,  throughout  all  the  reigns  of 
the  Plantagenets.  In  the  first  of  Henry  V.  the  commons 
pray  that  the  statute  for  driving  aliens  out  of  the  kingdom 
be  executed.  The  king  assents,  saving  his  prerogative  and 
his  light  of  dispensing  with  it  when  he  pleased.  To  which 
the  commons  replied  that  their  intention  was  never  other 
wise,  nor,  by  God's  help,  ever  should  be.  At  the  same 
time  one  Rees  ap  Thomas  petitions  the  king  to  modify  or 
dispense  with  the  statute  prohibiting  Welchmen  from  pur- 
chasing lands  in  England,  or  the  English  towns  in  "Wales ; 
which  the  king  grants.  In  the  same  parliament  the  com- 
mons pray  that  no  grant  or  protection  be  made  to  any  one 
in  contravention  of  the  statute  of  provisors,  saving  the  king's 

1  Walsingbam,  p.  210.    Ruffhead  ob-       «  15  R.  H.  p.  285.    See,  too,  16  R.  II. 

wrres  in  the  margin  upon  this  statute,  p.  801,  where  the  same  power  is  renewed 

6  R.  II.  c.  3.  that  it  is  repealed,  but  in  H.  IV.'s  parliaments. 
does  not  take  notice  what  sort  of  repeal       3  13  h.  xv.  p.  &i3. 
it  had. 


nrero-ative.     He    merely    answers,  "Let    the   statutes  be 
Observed:"  evading  any  allusion  to  his  dispensing  power 

It  has  been  observed,  under  the  reign  of  Edward  111., 
that  the  practice  of  leaving  statutes  to  be  drawn  up  by  the 
iud-es,  from  the  petition  and  answer  jomtly,  after  a  disso- 
lution of  parliament,  presented  an  opportunity  of  falsitymg 
the  intention  of  the  legislature,  whereof  advantage  wa^ 
often  taken.  Some  very  remarkable  instances  of  this  traud 
occurred  in  the  succeeding  reigns. 

An  ordinance  was  put  upon  the   roll   of   parliament,  m 
the  fifth  of   Richard  H.,  empowering   sherifts   ot   counties 
to  arrest  preachers  of  heresy  and  their  abettors,  and   de- 
tain them  in  prison  till  they  should  justify  themselves  before 
the  church.      This  was  introduced  into  the  statutes  ot  the 
year  ;  but  the  assent  of  lords  and  commons  is  not  expressed. 
In  the  next  parliament  the  commons,  reciting  this  ordinance, 
declare  that  it  was  never  assented  to  or  granted  by  them,  but 
what  had  been  proposed  in  this  mattor  was  without  their  con- 
currence (that  is,  as  I  conceive,  had  been  rejected  by  them), 
and  pray  that  this   statute  be  annulled ;   for  it  was  never 
their  intont  to  bind  themselves  or  their  descendants  to  the 
bishops  more  than  their  ancestors  had  been  bound  m  times 
past.     The  king  returned  an  answer,  agreeing  to  this  petition. 
Nevertheless  the  pretended  statute  was  untouched,  and  re- 
mains still  among  our  laws;^  unrepealed,  except  by  desue- 
tude, and  by  inference  from  the  acts  of  much  later  tunes. 

This  commendable  reluctance  of  the  commons  to  let  the 
clergy  forge  chains  for  them  produced,  as  there  is  much  ap- 
peanmce,  a  similar  violation  of  their  legislative  rights  in  the 
next  reign.  The  statute  against  heresy  in  the  second  of  Hen- 
ry IV.  is  not  grounded  upon  any  petition  of  the  commons,  but 
only  upon  one  of  the  clergy.  It  is  said  to  be  enacted  by  con- 
sent of  the  lords,  but  no  notice  is  taken  of  the  lower  house 
in  the  parliament  roll,  though  the  statute  recitmg  the  petition 
asserts  the  commons  to  have  joined  in  it.«     The  petition  and 

1  WAf  Pari   w  4  TI  V  D  6  9  counties  should  be  reunited  to  them,  is 

1  IVn: li^i.l l\f'tt.  Pan.  "«f°-4«*.,T^;y,j:f«'^Uiy  'b^ 

6  K.  II.  p.  1«.  Some  other  instances  pears  on  the  roll,  »™  P'STeaiaUT 
of  the  commons  attempting  to  prevent  S'»'''n!  «»"h,  other  in»»nces  eijuauy 
these  unfelr  practices  an,   adduced  by    flagrant  m.gh   be  d'scorered^  ^      mi^ 

rK«t°s:^c'  rs  thr^in^j  Wx'TS^'^^^ 

castles  and  gaols  which  had  been  sepa-    fully  be  raised,    p.  4<4 
rated  from  the   body  of    the  at^joining 


88 


DISPENSING  POWER    Chap.  VHI.  Part  HI. 


the  statute  are  both  in  Latin,  which  is  unusual  in  the  laws  of 
this  time.  In  a  subsequent  petition  of  the  commons  tliis  act 
is  styled  "  the  statute  made  in  the  second  year  of  your  maj- 
esty's reign  at  the  request  of  the  prelates  and  clergy  of  your 
kingdom  ; "  which  affords  a  presumption  that  it  had  no  reg- 
ular assent  of  parliament.*  And  the  spirit  of  the  commons 
during  this  whole  reign  being  remarkably  hostile  to  the  church, 
it  would  have  been  hardly  possible  to  obtain  their  consent  to 
so  penal  a  law  against  heresy.  Several  of  their  petitions  seem 
designed  indirectly  to  weaken  its  efficacy.'* 

These  infringements  of  their  most  essential  right  were  re- 
sisted by  the  commons  in  various  ways,  according  to  the  meas- 
ure of  their  power.  In  the  fifth  of  Richard  II.  they  request 
the  lords  to  let  them  see  a  certain  ordinance  before  it  is  en- 
grossed.'* At  another  time  they  procured  some  of  their  own 
members,  as  well  as  peers,  to  be  present  at  engrossing  the 
roll.  At  length  they  spoke  out  unequivocally  in  a  memora- 
ble petition  which,  besides  its  intrinsic  importance,  is  deserv- 
ing of  notice  as  the  earliest  instance  in  which  the  house  of 
commons  adopted  the  English  language.  I  shall  present  its 
venerable  orthography  without  change. 

"  Oure  soverain  lord,  youre  humble  and  trewe  lieges  that 
ben  come  for  the  comune  of  youre  lond  bysechyn  onto 
youre  rizt  riztwesnesse,  That  so  as  hit  hath  ever  be  thair  libte 
and  fredom,  that  thar  sholde  no  statut  no  lawe  be  made  of- 
flasse  than  theye  yaf  therto  their  assent ;  consideringe  that  the 
comune  of  youre  lond,  the  whiche  that  is,  and  ever  hath  be, 
a  membre  of  youre  parlemente,  ben  as  well  assenters  as  peti- 
cioners,  that  fro  this  tyme  foreward,  by  compleynte  of  the 
comune  of  any  myschief  axkynge  remedie  by  mouthe  of 
their  speker  for  the  comune,  other  ellys  by  petition  writen,  that 
ther  never  be  no  lawe  made  theruppon,  and  engrossed  as  statut 
and  lawe,  nother  by  addicions,  nother  by  diminucions,  by  no 
manner  of  terme  ne  termes,  the  whiche  that  sholde  chaunge 
the  sentence,  and  the  entente  axked  by  the  speker  mouthe,  or 
the  petitions  beforesaid  yeven  up  yn  writyng  by  the  manere 


1  Rot.  Pari.  6  R.  n.p.  626. 

'  We  find  a  remarkable  petition  in  8 
H.  IV.,  professedly  aimed  against  the 
Lollards,  but  intended,  as  I  strongly  sus- 
pect, in  their  favor.  It  condemns  per- 
sons preaching  against  the  catholic  faith 
or  sacraments  to  imprisonment  till  the 
next  parliament,  where  they  were  toabide 
such  judgment  as  should  bo  rendered  by 


the  king  and  pters  of  the  realm.  This 
seems  to  supersede  the  burning  statute 
of  2  H.  IV.,  and  the  spiritual  cognizance 
of  heresy.  Rot.  Pari.  p.  583.  See,  too, 
p.  626.  The  petition  was  expresslj 
granted  ;  but  the  clergy,  I  suppose,  pre- 
venttHl  its  appearing  on  the  statute  roll. 
3  Hot.  Pari.  vol.  Ui.  p.  102. 


English  Const. 


OF  THE  CROWN. 


89 


forsaid  withoute  assente  of  the  forsaid  comune.  Consider- 
S'Tourl  soverain  lord,  that  it  is  not  in  no  wyse  the  entente 
S-  v^ure  comunes,  zif  yet  be  so  that  they  axke  you  by  spe- 
tror  by  writyng,  tWo  thynges  or  three,  or  as  manye  as 
& Tust^:  But  th't  ever  it  stande  in  the  fredom  of  youre 
hie^egalie,  to  graunte  whiche  of  thoo  that  you  lust,  and  x> 

""  T\V\ynrh^^^^^  espedal  graunteth  that  fro  hens- 

forth  nothyngle  enacted  to  the  peticions  of  his  comune  that  be 
tntrarie  ^f  lur  askyng,  wharby  they  shuld  be  \ou^^^^^^^^^^^^ 
oute  their  absent.     Savyng  alwey  to  our  lege  lord  h  s  real  pre 
rogatif,  to  graunte  and  denye  what  him  lust  of  their  petitions 

and  askvnges  aforesaid."  *  .  

No  w  thLnding  the  fulness  of  this  assent  to  so  important  a 
petition  we  find  nS  vestige  of  either  among  the  statutes,  and 
r  whole  transaction  h  unnoticed  by  those  lustomns  who 
have  not  looked  into  our  original  records.     If  the  compilers 
of  Ihe  statute-roll  were  able  to  keep  out  of  it  the  very  provi- 
sLn  that  was  intended  to  check  their  fraudulent  machmat.ons, 
U  wi^  in  vain  to  hope  for  redress  without  altenng  the  estab- 
Ushel  practice  in  this  respect;  and  indeed,  where  there  was 
no  design  to  falsify  the  roll  it  was  impossible  to  draw  up  stat- 
utes wWch  should  be  in  truth  the  acts  of  the  whole  legislature 
80  Ion"  as  the  king  continued  to  grant  petitions  in  part,  and  to 
enS  new  matter  upon  them.     Such  was  still  the  case  t.U 
the%ommons  hit  upon  an  effectual  expedient  [or  screening 
themselves  against  these  encroachments    which  has  lasted 
without  alteration  to  the  present  day.    This  w=«  the  in^^ 
duction  of  complete  statutes  under  the  name  of  bills,  mstead 
of  the  old  petitions;  and  these  containing  the  royal  assent 
and  the  whole  form  of  a  law,  it  became,  though  not  quite  im- 
mediately,'' a  constant  principle  that  the  kmg  must  admit  or 
SS  them  without   qualification.     This    alteration,  which 
wrought  an  extraordinary  effect  on  the  character  of  our  con- 
stitutTon,  was  gradually  introduced  in  Henry  VI.  s  reign. 


1  Rot.  Pari.  Tol.  iv.  p.  22.  It  Is 
curious  that  the  authors  of  the  Parlia- 
mentary Htetory  say  that  the  roll  of  this 
pariiament  is  lost,  and  consequently  sup- 
press  altogether  this  important  petition. 
Instead  of  which  they  give,  as  their 
fashion  is,  impertinent  speeches  out  of 
Holingshed,  which  are  certainly  not 
genuine,  and  would  be  of  no  value  if 
they  were  so 


-  Henry  VI.  and  Edward  IV.  in  some 
cases  passed  bills  with  sundry  proyisions 
annexed  by  themselves  Thus  the  ^ 
for  resumption  of  grants,  4  *..  iv.,  was 
encimberbd  with  289  clauses  in  favor  of 
so  many  persons  whom  the  king  naeant 
to  exempt  from  its  operation;  and  the 
SmeS  done  in  other  acts  of  the  same 
description.    Rot.  Pari.  vol.  v.  p.  517. 

3  The  variations  of  each  statute,  U 


90         INTERFERENCE  OF  PARLIAMENT    Chap.  VIII.  Part  in 

From  the  first  years  of  Henry  V.,  though  not,  I  tlink, 
earlier,  the  commons  began  to  concern  themselves  with  the 
petitions  of  individuals  to  the  lords  or  council.  The  nature 
of  the  jurisdiction  exercised  by  the  latter  will  be  treated  more 
fully  hereafter ;  it  is  only  necessary  to  mention  in  this  place 
that  many  of  the  requests  preferred  to  them  were  such  as 
could  not  be  granted  without  transcending  the  boundaries  of 
law.  A  just  inquietude  as  to  the  encroachments  of  the  king's 
council  had  long  been  manifested  by  the  commons ;  and  find- 
ing remonstrances  ineffectual,  they  took  measures  for  prevent- 
ing such  usurpations  of  legislative  power  by  introducing  their 
own  consent  to  private  petitions.  These  were  now  presjMited 
by  the  hands  of  the  commons,  and  in  very  many  instances 
passed  in  the  form  of  statutes  with  the  express  assent  of  all 
parts  of  the  legislature.  Such  was  the  origin  of  private  bills, 
which  occupy  the  greater  part  of  the  rolls  in  Henry  V.  and 
VI.'s  parliament.  The  commons  once  made  an  ineffectual 
endeavor  to  have  their  consent  to  all  petitions  presented  to 
the  council  in  parliament  rendered  necessary  by  law ;  if  I 
rightly  apprehend  the  meaning  of  the  roll  in  this  place,  which 
seems  obscure  or  corrupt.  ^ 

5.  If  the  strength  of  the  commons  had  lain  merely  in  the 
Interference  wcakncss  of  the  crown,  it  might  be  inferred  that 
ment^wUh  ®"^^  harassing  interference  with  the  administration 
the  royal  of  affairs  as  the  youthful  and  frivolous  Richard 
expenditure.  ^,^^  compelled  to  eudurc  would  have  been  sternly 
repelled  by  his  experienced  successor.  But,  on  the  contrary, 
the  spirit  of  Richard  might  have  rejoiced  to  see  that  his 
mortal  enemy  suffered  as  hard  usage  at  the  hands  of  parlia- 
ment as  himself.  After  a  few  years  the  government  of 
Henry  became  extremely  unpopular.    Perhaps  his  dissension 


ENGLISH  Const.       WITH  ROYAL  EXPENDITURE. 


91 


now  printed,  from  the  parliamentary 
roll,  whether  in  form  or  substance,  are 
noticed  in  Cotton's  Abridgment.  It 
may  be  worth  while  to  consult  tho  prof- 
ace  to  Huff  head'8  edition  of  the  Stjvtutes, 
where  this  subject  is  treated  at  some 
lent^th. 

Perhaps  the  triple  division  of  our 
legislature  may  be  dated  from  this  in- 
novation. For  as  it  is  impossible  to 
deny  that,  while  the  Icing  promulgated  a 
statute  founded  upon  a  mere  petition,  he 
was  himself  the  real  legislator,  so  I  think 
it  is  equally  fiir  to  assert,  notwithstand- 
ing tho  former  preamble  of  our  statutes, 
that  laws  brought  into  either  house  of 


parliament  in  a  perfect  shape,  and  re- 
ceiving first  the  assent  of  lords  and  com- 
mons, and  finally  that  of  the  king,  who 
has  no  power  to  modify  them,  must  be 
deemed  to  proceed,  and  derive  their  effi- 
cacy, from  the  joint  concurrence  of  all 
the  three.  It  is  said,  indeed,  at  a  much 
earlier  time,  that  le  ley  de  la  terre  est 
fait  en  parlement  par  lo  roi,  et  lea 
seigneurs  espirituels  et  temporcls,et  tout 
la  communaut6  du  royaunie.  Rot.  Pari 
vol.  iii.  p.  293.  But  this,  I  must  allow, 
was  in  the  violent  session  of  11  Ilic.  II., 
the  constitutional  authority  of  which  If 
not  to  be  highly  prized. 
»  8  H.  V.  vol.  ir.  p.  127. 


with  the  great  family  of  Percy,  which  had  placed  him  on  the 
throne,  and  was  regai-ded  with  partiality   by  the   people,* 
chiefly  contributed  to  this   alienation  of  their   attachment. 
The  commons  requested,  in  the  fifth  of  his  reign,  that  cer- 
tain  persons  might  be  removed  from  the  court;  the  lords 
concurred  in  displacing  four  of  these,  one  bemg  the  king  s 
confes-or.      Henry  came  down  to  parliament  and  excused 
these  four  persons,  as  knowing  no  special  cause  why  they 
should  be  removed;  yet,  well  understanding  that  what  the 
lords  and  commons  should  ordain  would  be  for  his  and  h« 
kin-dom's  interest,  and  therefore  anxious  to  conform  himselt 
to  their  wishes,  consented  to  the  said  ordinance,  and  chai-ged 
the  persons  in  question  to  leave  his  palace  ;  adding,  that  he 
would  do  a^  much  by  any  other  about  his  person  whom  he 
should  find  to  have  incurred  the  ill  affection  of  liis  people. 
It  was  in  the  same  session  that  the  archbishop  of  Canterbury 
was  commanded  to  declare  before  the  lords  the  king  s  inten- 
tion  respecting  his  administration ;  allowing  that  some  things 
had  been  done  amiss  in  his  court  and  household;  and  there- 
fore,  wishing  to  conform  to  the  will  of  God  and  laws  of  the 
land,  protested  that  he  would  let  in  future  no  letters  of  signet 
or  privy  seal  go  in  disturbance  of  law,  beseeched  the  lords 
to  put  his  household  in  order,  so  that  every  one  might  be  paid, 
and  declared  that  the  money  granted  by  the  commons  for  the 
war  should  be  received  by  treasurers  appointed  in  parlia- 
ment, and  disbursed  by  them  for  no  other  purpose,  unless  in 
case  of  rebellion.     At  the  request  of  the  commons  he  named 
the  members  of  his  privy  council ;   and  did  the  sam^  with 
some  variation  of  persons,  two  years  afterwards.      ihese, 
thouMi  not  nominated  with  the  express  consent,  seem  to  have 
had  the  approbation  of  the  commons,  for  a  subsidy  is  granted 
in  7  H.  IV.,  among  other  causes,  for  "  the  great  trust  that 
the  commons  have  in  the  lords  lately  chosen  and  ordained  to 
be  of  the  king's  continual  council,  that  there  shall  be  better 
management  than  heretofore."  *  , .  ,   c-    -c^ 

In  the  sixth  year  of  Henry  the  parliament,  which  Sir  i<i. 
Coke  derides  as  unlearned  because  lawyers  were  excluded 
from  it,  proceeded  to  a  resumption  of  grants  and  a  prohibi- 
tion of  alienating  the  ancient  inheritance  of  the  crown  with- 

I  The  house  of  commons  thanked  the        2  5  H.  J^' P*  5p^i,  p.  q2Q   568.  Gift, 
king   for    pardoning   Northumberland,       »  Rot.  Pari.  toi.  m.  p.  <w»,  ooo,  o«o. 

whom,  as  it  proved,  he  had  just  caxise  to 
raspect.    5U.  IV.  p.  525. 


92 


ROYAL  EXPENDITURE.      Chap.  VHI.  Part  m. 


English  Const.     POPULARITY  OF  HENRY  V. 


93 


i\ 


out  consent  of  parliament,  in  order  to  ease  the  commons  of 
taxes,  and  that  the  king  might  live  on  his  own.^  This  was  a 
favorite  though  rather  chimerical  project.  In  a  later  parlia- 
ment it  was  requested  that  the  king  would  take  his  council's 
advice  how  to  keep  witliin  his  own  revenue ;  he  answered 
that  he  would  willingly  comply  as  soon  as  it  should  be  in  his 
power.* 

But  no  parliament  came  near,  in  the  number  and  boldness 
of  its  demands,  to  that  held  in  the  eighth  year  of  Henry  IV. 
The  commons  presented  thirty-one  articles,  none  of  which 
the  king  ventured  to  refuse,  though  pressing  very  severely 
upon  his  prerogative.  He  was  to  name  sixteen  counsellors, 
by  whose  advice  he  was  solely  to  be  guided,  none  of  them  to 
be  dismissed  without  conviction  of  misdemeanor.  The  chan- 
cellor and  privy  seal  to  pass  no  grants  or  other  matter  con- 
trary to  law.  Any  persons  about  the  court  stirring  up  the 
king  or  queen's  minds  against  their  subjects,  and  duly  con- 
victed thereof,  to  lose  their  offices  and  be  fined.  The  king's 
ordinary  revenue  was  wholly  appropriated  to  his  household 
and  the  payment  of  his  debts ;  no  grant  of  wardship  or  other 
profit  to  be  made  thereout,  nor  any  forfeiture  to  be  pardoned. 
The  king,  "  considering  the  wise  government  of  other  Chris- 
tian princes,  and  conforming  himself  thereto,"  was  to  assign 
two  days  in  the  week  for  petitions,  "  it  being  an  honorable 
and  necessary  thing  that  his  lieges,  who  desired  to  petition 
him,  should  be  heard.*'  No  judicial  officer,  nor  any  in  the 
revenue  or  household,  to  enjoy  his  place  for  life  or  term  of 
years.  No  petition  to  be  presented  to  the  king,  by  any  of 
his  household,  at  times  when  the  council  were  not  sitting. 
The  council  to  determine  nothing  cognizable  at  common  law, 
unless  for  a  reasonable  cause  and  with  consent  of  the  judges. 
The  statutes  regulating  purveyance  were  affirmed  —  abuses 
of  various  kinds  in  the  council  and  in  courts  of  justice  enu- 
merated and  forbidden  —  elections  of  knights  for  counties 
put  under  regulation.  The  council  and  officers  of  state  were 
sworn  to  observe  the  common  law  and  all  statutes,  those 
especially  just  enacted.* 

It  must  strike  every  reader  that  these  provisions  were  of 
themselves  a  noble  fabric  of  constitutional  liberty,  and  hardly 
perhaps  inferior  to  the  petition  of  right  under  Charles  I. 

1  Rot.  Pari.  Tol.  ill.  p.  547.  a  13 II.  IV.  p.  624. 

»  Hot.  Pari.  8  H.  IV.  p.  685. 


We  cannot  account  for  the  submission  of  Henry  to  conditions 
far  more  derogatory  than  ever  were  imposed  on  Richard,  be- 
cause the  secret  politics  of  his  reign  are  very  imperfectly 
understood.     Towards  its  close  he  manifested  more  vigor. 
The  speaker.  Sir  Thomas  Chaucer,  having  made  the  usual 
petition  for  liberty  of   speech,  the  king  answered  that  he 
micrht  speak  as  others  had  done  in  the  time  of  his  (Henry  s) 
ancestors,  and  his  own,  but  not  otherwise ;  for  he  would  by 
no  means  have  any  innovation,  but  be  as  much  at  his  liberty 
as  any  of  his  ancestors  had  ever  been.     Some  time  after  he 
sent  a  message  to  the  commons,  complaining  of  a  law  passed 
at  the  last  parliament  infringing  his  liberty  and  prerogative, 
which  he  requested  their  consent  to  repeal.     To  this  the  com- 
mons agreed,  and  received  the  king's  thanks,  who  declared  at 
the  same  time  that  he  would  keep  as  much  freedom  and  prero- 
gative as  any  of  his  ancestors.    It  does  not  appear  what  was  the 
particular  subject  of  complaint ;  but  there  had  been  much  of 
the  same  remonstrating  spirit  in  the  last  parliament  that  was 
manifested  on  preceding  occasions.     The  commons,  however, 
for  reasons  we  cannot  explain,  were  rather  dismayed.     Be- 
fore their  dissolution  they  petition  the  king,  that,  whereas  he 
was  reported  to  be  offended  at  some  of  his  subjects  in  this 
and  in  the  preceding  parliament,  he  would  openly  declare 
that  he  held  them  all  for  loyal  subjects.     Henry  granted  this 
"  of  his  special  grace  ; "  and  thus  concluded  his  reign  more 
triumphantly  with  respect  to  his  domestic  battles  than  he  had 
gone  through  it.* 

Power  deemed  to  be  ill  gotten  is  naturally  precarious  ;  and 
the  instance  of  Henry  IV.  has  been  weU  quoted  jje^ry  y. 
to  prove  that  public  liberty  flourishes  with  a  bad  i£  p^p"" 
title  in  the  sovereign.     None  of  our  kings  seem 
to  have  been  less  beloved  ;  and  indeed  he  had  little  claim  to 
affection.     But  what  men  denied  to  the  reigning  king  they 
poured  in  full  measure  upon  the  heir  of  his  throne.     The 
vu^tues  of  the  prince  of  Wales  are  almost  invidiously  eulogized 
by  those  parliaments  who  treat  harshly  his  father  ;  '^  and  these 
records  afford  a  strong  presumption  that  some  early  petulance 
or  riot  has  been  much  exaggerated  by  the  vulgar  minds  ot 
our  chroniclers.     One  can  scarcely  understand  at  least  that 
a  prince  who  was  three  years  engaged  in  quelling  the  dan- 


1 18  H.  IV  p.  648,  658 


t  Rot.  Pari.  vol.  iU.  p.  549,  668,  674, 611. 


94 


INFLUENCE  OF  P^VRLIAMENT.    Chap.  VIH.  Part  IH. 


i 


I 
I' 


1  ■  I 


0.      I' 


gerous  insurrection  of  Glendower,  and  who  in  the  latter  time 
of  his  father's  reign  presided  at  the  council,  was  so  lost  in  a 
cloud  of  low  debauchery  as  common  fame  represents.*  Loved 
he  certainly  was  throughout  his  life,  as  so  intrepid,  affable, 
and  generous  a  temper  well  deserved  ;  and  this  sentiment  was 
heightened  to  admiration  by  successes  still  more  rapid  and 
dazzling  than  those  of  Edward  III.  During  his  reign  there 
scarcely  appears  any  vestige  of  dissatisfaction  in  parliament  — 
a  circumstance  very  honorable,  whether  we  ascribe  it  to  the 
justice  of  his  administration  or  to  the  affection  of  his  people. 
Perhaps  two  exceptions,  though  they  are  rather  one  in  spirit, 
might  be  made :  the  first,  a  petition  to  the  duke  of  Gloucester, 
then  holding  parliament  as  guardian  of  England,  that  he 
would  move  the  king  and  queen  to  return,  as  speedily  as 
might  please  them,  in  relief  and  comfort  of  the  commons  ;  ^ 
the  second,  a  request  that  their  petitions  might  not  be  sent  to 
the  king  beyond  sea,  but  altogether  determined  "  within  this 
kingdom  of  England,  during  this  parliament,"  and  that  this 
ordinance  might  be  of  force  in  all  future  parliaments  to  be 
held  in  England.*  This  prayer,  to  which  the  guardian  de- 
clined to  accede,  evidently  sprang  from  the  apprehensions, 
excited  in  their  minds  by  the  treaty  of  Troyes,  that  England 
might  become  a  province  of  the  French  crown,  which  led 
them  to  obtain  a  renewal  of  the  statute  of  Edward  III.,  de- 
claring the  independence  of  this  kingdom.* 

It  has  been  seen  already  that  even  Edward  III.  consulted 

his  parliament  upon  the  expediency  of  negotiations 
consulted  for  peace,  though  at  that  time  the  commons  had  not 
S^affii?'*^      acquired  boldness  enough  to  tender  their  advice. 

In  Richard  II.'s  reign  they  answered  to  a  similar 
proposition  with  a  little  more  confidence,  that  the  dangers  each 
way  were  so  considerable  they  dared  not  decide,  though  an 
honorable  peace  would  be  the  greatest  comfort  they  could  have, 
and  concluded  by  hoping  that  the  king  would  not  engage  to 
do  homage  for  Calais  or  the  conquered  country.*  The  parlia- 
ment of  the  tenth  of  his  reign  was  expressly  summoned  in 
order  to  advise  concerning  the  king's  intended  expedition  be- 
yond sea — a  great  council,  which  had  previously  been  assem- 


■*  This  passage  was  written  before  I  was 
aware  that  the  same  opinion  had  been 
elaborately  maintained  by  Mr.  Luders, 
in  one  of  his  valuable  essays  upon  points 
Vt  constitutional  history. 


9  Rot.  Pari.  8  H.  V.  Tol.  It  p 

3  p.  128 

«  p.  130. 

8  7  R.  n  vol  m.  p.  170. 


126. 


Ehglish  Const.    INFLUENCE  OF  PARLIAMENT. 


95 


bled  at  Oxford,  having  declared  their  incompetence  to  consent 
to  this  measure  without  the  advice  of  parliament.*     Yet  a 
few  years  afterwards,  on  a  similar  reference,  the  commons 
rather  declined  to  give  any  opinion.*     They  confirmed  the 
lea^^ue  of  Henry  V.  with  the  emperor  Sigismund ;    and  the 
treaty  of   Troyes,  which  was  so  fundamentally  to  change 
the  situation  of   Henry  and  his  successors,  obtained,  as  it 
evidently  required,  the  sanction  of  both  houses  of  parliament. 
These  precedents  conspiring  with  the  weakness  of  the  exec- 
utive government,  in  the  minority  of  Henry  VI.,  to  fling  an 
increase  of  influence  into  the  scale  of  the  commons,  they 
made  their  concurrence  necessary  to  all  important  business 
both  of  a  foreign  and  domestic  nature.     Thus  commissioners 
were  appointed  to  treat  of  the  deliverance  of  the  king  of 
Scots,  the  duchesses  of  Bedford  and  Gloucester  were  made 
denizens,  and  mediators  were  appointed  to  reconcile  the  dukes 
of  Gloucester  and  Burgundy,  by  authority  of  the  three  estates 
assembled  in  parliament.^     Leave  was  given  to  the  dukes  ot 
Bedford  and  Gloucester,  and  others  in  the  king's  behalf,  to 
treat  of  peace  with  France,  by  both  houses  of  parliament,  in 
pursuance  of  an  article  in  the  treaty  of  Troyes,  that  no 
treaty  should  be  set  on  foot  with  the  dauphin  without  consent 
of  the  three  estates  of  both  realms.^    This  article  was  after- 
wards repealed.''  . 

Some  complaints  are  made  by  the  commons,  even  during 
the  first  years  of  Henry's  minority,  that  the  king's  subjects 
underwent  arbitrary  imprisonment,  and  were  vexed  by  sum- 
monses before  the  council  and  by  the  newly-invented  writ  of 
subpoena  out  of  chancery.^  But  these  are  not  so  common  as 
formerly ;  and  so  far  as  the  rolls  lead  us  to  any  inference, 
there  was  less  injustice  committed  by  the  government  under 
Henry  VI.  and  his  father  than  at  any  former  period.  Waste- 
fuhiess  indeed  might  justly  be  unputed  to  the  regency,  who 


1  7  R.  n.  p.  216. 

a  17  R.  n.  p.  816. 

3  4  H.  V.  vol.  iv.  p.  98. 

«  p.  135. 

»  Rot.  Pari.  4  H.  V.  vol.  iv.  p.  211, 242, 

277. 

•  p.  371. 

7  23  H.  VI.  vol.  y.  p.  102.  There  is 
rather  a  curious  instance  in  3  U.  VI.  of 
the  jealousy  with  which  the  commons 
regarded  any  proceedings  in  parliament 
where  they  were  not  concerned.    A  con- 


troversy arose  between  the  earls  marshal 
and  of  Warwick  respecting  their  pre- 
cedence ;  founded  upon  the  royal  blood 
of  the  first,  and  long  possession  of  the 
second.  In  this  the  commons  could  not 
afifect  to  interfere  judicially;  but  they 
found  a  singular  way  of  meddling,  by 
petitioning  the  king  to  confer  the  duke- 
dom of  Norfolk  on  the  earl  marshal. 

vol.  iv.  p.  273.  ,^^    „  „  ..T* 

8  RotfPari.  1  H.  VI.  p.  189;  3  H.  VL 
p.  292;  8H.  VI.  p.  343. 


ill"" 


I 


96  IMPEACHMENTS   OF  MINISTERS.    Chap.  VIII.  Pakt  IH. 

had  scandalously  lavished  the  king's  revenue.^  This  ulti- 
mately led  to  an  act  for  resuming  all  grants  since  his  acces- 
sion, founded  upon  a  public  declaration  of  the  great  officers 
of  the  crown  that  his  debts  amounted  to  372,000/.,  and  the 
annual  expense  of  the  household  to  24,000/.,  while  the  ordi- 
nary revenue  was  not  more  than  5000/.^ 

6.  But  before  this  time  the  sky  had  begun  to  darken,  and 
Impeach.  discontent  with  the  actual  administration  pervaded 
mSstera  every  rank.  The  causes  of  this  are  familiar — 
the  unpopularity  of  the  king's  marriage  with  Mar- 
garet of  Anjou,  and  her  impolitic  violence  in  the  conduct  of 
affairs,  particularly  the  imputed  murder  of  the  people's  favor- 
ite, the  duke  of  Gloucester.  This  provoked  an  attiick  upon 
her  own  creature,  the  duke  of  Suffolk.  Impeachment  had 
lain  still,  like  a  sword  in  the  scabbard,  since  the  accession  of 
Henry  IV.,  when  the  commons,  though  not  preferring  formal 
articles  of  accusation, -had  petitioned  the  king  that  Justice 
Rickhill,  who  had  been  employed  to  take  the  former  duke  of 
Gloucester's  confession  at  Calais,  and  the  lords  appellants  of 
Richard  II.'s  last  parliament,  should  be  put  on  tlieir  defence 
before  the  lords.*  In  Suffolk's  case  the  commons  seem  to 
have  proceeded  by  bill  of  attainder,  or  at  least  to  have  de- 
signed the  judgment  against  that  minister  to  be  the  act  of  the 
whole  legislature ;  for  they  delivered  a  bill  containing  articles 
against  him  to  the  lords,  with  a  request  that  they  would  pray 
the  king's  majesty  to  enact  that  bill  in  parliament,  and  that 
the  said  duke  might  be  proceeded  against  upon  the  said  arti- 
cles in  parliament  according  to  the  law  and  custom  of  Eng- 
land. These  articles  contained  charges  of  high  treason,  chiefly 
relating  to  his  conduct  in  France,  which,  whether  treasonable 
or  not,  seems  to  have  been  grossly  against  the  honor  and  ad- 
vantage of  the  crown.  At  a  later  day  the  commons  presented 
many  other  articles  of  misdemeanor.  To  the  former  he  made 
a  defence,  in  presence  of  the  king  as  well  as  the  lords  both 
spiritual  and  temporal ;  and  indeed  the  articles  of  impeach- 
ment were  directly  addressed  to  the  king,  which  gave  him  a 
reasonable  pretext  to  interfere  in  the  judgment.  But  from 
apprehension,  as  it  is  said,  that  Suffolk  could  not  escape  con- 
viction upon  at  least  some  part  of  these  charges,  Henry  antic- 
ipated with  no  slight  irregularity  the  course  of  legal  trial,  and, 

»  Tol.  T.  18  H.  VI.  p.  17.  «  28  H.  VI.  p.  185. 

»  Rot.  Pari.  Tol.  iU.  p.  430,  419. 


Emglish  Const.     PRIVILEGE  OF  PARLUMENT. 


97 


summoning  the  peers  into  a  private  chamber,  informed  the 
duke  of  Suffolk,  by  mouth  of  his  chancellor,  that,  inasmuch 
as  he  had  not  put  himself  upon  his  peerage,  but  submitted 
wholly  to  the  royal  pleasure,  the  king,  acquitting  him  of  tUts 
first  articles  containing  matter  of  treason,  by  his  own  advice 
and  not  that  of  the  lords,  nor  by  way  of  judgment,  not  being 
in  a  place  where  judgment  could  be  delivered,  banished  him 
for  five  years  from  his  dominions.  The  lords  then  present 
besought  the  king  to  let  their  protest  appear  on  record,  that 
neither  they  nor  their  posterity  might  lose  their  rights  of 
peerage  by  this  precedent.  It  was  justly  considered  as  aa 
arbitrary  stretch  of  prerogative,  in  order  to  defeat  the  privi- 
leges of  parliament  and  screen  a  favorite  minister  from  pun- 
ishment. But  the  course  of  proceeding  by  bill  of  attainder, 
instead  of  regular  impeachment,  was  not  judiciously  chosen 
by  the  commons.* 

7.  Privilege  of  parjiaraent,  an  extensive  and  singular 
branch  of  our  constitutional  law,  begins  to  attract  PriTiiege  of 
attention  under  the  Lancastrian  princes.  It  is  parliament. 
true  indeed  that  we  can  trace  long  before  by  records,  and 
may  infer  with  probability  as  to  times  whose  records  have  not 
survived,  one  considerable  immunity — a  freedom  from  arrest 
for  persons  transacting  the  king's  business  in  his  national 
council.^  Several  authorities  may  be  found  in  Mr.  Hatsell's 
Precedents ;  of  which  one,  in  the  9  th  of  Edward  II.,  is  con- 
clusive.'* But  in  those  rude  times  members  of  parliament 
were  not  always  respected  by  the  officers  executing  legal  pro- 
cess, and  still  less  by  the  violators  of  law.  After  several 
remonstrances,  which  the  crown  had  evaded,*  the  commons 
obtained  the  statute  II  Henry  VL  c.  11,  for  the  punishment 
of  such  as  assault  any  on  their  way  to  the  parliament,  giving 
double  damages  to  the  party .^  They  had  more  difficulty  in 
establishing,  notwithstanding  the  old  precedents  in  their  favor, 
an  immunity  from  all  criminal  process  except  in  charges  of 
treason,  felony,  and  breach  of  the  peace,  which  is  their  pres- 


»  Rot.  Pari.  28  H.  VI.  vol.  r.  p.  176. 

'  If  this  were  to  rest  upon  antiquity 
of  precedent,  one  niigbt  be  produced  that 
would  challen<;c  all  competition.  la 
the  laws  of  Etiielbcrt,  the  first  Christian 
king  of  Kent,  at  the  end  of  the  sixth 
century,  we  find  this  provision  :  "■  If  the 
king  call  his  people  to  him  (i.e.  in  the 
witenagemot),  and  any  one  does  an  in- 
VOL.  III.  7 


jury  to  one  of  them,  let  him  pay  a  fine." 
Wilkins,  Leges  Anglo-Saxon,  p.  2. 

3  Hatsell,  vol.  i.  p.  12. 

♦  Rot.  Pari.  5  H.  IV.  p.  541. 

6  The  clergy  had  got  a  little  prece- 
dence in  this.  An  act  passed  8  H.  Vi. 
c.  1,  granting  privilege  from  arrest  for 
themselves  and  servants  on  their  way  to 
convocatioa. 


98 


PRIVILEGE  OF  PARLIAMENT.    Chap.  Vm.  Part  HI. 


II 


ent  measure  of  privilege.  The  truth  was,  that,  with  a  right 
pretty  cleariy  recognized,  as  is  admitted  by  the  judges  in 
Thorp's  case,  the  house  of  commons  had  no  reguL^r  compul- 
sory process  at  their  command.  In  the  cases  of  Lark,  servant 
of  a  member,  in  the  8th  of  Henry  VI.,*  and  of  Gierke,  him- 
self a  burgess,  in  the  39th  of  the  same  king,^  it  was  thought 
necessary  to  effect  their  release  from  a  civil  execution  by 
special  acts  of  parliament.  The  commons,  in  a  former  in- 
stance, endeavored  to  make  the  law  general  that  no  members 
nor  their  servants  might  be  taken  except  for  treason,  felony, 
and  breach  of  peace ;  but  the  king  put  a  negative  upon  this 
part  of  their  petition. 

The  most  celebrated,  however,  of  these  early  cases  of 
privilege  is  that  of  Thomas  Thorp,  speaker  of  the  commons 
in  31  Henry  VI.  This  person,  who  was  moreover  a  baron 
of  the  exchequer,  had  been  imprisoned  on  an  execution  at 
suit  of  the  duke  of  York.  The  commons  sent  some  of  theu* 
members  to  complain  of  a  violation  of  privilege  to  the  king 
and  lords  in  parliament,  and  to  demand  Thorp's  release.  It 
was  alleged  by  the  duke  of  York's  counsel  that  the  trespass 
done  by  Thorp  was  since  the  beginning  of  the  parliament, 
and  the  judgment  thereon  given  in  time  of  vacation,  and  not 
during  the  sitting.  The  lords  referred  the  question  to  the 
judges,  who  said,  after  deliberation,  that  "  they  ought  not  to 
answer  to  that  question,  for  it  hath  not  be  used  aforetyme 
that  the  judges  should  in  any  wise  determine  the  privilege 
<rf  this  high  court  of  parliament ;  for  it  is  so  high  and  so 
mighty  in  his  nature  that  it  may  make  law,  and  that  that  is 
law  it  may  make  no  law  ;  and  the  determination  and  knowl- 
edge of  that  privilege  belongeth  to  the  lords  of  the  parlia- 
ment, and  not  to  the  justices."  They  went  on,  however, 
after  observing  that  a  general  writ  of  supersedeas  of  all 
processes  upon  ground  of  privilege  had  not  been  known,  to 
say  that,  "  if  any  person  that  is  a  member  of  this  high  court 
of  parliament  be  arrested  in  such  cases  as  be  not  for  treason, 
or  felony,  or  surety  of  the  peace,  or  for  a  condemnation  had 
before  the  parliament,  it  is  used  that  all  such  persons  should 
be  released  of  such  arrests  and  make  an  attorney,  so  that 
they  may  have  their  freedom  and  liberty  freely  to  intend 
upon  the  parliament." 


»  Rot.  Pari.  vol.  iv.  p.  357. 


*  Id.  TOl.  T.  p.  S7i. 


English  Const.        PRIVILEGE  OF  PARLLA.MENT. 


99 


Notwithstanding  this  answer  of  the  judges,  it  was  con- 
cluded by  the  lords  that  Thorp  should  remain  in  prison, 
without  regarding  the  alleged  privilege ;  and  the  commons 
were  directed  in  the  king's  name  to  proceed  "  with  all  goodly 
haste  and  speed"  to  the  election  of  a  new  speaker.  It  is 
curious  to  observe  that  the  commons,  forgetting  their  griev- 
ances, or  content  to  drop  them,  made  such  haste  and  speed 
according  to  this  command,  that  they  presented  a  new  speaker 
for  approbation  the  next  day.* 

This  case,  as  has  been  strongly  said,  was  begotten  by  the 
iniquity  of  the  times.  The  state  was  verging  fast  towards 
civil  war ;  and  Thorp,  who  afterwards  distinguished  himself 
for  the  Lancastrian  cause,  was  an  inveterate  enemy  of  the 
duke  of  York.  That  prince  seems  to  have  been  swayed  a 
little  from  his  usual  temper  in  procuring  so  unwarrantable  a 
determination.  In  the  reign  of  Edward  IV.  the  commons 
claimed  privilege  against  any  civil  suit  during  the  time  of 
their  session ;  but  they  had  recourse,  as  before,  to  a  particu- 
lar act  of  parliament  to  obtain  a  writ  of  supersedeas  in  favor 
of  one  Atwell,  a  member,  who  had  been  sued.  The  present 
law  of  privilege  seems  not  to  have  been  fully  established,  or 
at  least  effectually  maintained,  before  the  reign  of  Henry 

vni.'*  ^  ^ 

No  privilege  of  the  commons  can  be  so  fundamental  as 
liberty  of  speech.     This  is  claimed  at  the  opening  of  every 
parliament  by  their  speaker,  and  could  never  be  infringed 
without  shaking  the  ramparts  of  the  constitution.     Richard 
II.'s  attack  upon  Haxey  has  been  already  mentioned  as  a 
flagrant  evidence  of  his  despotic  intentions.     No  other  case 
occurs  until  the  33d   year  of  Henry   VI.,   when   Thomas 
Young,   member  for  Bristol,  complained   to  the   commons, 
that,  "  for  matters  by  him  showed  in  the  house  accustomed 
for  the  commons  in  the  said  parliaments,  he  was  therefore 
taken,  arrested,  and  rigorously  in  open  wise  led  to  the  Tower 
of  London,  and  there  grievously  in  great  duress  long  time 
imprisoned  against  the  said  freedom  and  hberty  ; "  with  much 
more  to  the  like  effect.     The  commons  transmitted  this  peti- 
tion to  the  lords,  and  the  king  "willed  that  the  lords  of  his 
council  do  and  provide  for  the  said  suppliant  as  m  their  dis- 

1  Rot.  Pari.  TOl.  T.  p.  239;  HatseU's       «  Upon  this  '^^^i^l^^^^^^L'^^^ 
Precedents,  p.  29.  b^^e  recourse  to  HatseUs  Precedenta, 

"  vol  I  chap.  1. 


\'i 


I*  • 


100 


PRIVILEGE  OF  PARLIAMENT.    Chap.  VHI.  Part  HI. 


EKGU8H  Const.       PRIVILEGE  OF  PARLLiMENT. 


101 


M 


:  i 


cretions  shall  be  thought  convenient  and  reasonable."  This 
imprisonment  of  Young,  however,  had  happened  six  years 
before,  in  consequence  of  a  motion  made  by  him  that,  the 
king  then  having  no  issue,  the  duke  of  York  might  be  de- 
clared heir-apparent  to  the  crown.  In  the  present  session, 
when  the  duke  was  protector,  he  thought  it  well-timed  to 
prefer  his  claim  to  remuneration.^ 

There  is  a  remarkable  precedent  in  the  9th  of  Henry  IV., 
and  perhaps  the  earliest  authority  for  two  eminent  maxims 
of  parliamentary  law  —  that  the  commons  possess  an  exclu- 
sive right  of  originating  money  bills,  and  that  the  king  ought 
not  to  take  notice  of  matters  pending  in  parliament.  A 
quarrel  broke  out  between  the  two  houses  upon  this  ground ; 
and  as  we  have  not  before  seen  the  commons  venture  to 
clash  openly  with  their  superiors,  the  circumstance  is  for  this 
additional  reason  worthy  of  attention.  As  it  has  been  little 
noticed,  I  shall  translate  the  whole  record. 

"  Friday  the  second  day  of  December,  which  was  the  last 
day  of  the  parliament,  the  commons  came  before  the  king 
and  the  lords  in  parliament,  and  there,  by  command  of  the 
king,  a  schedule  of  indemnity  touching  a  certain  altercation 
moved  between  the  lords  and  commons  was  read ;  and  on 
this  it  was  commanded  by  our  said  lord  the  king  that  the  said 
schedule  should  be  entered  of  record  in  the  roll  of  parlia- 
ment ;  of  which  schedule  the  tenor  is  as  follows :  Be  it  re- 
membered, that  on  Monday  the  21st  day  of  November,  the 
king  our  sovereign  lord  being  in  the  council-chamber  in  the 
abbey  of  Gloucester,^  the  lords  spiritual  and  temporal  for 
this  present  parliament  assembled  being  then  in  his  presence, 
a  debate  took  place  among  them  about  the  state  of  the  king- 
dom, and  its  defence  to  resist  the  malice  of  the  enemies  who 
on  every  side  prepare  to  molest  the  said  kingdom  and  its 
faithful  subjects,  and  how  no  man  can  resist  this  malice,  un- 
less, for  the  safeguard  and  defence  of  his  said  kingdom,  our 
sovereign  lord  the  king  has  some  notable  aid  and  subsidy 
granted  to  him  in  his  present  parliament.  And  therefore  it 
was  demanded  of  tlie  said  lords  by  way  of  question  what  aid 
would  be   sufficient   and   requisite  in  these  circumstances? 

I  Rot.  Pari.  vol.  ▼.  p.  337 ;  W.  Wor-  instance  of  the  crown's  interference  with 

eester,  p.  475.    Mr.  Hatsell  seems  to  have  freedom  of  speech  in  parliament,    vol.  i. 

overlooked  this  case,  for    he    mentions  p.  85. 

thatof  Strickland,  in  1571,  as  the  earliest  3  This  parliament  sat  at  Qloucestor 


To  which  question  it  was  answered  by  the  said  lords  sever- 
ally, that,  considering  the  necessity  of  the  king  on  one  side, 
and  the  poverty  of  his  people  on  the  other,  no  less  aid  could 
be  sufficient  than  one  tenth  and  a  half  from  cities  and  towns, 
and  one  fifteenth  and  a  half  from  all  other  lay  persons  ;  and, 
besides,  to  grant  a  continuance  of  the  subsidy  on  wool,  wool- 
fells,  and  leather,  and  of  three  shillings  on  the  tun  (of  wine), 
and  twelve  pence  on  the  pound  (of  other  merchandise),  from 
Michaelmas  next  ensuing  for  two  years  thenceforth.     Where- 
upon, by  command  of  our  said  lord  the  king,  a  message  was 
sent  to  the  commons  of  this  parliament  to  cause  a  certain 
number  of  their  body  to  come  before  our  said  lord  the  king 
and  the  lords,  in  order  to  hear  and  report  to  their  compan- 
ions what  they  should  be  commanded  by  our  said  lord  the 
king.     And  upon  this  the  said  commons  sent  into  the  pres- 
ence of  our  said  lord  the  king  and  the  said  lords  twelve  of 
theh*  companions ;  to  whom,  by  command  of  our  said  lord  the 
king,  the  said  question  was  declared,  with  the  answer  by  the 
said  lords  severally  given  to  it.     Which  answer  it  was  the 
pleasure  of  our  said  lord  the  king  that  they  should  report  to 
the  rest  of  their  fellows,  to  the  end  that  they  might  take  the 
shortest  course  to  comply  with  the  intention  of  the  said  lords. 
Which  report  being  thus  made  to  the  said  commons,  they 
were  greatly  disturbed  at  it,  saying  and  asserting  it  to  be 
much  to  the  prejudice  and  derogation  of  their  liberties.     And 
after  that  our  said  lord  the  king  had  heard  this,  not  willing  that 
anything  should  be  done  at  present,  or  in  time  to  come,  that 
might  anywise   turn   against   the   liberty  of  the  estate  for 
which  they  are  come  to  parliament,  nor  against  the  liberties 
of  the  said  lords,  wills  and  grants  and  declares,  by  the  ad- 
vice and  consent  of  the  said  lords,  as  follows :  to  wit,  that  it 
shall  be  hiwful  for  the  lords  to  debate  together  in  this  present 
parliament,   and   in   every   other   for   time  to  come,  in  the 
king's  absence,  concerning  the  condition  of  the  kingdom,  and 
the  remedies  necessary  for  it.     And  in  like  manner  it  shall 
be  lawful  for  the  commons,  on  their  part,  to  debate  together 
concerning  the  said  condition  and  remedie.«».     Provided  al- 
ways that  neither  the  lords  on  their  part,  nor  the  commons 
on  theirs,  do  make  any  report  to  our  said  lord  the  king  of 
any  grant  granted  by  the  commons,  and  agreed  to  by  the 
lords,  nor  of  the  communications  of  the  said  grant,  before 
that  the  said  lords  and  commons  are  of  one  accord  and  agree- 


102 


PRIVILEGE  OF  PARLIAMENT.    Chap.  VIH.  Pakt  IH. 


English  Const.    PRIVILEGE  OF  PARLIAMENT. 


103 


ment  in  this  matter,  and  then  in  manner  and  form  accus- 
tomed —  that  is  to  say,  by  the  mouth  of  the  speaker  of  the 
said  commons  for  the  time  being  —  to  the  end  that  the  said 
lords  and  commons  may  have  what  they  desire  (avoir  puis- 
sent  leur  gree)  of  our  said  lord  the  king.  Our  said  lord  the 
king  willing  moreover,  by  the  consent  of  the  said  lords,  that 
the  communication  had  in  this  present  parliament  as  above 
be  not  drawn  into  precedent  in  time  to  come,  nor  be  turned 
to  the  prejudice  or  derogation  of  the  liberty  of  the  estate  for 
which  the  said  commons  are  now  come,  neither  in  this 
present  parliament  nor  in  any  other  time  to  come.  But 
wills  that  himself  and  all  the  other  estates  should  be  as  free 
as  they  were  before.  Also,  the  said  last  day  of  parliament, 
the  said  speaker  prayed  our  said  lord  the  king,  on  the  part 
of  the  said  commons,  that  he  would  grant  the  said  commons 
that  they  should  depart  in  as  great  liberty  as  other  commons 
had  done  before.  To  which  the  king  answered  that  this 
pleased  him  well,  and  that  at  all  times  it  had  been  his  de- 


sire 


»>i 


Every  attentive  reader  will  discover  this  remarkable  pas- 
sage to  illustrate  several  points  of  constitutional  law.  For 
hence  it  may  be  perceived  —  first,  that  the  king  was  used  in 
those  times  to  be  present  at  debates  of  the  lords,  personally 
advising  with  them  upon  the  public  business ;  which  also  ap- 
pears by  many  other  passages  on  record ;  and  this  practice, 
I  conceive,  is  not  abolished  by  the  king's  present  declaration, 
save  as  to  grants  of  money,  which  ought  to  be  of  the  free  will 
of  parliament,  and  without  that  fear  or  influence  which  the 
presence  of  so  high  a  person  might  create  :  secondly,  that  it 
was  already  the  established  law  of  parliament  that  the  lords 
should  consent  to  the  commons*  grant,  and  not  the  commons 
to  the  lords' ;  since  it  is  the  inversion  of  this  order  whereof 
the  commons  complain,  and  it  is  said  expressly  that  grants 
are  made  by  the  commons,  and  agreed  to  by  the  lords : 
thirdly,  that  the  lower  house  of  parliament  is  not,  in  proper 
language,  an  estate  of  the  realm,  but  rather  the  image  and 
representative  of  the  commons  of  England ;  who,  being  the 
third  estate,  with  the  nobility  and  clergy  make  up  and  con- 
stitute the  people  of  this  kingdom  and  liege  subjects  of  the 
crown.^ 

I  Rot.  Pari.  Tol.  iii.  p.  611.  people,  and  not  without  the  authority  of 

*  A  notion  is  entertained   by  many    some  very  respectable  names,  that  the 


At  the  next  meeting  of  parliament,  in  allusion  probably  to 
this  disa^'reement  between  the  houses,  the  king  told  them 
that  the  "states  of  parliament  were  come  together  for  the 
common  profit  of  the  king  and  kingdom,  and  for  unanimity  s 
sake  and  general  consent ;  and  therefore  he  was  sure  the 
commons  would  not  attempt  nor  say  anything  but  what 
should  be  fitting  and  conducive  to  unanimity ;  commanding 
them   to   meet   together  and    communicate   for  the   pubhc 

service.^  ,         .... 

It  was  not  only  in  money  bills  that  the  origmatmg  power 
was   supposed  to   reside   in  the  commons.     The  course  ot 
proceedings  in  parliament,  as  has  been  seen,  from  the  com- 
mencement  at   least  of  Edward  III.^s  reign,  was  that  the 
commons  presented  petitions,  which  the  lords,  by  themselves, 

mons,  which  seems  to  have  been  a  cur- 
rent doctrine  among  the  popular  lawyers 
of  the  seventeenth  century.  His  reason- 
ing is  chiefly  grounded  on  the  baronial 
tenure  of  bishops,  the  validity  of  acts 
passed  against  their  consent,  and  other 
arguments  of  the  same  kind  ;  which  might 
go  to  prove  that  there  are  only  at  pres- 
ent two  estates,  but  can  never  turn  the 
king  into  one.  ,         . 

The  source  of  this  error  is  an  inatten- 
tion to  the  primary  sense  of  the  word 
estate  (status),  which  meaus  an  order  or 
condition  into  which  men  are  classed  by 
the  institutions  of  society.    It  is  only  in 
a  secondary,  or  rather  an  elliptical  appli- 
cation, that  it  can  be  referred  to  their 
representatives  iu  parliament  or  national 
councils.    The  lords  temporal,  indeed,  of 
England  are    identical  with   the  estate 
of  the  nobility ;  but  the  house  of  com- 
mons is  not,  strictly  speaking,  the  estate 
of  commonalty,   to  which  its  members 
belong,  and  from  which  they  are  deputed. 
So  the  whole  body  of  the  clergy  are  prop- 
erly speaking  one  of  the  estates,  and  are 
described  as  such  in  the  older  authori- 
ties, 21  llic.  II.  Rot.  Pari.  vol.  iii.  p.  348, 
though  latterly  the  lords  spiritual  in  par- 
liament acquired,  with  less  correctness, 
that  appellation.  Hody  on  Convocations, 
p  426.      The  bishops,   indeed,  may  be 
said,    constructively,    to  represent    the 
whole  of  the  clergy,  with  whose  griev- 
ances they  are  supposed  to  be  best  ac- 
quainted, and  whose  rights  it  is  their 
Jeculiar  duty  to  defend.    And  I  do  not 
find  that  the    inferior  clergy  had  any 
other  representation  in  the  cortes  of  Las- 
tile  and  Aragon.  where  the  ecclesiastical 
order  was  always  counted  among   the 
estates  of  the  realm. 
I  Kot.  Pari.  vol.  m.  p.  oad. 


king  is  one  of  the  three  estates  of  the 
reahn,  the  lords  spiritual  and  temporal 
forming  together  the  second,  as  the  com- 
mons in  parliament  do  the  third.    This 
is  contradicted  by  the  general  tenor  of 
our  ancient  records  and  law-books  ;  and 
indeed  the  analogy  of  other  governments 
ought  to  have  the  greatest  weight,  even 
if  more  reason  for  doubt  appeared  upon 
the  face  of  our  own  authorities.  But  the 
instances  where  the  three  esUites  are  de- 
clared or  implied  to  bo  the  nobility , clergy, 
and  commons,  or  at  least  their  repre- 
sentatives iu  parliament,  are  too  numer- 
ous for  insertion.     This  land  standeUi, 
says  the  Chancellor  Stillington,  in  7th 
Edward  IV..  by  three  states,  and  above 
that  one  principal,  that  is  to  wit,  lords 
spiritual,  lords  temporal,  and  commons, 
and  over  that,  state  royal,  as  our  sover- 
eign lord  the  king.  Rot.  Pari.  vol.    v. 
p.  622.    Thus,  too,  it  is  declared  that  the 
treiity  of  Staples  in  1492  was  to  be  con- 
finned  per  tres  status  regni  Anglia)  rite 
et  debite  convocatos,  videlicet  per  pre- 
lates et  clerum,  nobiles  et  communitates 
ejusdem  regni.    Rymer,  t.  xii.  p.  508. 

I  will  not,  however,  suppress  one 
pass.ige,  and  the  only  instance  that  has 
occurred  in  my  reading,  where  the  king 
does  appear  to  have  been  reckoned  among 
the  three  estates.  The  commons  say,  in 
the  2d  of  Ilenry  IV.,  that  the  states  of 
the  realm  may  be  compared  to  a  trinity, 
that  is,  the  king,  the  lords  spiritual  and 
temporal,  and  the  commons.  Rot.  Pari, 
vol.  iii.  p.  459.  In  this  expression,  how- 
ever, the  sense  shows  that  by  estates  of 
the  realm  they  meant  members,  or  nec- 
MSary  parts,  of  the  parliament. 

Whitelocke,on  the  Parliamentary  Writ, 
Wl.  U.  p.  43,  argues  at  length,  that  the 
three  estates  are  king,  lords,  and  com- 


104 


PRIVILEGE  OF  PARLIAMENT.    Chap.  VIH.  Part  HI. 


or  with  the  assistance  of  the  council,  having  duly  considered, 
the  sanction  of  the  king  was  notified  or  withlield.  This  was 
so  much  according  to  usage,  that,  on  one  occasion,  when  the 
commons  requested  the  advice  of  the  other  house  on  a  matter 
before  them,  it  was  answered  that  the  ancient  custom  and 
form  of  parliament  had  ever  been  for  the  commons  to  report 
their  own  opinion  to  the  king  and  lords,  and  not  to  the  con- 
trary; and  the  king  would  have  the  ancient  and  laudable 
usages  of  parliament  maintained.^  It  is  singular  that  in  the 
terror  of  innovation  the  lords  did  not  discover  how  materially 
this  usage  of  parliament  took  off  from  their  own  legislative 
influence.  The  rule,  however,  was  not  observed  in  succeed- 
ing times ;  bills  originated  indiscriminately  in  either  house ; 
and  indeed  some  acts  of  Henry  V.,  which  do  not  appear  to 
be  grounded  on  any  petition,  may  be  suspected,  from  the 
manner  of  their  insertion  in  the  rolls  of  parliament,  to  have 
been  proposed  on  the  king's  part  to  the  commons.*  But 
there  is  one  manifest  instance  in  the  18th  of  Henry  VI., 
where  the  king  requested  the  commons  to  give  their  authori-  * 
ty  to   such   regulations^  as    his   council  might   provide  for 


1  Rot.  Pari.  5  R.  II.  p.  100. 

a  Stat.  2  H.  V.  c.  6,  7,  8,  9  ;  4  H.  VI. 
e.  7. 

3  Rot.  Pari.  vol.  V.  p.  7.  It  appears 
by  a  case  in  the  Year  Book  of  the  33d 
of  Henry  VI.,  that,  where  the  lords 
made  only  some  minor  alterations  in 
a  bill  sent  up  to  them  from  the  com- 
mons, even  if  it  related  to  a  grant  of 
money,  the  custom  was  not  to  remand 
it  for  their  assent  to  the  amendment. 
Brooke's  Abridgment :  Parliament.  4. 
The  passage  is  worth  extracting,  in  order 
to  illustrate  the  course  of  proceeding  in 
parliament  at  that  time.  Case  fuit  tjue 
Sir  J.  P.  fuit  attaint  de  ccrteyn  trespas 
paractede  parliament,  dout  les  commons 
forent  assentus,  que  sil  ne  vient  eins  per 
tiel  jour  que  il  forfeytera  tiel  summe,  et 
les  seigneurs  done  plus  longe  jour,  et  le 
bil  nient  rebaile  al  commons  arrere ;  et 
per  Kirby,  clerk  des  roles  del  parliament, 
I'usc  del  parliament  est,  que  si  bil  vient 
primes  a  les  commons,  et  ils  passent  ceo, 
il  est  use  d'endorser  ceo  en  tiel  forme, 
Soit  bayle  as  seigniors ;  et  si  les  seig- 
niors ne  le  roy  ne  alteront  le  bil,  donques 
est  use  a  liverer  ceo  al  clerke  del  parlia- 
mente  destre  enrol  saunz  endorser  ceo.  . 
Et  si  les  seigniors  volent  alter  un  bil  in 
ceo  que  poet  estoyer  ore  le  bil,  ils  poyeut 
saunz  remandre  ceo  al  commons,  come  si 
les  commons  graunte  poundage,  pur  qua- 
taor  ans,  et  les  grantent  nisi  par  deux 


ans,  ceo  ne  serra  rebayle  al  commons; 
mes  si  les  commons  gruuntent  nisi  pur 
deux,  ans.  et  les  seigneurs  pur  quatre  ans, 
la  ceo  serra  reliver  al  commons,  et  en 
cest  case  les  seigniors  doyent  faire  un 
sedule  de  lour  intent,  ou  d'endorser  le 
bil  en  ceste  forme,  Les  seigneurs  ceo 
assentent  pur  durer  par  quatuor  ans;  et 
quant  les  commons  ount  le  bil  arrere,  et 
ne  volent  assenter  a  ceo,  ceo  ne  poet 
estre  un  actre;  mes  si  les  commons  volent 
assenter,  donques  ils  indorse  leur  respons 
sur  le  mergent  ne  basse  deins  le  bil  en 
tiel  forme,  Les  commons  sont  assentans 
al  sedul  des  seigniors,  a  mesme  cesty  bil 
annexe,  et  donques  sera  bayle  ad  clerke 
del  parliament,  ut  supra.  Et  si  un  bil 
soit  primes  liver  al  seigniors,  et  le  bil 
passe  eux,  ils  ne  usont  de  fayre  ascun  en> 
dorsement,  mess  de  mitter  le  bil  as  com- 
mons ;  et  donques.  si  le  bil  passe  les  com- 
mons, il  est  use  destre  issint  endorce, 
Les  commons  sont  assentants;  et  ceo 
prove  que  il  ad  passe  les  seigniors  devant, 
et  lour  assent  est  a  cest  passer  del  seig- 
niors  ;  et  ideo  cest  acte  supra  nest  bon, 
pur  ceo  ()ue  ne  fuit  rebaile  as  commons. 
A  singular  assertion  is  made  in  the 
Year  Book  21  E.  IV.  p  48  (Maynard'i 
edit.),  that  a  subsidy  granted  by  the 
commons  without  assent  of  the  peers  is 
good  enough.  This  cannot  surely  have 
been  law  at  that  time. 


Emgush  Const.        CONTESTED  ELECTIONS.  105 

redressing   the    abuse   of  purveyance;  to  which  they  as- 

If  we  are  to  choose  constitutional  precedents  from  seasons 
of  tranquillity  rather  than  disturbance,  which  surely  is  the  only 
means  of  preserving  justice  or  consistency,  but  little  intrinsic 
authority  can  be  given  to  the  following  declaration  of  parlia- 
mentiiry  law  in  the  11th  of  Richard  II. :  "  In  this  parliament 
(the  roll  says)  all  the  lords  as  well  spiritual  and  temporal 
there  present  claimed  as  their  liberty  and  privilege,  that  the 
jrreat  matters  moved  in  this  parliament,  and  to  be  moved  m 
other  parliaments  for  time  to  come,  touching  the  peers  of  the 
land,  should  be  treated,  adjudged,  and  debated  according  to  the 
course  of  parliament,  and  not  by  the  civil  law  nor  the  common 
law  of  the  land,  used  in  the  other  lower  courts  of  the  kingdom ; 
which  claim,  liberty,  and  privileges,  the  king  graciously  al- 
lowed and  granted  them  in  full  parliament."       It  should  be 
remembered  that  this  assertion  of  paramount  privilege  was 
made  in  very  irregular  times,  when  the  king  was  at  the  mercy 
of  the  duke  of  Gloucester  and  his  associates,  and  that  it  had 
a  view  to  the  immediate  object  of  justifying  their  violent  pro- 
ceedings against  the  opposite  party,  and   taking  away  the  re- 
straint of  the  common  law.     It  stands  as  a  dangerous  rock 
to  be  avoided,  not  a  lighthouse  to  guide  us  along  the  channel. 
The  law  of  parliament,  as  determined  by  regular  custom,  is 
incorporated  into  our  constitution ;  but  not  so  as  to  warrant 
an  indefinite,  uncontrollable  assumption  of  power  in  any  case, 
least  of  all  in  judicial  procedure,  where  the  form  and  the  es- 
sence of  justice  are  inseparable  from  each  other.     And,  m 
fact,  this  claim  of  the  lords,  whatever  gloss  Sir  E.  Coke  may 
put  upon  it,  was  never  intended  to  bear  any  relation  to  the 
privileges  of  the  lower  house.     I  should  not,  perhaps,  have 
noticed"  this  passage  so  strongly  if  it  had  not  been  made  the 
basis  of  extravagant  assertions  as  to  the  privileges  of  parlia- 
ment ;2  the  spirit  of   which  exaggerations  might  not  be  ill 
adapted  to  the  times  wherein  Sir  E.  Coke  lived,  though  I 
think  they  produced  at  several  later  periods  no  slight  mischiet, 
some  consequences  of  which  we  may  still  have  to  experience. 
The  want  of  all  judicial  authority,  either  to  issue  process 
or  to  examine  witnesses,  together  with  the  usual  Co^^ted 
shortness  of  sessions,  deprived  the  house  of  com-  how 
mons  of  what  is  now  considered  one  of  it^  most  determined 

1  Rot.  Paxl.  vol.  iii.  p.  244.  »  Coke's  4th  InsUtute,  p.  15. 


106 


CONTESTED  ELECTIONS.     Chap.  VUI.  Part  UL 


fundamental  privileges,  the  cognizance  of  disputed  elections. 
Upon  a  false  return  by  the  sheriff,  there  was  no  rem- 
edy but  through  the  king  or  his  council.  Six  instances 
only,  I  believe,  occur,  during  the  reigns  of  the  Plantagenet 
family,  wherein  the  misconduct  or  mistake  of  the  sheriff  is 
recorded  to  have  called  for  a  specific  animadversion,  though  it 
was  frequently  the  ground  of  general  complaint,  and  even  of 
some  statutes.  The  first  is  in  the  12th  of  Edward  II.,  when 
a  petition  was  presented  to  the  council  against  a  false  retura 
for  the  county  of  Devon,  the  petitioner  having  been  duly 
elected.  It  was  referred  to  the  court  of  exchequer  to  summon 
the  sheriff  before  them.^  The  next  occurs  in  the  3Gth  of 
Edward  III.,  when  a  writ  was  directed  to  tlie  sheriff  of  Lan- 
cashire, after  the  dissolution  of  parliament,  to  inquire  at  the 
county-court  into  the  validity  of  the  election ;  and  u\K>n  his 
neglect  a  second  writ  issued  to  the  justices  of  the  peace  to 
satisfy  themselves  about  this  in  the  best  manner  they  could, 
and  report  the  truth  into  chancery.  This  inquiry  after  the 
dissolution  was  on  account  of  the  wages  for  attendtmce,  to 
which  the  knights  unduly  returned  could  have  no  pretence.^ 
We  find  a  third  case  in  the  7th  of  Richard  II.,  when  the 
king  took  notice  that  Thomas  de  Camoys,  who  was  sum- 
moned by  writ  to  the  house  of  peers,  had  been  elected  knight 
for  Surrey,  and  directed  the  sheriff  to  return  another.*  In 
the  same  yeai*  the  town  of  Shaftesbury  petitioned  the  king, 
lords,  and  commons  against  a  false  return  of  the  sheriff  of 
Dorset,  and  prayed  them  to  order  remedy.  Nothing  further 
appears  respecting  this  petition.*  This  is  the  first  instance  of 
the  commons  being  noticed  in  matters  of  election.  But  the 
next  case  is  more  material ;  in  the  5th  of  Henry  IV.  the 
commons  prayed  the  king  and  lords  in  parliament,  that,  be- 
cause the  writ  of  summons  to  parliament  was  not  sufficiently 
returned  by  the  sheriff  of  Rutland,  this  matter  might  be  ex- 
amined in  parliament,  and  in  case  of  default  found  therein 
an  exemplary  punishment  might  be  inflicted  ;  whereupon  the 
lords  sent  for  the  sheriff  and  Oneby,  the  knight  returned,  as 
well  as  for  Thorp,  who  had  been  duly  elected,  and,  having  ex- 
amined into  the  facts  of  the  case,  directed  the  return  to  be 
amended,  by  the  insertion  of  Thorp's  name,  and  committed 


1  Olanvirs  Reports  of  Elections,  e^t. 
1774;  Introduction,  p  12. 
«  4  Prynne,  p   261. 


'  OlanTiPs  Reports,  ibid,  from  Prynne. 
*  QlauTil'ti  Reports,  ibid,  from  Prynne 


English  Const.      RIGHT  OF  VOTING  FOR  KNIGHTS.         107 

the  sheriff  to  the  Fleet  till  he  should  pay  a  fine  at  the  king's 
pleasure.*     The  last  passage  that  I  can  produce  is  from  the 
roll  of  18  H.  VI.,  where  "  it  is  considered  by  the  king,  with 
the  advice  and  assent  of  the  lords  spiritual  and  temporal," 
that,  whereas  no  knights  have  been  returned  for  Cambridge- 
shire, the  sheriff  shall  be  directed,  by  another  writ,  to  hold  a 
court  and  to  proceed  to  an  election,  proclaiming  that  no  person 
shall  come  armed,  nor  any  tumultuous  proceeding  take  place  ; 
something  of  which  sort  appears  to  have  obstructed  the  exe- 
cution of  the  first  writ.     It  is  to  be  noticed  that  the  commons 
are  not  so  much  as  named  in  this  entry.^     But  several  pro- 
visions were  made  by  statute  under  the  Lancastrian  kmgs, 
when  seats  in  parliament  became  much  more  an  object  of 
competition  than  before,  to  check  the  partiality  of  the  sheriffs 
in  making  undue  returns.     One  act  (11  H.  IV.  c.  1)  gives 
the  justices  of  assize  power  to  inquire  into  this  matter,  and 
inflicts  a  penalty  of  one  hundred  pounds  on  the  sheriff.     An- 
other (6  H.  VI.  c.  4)  mitigates  the  rigor  of  the  former,  so  far 
as  to  permit  the  sheriff  or  the  knights  returned  by  him  to  trav- 
erse the  inquests  before  the  justices ;  that  is,  to  be  heard  in  their 
own  defence,  which,  it  seems,  had  not  been  permitted  to  them. 
Another  (23  H.  VI.  c  14)  gives  an  additional  penalty  upon 
false  returns  to  the  party  aggrieved.     These  statutes  conspire 
with  many  other  testimonies  to  manifest  the  rising  importance 
of  the  house  of  commons,  and  the  eagerness  with  which  gen- 
tlemen of  landed  estates  (whatever  might  be  the  case  in  petty 
boroughs)  sought  for  a  share  in  the  national  representation. 
Whoever  may  have  been  the  original  voter?  for  county  re- 
presentatives, the  first  statute  that  regulates  their  in  wiiom 
election,  so  far  from  limiting  the  privilege  to  ten-  ^^^,^1)^^^ 
ants  in  capite,  appears  to  place  it  upon  a  very  knights 
large   and    democratical    foundation.     For   (as  I  ^^^  ®  * 
rather  conceive,  though  not  without  much   hesitation),  not 
only  all  freeholders,  but  all  persons  whatever  present  at  the 
county-court,  were  declared,  or  rendered,  capable  of  voting 
for  the  knight  of  their  shire.     Such  at  least  seems  to  be  the 
inference  from  the  expressions  of  7  H.  IV.  c.  15,  *'all  who 
are  there  present,  as  well  suitors  duly  summoned  for  that 
cause  as  others."  *     And  this  acquires  some  degree  of  confir- 

1  Olanvil'8  Reports,  ibid,  and  Rot.  Pari  hypothesis,  though  embraced  by  Prynne. 

?ol  iii  D  530  iSi  I  confess,  much  opposed  to  general 

«Rot:  Pari.'  vol.  t.  p.  7.  opinion  ;  and  a  yery  respectable  hv.ng 

«  8  Prynne'8  Register,  p.  187.     Thia  writer  treats  such  an  interpretation  of 


108 


ELECTION  OF  BURGESSES.    Chap.  VHI.  Part  HI. 


English  Const. 


POWER  OF  SHERIFF. 


109 


i«i 


i-^l 


mation  from  the  later  statute,  8  H.  VI.  c.  7,  which,  reciting 
that  "elections  of  knights  of  shires  have  now  of  late  been 
made  by  very  great,  outrageous,  and  excessive  number  of 
people  dwelling  within  the  same  counties,  of  the  which  most 
part  was  people  of  small  substance  and  of  no  value,"  confines 
the  elective  franchise  to  freeholders  of  lands  or  tenements  to 
the  value  of  forty  shillings. 

The  representation  of  towns  in  parliament  was  founded 
Elections  of  "po"  t^o  principles  —  of  consent  to  public  bur- 
burgesses,  dens,  and  of  advice  in  public  measures,  especially 
Buch  as  related  to  trade  and  shipping.  Upon  both  these  ac- 
counts it  was  natural  for  the  king.^  who  first  summoned  them 
to  parliament,  little  foreseeing  that  such  half-emancipated 
burghers  would  ever  clip  the  loftiest  plumes  of  their  prerog- 
ative, to  make  these  assemblies  numerous,  and  summon  mem- 
bers from  every  town  of  consideration  in  the  kingdom.  Thus 
the  writ  of  23  E.  I.  directs  the  sheriffs  to  cause  deputies  to  be 
elected  to  a  general  council  from  every  city,  borough,  and 
trading  town.  And  although  the  last  words  are  omitted  in 
subsequent  writs,  yet  their  spirit  was  preserved ;  many  towns 
having  constantly  returned  members  to  parliament  by  regular 
summonses  from  the  sheriffs,  which  were  no  chartered  bor- 
oughs, nor  had  apparently  any  other  claim  than  their  popu- 
lousness  or  commerce.  These  are  now  called  boroughs  by 
prescription.^ 


the  statute  7  H.  TV.  as  chimerical.  The 
words  cited  in  the  text,  "  as  others," 
mean  only,  according  to  him,  suitors  not 
duly  summoned.  Iley  wood  on  Elections, 
vol.  i.  p.  20.  But,  as  I  presume,  the 
summons  to  freeholders  was  by  general 
proclamation ;  so  that  it  is  not  easy 
to  perceive  what  difference  there  could 
be  between  summoned  and  unsummoned 
suitors.  And  if  the  words  are  supposed 
to  glance  at  the  private  summonses  to 
a  few  friends,  by  means  of  which  the 
sheriSs  were  accustomed  to  procure  a 
clandestine  election,  one  can  hardly  im- 
agine that  such  persons  would  be  styled 
"  duly  summoned."  It  is  not  unlikely, 
however,  that  these  large  expressions 
were  inadvertently  used,  and  that  they 
led  to  that  inundation  of  voters  without 
property  which  rendered  the  subsequent 
act  of  Henry  VI.  necessary.  That  of 
Henry  IV.  had  itself  been  occasioned  by 
an  opposite  evil,  the  close  election  of 
knights  by  a  few  persons  in  the  name  of 
the  county. 
Yet  the  consequence  of  the  statute  of 


Henry  IV.  was  not  to  let  in  too  many 
voters,  or  to  render  elections  tumultuous, 
in  the  largest  of  English  counties,  what- 
ever it  might  be  in  others.  Prynne  has 
published  some  singular  sheriff's  in- 
dentures for  the  county  of  York,  all 
during  the  interval  between  the  acts  of 
Henry  IV.  and  Henry  VI.,  which  are 
sealed  by  a  few  persons  calling  them- 
selves the  attorneys  of  some  peers  and 
ladies,  who.  as  fur  as  appears,  had  solely 
returned  the  knights  of  that  shire.  3 
Prynne,  p.  152.  What  degree  of  wei;?ht 
these  anomalous  returns  ought  to  possess 
I  leave  to  the  reader. 

1  The  majority  of  prescriptive  boroughs 
have  prescriptive  corporations,  which 
carry  the  legal,  which  is  not  always  the 
moral,  presumption  of  an  original  charter. 
But  "  many  boroughs  and  towns  in  Eng- 
land have  burgesses  by  prescription,  that 
never  were  incorporated."  Ch.  J.  Uo- 
bart  in  Dungannon  Case,  Hobarfs  Re- 
ports, p.  15.  And  Mr.  Luders  thinks,  I 
know  not  how  justly,  that  in  the  age  of 
Edward  I.,  which  is  most  to  our  immodl- 


Besides  these  respectable  towns,  there  were  some  of  a  less 
eminent  figure  which  had  writs  directed  to  them  as  ancient 
demesnes  of  the  crown.  During  times  of  arbitrary  taxation 
the  crown  had  set  tallages  alike  upon  its  chartered  boroughs 
and  upon  its  tenants  in  demesne.  When  pariiamentary  con- 
sent became  indispensable,  the  free  tenants  in  ancient  de- 
mesne, or  rather  such  of  them  as  inhabited  some  particular 
vills,  were  called  to  pariiament  among  the  other  representa- 
tives of  the  commons.  They  are  usually  specified  distinctly 
from  the  other  classes  of  representives  in  grants  of  subsidies 
throucrhout  the  parliaments  of  the  first  and  second  Edwards, 
till,  about  the  beginning  of  the  third's  reign,  they  were  con- 
founded with  ordinary  burgesses.^  This  is  the  foundation  ot 
that  particular  species  of  elective  franchise  incident  to  what 
we  denominate  burgage  tenure ;  which,  however,  is  not  con- 
fined  to  the  ancient  demesne  of  the  crown.^ 

The  proper  constituents  therefore  of  the  citizens  and  bur- 
gesses in  pariiament  appear  to  have  been  —  1.  All  chartered 
borourrhs,  whether   they  derived   their  privileges  from  the 
crown°  or  from  a  mesne  lord,  as  several  in  Cornwall  did  from 
Richard  king  of  the  Romans ;«  2.  AU  towns  which  were  the 
ancient  or  the  actual  demesne  of  the  crown ;  3.  All  consider- 
able  places,  though   unincorporated,  which   could  afford  to 
defray  the  expenses  of  their  representatives,  and  had  a  no- 
table interest  in  the  public  welfare.     But  no  parliament  ever 
perfectly  corresponded  with  this  theory.    The  writ  ^^^^^  ^^ 
was  addressed  in  general  terms  to  the  sheriff",  re-  the  sheriff 
quiring  him  to  cause  two  knights  to  be  elected  out  ^l^^^^^ 
of  the  body  of  the  county,  two  citizens  from  every 
city,  and  two  burgesses  from  every  borough.     It  rested  alto- 
gether upon  him  to  determine  what  towns  should  exercise 
this  franchise ;  and  it  is  really  incredible,  with  all  the  care- 


ate  purpose,  "  there  were  not  perhaps 
thirty  corporations  in  the  kingdom." 
Reports  of  Elections,  vol.  i.  p.  98.  But  I 
must  allow  that,  in  the  opinion  of  many 
sound  lawyers,  the  representation  of  un- 
chartered, or  at  least  unincorporated 
boroughs  was  rather  a  real  privilege,  and 
founded  upon  tenure,  than  one  arising 
out  of  their  share  in  public  contribu- 
tions. Oh.  J.  Holt  in  Ashby  v.  White,  2 
Ld.  Raymond,  951.  Heywood  on  Borough 
Elections,  p.  11.  This  inquiry  is  very 
obscure  ;  and  perhaps  the  more  so,  be- 
cause the  learning  directed  towards  it 


has  more  frequently  been  that  of  advo- 
cates pleading  for  their  clients  than  of 
unbiassed  antiquaries.  If  this  be  kept  in 
view,  the  lover  of  constitutional  history 
will  find  much  information  in  several  of 
the  reported  cases  on  controverted  elec- 
tions ;  particulariy  those  of  Tewksbury 
and    Liskeard,    in    PeckweU's    Reports, 

1  Brady  on  Boroughs,  p.  75,  80,  and 
163.  Case  of  Tewksbury,  in  Peckwell'a 
Reports,  vol.  i.  p.  178. 

2  Littleton,  s.  162, 163. 

3  Brady,  p.  97. 


110 


POWER  OF  SHERIFF.    Chap.  Vm.  Part  ITT. 


lessness  and  ignorance  of  those  times,  what  frauds  the  sheriffs 
ventured  to  commit  in  executing  this  trust.  Though  parHa- 
ments  met  almost  every  year,  and  there  could  be  no  mistake 
in  so  notorious  a  fact,  it  was  the  continual  practice  of  sheriffs 
to  omit  boroughs  that  had  been  in  recent  habit  of  electing 
members,  and  to  return  upon  the  writ  that  there  were  no 
more  within  their  county.  Thus  in  the  12th  of  Edward  III. 
the  sheriff  of  Wiltshire,  after  returning  two  citizens  for  Salis- 
bury, and  burgesses  for  two  boroughs,  concludes  with  these 
words :  —  *'  There  are  no  other  cities  or  boroughs  within  my 
bailiwick."  Yet  in  fact  eight  other  towns  had  sent  members 
to  preceding  parliaments.  So  in  the  6th  of  Edward  II.  the 
sheriff  of  Bucks  declared  that  he  had  no  borough  within  his 
county  except  Wycomb ;  though  Wendover,  Agmondesham, 
and  Mario w  had  twice  made  returns  since  that  king's  acces- 
^     And  from  this  cause  alone  it  has  happened  that  many 


sion.' 


towns  called  boroughs,  and  having  a  charter  and  constitution 
as  such,  have  never  returned  members  to  parliament ;  some 
of  which  are  now  among  the  most  considerable  in  England, 
as  Leeds,  Birmingham,  and  Macclesfield.^ 

It  has  been  suggested,  indeed,  by  Brady,*  that  these  returns 
may  not  appear  so  false  and  collusive  if  we  suppose  the  sheriff 
to  mean  only  that  there  \N'ere  no  resident  burgesses  within 
these  boroughs  fit  to  be  returned,  or  that  the  expense  of  their 
wages  would  be  too  heavy  for  the  place  to  support.  And  no 
doubt  the  latter  plea,  whether  implied  or  not  in  the  return, 
was  very  frequently  an  inducement  to  the  sheriffs  to  spare 
the  smaller  boroughs.  The  wages  of  knights  were  four  shil- 
lings a  day,  levied  on  all  freeholders,  or  at  least  on  all  holding 
by  knight-service,  within  the  county.^     Those  of  burgesses 


1  Brady  on  Boroughs,  p.  110.  8 
Prynne,  p.  231.  The  latter  even  argues 
that  this  power  of  omitting  ancient 
borouglis  was  legally  vested  in  the  sheriff 
before  the  5th  of  Richard  II. ;  and 
though  the  language  of  that  act  implies 
the  contrary  of  this  position,  yet  it  is 
more  than  probable  that  most  of  our 
pjirliamentiry  boroughs  by  prescription, 
especially  such  ns  were  then  unincorpo- 
rated, are  indebted  for  their  privileges  to 
the  exercise  of  the  sheriff's  discretion; 
not  founded  on  partiality,  which  would 
rather  have  led  him  to  omit  them,  but 
on  the  broad  principle  that  they  were 
sufficiently  opulent  and  important  to 
Mud  representatives  to  parliament. 


3  Willis,  Notitia  Parliamentaria,  rol.  1. 
preface,  p.  36. 

3  p.  117. 

4  It  is  a  perplexing  question  whether 
freeholders  in  socage  were  liable  to  con- 
tribute towards  the  wages  of  knights; 
and  authorities  might  bo  produced  on 
both  sides.  The  more  probable  supposi- 
tion is,  that  they  were  not  exempted. 
See  the  various  petitions  relating  to  the 
payment  of  wages  in  Prynnc'a  fourth 
Register.  This  is  not  unconnected  with 
the  question  as  to  their  right  of  suffrage. 
See  p.  115  of  this  volume.  Freeholders 
within  franchises  made  repeated  endeav- 
ors to  exempt  themselves  from  payment 
of  wages.    Thus  in  9  H.  IV.  it  was  set- 


English  Const.    RELUCTANCE  TO  SEND  MEMBERS. 


Ill 


were  half  that  sum ;  *  but  even  this  pittance  was  raised  with 
reluctance  and  difficulty  from  miserable  burghers,  little  solici- 
tous about  political  franchises.  Poverty,  indeed,  seems  to 
have  been  accepted  as  a  legal  excuse.  In  the  6th  of  E.  II. 
the  sheriff  of  Northumberland  returns  to  the  writ  of  sum- 
mons that  all  his  knights  are  not  sufficient  to  protect  the 
county;  and  in  the  1st  of  E.  III.  that  they  were  too  much 
ravaged  by  their  enemies  to  send  any  members  to  parliament.^ 
The  sheriffs  of  Lancashire,  after  several  returns  that  they 
had  no  boroughs  within  their  county,  though  Wigan,  Liver- 
pool, and  Preston  were  such,  alleged  at  length  that  none 
ought  to  be  called  upon  on  account  of  their  poverty.  This 
return  was  constantly  made,  from  36  E.  III.  to  the  reign  of 
Henry  VI.'^ 

The  elective  franchise  was  deemed  by  the  boroughs  no 
privilege  or  blessing,  but  rather,  during  the  chief  3^^^^^.^^^^^ 
part   of   this    period,   an    intolerable    grievance,  of  boroughs 
Where  they  could  not  persuade  the  sheriff  to  omit  ^/^^bers. 
sending  his  writ  to  them,  they  set  it  at  defiance  by 
sending  no  return.    And  this  seldom  failed  to  succeed,  so  that, 
after  one  or  two  refusals  to  comply,  which  brought  no  punish- 
ment upon  them,  they  were  left  in  quiet  enjoyment  of  their 
insignificance.    The  town  of  Torrington,  in  Devonshire,  went 


tied  by  parliament  that,  to  put  an  end 
to  the  disputes  on  this  subject  between 
the  people  of  Cambridgeshire  and  those 
of  the  Isle  of  Ely,  the  latter  should  pay 
200/.  and  be  quit  in  future  of  all  charges 
on  that  account.  Hot.  Pari.  vol.  iv.  p. 
883.  By  this  means  the  inhabitants  of 
that  franchise  seem  to  have  purchased 
the  right  of  suffrage,  which  they  still 
enjoy,  though  not,  I  suppose,  suitors  to 
the  county-court.  In  most  other  fran- 
chises, and  in  many  cities  erected  into 
distinct  counties,  the  same  privilege  of 
voting  for  knights  of  the  shire  is  practi- 
cally exercised;  but  whether  this  has 
not  proceeded  as  much  from  the  tendency 
of  returning  officers  and  of  parliament 
to  fovor  the  right  of  election  in  doubtful 
cases,  as  from  the  merits  of  their  preten- 
sions, may  be  a  question. 

1  The  wages  of  knights  and  burgesses 
were  first  reduced  to  this  certain  sum 
by  the  writs  De  levandis  expensi.s.  16  E. 
II.  Prynne's  fourth  Register,  p.  53. 
Tliese  were  issued  at  the  request  of 
tiiose  who  had  served,  after  the  dissolu- 
tion of  parliameut,  and  included  a  cer- 
tain number  of  days,  according  to  the 
distance   of    the  county  u hence    they 


came,  for  going  and  returning.  It  ap- 
pears by  these  that  thirty-five  or  forty 
miles  wore  reckoned  a  day's  journey ; 
which  may  correct  the  exaggerated  no- 
tions of  bad  roads  and  tardy  locomotion 
that  are  sometimes  entertained.  See 
Prynne's  fourth  Register,  and  Willis's 
Notitia  Parliamentaria,  pa.ssim. 

The  latest  entries  of  writs  for  expenses 
in  the  close  rolls  are  of  2  H.  V.;  but 
they  may  be  proved  to  have  issued  much 
longer ;  and  Prynne  traces  them  to  the 
end  of  Henry  VIII. 's  reign,  p  495. 
Without  the  formality  of  this  writ  a 
very  few  instances  of  towns  remunerat- 
ing their  burgesses  for  attendance  in 
parliament  are  known  to  have  occurred 
in  later  times.  Andrew  Marvel  is  com- 
monly said  to  have  been  the  la'it  who 
received  this  honorable  salary.  A  modern 
book  asserts  that  wages  were  paid  in 
some  Cornish  boroughs  as  late  as  the 
eighteenth  century.  Lysons's  Cornwall, 
preface,  p.  xxxii. ;  but  the  passage 
quoted  in  proof  of  this  is  not  precise 
enough  to  support  so  unlikely  a  fact. 

2  3  Prynne,  p.  165. 

3  4  Prynne,  p.  317. 


112 


ELECTORS  IN  BOROUGHS.    Chap.  VIH.  Part  IH. 


Eholish  Const.       MEMBERS  OF  THE  COMMONS. 


113 


'I 


further,  and  obtained  a  charter  of  exemption  from  sending 
burgesses,  grounded  upon  what  the  charter  asserts  to  appear 
on  the  rolls  of  chancery,  that  it  had  never  been  represented 
before  the  21st  of  E.  III.  This  is  absolutely  false,  and  is  a 
proof  how  little  we  can  rely  upon  the  veracity  of  records, 
Torrington  having  made  not  less  than  twenty-two  returns  be- 
fore that  time.  It  is  curious  that  in  spite  of  tliis  charter  the 
town  sent  members  to  the  two  ensuing  parliaments,  and  then 
ceased  forever.*  Richard  II.  gave  the  inhabitants  of  Col- 
chester a  dispensation  from  returning  burgesses  for  five  years, 
in  consideration  of  the  expenses  they  had  incurred  in  fortify- 
ing the  town.^  But  this  immunity,  from  whatever  reason, 
was  not  regarded,  Colchester  having  continued  to  make  re- 
turns as  before. 

The  partiality  of  sheriffs  in  leaving  out  boroughs,  which 
were  accustomed  in  old  time  to  come  to  the  parliament,  was 
repressed,  as  far  as  law  could  repress  it,  by  a  statute  of  Rich- 
ard II.,  which  imposed  a  fine  on  them  for  such  neglect,  and 
upon  any  member  of  parliament  who  should  absent  himself 
from  his  duty.^  But  it  is,  I  think,  highly  probable  that  a 
great  part  of  those  who  w^ere  elected  from  the  boroughs  did 
not  trouble  themselves  with  attendance  in  parliament.  The 
sheriff  even  found  it  necessary  to  take  sureties  for  their  exe- 
cution of  so  burdensome  a  duty,  whose  names  it  was  usual, 
down  to  the  end  of  the  fifteenth  century,  to  endorse  upon  the 
writ,  along  with  those  of  the  elected.*  This  expedient  is  not 
likely  to  have  been  very  successful ;  and  the  small  number, 
comparatively  speaking,  of  writs  for  expenses  of  members 
for  boroughs,  which  have  been  published  by  Prynne,  while 
those  for  the  knights  of  shires  are  almost  complete,  leads  to 
a  strong  presumption  tliat  their  attendance  was  very  defective. 
This  statute  of  Richard  II.  produced  no  sensible  effect. 

By  what  persons  the  election  of  burgesses  was  usually 
made  is  a  question  of  great  obscurity,  which  is  still 
electors  in      Occasionally  debated  before  committees  of  parlia- 
t!Jre"^***       ment.     It  appears  to  have  been  the  common  prac- 
tice for  a  very  few  of  the  principal  members  of 
the  corporation  to  make  the  election  in  the  county-court,  and 


1  4  Prynne,  p.  320. 

a  3  Prynne,  p.  241. 

3  5  R.  II.  Stat.  ii.  c.  4. 

*  Luders'g  Reports,  vol.  i.  p.  15.  Some- 


times an  elected  burgess  absolutely  re- 
fu.sed  to  go  to  parliament,  and  drove  his 
con.otituents  to  a  fresh  choice.  8  Prynne, 
p.  277. 


their  names,  as  actual  electors,  are  generally  returned  upon 
the  writ  by  the  sheriff.*  But  we  cannot  surely  be  warranted 
by  this  to  infer  that  they  acted  in  any  other  capacity  than  as 
deputies  of  the  whole  body,  and  indeed  it  is  frequently  ex- 
pressed that  they  chose  such  and  such  persons  by  the  assent 
of  the  community ;  ^  by  which  word,  in  an  ancient  corporate 
borough,  it  seems  natural  to  understand  the  freemen  partici- 
pating in  its  general  franchises,  rather  than  the  ruling  body, 
which,  in  many  instances  at  present,  and  always  perhaps  in 
the  earliest  age  of  corporations,  derived  its  authority  by  dele 
gation  from  the  rest.  The  consent,  however,  of  the  inferio. 
freemen  we  may  easily  believe  to  have  been  merely  nominal ; 
and,  from  being  nominal,  it  would  in  many  places  come  by 
degrees  not  to  be  required  at  all ;  the  corporation,  specially  so 
denominated,  or  municipal  government,  acquiring  by  length 
of  usage  an  exclusive  privilege  in  election  of  members  of 
parliament,  as  they  did  in  local  administration.  This,  at  least, 
appears  to  me  a  more  probable  hypothesis  than  that  of  Dr. 
Brady,  who  limits  the  original  right  of  election  in  all  corpo- 
rate boroughs  to  the  aldermen  or  other  capital  burgesses.* 

The  members  of  the  house  of  commons,  from  this  occa* 
sional  disuse  of  ancient  boroughs  as  well  as  from  the  Members  of 
creation  of  new  ones,  underwent  some  fluctuation  the  house  of 
during  tlie  period  subject  to  our  review.     Two  *'°™™°^- 
hundred  citizens  and  burgesses  sat  in  the  parliament  held  by 
Edward  I.  in  his  twenty-third  year,  the  earliest  epoch  of  ac« 
knowledged  representation.    But  in  the  reigns  of  Edward  III. 
and  his  three  successors  about  ninety  places,  on  an  average, 


1  8  Prynne,  p.  252. 

»  8  Prynne,  p.  257,  de  assensu  totius 
communitutis  praedictae  elegerunt  R.  W. ; 
so  in  several  other  instances  quoted  in 
the  ensuing  pages. 

'  Brady  on  Boroughs,  p.  132,  &c. 
Mr.  Allen,  than  whom  no  one  of  equal 
learning  was  ever  less  inclined  to  de- 
preciate popular  rights,  inclines  more 
than  we  should  exi  ect  to  the  school  of 
Brady  in  this  point.  "  There  is  reason 
to  believe  that  originally  the  right  of 
election  in  boroughs  was  vested  in  the 
governing  part  of  these  communitie.s,  or 
In  a  select  portion  of  the  burgesses  ;  and 
that,  in  the  progress  of  the  house  of 
commons  to  power  and  importance,  the 
tenJenr.y  has  been  in  general  to  render 
the  elections  more  popular.  It  is  certain 
that  for  many  years  burgesses  were 
elected  in  the  county  courts,  and  appar- 
VOL.  ui.  8 


ently  by  delegates  from  the  boroughs, 
who  were  authorized  by    their    fellow- 
burgesses    to    elect  representatives    for 
them  in   parliament.    In  the  reigns  of 
James  I.  and  Charles  I.,  when  popular 
principles  were  in   their  greatest  vigor, 
there  was  a  strong  disposition    in   the 
house  of  commons  to  extend  the  right 
of  suffrage  in  boroughs,  and  in  many 
instances  these  efforts  were  crowned  with 
success."    Edin.  llev.  xxviii.  145.    But 
an  election  by  delegates  chosen  for  that 
purpose  by  the  burgesses  at  large  is  very 
different  from  one  by  the  governing  part 
of  the  community.    Even  in  the  latter 
case,   however,  this   part  had  generally 
been  chosen,  at  a  greater  or  less  interval 
of   time,  by   the  entire   body.     Some- 
times,  indeed,  corporations  fell  into  self- 
election  and  became  close. 


jj^  MEMBERS  OF  THE    Chap.  VHI.  Part  HI. 

returned  members,  so  that  we  may  reckon  this  part  of  the 
Emmons  at  one  hundred  and  eighty.^     These,  if  regular  m 
^^rduties,  might  appear  an  over-balance  for  the  seventy- 
fouiknicrhts  who  sat  with  them.     But  the  dignity  of  ancient 
hWe,°territorial  wealth,  and  military  character  m  times 
when  the  feudal  spirit  was  hardly  extinct  and  that  of  chjva  ry 
Tt  ite  height,  made  these  burghers  vail  their  heads  to  the 
knded  arLocracy.     It  is  pretty  manifest  that  the  knights, 
houth  doubtless  with  some  support  from  the  representatives 
S  towns,  sustained  the  chief  brunt  of  battle  against  the  crown 
The  rule  and  intention  of  our  old  constitution  was,  that  each 
county  city,  or  borough,  should  elect  deputies  out  of  its  own 
Tdy^^'es^ekt  among  riiemselves,  and  r^^-^""^/ ^:V:Tin 
with  their  necessities  and  grievances.^    It  would  be  very  m- 
terestin-  to  discover  at  what  time,  and  by  what  degrees  the 
?racre°of  election  swerved  from  this  strictness.    But  I  have 
Sot  been  able  to  trace  many  steps  of  the  transition      The 
number  of  practising  lawyers  who  sat  ^^ «[^^^^"^;^^^^^^^^^^ 
there  are  several  complaints,  seems  to  afford  an  inference  that 
t  had  be 'un  in  the  reign  of  Edward  III.     Besides  several 
pedUons  of  the  common!  that  none  but  knights  or  reputable 
squires  should  be  returned  for  shires,  an  ordmance  was  made 
in  the  forty-sixth  of  his  reign  that  no  lawyer  practising  m  the 
Sn..'s  court,  nor  sheriff  during  his  shrievalty    be  returned 
kniSht  for  a  county ;  because  these  lawyers  put  forward  many 
petitions  in  the  name  of  the  commons  which  only  concerned 
Sieir  clients.'     This  probably  was  truly  alleged,  as  we  may 
guess  from  the  vast  number  of  proposals  for  changmg  the 
course  of  legal  process  which  fill  the  rolls  during  this  reign. 
It  is  not  to  be  doubted,  however,  that  many  practising  lawyers 
were  men  of  landed  estate  in  their  respective  counties. 

An  act  in  the  first  year  of  Henry  V.  directs  that  none  be 
chosen  knights,  citizens,  or  burgesses,  who  are  not  resident 
within  the  place  for  which  they  are  returned  on  the  day  ot 


Emqlisu  COIIST. 


HOUSE  OF  COMMONS. 


115 


1  Willis,  Notitia  Parliamentaria,  vol. 
Hi.  p.  96,  &c. ;  3  Prynne,  P- 224.  &c. 

a  In  4  Edw.  II.  the  shenff  of  Rutland 
made  this  return :  Eligi  feci  in  pleno 
comitatu,  loco  duorum  militum,  eo  quod 
miUtes  non  sunt  in  hoc  comitatu  com- 
morantes,  duos  homines  de  comitatu 
Rutland,  de  discretioribus  et  ad  labor- 
andum  potentioribus,  &c.  3  Prynne.  p. 
170.  But  this  deficiency  of  actual 
knights  soon  became  very  common.    In 


19  E.  n.  there  were  twenty-eight  mem 
bers  returned  from  shires  who  were  not 
knizhts,  and  but  twenty-seven  who  were 
such.  The  former  had  at  this  time  only 
two  shillings  or  three  shillings  a  day  for 
their  wages,  while  the  real  knights  had 
four  shillings.  4  Prynne,  p.  63,  .4.  Bui 
in  the  next  reign  their  wages  were  ptt» 
on  a  level. 
8  Rot.  Pari.  vol.  ii.  p.  310. 


the  date  of  the  writ.*  This  statute  apparently  indicates  a  point 
of  time  when  the  deviation  from  the  line  of  law  was  frequent 
enough  to  attract  notice,  and  yet  not  so  established  as  to  pass 
for  an  unavoidable  irregularity.  It  proceeded,  however,  from 
great  and  general  causes,  which  new  laws,  in  this  instance  very 
fortunately,  are  utterly  incompetent  to  withstand.  There  can- 
not be  a  more  apposite  proof  of  the  inefficacy  of  human  insti- 
tutions to  struggle  against  the  steady  course  of  events  than 
this  unlucky  statute  of  Henry  V.,  which  is  almost  a  solita- 
ry instance  in  the  law  of  England  wherein  the  principle  of 
desuetude  has  been  avowedly  set  up  against  an  unrepealed 
enactment.  I  am  not  aware,  at  least,  of  any  other,  which 
not  only  the  house  of  commons,  but  the  court  of  king's  bench, 
has  deemed  itself  at  liberty  to  declare  unfit  to  be  observed.^ 
Even  at  the  time  when  it  was  enacted,  the  law  had  probably, 
as  such,  very  little  effect.  But  still  the  plurality  of  elections 
were  made  according  to  ancient  usage,  as  well  as  statute,  out 
of  the  constituent  body.  The  contrary  instances  were  excep- 
tions to  the  rule ;  but  exceptions  increasing  continually,  till 
they  subverted  the  rule  itself.  Prynne  has  remarked  that 
we  chiefly  find  Cornish  surnames  among  the  representatives 
of  Cornwall,  and  those  of  northern  families  among  the  re- 
turns from  the  North.  Nor  do  the  members  for  shires  and 
towns  seem  to  have  been  much  interchanged ;  the  names  of 
the  former  belonging  to  the  most  ancient  families,  while  those 
of  the  latter  have  a  more  plebeian  cast.*  In  the  reign  of 
Edward  IV.,  and  not  before,  a  very  few  of  the  burgesses  bear 
the  addition  of  esquire  in  the  returns,  which  became  universal 
in  the  middle  of  the  succeeding  century.* 

Even  county  elections  seem  in  general,  at  least  in  the 


1  Rot.  Pari.  1  H.  V.  c.  1. 

'  See  the  case  of  Dublin  university  in 
the  first  volume  of  Peckwell's  Reports 
of  contested  elections.  Note  D,  p.  53. 
The  statute  itself  was  repealed  by  14  Q. 
m.  c.  58. 

»  By  23  H.  VT.  c.  15,  none  but  gen- 
tlemen bom,  generosi  a  nativitate,  are 
capable  of  sitting  in  parliament  as  knights 
of  counties;  an  election  was  set  aside 
88  H.  VI.  because  the  person  returned 
was  not  of  genUe  birth.  Prynne's  third 
Register,  p.  161. 

«  Willis,  NoUtia  Parliamentaria, 
Prynne's  fourth  Register,  p.  1184.  A 
wttOTin  that  authentic  and  interesting 


accession  to  our  knowledge  of  ancient 
times,  the  Paston  collection,  shows  that 
eager  canvass  was  sometimes  made  by 
country  gentlemen  in  Edward  IV.'a 
reign  to  represent  boroughs.  This  letter 
throws  light  at  the  same  time  on  the 
creation  or  revival  of  boroughs.  The 
writer  tells  Sir  John  Paston,  "  If  ye  miss 
to  be  burgess  of  Maiden,  and  my  lord 
chamberlain  will,  ye  may  be  in  another 
place ;  there  be  a  dozen  towns  in  England 
that  choose  no  burgess,  which  ought  to 
do  it ;  ye  may  be  set  in  for  one  of  those 
towns  an^  ye  be  friended."  Tina  ras  in 
1472.    vol.  a.  p.  107. 


116  INFLUENCE  ON  ELECTIONS.    CHAP.Vm.  Part  UL 

irreiruiarity    fourteenth  century,  to  have  been  iU-attended  and 
ofriections.  igft  to  the  influence  of  a  few  powerful  and  active 
persons.     A  petitioner  against  an  undue  return  in  the  12th 
of  Edward  II.  complains  that,  whereas  he  had  been  chosen 
kniffht  for  Devon  by  Sir  William  Martin,  bishop  of  Exeter, 
with  the  consent  of  the  county,  yet  the  sheriff  had  returned 
another.*     In  several  indentures  of  a  much  later  date   a 
few  persons  only  seem  to  have  been  concerned  in  the  elec- 
tion,  though  the  assent  of  the  community  be   expressed. 
These  irregularities,  which  it  would  be  exceedmgly  erroneous 
to  convert,  with  Hume,  into  lawful  customs,  resulted  from 
the  abuses  of  the  sherirs  power,  which,  when  parhament  sat 
only  for  a  few  weeks  with  its  hands  full  of  busmess,  were 
almost  sure  to  escape  with  impunity.     They  were 
^cZV^   sometimes  also  countenanced,  or  rather  instigated, 
upon  them,    ^yy  the  crown,  which,  having  recovered  in  Edward 
n  *s  reign  the  prerogative  of  naming  the  sheriffs,  surrendered 
by  an  act  of  his  father,'  filled  that  office  with  its  creatures, 
^d  constantly  disregarded  the  statute  forbiddmg  their  con- 
tinuance beyond  a  year.     Without  searching  for  every  pas- 
sage that  might  illustrate  the  interference  of  the  crown  m 
elections,  I  wUl  mention  two  or  three   leading  instances. 
When  Richard  II.  was  meditating  to  overturn  the  famous 
commission  of  reform,  he  sent  for  some  of  the  shenffs,  and 
required  them  to  permit  no  knight  or  burgess  to  be  elected  to 
the  next  parliament  without  the  approbation  of  the  king  and 
his  council.     The  sheriffs  replied  that  the  commons  would 
maintain  their  ancient  privilege  of  electing  their  own  repre- 
sentatives.*   The  parhament  of  1397,  which  attainted  his 
enemies  and  left  the  constitution  at  his  mercy,  was  chosen, 
as  we    are  told,  by   dint  of   intimidation    and   influence. 
Thus  also  that  of  Henry  VI.,  held  at  Coventry  in  1460, 
wherein  the  duke  of  York  and  his  party  were  attainted,  is 
said  to  have  been  unduly  returned  by  the  like  means.     This 
is  rendered  probable  by  a  petition  presented  to  it  by  the 


English  Const. 


HOUSE  01   LORDS. 


117 


1  OlanTil's  Reports  of  Elections,  edit. 
1774.  Introduction,  p.  xii. 

«  Prvnne'3  third  Register,  p.  171. 

»  28E.  I.  c.  8;  9E.  II.  Itissaidthat 
the  sheriff  was  elected  by  the  people  of 
his  county  in  the  Anglo-Saxon  period ; 
no  instance  of  this  however,  according  to 
lord  Lyttelton,  occurs  after  the  Conquest. 
Bhxtoralties  were  commonly  sold  \>y  the 


Norman  kings.  Hist,  of  Henry  H.  lol. 
U.  p.921. 

4  Vita  Ricardi  II.  p.  85. 

6  Otterboume,  p.  191.  He  says  cf  the 
knights  returned  on  this  occasion,  tha» 
they  were  not  elected  per  communitatem, 
ut  mo9  exigit,  sed  per  reglam  Tolun- 
tatem. 


sheriffs,  praying  indemnity  for  all  which  they  had  done  in 
relation  thereto  contrary  to  law.^  An  act  passed  according 
to  their  prayer,  and  in  confirmation  of  elections.  A  few 
years  before,  in  1455,  a  singular  letter  under  the  king's 
signet  is  addressed  to  the  sheriffs,  reciting  that  "  we  be  en- 
fourmed  there  is  busy  labour  made  in  sondry  wises  by  cer- 

taine  persons  for  the  chesyng  of  the  said  knights, of 

which  labour  we  marvaille  greatly,  insomuche  as  it  is  nothing 
to  the  honour  of  the  laborers,  but  ayenst  their  worship ;  it  is 
also  ayenst  the  lawes  of  the  lande,"  with  more  to  that  effect ; 
and  enjoining  the  sheriff  to  let  elections  be  free  and  the 
peace  kept*  There  was  certainly  no  reason  to  wonder  that 
a  parliament,  which  was  to  shift  the  virtual  sovereignty  of 
the  kingdom  into  the  hands  of  one  whose  claims  were  known 
to  extend  much  further,  should  be  the  object  of  tolerably 
warm  contests.  Thus  in  the  Paston  letters  we  find  several 
proofs  of  the  importance  attached  to  parliamentary  elections 
by  the  highest  nobility.' 

The  house  of  lords,  as  we  left  it  in  the  reign  of  Henry 
m.,  was  entirely  composed  of  such  persons  hold-  constituuon 
ing  lands  by  barony  as  were  summoned  by  partic-  of  ^^^  ^o"» 
ular  writ  of  parliament.*  Tenure  and  summons  ° 
were  both  essential  at  this  time  in  order  to  render  any  one  a 
lord  of  parliament  —  the  first  by  the  ancient  constitution  of 
our  feudal  monarchy  from  the  Conquest,  the  second  by  some 
regulation  or  usage  of  doubtful  origin,  which  was  thoroughly 
established  before  the  conclusion  of  Henry  III.'s  reign.  This 
produced,  of  course,  a  very  marked  difference  between  the 
greater  and  the  lesser  or  unparliamentary  barons.  The 
tenure  of  the  latter,  however,  still  subsisted,  and,  though  too 
inconsiderable  to  be  members  of  the  legislature,  they  paid 
relief  as  barons,  they  might  be  challenged  on  juries,  and,  as 
I  presume,  by  parity  of  reasoning,  were  entitled  to  trial  by 
their  peerage.  These  lower  barons,  or  more  commonly 
tenants  by  parcels  of  baronies,*  may  be  dimly  traced  to  the 


>  Prynne's  second  Reg.  p.  141;  Rot. 

Pari.  Tol.  V.  p.  367. 

'  Prjnne's  second  IReg.  p.  460. 

3  Tol.  i.  p.  96,  98;  vol.  U.  p.  99,  105; 
▼01.  ii.  p.  i43.  *»       »        . 

*  Upon  this  dry  and  obscure  subject 
of  inquiry,  the  nature  and  constitution 
of  the  house  of  lords  during  this  period, 
I  have  been  much  indebted  to  the  first 
part  of  Prynne's  Register,  and  to  West's 


Inquiry  into  the  Manner  of  creating 
Peers;  which,  though  written  with  a 
party  motive,  to  serve  the  ministry  of 
1719,  in  the  peerage  bill,  deserves,  for  the 
perspicuity  of  the  method  and  style,  to 
be  reckoned  among  the  best  of  our  con- 
stitutional dissertations. 

5  Baronies  were  often  divided  by  de- 
scent among  females  into  many  parts, 
each  retaining  its  character  as  a  firaO' 


118        TENURE  OF  LORDS  SPIRITUAL.    Chap.  VIU.  Part  IH. 


latter  years  of  Edward  III.^  But  many  of  them  were  suc- 
cessively summoned  to  parliament,  and  thus  recovered  the 
former  lustre  of  their  rank,  while  the  rest  fell  gradually  into 
the  station  of  commoners,  as  tenants  by  simple  knight-service. 
As  tenure  without  summons  did  not  entitle  any  one  to  the 
Baronial  privileges  of  a  lord  of  parliament,  so  no  spiritual 
tenure  persou   at  least  ought   to  have  been  summoned 

forSs  without  baronial  tenure.  The  prior  of  St.  James 
spiritual.  ^^  Northampton,  having  been  summoned  in  the 
twelfth  of  Edward  II.,  was  discharged  upon  his  petition,  be- 
cause he  held  nothing  of  the  king  by  barony,  but  only  in 
frankalmoign.  The  prior  of  Bridlington,  after  frequent  sum- 
monses, was  finally  left  out,  with  an  entry  made  in  the  roll 
that  he  held  nothing  of  the  king.  The  abbot  of  Leicester 
had  been  called  to  fifty  parliaments;  jet^  in  the  25th  of 
Edward  III.,  he  obtained  a  charter  of  perpetual  exemption, 
reciting  that  he  held  no  lands  or  tenements  of  the  crown  by 
barony  or  any  such  service  as  bound  him  to  attend  parlia- 
ments or  councils.^  But  great  irregularities  prevailed  in  the 
rolls  of  chancery,  from  which  the  writs  to  spiritual  and  tem- 
poral peers  were  taken  —  arising  in  part,  perhaps,  from 
negligence,  in  part  from  wilful  perversion ;  so  that  many 
abbots  and  priors,  who  like  these  had  no  baronial  tenure, 
were  summoned  at  times  and  subsequently  omitted,  of  whose 
actual  exemption  we  have  no  record.  Out  of  one  hundred 
and  twenty-two  abbots  and  forty-one  priors  who  at  some 
time  or  other  sat  in  parliament,  but  twenty-five  of  the  former 
and  two  of  the  latter  were  constantly  summoned :  the  names 
of  forty  occur  only  once,  and  those  of  thirty-six  others  not 
more  than  five  times.®     Their  want  of  baronial  tenure,  in  all 


Honal  member  of  a  barony.  The  tenants 
in  such  case  were  said  to  hold  of  the 
king  by  the  third,  fourth,  or  twentieth 
part  of  a  barony,  and  did  service  or  paid 
relief  in  such  proportion. 

I  Madox,  Baronia  Anglica,  p.  42  and 
68;  West's  inquiry,  p.  28,  33.  That  a 
baron  could  only  be  tried  by  his  fellow 
barons  was  probably  a  rule  as  old  as  the 
trial  per  pais  of  a  commoner.  In  4  E.  III. 
Sir  Simon  Bereford  having  been  accused 
before  the  lords  in  parliament  of  aiding 
and  advising  Mortimer  in  his  treasons, 
they  declare!  with  one  voice  that  he 
was  not  their  peer  ;  wherefore  they  were 
not  bound  to  judge  him  as  a  peer  of  the 
land  ;  but  inasmuch  as  it  was  notorious 
thai  he  had  been  concerned  in  usurpa- 


tion of  royal  powers  and  murder  of  the 
liege  lord  (as  they  styled  Edward  II.), 
the  lords,  as  judges  of  parliament,  by  as- 
sent of  the  king  in  parliament,  awarded 
and  adjudged  him  to  be  hanged.  A  like 
sentence  with  a  like  protestation  was 
passed  on  Mautravers  and  Qournay. 
There  is  a  very  remarkable  anomaly  in 
the  case  of  Lord  Berkley,  who,  though 
undoubtedly  a  baron,  hi.s  ancestors  hav- 
ing been  summoned  from  the  earliest 
date  of  writs,  put  himself  on  his  trial 
in  parliament,  by  twelve  knights  of  the 
county  of  Olouce-ster.  Rot.  Pari.  vol.  ii- 
p.  53 ;  U}  mer,  t.  iv.  p.  731 . 

2  Prynne,  p   142,  &c.;  West's  Inquirr 

3  Prynne,  p.  141. 


EuGi  .8H  Const.     BARONS  CALLED  BY  WRIT. 


119 


probability,  prevented  the  repetition  of  writs  which  accident 
or  occasion  had  caused  to  issue.^ 

The  ancient  temporal  peers  are  supposed  to  have  been  in- 
termingled with  persons  who  held  nothing  of  the  Borons 
crown  by  barony,  but  attended  in  parliament  solely  ^^f^^ 
by  virtue  of  the   king's  prerogative  exercised  in 
the  writ  of  summons.^     These  have  been  called  barons  by 
writ ;  and  it  seems  to  be  denied  by  no  one  that,  at  least  under 
the  first  three  Edwards,  there  were  some  of  this  description 
in  parliament     But  after  all  the  labors  of  Dugdale  and  others 
in  tracing  the  genealogies  of  our  ancient  aristocracy,  it  is  a 
problem  °of   much   difficulty  to  distinguish  these   from    the 
territorial  barons.     As  the  latter  honors  descended  to  female 
heirs,  they  passed  into  new  families  and  new  names,  so  that 
we  can  hardly  decide  of  one  summoned  for  the  first  time  to 
parliament  that  he  did  not  inherit  the  possession  of  a  feudal 
barony.      Husbands   of  baronial  heiresses   were   frequently 
summoned   in  their  wives'  right,  but  by  their  own  names. 
They  even  sat  after  the  death  of  their  wives,  as  tenants  by 
the  courtesy.*     Again,  as  lands,  though  not  the   subject  of 
frequent  transfer,  were,  especially  before  the  statute  de  donis, 
not  inalienable,  we  cannot  positively  assume  that  all  the  right 
heirs  of  original  barons  had  preserved  those  estates  upon  which 
their  barony  had  depended.*     If  we  judge,  however,  by  the 
lists  of  those  summoned,  according  to  the  best  means  in  our 
power,  it  will  appear,  according  at  least  to  one  of  our  most 
learned  investigators  of  this  subject,  that  the  regular  barons 


1  It  is  worthy  of  observation  that  the 
spiritual  peers  summoned  to  parliament 
were  in  general  considerably  more  nu- 
merous than  the  temporal.  Prynne,  p. 
114.  This  appears,  among  other  causes, 
to  have  saved  the  church  from  that 
sweeping  reformation  of  its  wealth,  and 
ptrhaps  of  its  doctrines,  which  the  com- 
mons were  thoroughly  inclined  to  make 
tinder  Richard  II.  and  Henry  IV.  Thus 
the  reduction  of  the  spiritual  lords  by 
the  dissolution  of  monasteries  was  indis- 
pensably required  to  bring  the  eccle- 
siastical order  into  due  subjection  to  the 
state. 

*  Perhaps  it  can  hardly  be  said  that 
the  king's  prerogative  compelled  the 
party  summoned,  not  being  a  tenant  by 
Darony,  to  take  his  seat.  But  though 
MTeral  spiritual  persons  appear  to  have 
been  discharged  from  attendance  on  ac- 
count of  their  holding  nothing  by  barony, 
M  has  been  justly  observed,  yet  there  is, 


I  believe,  no  instance  of  any  layman's 
making  such  an  application.  The  terms 
of  the  ancient  writ  of  summons,  however, 
in  fide  ct  homagio  quibus  nobis  tenemini, 
afford  a  pre.«umption  that  a  feudal  tenure 
was,  in  construction  of  law,  the  basis  of 
every  lord's  attendance  in  parliament. 
This  form  was  not  finally  changed  to  the 
present,  in  fide  et  ligeantiA.tiM  the  46th  of 
Edw.  III.  Prynne's  first  Register,  p.  206. 

3  CoUins's  Proceedings  on  Claims  of 
Baronies,  p.  24  and  73. 

<  Prynne  speaks  of  "  the  alienation 
of  baronies  by  sale,  gift,  or  marriage, 
after  which  the  new  purchasers  were 
summoned  instead,"  as  if  it  frequently 
happened.  First  Register,  p.  239.  And 
several  instances  are  mentioned  in  the 
Bergavenny  case  (Collins's  Proceedings, 
p.  113)  where,  land-baronies  having  been 
entailed  by  the  owners  on  their  heirs 
male,  the  heirs  general  have  been  ex- 
cluded from  inheriting  the  dignity. 


120 


BARONS  CALLED  BY  WRIT.    Chap.  VHI.  Part  m. 


Eholish  Const.       BANNERETS  SUMMONED. 


121 


by  tenure  were  all  along  very  far  more  numerous  than  those 
called  by  writ ;  and  that  from  the  end  of  Edward  III/s  reign 
no  spiritual  persons,  and  few  if  any  laymen,  except  peers 
created  by  patent,  were  sunmioned  to  parharaent  who  did  not 
hold  territorial  baronies.^ 

With  respect  to  those  who  were  indebted  for  their  seats 
among  the  lords  to  the  king's  writ,  there  are  two  material 
questions :  whether  they  acquired  an  hereditary  nobility  by 
virtue  of  the  writ ;  and,  if  this  be  determined  against  them, 
whether  they  had  a  decisive  or  merely  a  deliberative  voice  in 
the  house.     Now,  for  the  first  question,  it  seems  that,  if  the 
writ  of  summons  conferred  an  estate  of  inheritance,  it  must 
have  done  so  either  by  virtue  of  its  terms  or  by  established 
construction  and  precedent.     But  the  writ  contains  no  words 
by  which  such  an  estate  can  in  law  be  limited ;  it  summons  the 
person  addressed  to  attend  in  parliament  in  order  to  give  his 
advice  on  the  public  business,  but  by  no  means  implies  that 
this  advice  will  be  required  of  his  heirs,  or  even  of  himself  on 
any  other  occasion.     The  strongest  expression  is  "  vobiscum 
et  cceieris  praelatis,  magnatibus  et  proceribus,"  which  appears 
to  place  the  party  on  a  sort  of  level  with  the  peers.     But  the 
words  magnates  and  proceres  are  used  very  largely  in  an- 
cient language,  and,  down  to  the  time  of  Edward  III.,  com- 
prehend the  king's  ordinary  council,  as  well  as  his  barons. 
Nor  can  these,  at  any  rate,  be  construed  to  pass  an  inheri- 
tance, which  in  the  grant  of  a  private  person,  much  more  of 
a  king,  would  require  express  words  of  limitation.     In  a  sin- 
gle instance,  the  writ  of  sunmions  to  Sir  Henry  de  Bromflete 
(27  H.  VI.),  we  find   these  remarkable  words:  Volumus 
enim  vos  et  haeredes  vestros  masculos  de  corpore  vestro  le- 
gitime exeuntes  barones  de  Vescy  existere.     But  this  Sir 
Henry  de  Bromflete  was  the  lineal  heir  of  the  ancient  barony 
de  Vesci.^    And  if  it  were  true  that  the  writ  of  summons 
conveyed  a  barony  of  itself,  there  seems  no  occasion  to  have 
introduced  these  extraordinary  words  of  creation  or  revival. 
Indeed  there  is  less  necessity  to  urge  these  arguments  from  the 

1  Prynne's  first  Register,  p.  237.    This  not  aware  of  Sir  Henry  de  Bromflete's 

must  be  understood  to  mean  that  no  new  descent,  admits  that  a  writ  of  summons 

femilies  were  summoned;    for    the  de-  to  any  one,  naming  him  baron,  or  domi- 

Mcendants  of  some  who  are  not  supposed  nus,  as  Barooi  de  Greystoke,  domino  de 

to   hare  held  land-baronies    may   con-  Furnival,  did  give  an  Inheritable  peer- 

Btantly  be  fouad  in  later  lists.    [Note  age;    not   so  a  writ  generally  worded, 

IX.]  naming  the  party  knight  or  esquire,  un 

«  West's  Inquiry.    Prynnc,  who  takes  less  he  held  by  barony, 
rather  lower  ground  than  West,  and  was 


nature  of  the  writ,  because  the  modem  doctrine,  which  is  en- 
tirely opposite  to  what  has  here  been  suggested,  asserts  that 
no  one  is  ennobled  by  the  mere  summons  unless  he  has  ren- 
dered it  operative  by  taking  his  seat  in  parliament ;  distin- 
guishing it  in  this  from  a  patent  of  peerage,  which  requires 
no  act  of  the  party  for  its  completion.^  But  this  distinction 
could  be  supported  by  nothing  except  long  usage.  If,  how- 
ever, we  recur  to  the  practice  of  former  times,  we  shall  find 
that  no  less  than  ninety-eight  laymen  were  summoned  once 
only  to  parliament,  none  of  their  names  occurring  afterwards  ; 
and  fifty  others  two,  thi-ee,  or  four  times.  Some  were  con- 
stantly summoned  during  their  lives,  none  of  whose  posterity 
ever  attained  that  honor.^  The  course  of  proceeding,  there- 
fore, previous  to  the  accession  of  Henry  VII.,  by  no  means 
warrants  the  doctrine  which  was  held  in  the  latter  end  of 
Elizabeth's  reign,'  and  has  since  been  too  fully  established 
by  repeated  precedents  to  be  shaken  by  any  reasoning.  The 
foregoing  observations  relate  to  the  more  ancient  history  of 
our  constitution,  and  to  the  plain  matter  of  fact  as  to  those 
times,  without  considering  what  poUtical  cause  there  might  be 
to  prevent  the  crown  from  introducing  occasional  counsellors 
into  the  house  of  lords.* 

It  is  manifest  by  many  passages  in  these  records  that  ban- 
nerets were   frequently  summoned   to   the  upper 

,.  ..  j'i."i.i         Bannerets 

house  of  parliament,  constitutmg  a  distmct  class  summoned 
inferior  to  barons,  though  generally  named  to- j^^^^^^®  °' 
gether,   and  ultimately  confounded,  with    them.^ 


»  Lord  Abergavenny's  case,  12  Coke's 
Reports ;  and  ColHns's  Proceedings  on 
Claims  of  Baronies  by  Writ,  p.  61. 

2  Prynne's  first  Register,  p.  232.  El- 
synge,  who  strenuously  contends  against 
the  writ  of  summons  conferring  an  he- 
reditiiry  nobility,  is  of  opinion  that  the 
party  summoned  was  never  omitted  in 
subsequent  parliaments,  and  conse- 
quently was  a  peer  for  life.  p.  43.  But 
more  regard  is  due  to  Prynne's  later  in- 
quiries. 

3  Case  of  Willoughby,  Collins,  p.  8; 
of  Dacres,  p.  41 ;  of  Abergavenny,  p.  119. 
But  see  the  case  of  Qrey  de  Ruthin, 
p.  222  and  230,  where  the  contrary 
poei^on  is  stated  by  Selden  upon  better 
grounds. 

<  It  seems  to  have  been  admitted  by 
Lord  Redesdale,  in  the  case  of  the  barony 
of  L'lsle,  that  a  writ  of  summons,  with 
lofflcient  proof  of  having  sat  by  virtue 


of  it  in  the  house  of  lords,  did  in  fact 
create  an  hereditary  peerage  from  the 
fifth  year  of  Richard  II.,  though  he  re 
sisted  this  with  respect  to  claimants  who 
could  only  deduce  their  pedigree  from 
an  ancestor  summoned  by  one  of  the 
three  Edwards.  Nicolas's  Case  of  Barony 
of  L'Isle,  p.  200.  The  theory,  therefore, 
of  West,  which  denies  peerage  by  writ 
even  to  those  summoned  in  several  later 
reigns,  must  be  taken  with  limitation. 
"  I  am  informed,"  it  is  said  by  Mr.  Hart, 
arguendo,  "that  every  person  whose 
name  appears  in  the  writ  of  summons 
of  5  Ric.  II.  was  again  summoned  to 
the  following  parliament,  and  their  pos- 
terity have  sat  in  parliament  as  peers." 

D   233 

5  Rot.  Pari.  vol.  ii.  p.  147,  809 ;  vol.  iii. 
p.  100,  386.  424;  vol.  iv.  p.  374.  Rymer, 
t.  vii.  p.  161 


122 


BANNERETS  SUMMONED    Chap.  VIH.  Part  in. 


Barons  are  distinguished  by  the  appellation  of  Sire,  banner- 
ets have  only  that  of  Monsieur,  as  le  Sire  de  Berkeley,  le 
Sire  de  Fitzwalter,  Monsieur  Richard  Scrop,  Monsieur  Rich- 
ard Stafford.  In  the  7th  of  Richard  II.  Thomas  Camoys 
having  been  elected  knight  of  the  shire  for  Surrey,  the  king 
addresses  a  writ  to  the  sheriff,  directing  him  to  proceed  to  a 
new  election,  cum  hujusmodi  banneretti  ante  haec  tempora  in 
milites  comitatus  ratione  alicujus  parliaraenti  eligi  minime 
consueverunt.  Camoys  was  summoned  by  writ  to  the  same 
parliament.  It  has  been  inferred  from  hence  by  Selden  that 
he  was  a  baron,  and  that  the  word  banneret  is  merely  sy- 
nonymous.^ But  this  is  contradicted  by  too  many  passages. 
Bannerets  had  so  far  been  considered  as  commoners  some 
years  before  that  they  could  not  be  challenged  on  juries.^ 
But  they  seem  to  have  been  more  highly  estimated  at  the 
date  of  this  writ. 

The  distinction,  however,  between  barons  and  bannereta 
died  away  by  degrees.  In  the  2d  of  Henry  VI.^  Scrop  of 
Bolton  is  called  le  Sire  de  Scrop ;  a  proof  that  he  was  then 
reckoned  among  the  barons.  The  bannerets  do  not  often  ap- 
pear afterwards  by  that  appellation  as  members  of  the  upper 
house.  Bannerets,  or,  as  they  are  called,  banrents,  are  enu- 
merated among  the  orders  of  Scottish  nobility  in  the  year 
1428,  when  the  statute  directing  the  common  lairds  or  tenants 
in  capite  to  send  representatives  was  enacted ;  and  a  modern 
historian  justly  calls  them  an  intermediate  order  between  the 
peers  and  lairds.*  Perhaps  a  consideration  of  these  facts,  which 
have  frequently  been  overlooked,  may  tend  in  some  measure 
to  explain  the  occasional  discontinuance,  or  sometimes  the 
entire  cessation,  of  ^vrits  of  summons  to  an  individual  or  his 
descendants ;  since  we  may  conceive  that  bannerets,  being  of 
a  dignity  much  inferior  to  that  of  barons,  had  no  such  inherit* 
able  nobility  in  their  blood  as  rendered  their  parliamentary 
privileges  a  matter  of  right.     But  whether  all  those  who 


1  Selden'3  Works,  vol.  iil.  p.  764. 
Selden's  opinion  that  bannerets  in  the 
lords'  house  were  the  same  as  barons 
may  seem  to  call  on  me  for  some  con- 
trary authorities,  in  order  to  support  my 
own  assertion,  besides  the  passages  above 
quoted  from  the  rolls,  of  which  he  would 
naturally  be  supposed  a  more  competent 
judge.  I  refer  therefor©  to  Spelman's 
Glossary,  p.  74;  Whitelocke  on  Parlia- 
naentary  Writ,  vol.  i.  p.  314;  and  £1- 


synge'8  Method  of  holding  Parliaments, 
p.  65. 

'  Puis  un  fut  chalcnge  puree  qu'il  f^t 
a  banniere,  et  non  allocatur  ;  car  s'il  soil 
a  banniere.  et  ne  tient  pas  par  baronie,  U 
sera  en  Tassise.  Year-book  22  £dw.  III. 
fol.  18  a.  apud  West's  Inquiry,  p.  22. 

»  Rot.  Pari.  vol.  iv  p.  201. 

*  Pinkcrton's  Uist.  cf  Scotland,  vol.  I 
p.  867  and  365. 


English  Const.       TO  HOUSE  OF  LORDS. 


123 


without  any  baronial  tenure  received  their  writs  of  summons 
to  parliament  belonged  to  the  order  of  bannerets  I  cannot 
pretend  to  affirm ;  though  some  passages  in  the  rolls  might 
rather  lead  to  such  a  supposition.^ 

The  second  question  relates  to  the  right  of  suffrage  pos- 
sessed by  these  temporary  members  of  the  upper  house.  It 
might  seem  plausible  certainly  to  conceive  that  the  real  and 
ancient  aristocracy  would  not  permit  their  powers  to  be  im- 
paired by  numbering  the  votes  of  such  as  the  king  might 
please  to  send  among  them,  however  they  might  allow  them 
to  assist  in  their  debates.  But  I  am  much  more  inclined  to 
suppose  that  they  were  in  all  respects  on  an  equality  with 
other  peers  during  their  actual  attendance  in  parliament 
For, — 1.  They  are  summoned  by  the  same  writ  as  the  rest, 
and  their  names  are  confused  among  them  in  the  lists; 
whereas  the  judges  and  ordinary  counsellors  are  called  by 
a  separate  writ,  vobiscura  et  cajteris  de  consilio  nostro,  and 
their  names  are  entered  after  those  of  the  peers.'^  2.  Some, 
who  do  not  appear  to  have  held  land-baronies,  were  constantly 
summoned  from  father  to  son,  and  thus  became  hereditary 
lords  of  parliament  through  a  sort  of  prescriptive  right,  which 
probably  was  the  foundation  of  extending  the  same  privilege 
afterwards  to  the  descendants  of  all  who  had  once  been  sum- 
moned. There  is  no  evidence  that  the  family  of  Scrope,  for 
example,  which  was  eminent  under  Edward  III.  and  subse- 
quent kings,  and  gave  rise  to  two  branches,  the  lords  of  Bolton 
and  Masham,  inherited  any  territorial  honor.^     3.  It  is  very 


1  The  lords'  committee  do  not  like,  ap- 
parently, to  admit  that  bannerets  were 
summoned  to  the  house  of  lords  as  a 
dbtinct  class  of  peers.  "  It  is  observ- 
able," they  say,  "that  this  statute  (5 
Ric.  II.  c.  4)  speaks  of  bannerets  as  well 
as  of  dukes,  carls,  and  baron.s,  as  persons 
bound  to  attend  the  parliament;  but  it 
does  not  follow  that  banneret  was  then 
considered  as  a  name  of  dignity  distinct 
from  that  honorable  knighthood  under 
the  king's  banner  in  the  field  of  battle, 
to  which  precedence  of  all  other  knights 
was  attributed."  p.  342.  But  did  the 
committee  really  believe  that  all  the 
bannerets  of  whom  we  read  in  the  reigns 
of  Richard  II.  and  afterwards  had  been 
knighted  at  Crecy  and  Poitiers?  The 
name  in  only  found  in  parliamentary 
procoeJinga  during  comparatively  par 
ciflc  times. 

*  West,  whose  business  it  was  to  rcpre- 
Mnt  the  barons  by  writ  as  mere  assist- 


ants without  suffrapc,  cites  the  writ  to 
them  rather  disingenuously,  as  if  it  ran 
vobiscum  et  cum  prelatis,  magnatibus 
ac  proceribus,  omitting  the  important 
word  caeteris.  p.  35.  Prynne,  however, 
from  whom  West  has  borrowed  a  great 
part  of  his  arguments,  does  not  seem  to 
go  the  length  of  denying  the  right  of 
suffrage  to  persons  so  summoned.  First 
llegister,  p.  237. 

3  These  descended  from  two  persons, 
each  named  Geoffrey  le  Scrope,  chief, 
justices  of  K.  B.  and  C.  B.  at  the  begin- 
ning of  Edward  III.'s  reign.  The  name 
of  one  of  them  is  once  found  among  the 
barons,  but  I  presume  this  to  have  been 
an  accident,  or  mistake  in  the  roll ;  as 
he  is  frequently  mentioned  afterwards 
among  the  judges.  Scrope,  chief  justice 
of  K.  B.,  was  made  a. banneret  in  14  E.  III. 
He  was  the  father  of  Henry  Scrope  of 
Ma.sham,  a  considerable  person  in  Ed- 
ward 111.  and  iUchard  II. 's  government, 


124 


BANNERETS  SUMMONED    Chap.  VIII.  Pabt  HI. 


English  Const. 


CREATION  OF  PEERS. 


125 


difficult  to  obtain  any  direct  proof  as  to  the  right  of  voting, 
because  the  rolls  of  parliament  do  not  take  notice  of  any  de- 
bates ;  but  there  happens  to  exist  one  remarkable  passage  in 
which  the  suffrages  of  the  lords  are  individually  specified. 
In  the  first  parliament  of  Henry  IV.  they  were  requested  by 
the  earl  of  Northumberland  to  declare  what  should  be  done 
with  the  late  king  Richard.  The  lords  then  present  agreed 
that  he  should  be  detained  in  safe  custody ;  and  on  account 
of  the  importance  of  this  matter  it  seems  to  have  been  thought 
necessary  to  enter  their  names  upon  the  roll  in  these  words : 

The  names  of  the  lords  concurring  in  their  answer  to  the 

said  question  here  follow ;  to  wit,  the  archbishop  of  Canter- 
bury and  fourteen  other  bishops ;  seven  abbots ;  the  prince  of 
Wales,  the  duke  of  York,  and  six  earls ;  nineteen  barons, 
styled  thus— le  Sire  de  Roos,or  le  Sire  de  Grey  de  Ruthyn. 
Thus  far  the   entry  has  nothing  singular ;  but  then  follow 
these  nine  names:  Monsieur  Henry  Percy,  Monsieur  Richard 
Scrop,  le  Sire  Fitz-hugh,  le  Sire  de  Bergeveny,  le  Sire  de 
Lomley,  le  Baron  de  Greystock,  le  Baron  de  Hilton,  Mon- 
sieur Thomas  Erpyngham,  chamberlayn.  Monsieur  Mayhewe 
Gournay.     Of  these  nine  five  were  undoubtedly  barons,  from 
whatever  cause  misplaced  in  order.     Scrop  was  summoned 
by  writ ;  but  his  title  of  Monsieur,  by  which  he  is  invariably 
denominated,  would  of  itself  create  a  strong  suspicion  that 
he  was  no  baron,  and  in  another  place  we  find  him  reckoned 
among  the  bannerets.    The  other  three  do  not  appear  to  have 
been  ^summoned,  their  writs  probably  being  lost.     One  of 
them.  Sir  Thomas  Erpyngham,  a  statesman  well  known  in 
the  history  of  those  times,  is  said  to  have  been  a  banneret;^ 
certainly  he  was  not  a  baron.    It  is  not  unlikely  that  the  two 
others,  Henry  Percy  (Hotspur)  and  Gournay,  an  officer  of 
the  household,  were  also  bannerets ;  they  cannot  at  least  be 
supposed  to  be  barons,  neither  were  they  ever  summoned  to 


whose  grandson,  Lord  Scrope  of  Masham, 
was  beheaded  for  a  conspiracy  against 
Henry  V.  There  was  a  family  of  Scrupe 
as  old  as  the  reign  of  Henry  II. ;  but  it 
is  not  clear,  notwithstanding  Dugdale's 
assertion,  that  the  Scropes  descended  from 
them,  or  at  least  that  they  held  the  same 
lauds :  nor  were  the  Scrupea  barons,  as 
appears  by  their  paying  a  relief  of  only 
sixty  marks  for  three  knights'  fees.  Dug- 
dale's Baronage,  p.  654. 

The  want  of  consistency  in  old  records 
throws  much  additional  difficulty  over 


this  intricate  subject.  Thus  Scrope  of 
Masham,  though  certainly  a  baron,  and 
tried  next  year  by  the  peers,  is  called 
chevalier  in  an  instrument  of  1  H.  V. 
Rymer,  t.  ix.  p.  13.  So  in  the  indictment 
against  Sir  John  Oldcastle,  he  is  con- 
stantly styled  knight,  though  he  had  been 
summoned  several  times  as  lord  Cobham, 
In  right  of  his  wife,  who  inherited  that 
barony.    Rot.  Pari.  vol.  iv.  p.  107. 

1  Blomefield's  Hist,  of  Norfolk,  Tol.  itt. 
p.  645  (foUo  edit.). 


any  subsequent  parliament.  Yet  in  the  only  record  we  pos- 
sess of  votes  actually  given  in  the  house  of  lords  they  appear 
to  have  been  reckoned  among  the  rest.^ 

The  next  method  of  conferring  an  honor  of  peerage  was 
by  creation  in  parliament.    This  was  adopted  by  ^^^.^^  ^^ 
Edward  IH.  in  several  instances,  though  always,  p^«^by 
I  believe,  for  the  higher  titles  of  duke  or  earl.     It  ; 

is  laid  down  by  lawyers  that  whatever  the  king  is  said  m  an 
ancient  record  to  have  done  in  full  parliament  must  be  taken 
to  have  proceeded  from  the  whole  legislature.    As  a  question 
of  fact,  indeed,  it  might  be  doubted  whether,  in  many  pro- 
ceedings where  this  expression  is  used,  and  especially  in  the 
creation  of  peers,  the  assent  of  the  commons  was  specifically 
and  deUberately  given.     It  seems  hardly  consonant  to  the 
circumstances  of  their  order  under  Edward  IH.  to  suppose 
their  sanction  necessary  in  what  seemed  so  little  to  concern 
their  interest.     Yet  there  is  an  instance  in  the  fortieth  year 
of  that  prince  where  the  lords  individually,  and  the  commons 
with  one  voice,  are  declared  to  have  consented,  at  the  king  s 
request,  that  the  lord  de  Coucy,  who  had  married  his  daugh- 
ter,  and  was  already  possessed  of  estates  in  England,  might 
be  raised  to  the  dignity  of  an  eari,  whenever  the  king  should 
determine  what  earldom  he  would  confer  upon  him.      Under 
Richard  II.  the  marquisate  of  Dublin  is  granted  to  Vere  by 
full  consent  of  all  the  estates.     But  this  instrument,  besides 
the  unusual  name  of  dignity,  contained  an  extensive  jurisdic- 
tion and  authority  over  Ireland.*     In  the  same  reign  Lancas- 
ter was  made  duke  of  Guienne,  and  the  duke  of  lorks  son 
created  eari  of  Rutland,  to  hold  during  his  father  s  life,    ihe 
consent  of  the  lords  and  commons  is  expressed  m  their  patents, 
and  they  are  entered  upon  the  roll  of  pariiament.     Henry  V. 
created  his  brothers  dukes  of  Bedford  and  Gloucester  by  re- 
quest of  the  lords  and  commons.^     But  the  patent  ot  bir 
John  Cornwall,  in  the  tenth  of  Henry  VI.,  declares  him  to  be 
made  lord  Fanhope,  "by  consent  of  the  lords,  in  the  presence 
of  the  three  estates  of  pariiament;"  as  if  it  were  designed 
to  show  that  the  commons  had  not  a  legislative  Toice  m  the 

creation  of  peers.®  ,        x  ^r  «„„ 

The  mention  I  have  made  of  creatmg  peers  by  act  ot  par- 


1  Rot.  Pari.  vol.  iii.  p.  427. 
«  Rot.  Pari.  vol.  li.  p.  290. 
9  Tol.  iu.  p.  209 


4  Id.  p.  263, 264. 
6  vol.  iv.  p.  17. 
0  Id.  p.  40L 


it' 


126 


CLERGY  SUMMONED     Chap.  Vin.  Part  lH. 


EHGLisn  Const.      TO  ATTEND  PARLIAMENT. 


127 


And  by 
patent. 


liament  has  partly  anticipated  the  modem  form  of 
letters-patent,  with  which  the  other  was  nearly 
allied.  The  first  instance  of  a  barony  conferred  by  patent 
was  in  the  tenth  year  of  Richard  II.,  when  Sir  John  Holt,  a 
judge  of  the  Common  Pleas,  was  created  lord  Beauchamp 
of  Kidderminster.  Holt's  patent,  however,  passed  while 
Richard  was  endeavoring  to  act  in  an  arbitrary  manner ;  and 
in  fact  he  never  sat  in  parliament,  having  been  attainted  in 
that  of  the  next  year  by  the  name  of  Sir  John  Holt.  In  a 
number  of  subsequent  patents  down  to  the  reign  of  Henry 
Vn.  the  assent  of  parliament  is  expressed,  though  it  fre- 
quently happens  that  no  mention  of  it  occurs  in  the  parlia- 
mentary roll.  And  in  some  instances  the  roll  speaks  to  the 
consent  of  parliament  where  the  patent  itself  is  silent.* 
It  is  now  perhaps  scarcely  known  by  many  persons  not 
unversed  in  the  constitution  of  their  country,  that, 
8n*^oned  besides  the  bishops  and  baronial  abbots,  the  in- 
to attend       ferfor  clcrffv  were  ref^ularly  summoned  at  every 

parliament.  &•'    ^        ,        o  .       /  u«  i. 

parliament.  In  the  writ  ot  summons  to  a  bishop 
he  is  still  directed  to  cause  the  dean  of  his  cathedral  church, 
the  archdeacon  of  his  diocese,  with  one  proctor  from  the  chap- 
ter of  the  former,  and  two  from  the  body  of  his  clergy,  to 
attend  with  him  at  the  place  of  meeting.  This  might,  by  an 
inobservant  reader,  be  confounded  with  the  summons  to  the 
convocation,  which  is  composed  of  the  same  constituent  parts, 
and,  by  modem  usage,  is  made  to  assemble  on  the  same  day. 
But  it  may  easily  be  distinguished  by  this  difference  —  that 
the  convocation  is  provincial,  and  summoned  by  the  metro- 
politans of  Canterbury  and  York ;  whereas  the  clause  com- 
monly denominated  praimunientes  (from  its  first  word)  in  the 
writ  to  each  bishop  proceeds  from  the  crown,  and  enjoins  the 
attendance  of  the  clergy  at  the  national  council  of  parlia- 
ment.^ 

The  first  unequivocal  instance  of  representatives  appearing 
for  the  lower  clergy  is  in  the  year  1255,  when  they  are  ex- 
pressly named  by  the   author  of  the   Annals  of  Burton.^ 


*  West's  Inquiry,  p.  65.  This  writer 
does  not  allow  that  the  king  possessed 
the  prerogative  of  creating  new  peers, 
without  consent  of  parliament.  But 
Prynne  {1st  Register,  p.  225),  who  gener- 
ally adopts  the  same  theory  of  peerage 
as  West,  strongly  asserts  the  contrary  ; 
and  the  party  views  of  the  latter's  trt>a- 
tiw,  which  I  mentioned  above,  should  be 


kept  in  sight.  It  was  his  object  to  proTe 
that  the  pending  bill  to  limit  the  num- 
bers of  the  peerage  was  conformable  to 
the  original  constitution. 

3  Hody's  History  of  Convocations,  p. 
12.  Dissertatio  de  antique  et  modemA 
Synodi  AnRlicani  Constitutione.  prefixed 
to  Wilkins's  Concilia,  t.  1. 

3  2  Qale,  Scriptorea  Rer.  Anglic,  t  iL 


They  'preceded,  therefore,  by  a  few  years  the  house  of  com- 
mons; but  the  introduction  of  ea^^h  was  founded  upon  the 
same  principle.     The  king  required  the  clergy's  money,  but 
dared   not  take   it  without  their  consent.^    In  the  double 
parliament,  if  so  we  may  call  it,  summoned  in  the  eleventh 
of  Edward  I.  to  meet  at  Northampton  and  York,  and  divided 
accordiiKT  to  the  two  ecclesiastical  provinces,  the  proctors  ot 
chapters°for  each  province,  but  not  those  of  the  diocesan 
clergy,  were  summoned  through  a  royal  writ  addressed  to 
the  archbishops.     Upon  account  of  the  absence  of  any  depu- 
ties from  the  lower  clergy  these  assemblies  refused  to  grant 
a  subsidy.     Tlie  proctors  of  both  descriptions  appear  to  have 
been  summoned  by  the  praemunientes  clause  in  the  ^id,  ^^d, 
24th,  28th,  and  35th  years  of  the  same  king ;  but  m  some 
other  parliaments  of  his  reign  the  praemunientes  clause  is 
omitted.2     The  same  irregularity  continued  under  his  suc- 
cessor ;  and  the  constant  usage  of  inserting  this  clause  in  the 
bishop's  writ  is  dated  from  the  twenty-eighth  of  Edward  111. 
It  is  hinrhly  probable  that  Edward  I.,   whose  legislative 
mind  was  Engaged  in  modelling  the  constitution  on  a  compre- 
hensive scheme,  designed  to  render  the  clergy  an  effective 
branch   of   parliament,  however  their   continual  resistance 
may  have  defeated  the  accomplishment   of  this  intention. 
Ws  find  an  entry  upon  the  roll  of  his  parliament  at  Carhsle, 
containing  a  Ust  of  all  the  proctors  deputed  to  it  by  the 
several  dioceses  of  the  kingdom.     This  may  be  reckoned  a 
clear  proof  of  their  pariiamentary   attendance   during   his 
rei^m  under  the  praemunientes  clause ;  since  the  province  ot 
Canterbury  could  not  have  been  present  in  convocation  at  a 
city  beyond  its  limits.^     And  mdeed,  if  we  were  to  found  our 
judgment  merely  on  the  language  used  in  these  writs,  it 
would  be  hard  to  resist  a  very  strange  paradox,  that  the 
clercry  were  not  only  one  of  the  three  estates  of  the  realm, 
but  as  essential  a  member  of  the  legislature  by  their  repre- 
sentatives as  the  commons.*     They  are  summoned  in  the 


p.  855 ;  Hody,  p.  845.  Atterbury  (Rights 
of  Convocations,  p.  295,  315)  endeavors 
to  show  that  the  clergy  ha<l  been  repre- 
iented  in  parliament  from  the  Conquest 
as  well  as  before  It.  Many  of  the  pas- 
1^^  he  quotes  are  very  inconclusive ; 
but  possibly  there  may  be  some  weight 
In  one  from  Matthew  Paris,  ad  ann.  124/ 
and  two  or  three  writs  of  the  reign  of 
Henry  Ul 


1  Hody,  p.  381 ;  Atterbury's  Rights  of 
Convocations,  p.  221. 
3  Hody,  p.  S86 ;  Atterbury,  p.  222. 

3  Hody,  p.  391.  ,  ._ 

4  Gilbert's  Hist,  of  Exchequer,  p.  47. 
6  Rot.  Pari.  vol.  I.  P    189  ;  Atterbury, 

o   229 

0  The  lower  house  of  convocation,  in 
1547,  terrified  at  the  progress  of  reforma- 
tion, petitioned  that,  "  according  to  the 


128 


CLERGY  SUMMONED     Chap.  VIII.  Pakt  IU- 


earliest  year  extant  (23  E.  I.)  ad  tractandura,  ordinandum  et 
faciendum  nobiscum,  et  cum  caeteris  pnelatis,  proceribus,  ac 
aliis  incolis  regni  nostri ;  in  that  of  the  next  year,  ad  ordi- 
nandum de  quantitate  et  modo  subsidii ;  in  that  of  the  twen- 
ty-eighth, ad  faciendum  et  consentiendum  his,  quai  tunc  de 
communi  consilio  ordinari  contigerit  In  later  times  it  ran 
sometimes  ad  faciendum  et  consentiendum,  sometimes  only 
ad  consentiendum ;  which,  from  the  fifth  of  Richard  II.,  has 
been  the  term  invariably  adopted.*  Now,  as  it  is  usual  to 
infer  from  the  same  words,  when  introduced  into  the  writs 
for  election  of  the  commons,  that  they  possessed  an  enacting 
power,  implied  in  the  words  ad  faciendum,  or  at  least  to 
deduce  the  necessity  of  their  assent  from  the  words  ad 
consentiendum,  it  should  seem  to  follow  that  the  clergy  were 
invested,  as  a  branch  of  the  parliament,  with  rights  no  less 
extensive.  It  is  to  be  considered  how  we  can  reconcile  these 
apparent  attributes  of  political  power  with  the  unquestiona- 
ble facts  that  almost  all  laws,  even  while  they  continued  to 
attend,  were  passed  without  their  concurrence,  and  that,  after 
some  time,  they  ceased  altogether  to  comply  with  the  writ.^ 
The  solution  of  this  difficulty  can  only  be  found  in  that 
estrangement  from  the  common  law  and  the  temporal  courts 
which  the  clergy  throughout  Europe  were  disposed  to  effect. 
In  this  country  their  ambition  defeated  its  own  ends;  and 
while  they  endeavored  by  privileges  and  immunities  to  sepa- 
rate themselves  from  the  people,  they  did  not  perceive  that 
the  line  of  demarcation  thus  strongly  traced  would  cut  them 
off  from  the  sympathy  of  common  interests.  Everything 
which  they  could  call  of  ecclesiastical  cognizance  was  drawn 
into  their  own  courts ;  while  the  administration  of  what  they 
contemned  as  a  barbarous  system,  the  temporal  law  of  the 
land,  fell  into  the  hands  of  lay  judges.     But  these  were  men 


tenor  of  the  king's  writ,  and  the  ancient 
customs  of  the  realm,  they  might  have 
room  and  place  and  be  associated  with 
the  commons  in  the  nether  house  of  this 
present  parliament,  as  members  of  the 
commonwealth  and  the  king's  most  hum- 
ble subjects."  Burnet's  Hist,  of  Ref- 
ormation, vol.  ii. ;  Appendix,  No.  17. 
This  assertion  that  the  clergy  had  ever 
been  associated  as  one  bqdy  with  the 
commons  is  not  borne  out  by  anything 
that  appears  on  our  records,  and  is  con- 
tradicted by  many  passages.  But  it  is 
Baid  that  the  clergy  were  actually  so 
Oixited  with  the  commons  in  the  Irish 


parliament  till  the  Reformation.  Gil- 
bert's Hist,  of  the  Exchequer,  p.  67. 

1  Hody,  p.  392. 

3  The  praemunientes  clause  in  a  bish- 
op's writ  of  summons  was  so  far  regarded 
down  to  the  Reformation,  that  proctors 
were  elected,  and  their  names  returned 
upon  the  writ ;  though  the  clergy  never 
attended  from  the  beginning  of  the  fif- 
teenth century,  and  gave  their  money 
only  in  convocation.  Since  the  Reforma- 
tion the  clause  has  been  preserved  for 
form  merely  in  the  writ.  Wilkins,  Dls- 
ertatio,  ubi  supra. 


English  Const.      TO  ATTEND  PARLIAMENT. 


129 


not  less  subtle,  not  less  ambitious,  not  less  attached  to  their 
profession  than  themselves ;  and  wielding,  as  they  did  in  the 
courts  of  Westminster,  the  delegated  sceptre  of  judicial 
sovereignty,  they  soon  began  to  control  the  spiritual  jurisdic- 
tion, and  to  establish  the  inherent  supremacy  of  the  common 
law.  From  this  time  an  inveterate  animosity  subsisted  be- 
tween the  two  courts,  the  vestiges  of  which  have  only  been 
effaced  by  the  liberal  wisdom  of  modem  ages.  The  general 
love  of  the  common  law,  however,  with  the  great  weight  of 
its  professors  in  the  king*s  council  and  in  parhament,  kept  th 
clergy  in  surprising  subjection.  None  of  our  kings  after 
Henry  III.  were  bigots ;  and  the  constant  tone  of  the  com- 
mons serves  to  show  that  the  English  nation  was  thoroughly 
averse  to  ecclesiastical  influence,  whether  of  their  own  church 
or  the  see  of  Rome. 

It  was  natural,  therefore,  to  withstand  the  interference  of 
the  clergy  summoned  to  parliament  in  legislation,  as  much  as 
that  of  the  spiritual  court  in  temporal  jurisdiction.  With 
the  ordinary  subjects,  indeed,  of  legislation  they  had  little 
concern.  The  oppressions  of  the  king's  purveyors,  or  es- 
cheators,  or  officers  of  the  forests,  the  abuses  or  defects  of 
the  common  law,  the  regulations  necessary  for  trading  towns 
and  seaports,  were  matters  that  touched  them  not,  and  to 
which  their  consent  was  never  required.  And,  as  they  well 
knew  there  was  no  design  in  summoning  their  attendance  but 
to  obtain  money,  it  was  with  great  reluctance  that  they 
obeyed  the  royal  writ,  which  was  generally  obliged  to  be  en- 
forced by  an  archiepiscopal  mandate.^  Thus,  instead  of  an 
assembly  of  deputies  from  an  estate  of  the  realm,  they  be- 
came a  synod  or  convocation.  And  it  seems  probable  that 
in  most,  if  not  all,  instances  where  the  clergy  are  said  in  the 
roll  of  parliament  to  have  presented  their  petitions,  or  are 
otherwise  mentioned  as  a  deliberative  body,  we  should  sup- 
pose the  convocation  alone  of  the  province  of  Canterbury  to 
be  intended.^     For  that  of  York  seems  to  have  been  always 


J  Hody,  p.  396,  403,  &c.  In  1314  the 
clergy  protest  even  against  the  recital  of 
the  king's  writ  to  the  archbishop  direct- 
ing him  to  summon  the  clergy  of  his  pro- 
vince in  his  letters  mandatory,  declaring 
that  the  English  clergy  had  not  been 
accustomed,  nor  ought  by  right,  to  be 
convoked  by  the  king's  authority.  Atter- 
bury,  p.  230. 
«  Hody,  p.  425.  Atterbury,  p.  42,  233 
VOL-  III.  9 


The  latter  seems  to  think  that  the  clergy 
of  both  provinces  never  actually  met  in  s 
national  council  or  house  of  parliament, 
under  the  praemunientes  writ,  after  the 
reign  of  Edward  II.,  though  the  proctors 
were  duly  returned.  But  Hody  does  nofc 
go  quite  so  far,  and  Atterbury  had  a  par- 
ticular motive  to  enhance  the  inllueuc* 
of  the  convocation  of  Canterburf. 


130 


CLERGY  SUMMONED     Cuap.  VIII.  Part  III 


I 


considered  as  inferior,  and  even  ancillary,  to  the  greater 
province,  voting  subsidies,  and  even  assenting  to  canons, 
without  deliberation,  in  compliance  with  the  example  of  Can- 
terbury;^ the  convocation  of  which  province  consequently 
assumed  the  importance  of  a  national  council.  But  in  either 
point  of  view  the  proceedings  of  this  ecclesiastical  assembly, 
collateral  in  a  certain  sense  to  parliament,  yet  very  inti- 
mately connected  with  it,  whether  sitting  by  virtue  of  the 
pnemunientes  clause  or  otherwise,  deserve  some  notice  in  a 
constitutional  history. 

In  the  sixth  year  of  Edward  III.  the  proctors  of  the 
clergy  are  specially  mentioned  as  present  at  the  speech  pro- 
nounced by  the  king's  commissioner,  and  retired,  along  with 
the  prelates,  to  consult  together  upon  the  business  submitted 
to  their  deliberation.     They  proposed  accordingly  a  sentence 
of  excommunication  against  disturbers  of  the  peace,  which 
was  assented  to  by  the  lords  and  commons.     The  clergy  are 
said  afterwards  to  have  had  leave,  as  well  as  the  knights, 
citizens,  and  burgesses,  to  return  to  their  homes ;   the  prel- 
ates and  peers  continuing  with  the  king.^     This  appearance 
of  the  clergy  in  full  parliament  is  not,  perhaps,  so  decisively 
proved  by  any  later  record.     But  in  the  eighteenth  of  the 
same  reign  several  petitions  of  the  clergy  are  granted  by  the 
king  and  his  council,  entered  on  the  roll  of  parliament,  and 
even  the  statute  roll,  and  in  some  respects  are  still  part  of 
our  law.'     To  these  it  seems  highly  probable  that  the  com- 
mons gave  no  assent ;  and  they  may  be  reckoned  among  the 
other  infringements  of  their  legislative  rights.     It  is  remark- 
able that  in  the  same  parliament  the  commons,  as  if  appre- 
hensive of  what  was  in  preparation,  besought  the  king  that 
no  petition  of  the  clergy  might  be  granted  till  he  and  his 
council  should  have  considered  whether  it  would  turn  to  the 
prejudice  of  the  lords  or  commons.* 

A  series  of  petitions  from  the  clergy,  in  the  twenty-fifth 
of  Edward  III.,  had  not  probably  any  real  assent  of  the 
commons,  though  it  is  once  mentioned  in  the  enacting  words, 
when  they  were  drawn  into  a  statute.**    Indeed  the  petitions 


1  Atterbury,  p.  46. 

*  Rot.  Pari.  vol.  ii.  p.  64,  66. 

«  18  E.  III.  Stat.  3.    Rot.  Pari.  vol.  ii. 

{>.  151.    This  is  the  parliament  in  which 
t  is  very  doubtful  whether  any  deputies 
from  cities  and  boroughs  had  a  place. 


The  pretended  statutes  were  therelbre 
every  way  null;  being  lalsely  imputed 
to  an  incomplete  parliament. 

4  Rot.  Pari.  vol.  ii.  p.  161. 

6  26  £.  in.  Stat  3. 


English  Const.      TO  ATTEND  PARLIAMENT. 


131 


correspond  so  little  with  the  general  sentiment  of  hostility 
towards  ecclesiastical  privileges  manifested  by  the  lower 
house  of  parliament,  that  they  would  not  easily  have  ob- 
tained its  acquiescence.  The  convocation  of  the  province  of 
Canterbury  presented  several  petitions  in  the  fiftieth  year  of 
the  same  king,  to  which  they  received  an  assenting  answer ; 
but  they  are  not  found  in  the  statute-book.  This,  however, 
produced  the  following  remonstrance  from  the  commons  at 
the  next  pariiament :  "  Also  the  commons  beseech  their  lord 
the  king,  that  no  statute  nor  ordinance  be  made  at  the  peti- 
tion of  the  clergy,  unless  by  assent  of  your  commons ;  and 
that  your  commons  be  not  bound  by  any  constitutions  which 
they  make  for  their  own  profit  without  the  commons'  assent 
For  they  will  not  be  bound  by  any  of  your  statutes  or  ordi- 
nances made  without  their  assent."*  The  king  evaded  a 
direct  answer  to  this  petition.  But  the  province  of  Canter- 
bury did  not  the  less  present  their  own  grievances  to  the 
king  in  that  parliament,  and  two  among  the  statutes  of  the 
year  seem  to  be  founded  upon  no  other  authority.^ 

In  the  first  session  of  Richard  II.  the  prelates  and  clergy 
of  both  provinces  are  said  to  have  presented  then-  schedule 
of  petitions  which  appear  upon  the  roll,  and  three  of  which 
are  the  foundation  of  statutes  unassented  to  in  all  probability 
by  the  commons.'  If  the  clergy  of  both  provinces  were 
actually  present,  as  is  here  asserted,  it  must  of  course  have 
been  as  a  house  of  parliament,  and  not  of  convocation.  It 
rather  seems,  so  far  as  we  can  trust  to  the  phraseology  of 
records,  that  the  clergy  sat  also  in  a  national  assembly  under 
the  king's  writ  in  the  second  year  of  the  same  king.*  Upon 
other  occasions  during  the  same  reign,  where  the  representa- 
tives of  the  clergy  are  alluded  to  as  a  deliberative  body, 
Bitting  at  the  same  time  with  the  parliament,  it  is  impossible 
to  ascertain  its  constitution ;  and,  indeed,  even  from  those 
already  cited  we  cannot  draw  any  positive  inference.^    But 


t  ^  E  m.  Stat.  8,  p.  368.  The  word 
iftey  is  ambiguous ;  >Vhitelocke  (on  Par- 
liamentary writ,  vol.  ii.  p.  346)  interprets 
It  of  the  commons :  I  should  rather  sup- 
pose it  to  mean  the  clerjry. 

2  50  E.  m.  c.  4  &  5. 

»  Rot.  Pari.  vol.  iii.  p.  25.  A  nostre 
WBs  excellent  seigneur  le  roy  supplient 
numblement  ses  devotes  oratours,  les 
proiatB  et  U  clergie  de  la  province  de 
CMterbim  -^t  d'Everwyk.  Stat.  1  Richard 


n.  c.  13, 14, 15.  But  see  Hody,  p.  425; 
Atterbury,  p.  829. 

*  Rot.  Pari.  vol.  iii.  p.  37. 

^  It  might  be  argued,  from  a  passage 
in  the  parliament-roll  of  21  R.  II.,  that 
the  clergy  of  both  provinces  were  not 
only  present,  but  that  they  were  ae- 
counted  an  essential  part  of  parliament 
in  temporal  matters,  which  is  contrary  to 
the  whole  tenor  of  our  laws.  The  com- 
mons are  there  said  to  have  prayed  that 


i! 


132  CLEBGT  m  PARLIAMENT.  Chap.  VHI.  Part  IIL 

whether   in   convocation  or  in   parliament,  they   certainly 
formed  a  legislative  council  in  ecclesiastical  matters  by  the 
adXe  and  fonsent  of  which  alone,  without  that  of  the  com- 
mons (I  can  say  nothing  as  to  the  lords),  Edward  III.  and 
even  Richard  II.  enacted  laws  to  bmd  the  laity.     I  have 
mentioned  in  a  different  place  a  still  more  conspicuous  in- 
stance  of  this  assumed  prerogative;  namely,  the  memomble 
ste^ute  against  heresy  in  the  second  of  Henry  IV.;  which 
can  hardly  be  deemed  anything  else  than  an  ^nfr>"g,^«^«" Vf. 
the  rights  of  parliament,  more  clearly  established  at  that 
time  than  at  the  accession  of  Richard  II.     Petitions  of  the 
commons  relative  to  spiritual  matters   ^^owever  frequently 
proposed,  in  few  or  no  instances  obtained  the  kings  assent 
io  as  to  pass  into  statutes,  unless  approved  by  the  convoca- 
tion.i     But,  on  the  other  hand,  scarcely  any  temporal  laws 
appear  to  have   passed  by  the  concurrence  of  the  cler^. 

Two  instances  only,  so  far  as  I  ^^^^^  f  ^^7/.^^°^^  ^^ 
parliament  held  in  the  eleventh  of  Richard  II.  is  annulled 
by  that  in  the  twenty-first  of  his  reign    "  with  the  assent  of 
the  lords   spiritual  and  temporal,  and  the  proctors  of  the 
clergy,  and  the  commons ;"«  and  the  statute  entailing  the 
S  on  the  children  of  Henry  IV.  is  said  to  be  enacted  on 
the  petition  of  the  prelates,  nobles,  clergy,  and  comnaons 
Both  these  were  stronger  exertions  of  legislative  authorit.y 
than  ordinary  acts  of  parliament,  and  were  very  hkely  to  be 
questioned  in  succeeding  times. 


»' whereas   many  judgments   and   ordi- 
nances formerly  made  in  parUament  had 
been  annulled  because  the  estate  of  clergy 
had  not  been  present  thereat,  the  prelates 
and  clergy  might  make  a  proxy  with  suf- 
ficient power  to  consent  in  their  name 
to  all  things  done  in  this  parliament.' 
Whereupon  the  spiritual  lords  agreed  to 
Intrust  their  powers  to  Sir  Thomas  Percy, 
and  irave  him  a  procuration  commencing 
in  the  following  words:   "Nos  Thomas 
Cantuar'  et  Robertus  Ebor'  archiepiscoi)i, 
ao  prselati  et  clertis  utriusque  provmaa 
Cantuar''  et  Ebor''  jure  ecclesiarum  nostra- 


potestatem."    It  may  be  perceived  by 
these  expressions,  and    more    unequiT- 
ocally  by  the  nature  of  the  case,  that  it 
was    the   judicial    power  of   parliament 
which   the  spiritual  lords  delegated  to 
their    proxy.     Many   impeachments    for 
capital  offences  were  coming  on,  at  whicb, 
by  their  canons,  the  bUhops  could  not 
assist.     But  it  can  never  be  conceived 
that  the  inferior  clergy  had  any  share  In 
thi3  high  judicature.    And,  upon  looking 
attentively  at  the  words  above  printed  in 
italics,  it  will  be  evident  that  the  spiritual 
lords  holding  by  barony  are  the  only 


Cantuar' et  Ebor^  jure  ecclesiarum  nostra-    loroa   uuiuiug    "/ .'~"'"-'    ""    ":_  |,.-i 


jus  interessendi  in  singulis  parltamentts 
domlni  nostri  regis  et  regni  Angliae  pio 
tempore  celebrandis,  necnon  tractandi  et 
expediendi  in  eisdem  quantum  ad  singula 
in  instanti  parliamento  pro  statu  et 
honore  dominl  nostri  regis,  necnon  rc- 
galiffi  SU8B,  ac  quiete,  pace,  et  tranqullll- 
tate  regni  judicialiter  justificandis,  vene- 
c»bili  viro  domino  Thomsc  de  Percy 
militi,   nostxam  plenarie   committimuB 


been  meant  by  the  singular  phrase,  a» 
applied  to  them,  clerus  utriusque   pro- 
vincias.    Rot.  Pari.  vol.  iii.  p.  348. 
1  Atterbury,  p.  846.  ,«  »    «• 

a  21  R.  11.  c.  12.  Burnet's  in«t-  o* 
Reformation  (vol.  ii.  p.  47)  led  me  to  tWi 
act,  which  I  had  overlooked. 

8  Rot.  Pari.  vol.  III.  p.  582.  Atterbury, 
p.  61. 


Ekglish  Const. 


THE  KING'S  COUNCIL. 


183 


The  supreme  judicature,  which  had  been  exercised  by  the 
king's  court,  was  diverted,  about  the  reign  of  j^^sdiction 
John,  into  three  channels ;  the  tribunals  of  King's  of  the  king's 
Bench,  Common  Pleas,  and  the  Exchequer.^  *'°''''''"- 
These  became  the  regular  fountains  of  justice,  which  soon 
almost  absorbed  the  provincial  jurisdictions  of  the  sheriff 
and  lord  of  manor.  But  the  original  institution,  having  been 
designed  for  ends  of  state,  police,  and  revenue,  full  as  much 
as  for  the  determination  of  private  suits,  still  preserved  the 
most  eminent  parts  of  its  authority.  For  the  king's  ordinary 
or  privy  council,  which  is  the  usual  style  from  the  reign  of 
Edward  I.,  seems  to  have  been  no  other  than  the  king's  court 
(curia  regis)  of  older  times,  being  composed  of  the  same 
persons,  and  having,  in  a  principal  degree,  the  same  subjects 
of  deliberation.  It  consisted  of  the  chief  ministers ;  as  the 
chancellor,  treasurer,  lord  steward,  lord  admiral,  lord  mar- 
shal, the  keeper  of  the  privy  seal,  the  chamberlain,  treasurer, 
and  comptroller  of  the  household,  the  chancellor  of  the  ex- 
chequer, the  master  of  the  wardrobe;  and  of  the  judges, 
king's  Serjeant,  and  attorney-general,  the  master  of  the  rolls, 
and  justices  in  eyre,  who  at  that  time  were  not  the  same  as 
the  judges  at  Westminster.  When  all  these  were  called 
together,  it  was  a  full  council ;  but  where  the  business  was 
of  a  more  contracted  nature,  those  only  who  were  fittest  to 
advise  were  summoned  ;  the  chancellor  and  judges  for  mat- 
ters of  law;  the  officers  of  state  for  what  concerned  the 
revenue  or  household.* 

The  business  of  this  council,  out  of  parliament,  may  be 
reduced  to  two  heads ;  its  deliberative  office  as  a  council  of 
advice,  and  its  decisive  power  of  jurisdiction.  With  respect 
to  the  first,  it  obviously  comprehended  all  subjects  of  political 
deliberation,  which  were  usually  referred  to  it  by  the  king : 
this  being  in  fact  the  administration  or  governing  council  of 


>  The  ensuing  sketch  of  the  jurisdic- 
tion exercised  by  the  king's  council  has 
been  chiefly  derived  from  Sir  Matthew 
Hale^s  Treatise  of  the  jurisdiction  of  the 
Lords'  House  in  Parliament,  published 
by  Mr.  Hargrave. 

«  The  words  '•  privy  council"  are  said 
not  to  be  used  till  after  the  reign  of 
Henry  VI. ;  the  former  style  was  "  ordi- 
nary" or  "continual  council."  But  a 
distinction  had  always  been  made,  ac- 
cording to  the  nature  of  the  business ; 
Ihe  great  officers  of  state,  or,  as  we  might 


now  say,  the  ministers,  had  no  occasion 
for  the  presence  of  judges  or  any  lawyers 
in  the  secret  councils  of  the  crown.  They 
become,  therefore,  a  council  of  govern- 
ment, though  always  members  of  the 
concilium  ordinarium ;  and,  in  the  former 
capacity,  began  to  keep  formal  records  of 
their  proceedings.  The  acts  of  this  coun- 
cil, though,  as  I  have  just  said,  it  bore 
as  yet  no  distinguishing  name,  are  extant 
from  the  year  1386,  and  for  seventy  years 
afterwards  are  known  through  the  valu. 
able  publication  of  Sir  Harris  Nicolas. 


134 


JURISDICTION  OF    Chap.  VHI.  Part  IIL 


1  \ 


ji 


State,  the  distinction  of  a  cabinet  being  introduced  in  compar- 
atively  modern  times.  But  there  were  likewise  a  vast  num- 
ber  of  petitions  continually  presented  to  the  councU,  upon 
which  they  proceeded  no  further  than  to  sort,  as  it  were,  and 
forward  them  by  indorsement  to  the  proper  courts,  or  advise 
the  suitor  what  remedy  he  had  to  seek.  Thus  some  petitions 
are  answered,  "  this  cannot  be  done  without  a  new  law ; " 
some  were  turned  over  to  the  regular  court,  as  the  chancery 
or  king's  bench  ;  some  of  greater  moment  were  endorsed  to 
be  heard  "before  the  great  council ; "  some,  concerning  the 
king's  interest,  were  referred  to  the  chancery,  or  select  per- 
sons of  the  council. 

The  coercive  authority  exercised  by  this  standmg  council 
of  the  king  was  far  more  important.     It  may  be  divided  into 
acts,  legislative  and  judicial.     As  for  the  first,  many  ordi- 
nances were  made  in  council ;  sometimes  upon  request  of  the 
commons  in  parliament,  who  felt  themselves  better  qualified 
to  state  a  grievance  than  a  remedy  ;  sometimes  without  any 
pretence,  unless  the  usage  of  government,  in  the  infancy  of 
our  constitution,  may  be  thought  to  afford  one.     These  were 
always  of  a  temporary  or  partial  nature,  and  were  considered 
as  regulations  not  sufficiently  important  to  demand  a  new 
statute.     Thus,  in  the  second  year  of  Richard  II.,  the  coun- 
dl,  after  hearing  read  the   statute-roll  of  an  act  recently 
passed,  confirming  a  criminal  jurisdiction  in  certain  cases 
upon  justices  of   the  peace,  declared  that  the  intention  of 
parliament,  though  not  clearly  expressed  therein,  had  been 
to  extend  that  jurisdiction  to  certain  other  cases  omitted, 
which  accordingly  they  cause  to  be  inserted  in  the  commis- 
sions made  to  these  justices  under  the  great  seal.^     But  they 
frequently  so  much  exceeded  what  the  growing  spirit  of  pub- 
lic liberty  would  permit,  that  it  gave  rise  to  complaint  in  par 
liament.     The  commons  petition  in  13  R.  II.  that  "  neither 
the  chancellor  nor  the  king's  council,  after  the  close  of  par- 
liament, may  make  any  ordinance  against  the  common  law, 
or  the  ancient  customs  of  the  land,  or  the   statutes   made 
heretofore  or  to  be  made  in  this  parliament ;  but  that  the 
common  law  have  its  course  for  all  the  people,  and  no  judg- 
ment be  rendered  without  due  legal  process."     The  king  an- 
swers, "  Let  it  be  done  as  has  been  usual  heretofore,  saving 

i  Sot.  Pari.  TOl.  Ui.  p.  8i. 


n 


Ekolish  Const. 


THE  KING'S  COUNCIL. 


135 


the  prerogative ;  and  if  any  one  is  aggrieved,  let  him  show  it 
specially,  and  right  shall  be  done  him."  ^  This  unsatisfactory 
answer  proves  the  arbitrary  spirit  in  which  Richard  was  de- 
termined to  govern. 

The  judicial  power  of  the  council  was  in  some  instances 
founded  upon  particular  acts  of  parliament,  giving  it  power 
to  hear  and  determine  certain  causes.  Many  petitions  like- 
wise were  referred  to  it  from  parliament,  especially  where 
they  were  left  unanswered  by  reason  of  a  dissolution.  But 
independently  of  this  delegated  authority,  it  is  certain  tha 
the  king's  council  did  anciently  exercise,  as  well  out  of  par- 
liament as  in  it,  a  very  great  jurisdiction,  both  in  causes 
criminal  and  civil.  Some,  however,  have  contended,  that 
whatever  they  did  in  this  respect  was  illegal,  and  an  en- 
croachment upon  the  common  law  and  Magna  Charta.  And 
be  the  common  law  what  it  may,  it  seems  an  indisputable 
violation  of  the  charter  in  its  most  admirable  and  essential 
article,  to  drag  men  in  questions  of  their  freehold  or  liberty 
before  a  tribunal  which  neither  granted  them  a  trial  by  their 
peers  nor  always  respected  the  law  of  the  land.  Against 
this  usurpation  the  patriots  of  those  times  never  ceased  to 
lift  their  voices.  A  statute  of  the  fifth  year  of  Edward  lU. 
provides  that  no  man  shall  be  attached,  nor  his  property 
seized  into  the  king's  hands,  against  the  form  of  the  great 
charter  and  the  law  of  the  land.  In  the  twenty-fifth  of  the 
same  king  it  was  enacted,  that  "  none  shall  be  taken  by  peti- 
tion or  suggestion  to  the  king  or  his  council,  unless  it  be  by 
indictment  or  presentment,  or  by  writ  original  at  the  common 
law,  nor  shall  be  put  out  of  his  franchise  or  freehold,  unless 
he  be  duly  put  to  answer,  and  forejudged  of  the  same  by 
due  course  of  law."^  This  was  repeated  in  a  short  act  of 
the  twenty-eighth  of  his  reign;*  but  both,  in  all  probability, 
were  treated  with  neglect;  for  another  was  passed  some 
years  afterwards,  providing  that  no  man  shall  be  put  to 
answer  without  presentment  before  justices,  or  matter  of 
record,  or  by  due  process  and  writ  original  according  to  the 


1  Rot.  Pari.  vol.  iii.  p.  266. 

«  25  E.  III.  Stat.  5,  c  4.  Probably 
this  fifth  statute  of  the  25th  of  Edward 
III.  is  the  most  extensively  beneficial  act 
in  the  whole  body  of  our  laws.  It  es- 
tablished certainty  in  treasons,  regu- 
lated purveyance,  prohibited  arbitrary 
imprisoQjucat  and  the  determination  of 


pleas  of  freehold  before  the  council,  took 
away  the  compulsory  finding  of  men-at- 
arms  and  other  troops,  confirmed  the 
reasonable  aid  of  the  king's  tenants  fixed 
by  3  E.  I.,  and  provided  that  the  king's 
protection  should  not  hinder  civil  process 
or  execution. 

8  28  £.  m.  c.  a 


136 


JURISDICTION  OF    Chap.  VIH.  Part  IIL 


it 


old  law  of  the  land.     The  answer  to  the  petition  whereon 
this  statute  is  grounded,  in  the  parliament-roll,  expressly  de- 
clares this  to  be  an  article  of  the  great  charter.^     Nothing, 
however,  would  prevail  on  the  council  to  surrender  so  emi- 
nent  a  power,  and,  though  usurped,  yet  of  so  long  a  continu- 
ance.    Cases  of  arbitrary  imprisonment  frequently  occurred, 
and  were  remonstrated  against  by  the  commons.     The  right 
of  every  freeman  in  that  cardinal  point  was  as  indubitable, 
legally  speaking,  as  at  this  day ;  but  the  courts  of  law  were 
afraid  to  exercise  their  remedial  functions  in  defiance  of  so 
powerful  a  tribunal.     After  the  accession  of  the  Lancastrian 
family,  these,  like  other  grievances,  became  rather  less  fre- 
quent, but  the  commons  remonstrate  several  times,  even  in 
the  minority  of  Henry  VI.,  against  the  council's  interference 
in  matters  cognizable  at  common  law.*     In  these  later  times 
the  civil  jurisdiction  of  the  council  was  principally  exercised 
in  conjunction  with  the  chancery,  and  accordingly  they  are 
generally  named  together  in  the  complaint.     The  chancellor 
having  the  great  seal  in  his  custody,  the  council  usually  bor- 
rowed its  process  from  his  court.     This  was  returnable  into 
chancery  even  where  the  business  was  depending  before  the 
council.      Nor   were   the   two   jurisdictions   less   intimately 
allied  in  their  character,  each  being  of  an  equitable  nature ; 
and  equity,  as  then  practised,  being  little  else  than  innova- 
tion and  encroachment  on  the  course  of  law.     This   part, 
long  since  the  most  important  of  the  chancellor's  judicial 
ftinction,  cannot  be  traced  beyond  the  time  of  Richard  IL, 
when,  the  practice  of  feoffments  to  uses  having  been  intro- 
duced, without  any  legal  remedy  to  secure  the  cestui  que  use, 
or  usufructuary,  against  his  feoffees,  the  court  of  chancery 


1  42  E.  ni.  c.  3,  and  Rot.  Pari.  vol.  ii. 
p.  296.    It  is  not  surprising  that   the 
king's  council  should  have  persisted  in 
these  transgressions  of  their  lawful  au- 
thority, when  we  find  a  similar  jurisdic- 
tion usurped  hy  the  officers  of  inferior 
persons.    Complaint  is  made  in  the  18th 
of  Richard  II.  that  men  were  compelled 
to  answer  before  the  council  of  divers 
lords  and  ladies,  for  their  freeholds  and 
other  matters  cognizable  at  common  law, 
and  a  remedy  for  this  abuse  is  given  by 
petition  in  chancery,  stat.  15  R.  II.  c. 
12.    This  act  is  confirmed  with  a  penalty 
on  its  contraveners  the  next  year,  16  R. 
II.  c.  2.     The  private  jails  which  some 
lords  were  permitted  by  law  to  possess, 


and  for  which  there  was  always  a  provte  • 
ion  in  their  castles,  enabled  them  to 
render   this   oppressive  jurisdiction   ef- 

2  Rot.  Pari.  17  R.  II.  Tol.  iU.  p.  819 ;  4 
n.  IV.  p.  607:  1  H.  VI.  vol.  iv.  p.  1^; 
3  H.  VI.  p.  292  ;  8  H.  VI.  p.  343  ;  10  H. 
VI.  p.  403;  16  U.  VI.  p.  601.    To  one  of 
these  (10  H.  VI.),  "  that  none  should  be 
put  to  answer  for  his  freehold  in  parlia- 
ment, nor  before  any  court  or  council 
where  such  things  are  not  cognizable  by 
the  law  of  the  land."  the  king  gave  a 
denial.    As  it  was  less  usual  to  refuse 
promises  of  this  kind  than  to  forget  them 
afterwards,  I  do  not  understand  the  mo- 
tive of  this. 


Emolish  Const. 


THE  KING'S  COUNCIL. 


187 


undertook  to  enforce  this  species  of  contract  by  process  of 
its  own.* 

Such  was  the  nature  of  the  king's  ordinary  council  in 
itself,  as  the  organ  of  his  executive  sovereignty,  and  such 
tlie  jurisdiction  which  it  habitually  exercised.  But  it  is  also 
to  be  considered  in  its  relation  to  the  parliament,  during 
whose  session,  either  singly  or  in  conjunction  with  the  lords' 
house,  it  was  particularly  conspicuous.  The  great  officers  of 
^tate,  whether  peers  or  not,  the  judges,  the  king's  serjeant, 
and  attorney-general,  were,  from  the  earliest  times,  as  the 
latter  still  continue  to  be,  summoned  by  special  writs  to  the 
upper  house.  But  while  the  writ  of  a  peer  runs  ad  tractan- 
dum  nobiscum  et  cum  cajteris  praelatis,  magnatibus  et  pro- 
ceribus,  that  directed  to  one  of  the  judges  is  only  ad  tractan- 
dum  nobiscum  et  cum  caiteris  de  consilio  nostro ;  and  the 
seats  of  the  latter  are  upon  the  woolsacks  at  one  extremity 
of  the  house. 

In  the  reigns  of  Edward  I.  and  II.  the  council  appear  to 
have  been  the  regular  advisers  of  the  king  in  passing  laws  to 
which  the  houses  of  parliament  had  assented.  The  pream- 
bles of  most  statutes  during  this  period  express  their  con- 
currence. Thus  the  statute  Westm.  I.  is  said  to  be  the  act 
of  the  king  by  his  council,  and  by  the  assent  of  archbishops, 
bishops,  abbots,  prior:*,  earls,  barons,  and  all  the  commonalty 
of  the  realm  being  hither  summoned.  The  statute  of  escheat- 
ors,  29  E.  I.,  is  said  to  be  agreed  by  the  council,  enumerat- 
ing their  names,  all  whom  appear  to  be  judges  or  public 
officers.  Still  more  striking  conclusions  are  to  be  drawn 
from  the  petitions  addressed  to  the  council  by  both  houses  of 
parliament.  In  the  eighth  of  Edward  II.  there  are  four  pe- 
titions from  the  commons  to  the  king  and  his  council,  one 
from  the  lords  alone,  and  one  in  which  both  appear  to  have 
joined.     Later  parliaments  of  the  same  reign  present  us  with 


ll< 


3  Hale's  Jurisdiction  of  Lords'  House, 
.  40.  Coke,  2  Inst.  p.  653.  The  last 
author  places  this  a  little  later.  There 
is  a  petition  of  the  commons,  in  the  roll 
of  the  4th  of  Henry  IV.  p.  611,  that, 
whereas  many  gn^antees  and  feoffees  in 
trust  for  their  grantors  and  fooffers  alien- 
ate or  charge  the  tenements  granted,  in 
which  ease  there  is  no  remedy  unless  one 
is  ordered  by  parliament,  that  the  king 
and  lords  would  provide  a  remedy.  This 
petition  is  referred  to  the  king's  council 


to  advise  of  a  remedy  against  the  ensuing 
parliament.  It  may  perhaps  be  inferred 
from  hence  that  the  writ  of  subpoena  out 
of  chancery  had  not  yet  been  applied  to 
protect  the  cestui  que  use.  But  it  is 
equally  possible  that  the  commons,  be- 
ing disinclined  to  what  they  would  deem 
an  illegal  innovation,  were  endeavoring 
to  reduce  these  fiduciary  estates  within 
the  pale  of  the  common  law,  as  was 
afterwards  <lone  by  the  statute  of  uses. 
[Note  X.] 


138 


JURISDICTION  OF    Chap.  Vm.  Part  UI. 


several  more  instances  of  the  like  nature.  Thus  in  18 
E.  II.  a  petition  begins,  "  To  our  lord  the  king,  and  to  hia 
council,  the  archbishops,  bishops,  prelates,  earls,  barons,  and 
others  of  the  commonalty  of  England,  show,"  &c.* 

But  from  the  beginning  of  Edward  III.'s  reign  it  seems 
that  the  council  and  the  lords*  house  in  parliament  were  often 
blended  together  into  one  assembly.  This  was  denominated 
the  great  council,  being  the  lords  spiritual  and  temporal,  with 
the  king's  ordinary  council  annexed  to  them,  as  a  council 
within  a  council.  And  even  in  much  earlier  times  the  lords, 
as  hereditary  counsellors,  were,  either  whenever  they  thought 
fit  to  attend,  or  on  special  summonses  by  the  king  (it  is  hard 
to  say  which),  assistant  members  of  this  council,  both  for  ad- 
vice and  for  jurisdiction.  This  double  capacity  of  the  peer- 
age, as  members  of  tlie  parliament  or  legislative  assembly 
and  of  the  deliberative  and  judicial  council,  throws  a  very 
great  obscurity  over  the  subject.  However,  we  find  that 
private  petitions  for  redress  were,  even  under  Edward  I., 
presented  to  the  lords  in  parliament  as  much  as  to  the  ordi- 
nary council.  The  parliament  was  considered  a  high  court 
of  justice,  where  relief  was  to  be  given  in  cases  where  the 
course  of  law  was  obstructed,  as  well  as  where  it  was  defec- 
tive. Hence  the  intermission  of  parliaments  was  looked  upon 
as  a  delay  of  justice,  and  their  annual  meeting  is  demanded 
upon  that  ground.  "  The  king,"  says  Fleta,  "  has  his  court 
in  his  council,  in  his  parliaments,  in  the  presence  of  bishops, 
earls,  barons,  lords,  and  other  wise  men,  where  the  doubtful 
cases  of  judgments  are  resolved,  and  new  remedies  are  pro- 
vided against  new  injuries,  and  justice  is  rendered  to  every 
man  according  to  his  desert."  ^  In  the  third  year  of  Edward 
II.  receivers  of  petitions  began  to  be  appointed  at  the  open- 
ing of  every  parliament,  who  usually  transmitted  them  to  the 
ordinary,  but  in  some  instances  to  the  great  council.  These 
receivers  were  commonly  three  for  England,  and  three  for 
Ireland,  Wales,  Gascony,  and  other  foreign  dominions.  There 
were  likewise  two  corresponding  classes  of  auditors  or  triers 
of  petitions.  These  consisted  partly  of  bishops  or  peers, 
partly  of  judges  and  other  members  of  the  council ;  and 
they  seem  to  have  been  instituted  in  order  to  disburden  the 
council  by  giving  answers  to  some  petitions.     But  about  the 


Bnolish  Const.         THE  KING'S  COUNCIL. 


139 


middle  of  Edward  Ill's  time  they  ceased  to  act  juridically 
in  this  respect,  and  confined  themselves  to  transmitting  pe- 
titions to  the  lords  of  the  council. 

The  great  council,  according  to  the  definition  we  have 
given,  consisting  of  the  lords  spiritual  and  temporal,  in  con- 
junction with  the  ordinary  council,  or,  in  other  words,  of  all 
who  were  severally  summoned  to  parliament,  exercised  a 
considerable  jurisdiction,  as  well  civil  as  criminal.  In  this 
jurisdiction  it  is  the  opinion  of  Sir  M.  Hale  that  the  council, 
though  not  peers,  had  right  of  suffrage;  an  opinion  very 
probable,  when  we  recollect  that  the  council  by  themselves, 
both  in  and  out  of  parliament,  possessed  in  fact  a  judicial  au- 
thority little  inferior ;  and  that  the  king's  delegated  sovereign- 
ty in  the  administration  of  justice,  rather  than  any  intrinsic 
right  of  the  peerage,  is  the  foundation  on  which  the  judica- 
ture of  the  lords  must  be  supported.  But  in  the  time  of 
Edward  III.  or  Richard  II.  the  lords,  by  their  ascendency, 
threw  the  judges  and  rest  of  the  council  into  shade,  and  took 
the  decisive  jurisdiction  entirely  to  themselves,  making  use  of 
their  former  colleagues  but  as  assistants  and  advisers,  as  they 
still  continue  to  be  held  in  all  the  judicial  proceedings  of  that 
house.^ 

Those  statutes  which  restrain  the  king's  ordinary  council 
from  disturbing  men  in  their  freehold  rights,  or  questioning 
them^  for  misdemeanors,  have  an  equal  application  to  the 
lords'  house  in  parliament,  though  we  do  not  frequently  meet 
with  complaints  of  the  encroachments  made  by  that  assem- 
bly. There  was,  however,  one  class  of  cases  tacitly  excluded 
from  the  operation  of  those  acts,  in  which  the  coercive  juris- 
diction of  this  high  tribunal  had  great  convenience ;  namely, 
where  the  ordinary  course  of  justice  was  so  much  obstructed 
by  the  defending  party,  through  riots,  combinations  of  main, 
tenance,  or  overawing  influence,  that  no  inferior  court  would 
find  its  process  obeyed.  Those  ages,  disfigured  in  their  quiet- 
est  season  by  rapine  and  oppression,  afforded  no  small  num- 
ber of  cases  that  called  for  this  interposition  of  a  paramount 
authonty.2     Another  indubitable  branch  of  this  jurisdiction 


1  Rot.  Pari.  Tol.  i.  p.  416. 


>  L.  U.  0. 3. 


»  [Note  XI.] 

•  This  is  remarkably  expressed  in  one 
W  the  articles  agreed  in  parliament  8  U. 
«  T*        }J^^  regulation  of  the  council. 

Item,  that  allc  the  billes  that  compre- 
n«id  matters  terminable  atte  the  common 


lawe  shall  be  remitted  ther  to  be  deter- 
mined ;  but  if  so  be  that  the  discresion 
of  the  counseill  fele  to  grete  myght  on 
that  osyde,  and  unmyght  on  that  other, 
orelles  other  cause  resonable  yat  shal 
move  him."     Rot   Pari.  vol.  iy.  p.  348. 


i 

i 


H 


140 


THE  KING'S  COUNCIL.     Chap.  VIH.  Part  Hi. 


was  in  writs  of  error ;  but  it  may  be  observed  that  their  de- 
termination  was  very  frequently  left  to  a  select  committee  of 
peers  and  councillors.  These,  too,  cease  almost  entirely  with 
Henry  IV. ;  and  were  scarcely  revived  till  the  accession  of 

James  I.  i,  to,       j  ttt      u 

Some  instances  occur  in  the  reign  of  Edward  111.  where 

records  have  been  brought  into  parliament,  and  annulled 
with  assent  of  the  commons  as  well  as  the  rest  of  the  legis- 
lature.^ But  these  were  attainders  of  treason,  which  it 
seemed  gracious  and  solemn  to  reverse  in  the  most  authentic 
manner.  Certainly  the  commons  had  neither  by  the  nature 
of  our  constitution  nor  the  practice  of  parliament  any  nght 
of  intermeddling  in  judicature,  save  where  something  was  re- 
quired beyond  the  existing  law,  or  where,  as  in  the  statute 
of  treasons,  an  authority  of  that  kind  was  particularly  re- 


Mr.  Bruce  has  well  obserred  of  the  arti- 
cles agreed  upon  in  8  Hen.  VI.,  or  rather 
of  "those  in  6  Hen.   VI.,   which  were 
nearly  the  same,  that  in  theory  nothing 
could  be  more  excellent.    In  turbulent 
times,  it  is  scarcely  necessary  to  remark, 
great  men  were  too  apt  to  weigh  out 
justice  for  themselves,  and  with  no  great 
nicety  ;  a  court,  therefore,  to  which  the 
people  might  fly  for  relief  against  power- 
ful opprt'ss^ors,  was  most  especially  need- 
ful.   Law  charges  also  were  considerable ; 
and   this,   *the  poor   mau\s    court,  in 
which  he  might  have  right  without  pay- 
ing any  money'  (Sir  T.  Smith's  Common- 
wealth, book  iii.  ch.  7),  was  an  institution 
apparently  calculated  to  be  of  unques- 
tionable utility.    It  was  the  comprehen- 
givent'ss  of  the  last  clause  —  the  '  other 
cause  reasonable' — which  was  its  ruin." 
Archaeologia,  vol.  xxv.  p.  348.    The  stat- 
ute 31  Hen.  VI.  c.  2,  which  is  not  printed 
in  Ruffhead's  edition,  is  very  important, 
as  giving  a  legal  authority  to  the  coun- 
cil, by  writs  under  the  great  seal,  and 
by  writs  of  proclamation  to  the  sherifla, 
on  parties  making  default,  to  compel  the 
attendance  of  any  persons  complained  of 
for  ''  great  riots,  extortions,  oppressions, 
and  grievous  offences,"  under  heavy  pen- 
alties ;  in  case  of  a  peer,  "  the  loss  of  his 
estate,  and  name  of  lord,  and  his  place 
in  parliament,"  and  all  his  lands  for  the 
term  of  his  life ;  and  fine  at  discretion  in 
the  case  of  other  persons.     A  proviso  is 
added  that  no  matter  determinable  by 
the  law  of  the  realm  should  bo  deter- 
mined in  other  form  than  after  the  course 
of  law  in  the  king's  courts.    Sir  Francis 
Palgravc  (Essay  on  the  King's  Council, 
p.  84)  observes  that  this  proviso  "  would 


in  no  way  interfere  with  the  effective  ju- 
risdiction of  the  council,  inasmuch  as  it 
could  always  be  alleged  in  the  bills  which 
were  preferred  before  it  that  the  oppres- 
sive and  grievous  offences  of  which  they 
complained  were  not  determinable  by  the 
ordinary  course  of  the  common  law." 
p.  86.    But  this  takes  the  word  "deter- 
minable "  to  mean  in  fact ;    whereas  I 
apprehend  that  the  proviso  must  be  un- 
derstood to  mean  cases  legally  determin- 
able; the  words,  I  think,  will  bear  no 
other  construction.      But  as  all  the  of- 
fences enumerated  were  indictable,  we 
must  either  hold  the  proviso  to  be  utterly 
inconsistent  with  the  rest  of  the  statute, 
or  suppose  that  the  words  "  other  form," 
were  intended  to  prohibit  the  irregular 
process  usual  with  the  council;  secret 
examination  of  witnesses,  torture,  neg- 
lect of  technical  formality  in  specifying 
charges,  punishments  not  according  to 
the  course  of  law,  and  other  violations 
of  fair  and  free  trial,  which  constituted 
the  greatest  grievance  in  the  proceedings 
of  the  council. 

1  The  judgment  against  Mortimer  was 
reversed  at  the  suit  of  his  son, 28 E.  III-. 
because  he  had  not  been  put  on  his  trial. 
The  peers  had  adjudged  him  to  death  in 
his  absence,  upon  common  notoriety  of 
his  guUt.  4  E.  in.  p.  63.  In  the  same 
session  of  28  E.  III.  the  earl  of  Arundel's 
attainder  was  also  reversed,  which  had 
passed  in  1  E.  III.,  when  Mortimer  was 
at  the  height  of  his  power.  These  prece- 
dents taken  together  seem  to  have  re- 
sulted from  no  partiality,  but  a  true 
sense  of  justice  in  respect  of  treasons, 
animated  by  the  recent  statute.  Rot. 
Pari.  vol.  U.  p.  256. 


Emglish  Const.       CHARACTER  OF  GOVERNMENT. 


141 


served  to  both  houses.  This  is  fully  acknowledged  by  them- 
selves in  the  first  year  of  Henry  IV.*  But  their  influence 
upon  the  balance  of  government  became  so  commanding  in  a 
few  years  afterwards,  that  they  contrived,  as  has  been  men- 
tioned already,  to  have  petitions  directed  to  them,  rather  than 
to  the  lords  or  council,  and  to  transmit  them,  either  with  a 
tacit  approbation  or  in  the  form  of  acts,  to  the  upper  house. 
Perhaps  this  encroachment  of  the  commons  may  have  con- 
tributed to  the  disuse  of  the  lords'  jurisdiction,  who  would 
rather  relinquish  their  ancient  and  honorable  but  laborious 
function  than  share  it  with  such  bold  usurpers. 

Although  the  restraining  hand  of  parliament  was  continually 
growing  more  effectual,  and  the  notions  of  legal  q^^^^^  ' 
right  acquiring  more  precision,  from  the  time  of  character 
Magna  Charta  to  the  civil  wars  under  Henry  VI.,  gov^nment 
we  may  justly  say  that  the  general  tone  of  adminis-  in  these 
tration  was  not  a  little  arbitrary.     The  whole  fabric  *^* 
of  English  liberty  rose  step  by  step,  through  much  toil  and 
many  sacrifices,  each  generation  adding  some  new  security  to 
the  work,  and  trusting  that  posterity  would  perfect  the  labor 
as  well  as  enjoy  the  reward.     A  time,  perhaps,  was  even  then 
foreseen  in  the  visions  of  generous  hope,  by  the  brave  knights 
of  parliament  and  by  the  sober  sages  of  justice,  when  the 
proudest  ministers  of  the  crown  should  recoil  from  those  bar- 
riers which  were  then  daily  pushed  aside  with  impunity. 

There  is  a  material  distinction  to  be  taken  between  the 
exercise  of  the  king's  undeniable  prerogative,  however  repug- 
nant to  our  improved  principles  of  freedom,  and  the  abuse  or 
extension  of  it  to  oppressive  purposes.  For  we  cannot  fairly 
consider  as  part  of  our  ancient  constitution  what  the  parlia- 
ment was  perpetually  remonstrating  against,  and  the  statute- 
book  is  full  of  enactments  to  repress.  Doubtless  the  continual 
acquiescence  of  a  nation  in  arbitrary  government  may  ulti- 
mately destroy  all  privileges  of  positive  institution,  and  leave 
them  to  recover,  by  such  means  as  opportunity  shall  offer,  the 
natural  and  imprescriptible  rights  for  which  human  societies 
were  established.  And  this  may  perhaps  be  the  case  at 
present  with  many  European  kingdoms.  But  it  would  be 
necessary  to  shut  our  eyes  with  deliberate  prejudice  against 
the  whole  tenor  of  the  most  unquestionable  authorities,  against 


n 


1  Bot.  Pari.  vol.  iU.  p.  427. 


142         CHARACTER  OF  GOVERNMENT.     Chap.  VIH.  Part  HI. 

tlie  petitions  of  the  commons,  the  acts  of  the  legislature,  the 
testimony  of  historians  and  lawyers,  before  we  could  assert 
that  England  acquiesced  in  those  abuses  and  oppressions 
which  it  must  be  confessed  she  was  unable  fully  to  prevent. 

The  word  prerogative  is  of  a  peculiar  import,  and  scarcely 
understood  by  those  who  come  from  the  studies  of  political 
philosophy.  We  cannot  define  it  by  any  theory  of  executive 
functions.  All  these  may  be  comprehended  in  it ;  but  also  a 
great  deal  more.  It  is  best,  perhaps,  to  be  understood  by  its 
derivation,  and  has  been  said  to  be  that  law  in  case  of  the 
king  which  is  law  in  no  case  of  the  subject.^  Of  the  higher 
and  more  sovereign  prerogatives  I  shall  here  say  nothing ; 
they  result  from  the  nature  of  a  monarchy,  and  have  nothing 
very  peculiar  in  their  character.  But  the  smaller  rights  of 
the  crown  show  better  the  original  lineaments  of  our  consti- 
tution. It  is  said  commonly  enough  that  all  prerogatives  are 
given  for  the  subject's  good.  I  must  confess  that  no  part  of 
this  assertion  corresponds  with  my  view  of  the  subject.  It 
neither  appears  to  me  that  these  prerogatives  were  ever  given 
nor  that  they  necessarily  redound  to  the  subject's  good.  Pre- 
rogative, in  its  old  sense,  might  be  defined  an  advantage 
obtained  by  the  crown  over  the  subject,  in  cases  where  their 
interests  came  into  competition,  by  reason  of  its  greater 
strength.  This  sprang  from  the  nature  of  the  Nonnan  gov- 
ernment, which  rather  resembled  a  scramble  of  wild  beasts, 
where  the  strongest  takes  the  best  share,  than  a  system 
founded  upon  principles  of  common  utility.  And,  modified 
as  the  exercise  of  most  prerogatives  has  been  by  the  more 
liberal  tone  which  now  pervades  our  course  of  government, 
Whoever  attends  to  the  common  practice  of  courts  of  justice, 
and,  still  more,  whoever  consults  the  law-books,  will  not  only 
be  astonished  at  their  extent  and  multiplicity,  but  very 
frequently  at  their  injustice  and  severity. 

The  real  prerogatives  that  might  formerly  be  exerted  were 

sometimes  of  so  injurious  a  nature,  that  we  can 

urveyance.   y^^j.^^  separate  them  from  their  abuse  :  a  striking 

instance  is  that  of  purveyance,  which  will  at  once  illustrate 
the  definition  above  given  of  a  prerogative,  the  limits  within 
which  it  was  to  be  exercised,  and  its  tendency  to  transgress 
them.     This  was  a  right  of  purchasing  whatever  was  neces- 

>  Blackstone's  Comment,  from  Finch,  toI.  I.  e.  7* 


English  Const. 


PURVEYANCE. 


143 


sary  for  the  king's  household,  at  a  fair  price,  in  preference  to 
every  competitor,  and  without  the  consent  of  the  owner.  By 
the  same  prerogative,  carriages  and  horses  were  impressed 
for  the  king's  journeys,  and  lodgings  provided  for  his  attend- 
ants. This  was  defended  on  a  pretext  of  necessity,  or 
at  least  of  great  convenience  to  the  sovereign,  and  was 
both  of  high  antiquity  and  universal  practice  throughout 
Europe.  But  the  royal  purveyors  had  the  utmost  tempta- 
tion, and  doubtless  no  small  store  of  precedents,  to  stretch 
this  power  beyond  its  legal  boundary ;  and  not  only  to  fix 
their  own  price  too  low,  but  to  seize  what  they  wanted  with- 
out any  payment  at  all,  or  with  tallies  which  were  carried  in 
vain  to  an  empty  exchequer.^  This  gave  rise  to  a  number 
of  petitions  from  the  commons,  upon  which  statutes  were 
often  framed ;  but  the  evil  was  almost  incurable  in  its  nature, 
and  never  ceased  till  that  prerogative  was  itself  abolished. 
Purveyance,  as  I  have  already  said,  may  serve  to  distinguish 
the  defects  from  the  abuses  of  our  constitution.  It  was  a  re- 
proach to  the  law  that  men  should  be  compelled  to  send  their 
goods  without  their  consent ;  it  was  a  reproach  to  the  admin- 
istration that  they  were  deprived  of  them  without  payment. 
The  right  of  purchasing  men's  goods  for  the  use  of  the 
king  was  extended  by  a  sort  of  analogy  to  their  labor.  Thus 
Edward  III.  announces  to  all  sheriffs  that  William  of  Wal- 
singham  had  a  commission  to  collect  as  many  painters  as 
might  sufiice  for  "our  works  in  St.  Stephen's  chapel,  West- 
minster, to  be  at  our  wages  as  long  as  shall  be  necessary," 
and  to  arrest  and  keep  in  prison  all  who  should  refuse  or 
be  refractory ;  and  enjoins  them  to  lend  their  assistance.^ 
Wmdsor  Castle  owes  its  massive  magnificence  to  laborers 
impressed  from  every  part  of  the  kingdom.  There  is  even  a 
commission  from  Edward  IV.  to  take  as  many  workmen  in 


L,^tters  are  directed  to  all  the  sheriffs, 
2  E.  I.,  enjoining  them  to  fiend  up  a 
certain  number  of  beeves,  sheep,  capons, 
&c.,  for  the  king's  coronation.  Rymer, 
▼ol.  li.  p.  21.  By  the  statute  21  E.  III. 
c.  12,  goods  taken  by  the  purveyors  were 
to  be  paid  for  on  the  spot  if  under  twenty 
Bhilhngs'  value,  or  within  three  months' 
Ume  if  above  that  value.  But  it  is  not 
to  be  imagined  that  this  law  was  or  could 
De  observed. 

Edward  III.,  impelled  by  the  exigen- 
ttes  of  his  French  war,  went  still  greater 


lengths,  and  seized  larger  quantities  of 
wool,  which  he  sold  beyond  sea,  as  well 
as  provisions  for  the  supply  of  his  army. 
In  both  cases  the  proprietors  had  tallies, 
or  other  securities  ;  but  their  despair  of 
obtaining  payment  gave  rise,  in  1338,  to 
an  insurrection.  There  is  a  singular 
apologetical  letter  of  Edward  to  the  arch- 
bishops on  this  occasion.  Rymer,  t.  v. 
p.  10 ;  see  also  p.  73,  and  Knyghton,  col 
2570.  ' 

*  Rymer,  t.  vl.  p.  417. 


II 


144  ABUSES  OF  FEUDAL  RIGHTS.    Chap.  VIII.  Part  m. 

gold  as  were  wanting,  and  employ  them  at  the  king's  cost 
upon  the  trappings  of  himself  and  his  household.^ 

Another  class  of  abuses  intimately  connected  with  unques- 
tionable though  oppressive  rights  of   the   crown 
feud?  originated  in  the   feudal  tenure  which  bound  all 

rights.  ^Y^Q  jjj^jjg  Qf  ^]^Q  kingdom.     The  king  had  indis- 

putably a  right  to  the  wardship  of  his  tenants  in  chivalry, 
and  to  the  escheats  or  forfeitures  of  persons  dying  without 
heirs  or  attainted  for  treason.  But  his  officers,  under  pre- 
tence of  wardship,  took  possession  of  lands  not  held  imme- 
diately of  the  crown,  claimed  escheats  where  a  right  heir 
existed,  and  seized  estates  as  forfeited  which  were  protected 
by  the  statute  of  entails.  The  real  owner  had  no  remedy 
against  this  disposition  but  to  prefer  his  petition  of  right  in 
chancery,  or,  which  was  probably  more  effectual,  to  procure 
a  remonstrance  of  the  house  of  commons  in  his  favor. 
Even  where  justice  was  finally  rendered  to  him  he  had  no 
recompense  for  his  damages ;  and  the  escheators  were  not 
less  likely  to  repeat  an  iniquity  by  which  they  could  not 
personally  suffer. 

The  charter  of  the  forests,  granted  by  Henry  III.  along 
with  Magna  Charta,'^  had  been  designed  to  crush 
Forest  ws.  ^^^^  flagitious  System  of  oppression  which  prevailed 
in  those  favorite  haunts'^  of  the  Norman  kings.  They  had 
still,  however,  their  peculiar  jurisdiction,  though,  from  the 
time  at  least  of  Edward  III.,  subject  in  some  measure  to  the 
control  of  the  King's  Bench.*  The  foresters,  I  suppose, 
might  find  a  compensation  for  their  want  of  the  common  law 
in  that  easy  and  licentious  way  of  life  which  they  affected ; 
but  the  neighboring  cultivators  frequently  suffered  from  the 
king's  officers  who  attempted  to  recover  those  adjacent  lands, 
or,  as  they  were  called,  purlieus,  which  had  been  disaffor- 
ested by  the  charter  and  protected  by  frequent  perambula- 


Ekolish  Const.      CONSTABLE  AND  MARSHAL. 


145 


1  Rymer,  t.  xi.  p.  852. 

2  Matthew  Paris  afiserts  that  John 
granted  a  separate  forest-charter,  and 
Bupports  his  position  by  assertint;  that  of 
Henry  III.  at  full  length.  In  fiict,  the 
clauses  relating  to  the  forest  were  incor- 
porated with  the  great  charter  of  John. 
Such  an  error  as  this  shows  the  precari- 
ousness  of  historical  testimony,  even 
where  it  seems  to  be  best  grounded. 

»  Coke,  fourth  Inst.  p.  294.  The  forest 
domain  of  the  king,  says  the  author  of 


the  dialogtte  on  the  KlRhcqucr  under 
Henry  II.,  is  governed  by  its  own  laws, 
not  founded  on  the  common  law  of  the 
land,  but  the  voluntary  enactment  of 
princes :  so  that  whatever  is  done  by  that 
law  is  reckoned  not  legal  in  itself,  but 
legal  according  to  forest  law,  p.  29,  non 
justum  absolute,  sed  justum  secundum 
legem  forestae  dicatur.  I  believe  my 
tnnslation  of  justum  is  right;  for  ho  i« 
not  writing  satirically. 


tions.     Many  petitions  of  the  commons  relate  to  this  griev- 
ance. 

The  constable  and  marshal  of  England  possessed  a  juris- 
diction, the  proper  limits  whereof  were  sufficiently  jurisdiction 
narrow,  as  it  seems,  to  have  extended  only  to  ap-  of  constable 
peals  of  treason  committed  beyond  sea,  which  *"*  ™a"iiai- 
were  determined  by  combat,  and  to  military  offences  within 
the  realm.  But  these  high  officers  frequently  took  upon 
them  to  inquire  of  treasons  and  felonies  cognizable  at  com- 
mon law,  and  even  of  civil  contracts  and  trespasses.  This 
is  no  bad  illustration  of  the  state  in  which  our  constitution 
stood  under  the  Plantagenets.  No  color  of  right  or  of  su- 
preme prerogative  was  set  up  to  justify  a  procedure  so 
manifestly  repugnant  to  the  great  charter.  For  all  remon- 
strances against  these  encroachments  the  king  gave  prom- 
ises in  return ;  and  a  statute  was  enacted,  in  the  thirteenth 
of  Richard  II.,  declaring  the  bounds  of  the  constable  and 
marshal's  jurisdiction.*  It  could  not  be  denied,  therefore, 
that  all  infringements  of  these  acknowledged  limits  were  il- 
legal, even  if  they  had  a  hundred  fold  more  actual  precedents 
in  their  favor  than  can  be  supposed.  But  the  abuse  by  no 
means  ceased  after  the  passing  of  this  statute,  as  several  sub- 
sequent petitions  that  it  might  be  better  regarded  will  evince. 
One,  as  it  contains  a  special  instance,  I  shall  insert.  It  is  of 
the  fifth  year  of  Henry  IV. :  "  On  several  supplications  and 
petitions  made  by  the  commons  in  parliament  to  our  lord  the 
king  for  Bennet  Wilman,  who  is  accused  by  certain  of  his 
ill-wishers  and  detained  in  prison,  and  put  to  answer  before 
the  constable  and  marshal,  against  the  statutes  and  the  com- 
mon law  of  England,  our  said  lord  the  king,  by  the  advice 
and  assent  of  the  lords  in  parliament,  granted  that  the  said 
Bennet  should  be  treated  according  to  the  statutes  and  com- 
mon law  of  England,  notwithstanding  any  commission  to  the 
contrary,  or  accusation  against  him  made  before  the  consta- 
ble and  marshal."  And  a  writ  was  sent  to  the  justices  of  the 
King's  Bench  with  a  copy  of  this  article  from  the  roll  of  par- 
liament, directing  them  to  proceed  as  they  shall  see  fit  ac- 
cording to  the  laws  and  customs  of  England.  ^ 

It  must  appear  remarkable  that,  in  a  case  so  manifestly 
within  their  competence,  the  court  of  King's  Bench  should 


YOL.  III. 


1  18R.  n.  c.  2. 


10 


>  Rot.  Pari.  Tol.  iii.  p.  590. 


'.') . 


■^tM 


146  CONSTABLE  AND  MARSHAL.    Chap.  THI.  Pabt  IH. 

not  have  issued  a  writ  of  habeas  corpus,  without  waiting  for 
what  maybe  considered  as  a  particular  act  of  parliament. 
But  it  is  a  natural  efiFect  of  an  arbitrary  admm.stration  of 
«,vemment  to  intimidate  courts  of  justice."    A  negative  at- 
!ument,  founded  upon   the  want  of  legal  precedent,  is  cer- 
S  not  conclusive  when  it  relates  to  a  distant  penod,  of 
which  all  the  precedents  have  not  been  noted ;  yet  it  must 
strike  us  that  in  the  learned  and  zealous  arguments  of  Sir 
Robert  Cotton,  Mr.  Selden,  and  others  s^inst  arbitrary  im- 
^sonment,  in  the  great  case  of  the  habeas  corpus,  though 
r"  law  is  fu^  of  authorities  in  their  favor,  we  find  no 
instance  adduced  earlier  than  the  reign  of  Henry  VII.,  where 
the  Kin<''s  Bench  has  released,  or  even  bailed,  persons  com- 
mitted by  the  council  or  the  constable,  though  It  IS  unques- 
tionable that  such  committals  were  both  frequent  and  illegal. 
If  I  have  faithfully  represented  thus  far  the  history  ot 
our  constitution,  its  essential  character  will  appear  to  be  a 
monarchy  greatly  limited  by   law,  though  retaining  much 
power  tlmt  was  ill  calculated  to  promote  the  public  good,  and 
^ervuig  continually  into  an  irregular  courae,  which  there 
was  no  restraint  adetjuate  to  correct.    But  of  all  the  notion, 
that  have  been  advanced  as  to  the  theory  of  this  constitution, 
the  least  consonant  to  law  and  history  is  that  which  represents 
the  kin"  as  merely  an  hereditary  execuUve  magistrate,  the 


U  ■ 


Li 


1  The  apprehension  of  this  compliant 
rolrit  la  the  minifltera  of  justice  led  to  an 
excellent  act  in  2  E.  III.  c.  8,  that  the 
judges  shall  not  omit  to  do  right  for  any 
command  under  the  great  or  privy  seal. 
And  the  conduct  of  Richard  II.,  who 
sought  absolute  power  by  corrupting  or 
Intimidating     them,    produced    another 
statute  In  the  eleventh  year  of  his  reign 
{c  10)  providing  that  neither  letters  of 
the  king's  signet  nor  of  the  privy  seal 
should  from  thenceforth  be  sent  in  dis- 
turbance of  the  law.     An  ordinance  of 
Charles   V.,    king   of    France,  in  1369, 
directa  the  parliament  of  Paris  to  pay  no 
refTird  to  any  letters  under  his  seal  sus- 
nendin*'  the  course  of  legal  procedure, 
but  to  consider  them  as  surreptitiously 
obtained.    ViUaret,   t.   x.  p.  175.    This 
ordinance  which  was  sedulously  observed, 
tended  very  much  to  confirm  the  mde- 
pendence  and  integrity  of  that  tnbuna  . 
3  Cotton's  Posthuma,  p.  221.   HoweU  s 
State  Trials,  vol.  iu.  p.  1.    Hume  quotes 
a  grant  of  the  office  of  constable  to  the 
earl  of  Rivers  in  7  E.  IV.,  and  infew,  un- 
warrantably enough,  that  "  ita  authority 


ma    in  direct  contradiction  to  Magna 
Charta ;  and  it  is  evident  that  no  regular 
liberty  could  subsist  with  it.   It  involved 
a  full  dictatorial  power,  continually  sub- 
sisting in  the  state."    Hist,  of  England, 
c.  22.    But  by  the  very  words  of  this 
patent  the  jurisdiction  given  was  only 
over  such  causes  quae  in  curil  constabu- 
laril    AnglisB  ab  antiquo,  vix.   tempore 
dictl  Gulielml  conquoestoris.  seu  allquo 
tempore  citra,  tractari,  audiri,  examlnari, 
aut  decldi  consueverunt  aut  jure  d^ue- 
rant  aut  debent.    These  are  express^ 
though  not  very  perspicuously,  in  the 
statute  13  R.  II.  c.  2,  that  decUres  the 
constable's  jurisdiction.     And  the  cfcicf 
criminal  matter  reserved  by  law  ic  the 
court  of  this  officer  was  treason  com- 
mitted out  of  the  kingdom.    In  violent 
and  revolutionary  seasons,  such  as  the 
commencement  of  Edward  IV. 's  reign, 
some  persons  were  tried  by  martial  law 
before  the  constable.      But,  in  g|ene™» 
the  exercise  of  criminal  justice  Dy/|»* 
tribunal,  though  one  of  the  abuses  of  tbc 
times,  cannot  be    said   to  warrant  tht 
strong  language  adopted  by  Hum** 


Emolish  Const.       ENGLISH  CONSTITUTION.  I47 

first  officer  of  the  state.     What  advantages  might  result  from 
such  a  form  of  government  this  is  not  the  place  to  discuss. 
IJut  It  certamly  was  not  the  ancient  constitution  of  Endand 
There  was  nothing  in  this,  absolutely  nothing,  of  a  republican* 
appearance.     All  seemed  to  grow  out  of  the  monarchy,  and 
was  referred  to  its  advantage  and  honor.     The  voice  of  sud- 
phcation,  even  in  the  stoutest  disposition  of  the  commons 
was  always  humble ;  the  prerogative  was  always  named  in' 
large  and  pompous  expressions.     Still  more  naturally  mav 
we  expect  to  find  in  the  law-books  even  an  obsequious  defer- 
ence  to  power,  from  judges  who  scarcely  ventured  to  consider 
It  as    heir  duty  to  defend  the  subject's  freedom,  and  who  be- 
^eld  the  gigantic  image  of  prerogative,  in  the  full  play  of  its 
hundred  arras,  constantly  before  their  eyes.     Through  this 
monarchical  tone,  which  certainly  pervades  all  our  lelal  au- 
horities,  a  writer  like  Hume,  accustomed  to  philosophical 
bberahty  as  to  the  principles  of  government,  a^d  to  the  de- 
mocratica     anguage  which  the  modern  aspect  of  the  consti- 
tution  and  the  liberty  of  printing  have  produced,  fell  hastily 
into  the  error  of  believing  that  all  limi  Jions  of  ^oyal  power 

tZf^  f^-  ^T^'^''^^  ^^  ^^^^"^^^  ^^'^^^i^^  ^ere  as  much 
unsettled  m  law  and  in  public  opinion  as  they  were  liaMe 

Im'^'^'i  ^^  ^^"''-  ^^^"-^^  ^  ^^""''^^  position  has  bee^ 
Bufficiently  demonstrated,  I  conceive,  by  Ihe  series  of  p^ 
lamentary  proceedings  which  I  have  already  produced,  yet 
^ere  is  a  passage  in  Sir  John  Fortescue's  treatise  De  lJu- 
dibus  Legum  Anglic,  so  explicit  and  weighty,  that  no  writer 
on  the  English  constitution  can  be  excused  from  insertwl 

2Zr'T^  ??'''''''  ??7^°°  ^^^"^  ^^^^^  justice  of  the  King's 
?f  w  i""'^^'  .^^"'^  ^^'  ^^  governor  to  the  young  prince 

lltt'offic?  ''rr^V''  ^^-^^^--^  re'ceivfdTC 
Hands  the  office  of  chancellor.     It  must  never  be  forgot^ 

don  TL?  I  ^T^''^  purposely  composed  for  the  instSic- 
tion  of  one  who  hoped  to  reign  over  England,  the  limitations 
of  government  are  enforced  as  strenuously  by  Fortescne,  Z 
^me  succeeding  lawyers  have  inculcated  the  doctrines  of  ^^ 
bitrary  prerogative. 

i^l^  ^^"^  ^r    England  cannot  at  his  pleasure  make  any  al- 
terations m  the  laws  of  the  land,  for  the   nature  .,,  ^  7 
ot  his  government  is  not  only  regal,  but  political.  For^Se'. 

^  m  V      u    '?^''^^^  ""^^^  ^^  ^o"ld  ^ave  a  power  S^Siih** 
w  make  wliat  innovations  and  alterations  he  pleased  constitStion. 


148         Sm  J.  FORTESCUE'S  DOCTRINE    Chap.  Vin.  Paot  HI. 

in  the  laws  of  the  kingdom,  impose  tallages  and  other  hard- 
ships upon  the  people  whether  thej  would  or  no,  without 
their  consent,  which  sort  of  government  the  civil  laws  point 
out  when  they  declare  Quod  principi  placuit,  legis  habet  vi- 
gorem.     But  it  is  much  otherwise  with  a  king  whose  govern- 
ment is  political,  because  he  can  neither  make  any  alteration 
or  change  in  the  laws  of  the  realm  without  the  consent  of 
the  subjects,  nor  burden  them  against  their  wills  with  strange 
impositions,  so  that  a  people  governed  by  such  laws  as  are  made 
by  their  own  consent  and  approbation  enjoy  their  properties  se* 
curely,  and  without  the  hazard  of  being  deprived  of  them,  either 
by  the  king  or  any  other.     The  same  things  may  be  effected 
under  an  absolute  prince,  provided  he  do  not  degenerate  into 
the  tyrant.     Of  such  a  prince,  Aristotle,  in  the  third  of  his 
Politics,  says,  <  It  is  better  for  a  city  to  be  governed  by  a  good 
man  than  by  good  laws.'     But   because  it  does  not  always 
happen  that  the  person  presiding  over  a  people  is  so  qualified, 
St.  Thomas,  in  the  book  which  he  writ  to  the  king  of  Cy- 
prus, De  Regimine  Prmcipum,  wishes  that  a  kingdom  could 
be  so  instituted  as  that  the  king  might  not  be  at  liberty  to  tyr- 
annize over  his   people ;  which  only  comes  to  pass  in  the 
present  case  ;  that  is,  when  the  sovereign  power  is  restrained 
by  political  laws.     Rejoice,  therefore,  my  good  prince,  that 
such  is  the  law  of  the  kingdom  which  you  are  to  inherit,  be- 
cause it  will  afford,  both  to  yourself  and  subjects,  the  greatest 
security  and  satisfaction."  * 

The  two  great  divisions  of  civil  rule,  the  absolute,  or  re^al 
as  he  c^lls  it,  and  the  political,  Fortescue  proceeds  to  deduce 
from  the  several  originals  of  conquest  and  compact.  Con- 
cemmg  the  latter  he  declares  emphatically  a  truth  not  always 
palatable  to  prmces,  that  such  governments  were  instituted  by 
the  people,  and  for  the  people's  good;  quotmg  St.  Augustin 
for  a  similar  definition  of  a  poHtical  society.  «  As  the  head 
ot  a  body  natural  cannot  change  its  nerves  and  sinews,  cannot 
deny  to  the  several  parts  their  proper  energy,  their  due  pro- 
portion  and  aliment  of  blood ;  neither  can  a  king,  who  is  the 
the  head  of  a  body  politic,  change  the  laws  thereof,  nor  take 
from  the  people  what  is  theirs  by  right  against  their  consent 
Ihus  you  have,  sir,  the  formal  institution  of  every  political 
kingdom,  from  whence  you  may  guess  at  the  power  which  a 

»  TortescQe,  De  Laudibus  Lefum  Angliae,  o.  9. 


EsGLisfl  Const.    OF  THE  ENGLISH  CONSTITUTION. 


149 


king  may  exercise  with  respect  to  the  laws  and  the  subject. 
For  he  is  appointed  to  protect  his  subjects  in  their  lives,  prop- 
erties, and  laws ;  for  this  very  end  and  purpose  he  has  the 
delegation  of  power  from  the  people,  and  he  has  no  just 
claim  to  any  other  power  but  this.  Wherefore,  to  give  a 
brief  answer  to  that  question  of  yours,  concerning  the  differ- 
ent powers  which  kings  claim  over  their  subjects,  I  am  firm- 
ly of  opinion  that  it  arises  solely  from  the  different  natures  of 
their  original  institution,  as  you  may  easily  collect  from  what 
has  been  said.  So  the  kingdom  of  England  had  its  original 
from  Brute,  and  the  Trojans,  who  attended  him  from  Italy 
and  Greece,  and  became  a  mixed  kind  of  government,  com- 
pounded of  the  regal  and  political."^ 

It  would  occupy  too  much  space  to  quote  every  other  pas- 
sage of  the  same  nature  in  this  treatise  of  Fortes-  ^^^^ 
cue,  and  in  that  entitled.  Of  the  Difference  between  views  taken 
an  Absolute  and  Limited  Monarchy,  which,  so  far  ^^  Hume. 
as  these  points  are  concerned,  is  nearly  a  translation  from  the 
foimer.^  But  these,  corroborated  as  they  are  by  the  statute- 
book  and  by  the  rolls  of  parliament,  are  surely  conclusive 
against  the  notions  which  pervade  Mr.  Hume's  History.  I 
have  already  remarked  that  a  sense  of  the  glaring  prejudice 
by  which  some  Whig  writers  had  been  actuated,  in  represent- 
ing the  English  constitution  from  the  earliest  times  as  nearly 
arrived  at  its  present  perfection,  conspired  with  certain  pre- 
possessions of  his  own  to  lead  this  eminent  historian  into  an 
equally  erroneous  system  on  the  opposite  side.  And  as  he 
traced  the  stream  backwards,  and  came  last  to  the  times  of 
the  Plantagenet  dynasty,  with  opinions  already  biassed  and 
even  pledged  to  the  world  in  his  volumes  of  earher  publicar 
tion,  he  was  prone  to  seize  hold  of,  and  even  exaggerate,  ev- 
ery circumstance  that  indicated  immature  civilization,  and 
law  perverted  or  infringed.'     To  this  his  ignorance  of  Eng- 


i  Fortescue,  De  Laudibus  Leffum  Ane- 
li»,  c.  13. 

s  The  latter  treatise  having  been 
written  under  Edward  IV.,  whom  For- 
tescue, as  a  restored  Lancastrian,  would 
be  anxious  not  to  offend,  and  whom  in 
fact  he  took  some  pains  to  conciliate  both 
in  this  and  other  writings,  it  is  evident 
that  the  principles  of  limited  monarchy 
were  as  fully  recognized  in  his  reign, 
whatever  particular  acts  of  violence 
might  occur,  as  they  had  been  under  the 
Lancastrian  princes. 


'  The  following  is  one  example  of  these 
prejudices:  In  the  9th  of  Richard  II. 
a  tax  on  wool  granted  till  the  ensuing 
feast  of  St.  John  Baptist  was  to  be  inter- 
mitted from  thence  to  that  of  St.  Peter, 
and  then  to  recommence ;  that  it  might 
not  be  claimed  as  a  right.  Rot.  Pari. 
vol.  iii.  p.  214.  Mr  Hume  has  noticed 
this  provision,  as  "  showing  an  accuracy 
beyond  what  was  to  be  expected  in  those 
rude  times."  In  this  epithet  we  see  the 
foundation  of  his  mistakes.  The  age  of 
Richard  II.  might  perhaps  be  called  mde 


\ 


160       ILLEGAL  CONDEMNATION  RARE.    Chap.  VIII.  Pakt  IU. 

lish  jurisprudence,  which  certainly  in  some  measure  disqual- 
ified him  from  writing  our  history,  did  not  a  little  contribute; 
misrepresentations  frequently  occurring  in  his  work,  which  a 
moderate  acquaintance  with  the  law  of  the  land  would  have 
prevented.* 

It  is  an  honorable  circumstance  to  England  that  the  history 

Hte^uon^^  ?^  "^  ^^^^^  country  presents  so  few  instances  of 
demnation  illegal  Condemnation  upon  political  charges.  The 
»"•  judicial  torture  was  hardly  known  and  never  rec- 

ognized by  law.2  The  sentence  in  capital  crimes,  fixed  unal- 
terably by  custom,  allowed  nothing  to  vindictiveness  and  in- 
dignation.  There  hardly  occurs  an  example  of  any  one 
bemg  notoriously  put  to  death  without  form  of  trial,  except 
m  moments  of  flagrant  civil  war.  If  the  rights  of  juries 
were  sometimes  evaded  by  irregular  jurisdictions,  tliey  were 
at  least  held  sacred  by  the  courts  of  law :  and  through  all  the 
vicissitudes  of  civil  liberty,  no  one  ever  questioned  the  prima- 
2^  ngnt  of  every  freeman,  handed  down  from  his  Saxon  fore- 
fathers, to  the  trial  by  his  peers.  A  just  regard  for  public 
salety  prescribes  the  necessity  of  severe  penalties  aorainst 
rebellion  and  conspiracy ;  but  the  interpretation  of  these  of- 
fences, when  intrusted  to  sovereigns  and  their  counsellors,  has 
been  the  most  tremendous  instrument  of  despotic  power.  In 
rude  ages,  even  though  a  general  spirit  of  political  liberty 
may  prevail,  the  legal  character  of  treason  will  commonly  be 
undefined ;  nor  is  it  the  disposition  of  lawyers  to  give  greater 
accuracy  to  this  part  of  criminal  jurisprudence.  The  nature 
ot  treason  appears  to  have  been  subject  to  much  uncertainty 
m  i^ngland  before  the  statute  of  Edward  III.  If  that  mem- 
orable law  did  not  give  all  possible  precision  to  the  offence, 

^JL.^^^  respects.  But  assuredly  in  monasteries  and  dirincs  Most  of  these 
pradent  and  circumspect  perception  of    relate  to  the   main  subject      But  o^ 

Tu^^  the'rr'could'U'no'^^'^*'  'i'"'^:  1"^^^"^"'  «""  inde  J'forLyerfthrn 
fffil  h«  Hamlin  ^/°  ^?^''''  ^^^  ''  theologians,  was,  whereas  many  would 
If  Mr  H.L  Tf"*  '"'^."•°''  ^"^  o"'-o^°-    not  confess  without  torture"  whether  he 

binsu^riufi   «nf  .  f  '^®7^^^^  '''^   a«./i7ttm.'      Et  si   torquendi  sunt, 

«^ra?v^but  'a?.   «//km'  the  utmost    utrum  per  clericos  vel  laicos  ?    Et  dato 
to^Sw.    \*k"^"®    refinement    qudd    nyMm     omnino    tortor    invenin 

Xtfsi;Keatetcru^%°uVair""    lf-ii!?A°?»^'."t-™  P-  tortoribus 

»   [NOTK  XII.]  ' 


English  Const.       ILLEGAL  CONDEMNATION  RARE. 


151 


toe  knights  templars  in   the  rcim  of 
Kdward    II.,   the  archbishop  of  York. 


mittendum  sit  ad  partes  transmarinas? 
Walt.   Heminjrford,  p.  256.     Instances, 


«  hni4n»  ^C    f  naic.   ueminj^ord,  p.  256.     Instances. 


occurred  in  the  15th  century.     See  a 
learned  "  Reading  on  the  Use  of  Torture 


havinff  fjTb-J^  Ivi     "'"".""""f  *«    *orK,    leamea  "  Heading  on  the  Use  of  Torture 

Kfrs^n    Mr'''''"'°*''°Vf  "^^^^    ^    *»»«  Criminal  Law  of    England,   by 
wmpiars   m    his    province,    felt    some    Dayid  Jardine,  Esq.,  1837." 


which  we  must  certainly  allow,  it  prevented  at  least  those 
stretches  of  vindictive  tyranny  which  disgrace  the  annals  of 
other  countries.  The  praise,  however,  must  be  understood  aa 
comparative.  Some  cases  of  harsh  if  not  illegal  convictions 
could  hardly  fail  to  occur  in  times  of  violence  and  during 
changes  of  the  reigning  family.  Perhaps  the  circumstances 
have  now  and  then  been  aggravated  by  historians.  Nothing 
could  be  more  illegal  than  the  conviction  of  the  earl  of  Cam- 
bridge and  lord  Scrope  in  1415,  if  it  be  true,  according  to 
Carte  and  Hume,  that  they  were  not  heard  in  their  defence. 
But  whether  this  is  to  be  absolutely  inferred  from  the  record^ 
is  perhaps  open  to  question.  There  seems  at  least  to  have 
been  no  sufficient  motive  for  such  an  irregularity;  their  par- 
ticipation in  a  treasonable  conspiracy  being  manifest  from 
their  own  confession.  The  proceedings  against  Sir  John  Mor- 
timer in  the  2d  of  Henry  VI.^  are  called  by  Hume  highly 
irregular  and  illegal.  They  were,  however,  by  act  of  attain- 
der, which  cannot  well  be  styled  illegal.  Nor  are  they  to  be 
considered  as  severe.  Mortimer  had  broken  out  of  the 
Tower,  where  he  was  confined  on  a  charge  of  treason.  This 
was  a  capital  felony  at  common  law ;  and  the  chief  irregular- 
ity seems  to  have  consisted  in  having  recourse  to  parliament 
in  order  to  attaint  him  of  treason,  when  he  had  already  for- 
feited his  life  by  another  crime. 

I  would  not  willingly  attribute  to  the  prevalence  of  Tory 
dispositions  what  may  be  explained  otherwise,  the  progress 
which  Mr.  Hume's  historical  theory  as  to  our  constitution  has 
been  gradually  making  since  its  publication.  The  tide  of 
opinion,  which  since  the  Revolution,  and  indeed  since  the 
reign  of  James  I.,  had  been  flowing  so  strongly  in  favor 
of  the  antiquity  of  our  liberties,  now  seems,  among  the  high- 
er and  more  literary  classes,  to  set  pretty  decidedly  the  other 
way.  Though  we  may  still  sometimes  hear  a  demagogue  chat- 
tering about  the  witenagemot,  it  is  far  more  usual  to  find  sen- 
sible and  liberal  men  who  look  on  Magna  Charta  itself  as  the 
result  of  an  uninteresting  squabble  between  the  king  and  his 
barons.  Acts  of  force  and  injustice,  which  strike  the  curso- 
ry inquirer,  especially  if  he  derives  his  knowledge  from  mod- 
em compilations,  more  than  the  average  tenor  of  events,  are 
selected  and  displayed  as  fair  samples  of  the  law  and  of  its 


Zv^K*      L,  .   ""    province,    felt    some 
doubta  which  he  propounded  to  seTCx&l 


1  Bot.  Pari.  Tol.  It.  p.  66 


t  Rot.  Pari.  Tol.  It.  p.  202. 


152 


CAUSES  TENDING  TO  FORM    Chap.  VUI.  Part  IU. 


administration.  Wc  are  deceived  by  the  comparatively  per- 
fect state  of  our  present  liberties,  and  forget  that  our  superior 
security  is  far  less  owing  to  positive  law  than  to  the  con- 
trol which  is  exercised  over  government  by  public  opinion 
through  the  general  use  of  printing,  and  to  the  diffusion  of 
liberal  principles  in  policy  through  the  same  means.  Thus 
disgusted  at  a  contrast  which  it  was  hardly  candid  to  institute, 
we  turn  away  from  the  records  that  attest  the  real,  though  im- 
perfect, freedom  of  our  ancestors ;  and  are  willing  to  be  per- 
suaded that  the  whole  scheme  of  English  polity,  till  the  com- 
mons took  on  themselves  to  assert  their  natural  rights  against 
James  I.,  was  at  best  but  a  mockery  of  popular  privileges, 
hardly  recognized  in  theory,  and  never  regarded  in  effect.* 

This  system,  when  stripped  of  those  slavish  inferences 
that  Brady  and  Carte  attempted  to  build  upon  it,  admits  per- 
haps of  no  essential  objection  but  its  want  of  historical  truth. 
God  forbid  that  our  rights  to  just  and  free  government  should 
be  tried  by  a  jury  of  antiquaries!  Yet  it  is  a  generous  pride 
that  intertwines  the  consciousness  of  hereditary  freedom  with 
the  memory  of  our  ancestors;  and  no  trifling  argument 
against  those  who  seem  indifferent  in  its  cause,  that  the  char 
acter  of  the  bravest  and  most  virtuous  among  nations  has 
not  depended  upon  the  accidents  of  race  or  climate,  but  been 
gradually  wrought  by  the  plastic  influence  of  civil  rights,  trans- 
mitted as  a  prescriptive  inheritance  through  a  long  course  of 
generations. 

By  what  means  the  English  acquired  and  preserved  this 
CauBes  political  liberty,  which,  even  in  the  fifteenth  cen- 

tending  to  tury,  was  the  admiration  of  judicious  foreigners,* 
^™ti?uUoii.  ^^  ^  ^^^  rational  and  interesting  inquir5\  Their 
own  serious  and  steady  attachment  to  the  laws 
must  always  be  reckoned  among  the  principal  causes  of  this 
blessing.  The  civil  equality  of  all  freemen  below  the  rank 
of  peerage,  and  the  subjection  of  peers  themselves  to  the  im- 
partial arm  of  justice,  and  to  a  due  share  in  contribution  to 
public  burdens,  advantages  unknown  to  other  countries, 
tended  to  identify  the  interests  and  to  assimilate  the  feelings 
of  the  aristocracy  with  those  of  the  people ;  classes  whose 

1  This  was  written  in  1811  or  1812 ;  «  Philip  de  Comines  takes  seTenl  op- 

and   is   among    many   passages    whicli  portunities  of  testifying  his  esteem   fef 

the    progress    of    time   lias   somewhat  the  Enj<li8h  government.     See  p&rtien* 

fcWfled.  larly  1.  ir.  c.  i.  and  1.  r.  c.  xlx 


Engush  Const. 


THE  CONSTITUTION. 


153 


dissension  and  jealousy  has  been  in  many  instances  the  surest 
hope  of  sovereigns  aiming  at  arbitrary  power.     This  free- 
dom from  the  oppressive  superiority  of  a  privileged  order 
was  peculiar  to  England.     In  many  kingdoms  the  royal  pre- 
rogative was  at  least  equally  limited.     The  statutes  of  Ara- 
gon  are  more  full  of  remedial  provisions.     The  right  of  op- 
posing a  tyrannical  government  by  arms  was  more  frequently 
asserted  in  Castile.     But  nowhere  else  did  the  people  possess 
by  law,  and  I  think,  upon  the  whole,  in  effect,  so  much  secu- 
rity for  their  personal  freedom  and  property.     Accordingly, 
the  middling  ranks  flourished  remarkably,  not  only  in  com- 
mercial towns,  but  among  the  cultivators  of  the  soil.  "There 
is  scarce  a  small  village,"  says   Sir  J.  Fortescue,  "  in  which 
you  may  not  find  a  knight,  an  esquire,  or  some  substantial 
householder   (paterfamilias),  commonly  called  a  frankleyn,^ 
possessed  of  considerable  estate;    besides   others   who  are 
called  freeholders,  and  many  yeomen  of  estates  suflScient  to 
make  a  substantial  jury."     I  would,  however,  point  out  more 
particularly   two  causes  which  had  a  very  leading   efficacy 
in  the  gradual   development  of  our   constitution;  first,  the 
schemes  of  continental  ambition  in  which  our   government 
was  long  engaged  ;  secondly,  the  manner  in  which  feudal 
principle!  of  Insubordination  and  resistance  were  modified  by 
the  prerogatives  of  the  early  Norman  kings. 

1.  At  the  epoch  when  William  the  Conqueror  ascended 
the  throne,  hardly  any  other  power  was  possessed  by  the 
king  of  France  than  what  he  inherited  from  the  great  fiefs 
of  the  Capetian  family.  War  with  such  a  potentate  was  not 
exceedingly  to  be  dreaded,  and  William,  besides  his  immense 
revenue,  could  employ  the  feudal  services  of  his  vassals, 
which  were  extended  by  him  to  continental  expeditions. 
These  circumstances  were  not  essentially  changed  till  after 
the  loss  of  Normandy;  for  the  acquisitions  of  Henry  II. 
kept  him  fully  on  an  equality  with  the  French  crown,  and 
the  dilapidation  which  had  taken  place  in  the  royal  demesnes 


»  By  a  frankleyn  in  this  place  we  are 
to  understand  what  we  call  a  country 
squire,  like  the  frankleyn  of  Chaucer; 
xbr  the  word  esquire  in  Fortescue's  time 
was  only  used  in  its  limited  sense,  for 
the  8on»  of  peers  and  knights,  or  such  as 
had  obtained  the  title  by  creation  or  some 
other  legal  means. 

The  mention  of  Chaucer  leads  me  to 


add  that  the  prologue  to  his  Canterbury 
Tales  is  of  itself  a  continual  testimony  to 
the  plenteous  and  comfortable  situation 
of  the  middle  ranks  in  England,  as  well 
as  to  that  fearless  independence  and  fre- 
quent originality  of  character  amongst 
them,  which  liberty  and  competence  Imve 
conspired  to  produce. 


154 


CAUSES  TENDING  TO  FORM    Chap.  VIH.  Part  lU 


was  compensated  by  several  arbitrary  resources  that  filled 
the  exchequer  of  these  monarchs.  But  in  the  reigns  of  John 
and  Henry  III.,  the  position  of  England,  or  rather  of  its 
sovereign,  with  respect  to  France,  underwent  a  very  disad- 
vantageous change.  The  loss  of  Normandy  severed  the 
connection  between  the  English  nobility  and  the  continent ; 
they  had  no  longer  estates  to  defend,  and  took  not  sufficient 
interest  in  the  concerns  of  Guienne  to  fight  for  that  province 
at  their  own  cost.  Their  feudal  service  was  now  commuted 
for  an  escuage,  which  fell  very  short  of  the  expenses  incur- 
red in  a  protracted  campaign.  Tallages  of  royal  towns  and 
demesne  lands,  extortion  of  money  from  the  Jews,  every  feu- 
dal abuse  and  oppression,  were  tried  in  vain  to  replenish  the 
treasury,  which  the  defence  of  Eleanor's  inheritance  against 
the  increased  energy  of  France  was  constantly  exhausting. 
Even  in  the  most  arbitrary  reigns,  a  general  tax  upon  land- 
holders, in  any  cases  but  those  prescribed  by  the  feudal  law, 
had  not  been  ventured ;  and  the  standing  bulwark  of  Magna 
Charta,  as  well  as  the  feebleness  and  unpopularity  of  Henry 
m.,  made  it  more  dangerous  to  violate  an  established  prin- 
ciple. Subsidies  were  therefore  constantly  required ;  but  for 
these  it  was  necessary  for  the  king  to  meet  parliament,  to 
hear  their  complaints,  and,  if  he  could  not  elude,  to  acquiesce 
in  their  petitions.  These  necessities  came  still  more  urgently 
upon  Edward  I.,  whose  ambitious  spirit  could  not  patiently 
endure  the  encroachments  of  Philip  the  Fair,  a  rival  not  less 
ambitious,  but  certainly  less  distinguished  by  personal  prow- 
ess, than  himself.  What  advantage  the  friends  of  liberty 
reaped  from  this  ardor  for  continental  warfare  is  strongly 
seen  in  the  circumstances  attending  the  Confirmation  of  the 
Charters. 

But  afler  this  statute  had  rendered  all  tallages  without 
consent  of  parliament  illegal,  though  it  did  not  for  some  time 
prevent  their  being  occasionally  imposed,  it  was  still  more 
difficult  to  carry  on  a  war  with  France  or  Scotland,  to  keep 
on  foot  naval  armaments,  or  even  to  preserve  the  courtly 
magnificence  which  that  age  of  chivalry  affected,  without 
perpetual  recurrence  to  the  house  of  commons.  Edward  III. 
very  little  consulted  the  interests  of  his  prerogative  when  he 
stretched  forth  his  hand  to  seize  the  phantom  of  a  crown  in 
France.  It  compelled  him  to  assemble  parliament  almost 
annually,  and  often  to  hold  more  than  one  session  within  the 


English  Const. 


THE  CONSTITUTION. 


155 


year.  Here  the  representatives  of  England  learned  the 
habit  of  remonstrance  and  conditional  supply ;  and  though,  in 
the  meridian  of  Edward's  age  and  vigor,  they  oflen  failed 
of  immediate  redress,  yet  they  gradually  swelled  the  statute- 
roll  with  provisions  to  secure  their  country's  freedom ;  and 
acquiring  self-confidence  by  mutual  intercourse,  and  sense  of 
the  public  opinion,  they  became  able,  before  the  end  of  Ed- 
ward's reign,  and  still  more  in  that  of  his  grandson,  to  control, 
prevent,  and  punish  the  abuses  of  administration.  Of  all 
these  proud  and  sovereign  privileges,  the  right  of  refusing 
supply  was  the  keystone.  But  for  the  long  wars  in  which 
our  kings  were  involved,  at  first  by  their  possession  of  Guienne, 
and  afterwards  by  their  pretensions  upon  the  crown  of  France, 
it  would  have  been  easy  to  suppress  remonstrances  by  avoid- 
ing to  assemble  parliament.  For  it  must  be  confessed  that 
an  authority  was  given  to  the  king's  proclamations,  and  to  ordi- 
nances of  the  council,  which  diffisred  but  little  from  legislative 
power,  and  would  very  soon  have  been  interpreted  by  com- 
plaisant courts  of  justice  to  give  them  the  full  extent  of  statutes. 

It  is  common  indeed  to  assert  that  the  liberties  of  England 
were  bought  with  the  blood  of  our  forefathers.  This  is  a 
very  magnanimous  boast,  and  in  some  degree  is  consonant 
enough  to  the  truth.  But  it  is  far  more  generally  accurate 
to  say  that  they  were  purchased  by  money.  A  great  pro- 
portion of  our  best  laws,  including  Magna  Charta  itself,  as  it 
now  stands  confirmed  by  Henry  III.,  were,  in  the  most  literal 
sense,  obtained  by  a  pecuniary  bargain  with  the  crown.  In 
many  parliaments  of  Edward  III.  and  Richard  II.  this  sale 
of  redress  is  chafiered  for  as  distinctly,  and  with  as  little 
apparent  sense  of  disgrace,  as  the  most  legitimate  business 
between  two  merchants  would  be  transacted.  So  little  was 
there  of  voluntary  benevolence  in  what  the  loyal  courtesy  of 
our  constitution  styles  concessions  from  the  throne ;  and  so 
little  title  have  these  sovereigns,  though  we  cannot  refuse  our 
admiration  to  the  generous  virtues  of  Edward  HI.  and 
Henry  V.,  to  claim  the  gratitude  of  posterity  as  the  benefac- 
tors of  their  people ! 

2.  The  relation  established  between  a  lord  and  his  vassal 
by  the  feudal  tenure,  far  from  containing  principles  of  any 
servile  and  implicit  obedience,  permitted  the  compact  to  be 
dissolved  in  case  of  its  violation  by  either  party.  This 
extended  as  much  to  the  sovereign  as  to  inferior  lords ;  the 


156 


CAUSES  TENDING  TO  FORM    Chap.  VUI.  Paut  ffl. 


authority  of  the  former  in  France,  where  the  system  most 
flourished,  being  for  several  ages  rather  feudal  than  political. 
If  a  vassal  was  aggrieved,  and  if  justice  was  denied  him,  he 
sent  a  defiance,  that  is,  a  renunciation  of  fealty  to  the  king 
and  was  entitled  to  enforce  redress  at  the  point  of  his  sword. 
It  then  became  a  contest  of  strength  as  between  two  inde- 
pendent potentates,  and  was  terminated  by  treaty,  advan- 
tageous or  otherwise,  according  to  the  fortune  of  war.  This 
privilege,  suited  enough  to  the  situation  of  France,  the  great 
peers  of  which  did  not  originally  intend  to  admit  more  than 
a  nominal  supremacy  in  the  house  of  Capet,  was  evidently 
less  compatible  with  the  regular  monarchy  of  England.  The 
stem  natures  of  William  the  Conqueror  and  hS  successors 
kept  in  control  the  mutinous  spirit  of  their  nobles,  and  reaped 
the  profit  of  feudal  tenures  without  submitting  to  their  recip- 
rocal obligations.  They  counteracted,  if  I  may  so  say,  the 
centrifugal  force  of  that  system  by  the  application  of  a 
stronger  power ;  by  preserving  order,  administering  justice, 
checking  the  growth  of  baronial  influence  and  riches,  with 
habitual  activity,  vigilance,  and  severity.  Still,  however,  there 
remained  the  original  principle,  that  allegiance  depended 
conditionally  upon  good  treatment,  and  that  an  appeal  might 
be  lawfully  made  to  arms  against  an  oppressive  government. 
Nor  was  this,  we  may  be  sure,  left  for  extreme  necessity, 
or  thought  to  require  a  long  enduring  forbearance.  In 
modem  times  a  king  compelled  by  his  subjects*  swords  to 
abandon  any  pretension  would  be  supposed  to  have  ceased 
to  reign ;  and  the  expressed  recognition  of  such  a  right  as 
that  of  insurrection  has  been  justly  deemed  inconsistent 
with  the  majesty  of  law.  But  ruder  ages  had  ruder  senti- 
ments. Force  was  necessary  to  repel  force  ;  and  men  accus- 
tomed to  see  the  king's  authority  defied  by  private  riot  were 
not  much  shocked  when  it  was  resisted  in  defence  of  public 
freedom. 

The  Great  Charter  of  John  was  secured  by  the  election 
of  twenty-five  barons  as  conservators  of  the  compact.  If 
the  king,  or  the  justiciary  in  his  absence,  should  transgress 
any  article,  any  four  might  demand  reparation,  and  on  denial 
carry  their  complaint  to  the  rest  of  their  body.  "  And  those 
bai-ons,  with  all  the  commons  of  the  land,  shall  distrain  and 
annoy  us  by  every  means  in  their  power ;  that  is,  by  seizing 
our  castles,  lands,  and  possessions,  and  every  other  mode,  till 


Emolish  Const. 


THE  CONSTITUTION. 


157 


the  wrong  shall  be  repaired  to  their  satisfaction ;  saving  our 
person,  and  our  queen  and  children.  And  when  it  shall  be 
repaired  they  shall  obey  us  as  before."^  It  is  amusing  to  see 
the  common  law  of  distress  introduced  upon  this  gigantic 
scale  ;  and  the  capture  of  the  king's  castles  treated  as  analo- 
gous to  impounding  a  neighbor's  horse  for  breaking  fences. 

A  very  curious  illustration  of  this  feudal  principle  is  found 
in  the  conduct  of  William  earl  of  Pembroke,  one  of  the 
greatest  names  in  our  ancient  history,  towards  Henry  HI. 
•  The  king  had  defied  him,  which  was  tantamount  to  a  declara- 
tion of  vvar ;  alleging  that  he  had  made  an  inroad  upon  the 
royal  domains.     Pembroke  maintained  that  he  was  not  the 
aggressor,  that  the  king  had  denied  him  justice,  and  been  the 
first  to  invade  his  territory ;  on  which  account  he  had  thought 
himself  absolved  fi-om  his  homage,  and  at  liberty  to  use  force 
a*minst  the  malignity  of  the  royal  advisers.     "  Nor  would  it 
be  for  the  king's  honor,"  the  earl  adds,  "  that  I  should  submit 
to  his  will  against  reason,  whereby  I  should  rather  do  wrong 
to  him  and  to  that  justice  which  he  is  bound  to  administer 
towards  his  people  ;  and  I  should  give  an  ill  example  to  all 
men  in  deserting  justice  and  right  in  compliance  with  his 
mistaken  will.     For  this  would  show  that  I  loved  my  wordly 
wealth  better  than  justice."     These  words,  with  whatever 
dignity  expressed,  it  may  be  objected,  prove  only  the  disposi- 
tion of  an  angry  and  revolted  earl.     But  even  Henry  fully 
admitted  the  right  of  taking  arms  against  himself  if  he  had 
meditated  his  vassal's  destruction,  and  disputed  only  the  ap- 
plication of  this  maxim  to  the  earl  of  Pembroke.^ 

These  feudal  notions,  which  placed  the  moral  obligation  of 
allegiance  very  low,  acting  under  a  weighty  pressure  from 
the°real  strength  of  the  crown,  were  favorable  to  constitu- 
tional liberty.  The  great  vassals  of  France  and  Germany 
aimed  at  living  independently  on  their  fiefs,  with  no  further 
concern  for  the  rest  than  as  useful  allies  having  a  common 
interest  against  the  crown.  But  in  England,  as  there  was  no 
prospect  of  throwing  off  subjection,  the  barons  endeavored 
only  to  lighten  its  burden,  fixing  limits  to  prerogative  by 
law,  and  securing  their  observation  by  parliamentary  remon- 
strances or  by  dint  of  arms.  Hence,  as  all  rebellions  in 
England  were  directed  only  to  coerce  the  government,  or  at 

1  Brady -8  Hist.  Tol.  i. ;  Appendix,  p.  148.  ,t      ,   .         ^-i 

a  Matt.  Paris,  p.  330  j  Ljttelton's  Uist.  of  Henry  II.  vol.  Iv.  p.  «. 


158        INFLUENCE  OF  THE  NOBILITY.    Chap.  VHI.  Pakt  III 

the  utmost  to  change  the  succession  of  the  crown,  without 
the  smallest  tendency  to  separation,  they  did  not  impair  the 
national  strength  nor  destroy  the  character  of  the  constitu- 
tion.    In   all   these   contentions   it   is   remarkable  that  the 
people  and  clergy  sided  with  the  nobles  against  the  throne. 
No  individuals  are  so  popular  with  the  monkish  annalists, 
who  speak  the  language  of  the  populace,  as  Simon  earl  of 
Leicester,  Thomas  earl  of  Lancaster,  and  Thomas  duke  of 
Gloucester,  all  turbulent  opposers  of  the  royal  authority,  and 
probably  little   deserving   of  their   panegyrics.     Very   few 
English  historians  of  the  middle  ages  are  advocates  of  pre- 
rogative.    This  may  be  ascribed  both  to  the  equality  of  our 
laws  and  to  the  interest  which  the  aristocracy  found  in  court- 
ing popular  favor,  when  committed  against  so  formidable  an 
adversary  as  the  king.     And  even  now,  when  the  stream 
that  once  was  hurried  along  gullies  and  dashed  down  preci- 
pices hardly  betrays  upon  its  broad  and  tranquil  bosom  the 
motion  that  actuates  it,  it  must  still  be  accounted  a  singular 
happiness  of  our  constitution  that,  all  ranks  graduating°har- 
moniously  into  one  another,  the  interests  of  peers  and  com- 
moners are  radically  interwoven ;  each  in  a  certain  sense 
distinguishable,  but  not  balanced  like  opposite  weights,  not 
separated  like  discordant  fluids,  not  to  be  secured  by  inso- 
lence or  jealousy,  but  by  mutual  adherence  and  reciprocal 
influences. 

From  the  time  of  Edward  I.  the  feudal  system  and  all  the 
feelings  connected  with  it  declined  very  rapidly. 
But  what  the  nobility  lost  in  the  number  of  their 
military  tenants  was  in  some  degree  compensated 
by  the  state  of  manners.  The  higher  class  of 
them,  who  took  the  chief  share  in  public  affairs, 
were  exceedingly  opulent ;  and  their  mode  of  hfe  gave  wealth 
an  mcredibly  greater  efficacy  than  it  possesses  at  present. 
Gentlemen  of  large  estates  and  good  families  who  had  at- 
tached themselves  to  these  great  peers,  who  bore  offices 
which  we  should  call  menial  in  their  households,  and  sent 
their  children  thither  for  education,  were  of  course  ready  to 
follow  their  banner  in  rising,  without  much  inquiry  into  the 
cause.  Still  less  would  the  vast  body  of  tenants  and  their 
retainers,  who  were  fed  at  the  castle  in  time  of  peace,  refuse 
to  carry  their  pikes  and  staves  into  the  field  of  battle.  Many 
devices  were  used  to  preserve   this    aristocratic   influence, 


Influence 
which  the 
State  of 
manners 
gave  the 
nobility. 


English  Const.      PREVALENCE  OF  RAPINE.  159 

which  riches  and  ancestry  of  themselves  rendered  so  formi- 
dable      Such  was  the  maintenance  of  suits,  or  confederacies 
for  the  purpose  of  supporting  each  other's  claims  in  htigation, 
which  was  the  subject  of  frequent  complaints  m  parliamen^ 
and  gave  rise  to  several  prohibitory  statutes.     By  help  of 
such  confederacies  parties  were  enabled  to  make  violent  en- 
tries upon  the  lands  they  claimed,  which  the  law  itself  cculd 
hardly  be  said  to  discourage.^     Even  proceedings  m  courts 
of  iu^tice  were  oflen  liable  to  intimidation  and  influence.     A 
practice  much  allied  to  confederacies  of  maintenance,  though 
ostensibly  more  harmless,  was  that  of  giving  liveries  to  aU 
retainers  of  a  noble  family  ;  but  it  had  an  obvious  tendency 
to  preserve  that  spirit  of  factious  attachments  and  animosities 
which  it  is  the  general  policy  of  a  wise  government  to  dissi- 
pate.    From  the  first  year  of  Richard  II.  we  find  continual 
mention  of  this  custom,  with  many  legal  provisions  against 
it,  but  it  was  never  abolished  till  the  reign  of  Henry  Vll. 

These  associations  under  powerful  chiefs  were  only  inci- 
dentally beneficial  as  they  tended  to  withstand  the  prevalent 
abuses  of  prerogative.     In  their  more  usual  course  ^ab^s  of 
they  were  designed  to  thwart  the  legitimate  exer- 
cise of  the  king's  government  in   the  administration  of  the 
laws.     All  Europe  was  a  scene  of  intestine  anarchy  during 


I  If  a  man  was  disseized  of  his  land, 
he  might  enter  upon  the  disseizor  and 
reinstate  himself  without  course  of  law. 
In  what  case  this  right  of  entry  was 
talcen  away,  or  tolled,  as  it  was  expressed, 
by  the  death  or  alienation  of  the  dis- 
seizor, is  a  subject  extensive  enough  to 
occupy  two  chapters  of  Littelton.     What 
pertains  to  our  inquiry  is,  that  by  an 
entry  in  the  old  law-books  we  must  un- 
derstand an  actual  repossession  of  the 
disseizee,  not  a  suit  in  cyectment,  as  it  is 
now  interpreted,  but  which  is  a  com- 
paratively modern  proceeding.    The  first 
remedy,  says  Britton,  of  the  disseizee  is 
to  collect  a  body  of  his  friends  (recoiller 
amys  et  force),  and  without  delay  to  cast 
out  the  disseizors,  or  at  least  to  maintain 
himself  in  possession  along  with  them. 
c.  44.     This  entry  ought  indeed  by  5 
R.  II.  Stat.  i.  c.  8,  to  be  made  peace- 
ably ;  and  the  justices  might  assemble 
the  posse  comitatus  to  imprison  persons 
entering  on  lands  by  violence  (15  R.  II. 
e.  2.)  but  these  laws  imply  the  facts  that 
made  them  necessary 

*  No  lord,  or  other  person,  by  20  R.  II. 
e.  8,  was  permitted  to  sit  on  the  bench 
with  tho  justices  of  assize.    Trials  were 


sometimes  overawed  by  armed  parties, 
who  endeavored  to  prevent  their  adver- 
saries from  appearing.  Paston  Letters, 
vol.iU.  p.  119.  ,  ^ 

3  From  a  passage  in  the  Paston  Let- 
ters (vol.  ii.  p.  23)  it  appears  that,  fiir 
from  these  acts  being  regarded,  it  was 
considered  as  a  mark  of  respect  to  the 
king,  when  he  came  into  a  county,  for 
the  noblemen  and  gentry  to  jueet  him 
with  as  many  attendants  in  livery  iis  they 
could  muster.  Sir  John  Paston  was  to 
provide  twenty  men  in  their  livery- 
cowns,  and  the  duke  of  Norfolk  two  liuu 
dred.  This  illustrates  the  well-known 
story  of  Henry  VII.  and  the  earl  of 
Oxford,  and  shows  the  mean  and  oppres- 
sive conduct  of  the  king  in  that  affair, 
which  Hume  has  pretended  to  justify. 

In  the  first  of  Edward  IV.  it  is  said 
in  the  roll  of  parliament  (vol.  v.  p.  407), 
that,  "  bv  yeving  of  liveries  and  signets, 
contrary  "to  the  statutes  and  ordinances 
made  aforetyme,  maiutenauuce  of  quar- 
rels, extortions,  robberies,  murders  been 
multiplied  and  continued  within  this 
reame,  to  the  grete  disturbaunce  andm- 
quietation  of  the  same." 


»• 


160  PREVALENT  HABITS        Chap.  VUI.  Part  HI. 

the  middle  ages ;  and  though  England  was  far  less  exposed 
to  the  scourge  of  private  war  than  most  nations  on  the  conti- 
nent, we  should  find,  could  we  recover  the  local  annals  of 
every  country    such  an  accumulation  of  petty  rapine  and 
tumult  as  would  almost  alienate  us  from  the  liberty  which 
served  to  engender  it.     This  was  the  common  tenor  of  man- 
ners,  sometimes  so  much  aggravated  as  to  find  a  place  in 
general  history,^  more  often  attested  by  records  durin-  the 
three  centuries  that  the   house  of  Plantagenet  sat  on"  the 
throne.      Disseizin,   or   forcible    dispossession   of  freeholds, 
makes  one   of    the  most   considerable  articles  in  our   law 
books       Highway  robbery  was  from  the  earliest  times  a  sort 
ot   national  crime.     Capital  punishments,  though  very  fre- 
quent,   made   little   impression   on  a  bold  and  a  licentious 
crew,  who  had  at  least  the  sympathy  of   those  who  had 
nothing  to  lose  on  their  side,  and  flattering  prospects  of  im- 
punity      We  know  liow  long  the  outlaws  of  Sherwood  lived 
m  tradition —  men  who,  like  some  of  their  betters,  have 
been  permitted  to  redeem  by  a  few  acts  of  generosity  the 
just  Ignominy  of  extensive  crimes.     These,  indeed,  were  the 
heroes  of  vulgar  applause ;  but  when  such  a  jud-e  as  Sir 


ExousH  Const. 


OF  RAPINE. 


161 


1  Thus  to  select  one  passage  out  of 
many:  Eodem  anno  (1332)  quidam  ma- 
ligni,  fulti  quorundam  maguatum  pwe- 
sidio,  regis  adolescentiam  spernentes,  et 
regnum  perturbare  intendentes,  in  tan- 
tarn  turbam  creverunt,  nemora  et  saltus 
occupaverunt,  ita  quod  toti  regno  terror! 
essent.    Walsinghara,  p.  132. 

a  I  am  aware  that  in  many,  probably 
a  great  majority  of  reported  cases,  this 
word  was  technically  used,  where  some 
unwarranted  conveyance,  such  as  a  feofif- 
ment  by  the  tenant  for  life,  was  held  to 
have  ^m)ught  a  disseizin ;  or  where  the 
plaintiff  was  allowed,  for  the  purpose  of 
a  more  convenient  remedy,  to  feign  him- 
self disseized,  which  was  called  disseizin 
by  election.    But  several  proofs  might 
be  brought  from  the  parliamentary  peti- 
tions, and  I  doubt  not,  if  nearly  looked 
at,  from  the  Year-books,  that  in  other 
cases  there  was  an  actual   and  violent 
expulsion.     And  the  definition  of  dis- 
seizin in  all  the  old  writers,   such  as 
Bntton  and  Littleton,  is  obviously  framed 
upon  its  primary  meaning  of  violent  dis- 
possession, which  the  word  had  probably 
acquired  long  before  the  more  peaceable 
disseizins,  if  I  may  use  the   expression, 
became  the  subject  of  the  remedy  by 
assize.  "^     '' 

1  would  speak  with  deference  of  Lord 


Mansfleld's  elaborate  judgment  In  Tay- 

in'r'^*'"-    ^^^^"^  "^'    "°''d^'  1  Burrow, 
1U7,  &c.;   but  some  positions  in  it  ap- 
pear to  me  rather  too  strongly  stated  : 
and  particularly  that  the  acceptance  of 
the  disseizor  as  tenant  by  the  lord  was 
necessary  to  render  the  disseizin  complete : 
a  condition  which  I  have  not  found  hint- 
ed in  any  law-book.    See  Butler's  note 
on  Co.  Litt.  p.  330;  where  that  eminent 
lawyer  expresses   similar  doubts  as  to 
liOrd  aiansflcld's  reasoning.   It  may  how- 
ever be  remarked,  that  constructive  or 
elective  disseizin*,   being  of  a  technical 
nature,  were    more    likely  to    produce 
cases  m  the  Year-books  than  those  ac- 
companied with  actual   violence,  which 
would  commonly  turn  only  on  matters 
of  fact,  and  be  determined  by  a  jury. 

A  remarkable  instance  of  violent  dis- 
seizin, amounting  in  effect  to  a  private 
war,  may  be  found  in  the  Paston  Letters, 
occupying  most  of  the  fourth  volume. 
One  of  the  Paston  family,  claiming  a 
right  to  Caistor  Castle,  kept  po.ssession 
against  the  Duke  of  Norfolk,  who  brought 
a  large  force  and  laid  a  regular  siege  to 
the  place,  till  it  surrendered  for  want  of 
provisions  Two  of  the  besiegers  were 
killed.  It  does  not  appear  that  any  leiral 
measures  were  taken  to  prevent  or  pun- 
l3h  this  outrage.  '^ 


John  Fortescue  could  exult  that  more  Englishmen  were 
hanged  for  robbery  in  one  year  than  French  in  seven,  and 
that,  "  if  an  Englishman  be  poor,  and  see  another  having 
riches  which  may  be  taken  from  him  by  might,  he  will  not 
spare  to  do  so,"  ^  it  may  be  perceived  how  thoroughly  these 
sentiments  had  pervaded  the  public  mind. 

Such  robbers,  I  have  said,  had  flattering  prospects  of  im- 
punity. Besides  the  general  want  of  communication,  which 
made  one  who  had  fled  from  his  own  neighborhood  tolerably 
secure,  they  had  the  advantage  of  extensive  forests  to  facili 
tate  their  depredations  and  prevent  detection.  When  out 
lawed  or  brought  to  trial,  the  worst  offenders  could  frequently 
purchase  charters  of  pardon,  which  defeated  justice  in  the 
moment  of  her  blow.^  Nor  were  the  nobility  ashamed  to 
patronize  men  guilty  of  every  crime.  Several  proofs  of  this 
occur  in  the  rolls.  Thus,  for  example,  in  the  22d  of  Edward 
III.,  the  commons  pray  that,  "  whereas  it  is  notorious  how 
robbers  and  malefactors  infest  the  country,  the  king  would 
charge  the  great  men  of  the  land  that  none  such  be  main- 
tained by  them,  privily  or  openly,  but  that  they  lend  assist- 
ance to  arrest  and  take  such  ill  doers."  * 


i  Difference  between  an  Absolute  and 
Limited  Monarchy,  p.  99. 

5  The  manner  in  which  these  were  ob- 
tained, in  spite  of  law,  may  be  noticed 
among  the  violent  courses  of  prerogative. 
By  statute  2  E.  III.  c.  2,  confirmed  by 
10  E.  III.  c.  2,  the  king's  power  of  grant- 
ing pardons  was  taken  away,  except  in 
cases  of  homicide  per  infortunium.  An- 
other act,  14  E.  III.  c.  15,  reciting  that 
the  former  laws  in  this  respect  have  not 
been  kept,  declares  that  all  pardons  con- 
trary to  them  shall  be  holden  as  null. 
This  however  was  disregarded  like  the 
rest ;  and  the  commons  began  tacitly  to 
recede  from  them,  and  endeavored  to 
compromise  the  question  with  the  crown. 
By  27  E.  111.  Stat.  1,  c.  2,  without  advert- 
ing to  the  existing  provisions,  which  may 
therefore  seem  to  be  repealed  by  implica- 
tion, it  is  enacted  that  in  every  cliarter 
of  pardon,  granted  at  any  one's  sugges- 
tion, the  suggestor's  name  and  the 
grounds  of  his  suggestion   shall  be  ex- 

f tressed,  that  if  the  same  be  found  untrue 
t  may  be  disallowed.  And  in  13  R.  II. 
Btat.  2,  c.  1,  we  are  surprised  to  find  the 
commons  requesting  that  pardons  might 
not  be  granted,  us  if  the  subject  were 
wholly  unknown  to  the  law;  the  king 
protesting  in  reply  that  he  will  save  his 
liberty  and  re^dity,  aa  his  progenitors 
VOL.  III.  11 


had  done  before,  but  conceding  some 
regulations,  far  less  remedial  than  what 
were  provided  already  by  the  27th  of  Ed- 
ward II.  Pardons  make  a  pretty  large 
head  in  Brooke's  Abridgment,  and  were 
undoubtedly  granted  without  scruple  by 
every  one  of  our  kings.  A  pardon  ob- 
tained in  a  case  of  peculiar  atrocity  is 
the  subject  of  a  specific  remonstrance  in 
23  H.  VI.    Rot.  Pari.  vol.  v.  p.  111. 

3  Rot.  Pari.  vol.  ii.  p.  201.  A  strange 
policy,  for  which  no  rational  cause  can 
be  alleged,  kept  Wales  and  even  Cheshire 
distinct  from  the  rest  of  the  kingdom. 
Nothing  could  be  more  injurious  to  the 
adjacent  counties.  Upon  the  credit  of 
their  immunity  from  the  jurisdiction  of 
the  king's  courts,  the  people  of  Cheshire 
broke  with  armed  bands  into  the  neigh- 
boring counties,  and  perpetrated  all 
the  crimes  in  their  power.  Rot.  Pari, 
vol.  iii.  p.  81,  201.  440;  Stat.  1  H.  IV.  c. 
18.  As  to  the  Welsh  frontier,  it  was 
constantly  almost  in  a  state  of  war, 
which  a  very  little  good  sense  and  be- 
nevolence in  any  one  of  our  shepherds 
would  have  easily  prevented,  by  admit- 
ting the  conquered  people  to  partake  in 
equal  privileges  with  their  fellow-sub- 
jects. Instead  of  this,  they  satisfied 
themselves  with  aggravating  the  mis- 
chief by  granting  legal  reprisals  upon 


162 


PREVALENT  HABITS    Chap.  VUI.  Part.  III. 


EvGUSH  Const. 


OF  RAPINE. 


163 


It  is  perhaps  the  most  meritorious  part  of  Edward  I/s 
government  that  he  bent  all  his  power  to  restrain  these 
breaches  of  tranquillity.  One  of  his  salutary  provisions  is 
still  in  constant  use,  the  statute  of  coroners.  Another,  more 
extensive,  and,  though  partly  obsolete,  the  foundation  of 
modem  laws,  is  the  statute  of  Winton,  which,  reciting  that 
"  from  day  to  day  robberies,  murders,  burnings,  and  theft  be 
more  often  used  than  they  have  been  heretofore,  and  felons 
cannot  be  attainted  by  the  oath  of  jurors  which  had  rather 
suffer  robberies  on  strangers  to  pass  without  punishment 
than  indite  the  offenders,  of  whom  great  part  be  people  of 
the  same  country,  or  at  least,  if  the  offenders  be  of  another 
country,  the  receivers  be  of  places  near,"  enacts  that  hue 
and  cry  shall  be  made  upon  the  commission  of  a  robbery, 
and  that  the  hundred  shall  remain  answerable  for  the  damage 
unless  the  felons  be  brought  to  justice.  It  may  be  inferred 
from  this  provision  that  the  ancient  law  of  frank-pledge, 
though  retained  longer  in  form,  had  lost  its  efficiency.  By 
the  same  act,  no  stranger  or  suspicious  person  was  to  lodge 
even  in  the  suburbs  of  towns ;  the  gates  were  to  be  kept 
locked  from  sunset  to  sunrising ;  every  host  to  be  answerable 
for  his  guest ;  the  highways  to  be  cleared  of  trees  and  under- 
wood for  two  hundred  feet  on  each  side ;  and  every  man  to 
keep  arms  according  to  his  substance  in  readiness  to  follow 
the  sheriff  on  hue  and  cry  raised  after  felons.^  The  last 
provision  indicates  that  the  robbers  plundered  the  country  in 
formidable  bands.  One  of  these,  in  a  subsequent  part  of 
Edward's  reign,  burned  the  town  of  Boston  during  a  fair, 
and  obtained  a  vast  booty,  though  their  leader  had  the  ill 
fortune  not  to  escape  the  gallows. 

The  preservation   of  order  throughout  the  country  was 
originally  intrusted  not  only  to  the  sheriff,  coroner,  and  con- 


11 


Welshmen.  Stat.  2  H.  IV.  o.  16.  Welsh- 
men were  absolutely  excluded  from  bear- 
ing oflBces  in  Wales.  The  English  living 
in  the  English  towns  of  Wales  earnestly 
petition,  23  H.  VI.  Rot.  Pari.  vol.  v.  p. 
104,  154,  that  this  exclusion  may  be 
kept  in  force.  Complaints  of  the  disor- 
derly state  of  the  Welsh  frontier  are  re- 
peated as  late  as  12  £.  IV.  vol.  vi.  p.  8. 

It  is  curious  that,  so  early  as  15  E.  II., 
a  writ  was  addressed  to  the  earl  of  Arun- 
del, justiciary  of  Wales,  directing  him  to 
cause  twenty-four  discreet  persoas  to  be 
ehoeen  firom  the  north,  and  aa  many  from 


the  south  of  that  principality,  to  aerre 
in  parliament.  Rot.  Pari.  vol.  i.  p.  456. 
And  we  find  a  similar  writ  in  the  20th  of 
the  same  king.  Prynne's  Register,  4th 
part,  p.  60.  Willis  says  that  he  has  seen 
a  return  to  one  of  these  precepts,  much 
obliterated,  but  from  wliich  it  appears 
that  Conway,  Beaumaris,  and  Camarron 
returned  members.  Notitia  Parliamen- 
taria,  vol.  i.  preface,  p.  15. 

1  The  statute  of  Winton  was  confirmed, 
and  proclaimed  afresh  by  the  sherifb,  7 
R.  II.  c.  6,  after  an  en  of  grait  disorder. 


Stables,  but  to  certain  magistrates  called  conservators  of  the 
peace.  These,  in  conformity  to  the  democratic  character  of 
our  Saxon  government,  were  elected  by  the  freeholders  in 
their  county  court.*  But  Edward  I.  issued  commissions  to 
carry  into  effect  the  statute  of  Winton  ;  and  from  the  begin- 
nino'  of  Edward  III.*s  reign  the  appointment  of  conservators 
was  vested  in  the  crown,  their  authority  gradually  enlarged 
by  a  series  of  statutes,  and  their  titles  changed  to  that  of 
justices.  They  were  empowered  to  imprison  and  punish  all 
rioters  and  other  offenders,  and  such  as  they  should  find  by 
indictment  or  suspicion  to  be  reputed  thieves  or  vagabonds, 
and  to  take  sureties  for  good  behavior  from  persons  of  evil 
fame.*  Such  a  jurisdiction  was  hardly  more  arbitrary  than, 
in  a  free  and  civilized  age,  it  has  been  thought  fit  to  vest  in 
magistrates ;  but  it  was  ill  endured  by  a  people  who  placed 
their  notions  of  liberty  in  personal  exemption  from  restraint 
rather  than  any  political  theory.  An  act  having  been  passed 
(2  R.  II.  stat.  2,  c.  6),  in  consequence  of  unusual  riots  and 
outrages,  enabling  magistrates  to  commit  the  ringleaders  of 
tumultuary  assemblies  without  waiting  for  legal  process  till 
the  next  arrival  of  justices  of  jail  delivery,  the  commons 
petitioned  next  year  against  this  "horrible  grievous  ordi- 
nance," by  which  "  every  freeman  in  the  kingdom  would  be 
in  bondage  to  these  justices,"  contrary  to  the  great  charter, 
and  to  many  statutes,  which  forbid  any  man  to  be  taken 
without  due  course  of  law.'  So  sensitive  was  their  jealousy 
of  arbitrary  imprisonment,  that  they  preferred  enduring  riot 
and  robbery  to  chastising  them  by  any  means  that  might 
afford  a  precedent  to  oppression,  or  weaken  men's  reverence 
for  Magna  Charta. 

There  are  two  subjects  remaining  to  which  this  retrospect 
of  the  state  of  manners  naturally  leads  us,  and  which  I  would 
not  pass  unnoticed,  though  not  perhaps  absolutely  essential  to 
a  constitutional  history ;  because  they  tend  in  a  very  mate- 
rial degree  to  illustrate  the  progress  of  society,  with  which 


1  Blackstone,  vol.  i.  c.  9 :  Carte,  vol.  ii. 
p.  203. 

s  1  £.  III.  Stat.  2,  c.  16;  4  E.  HI.  c.  2 ; 
84  B.  III.  c.  1 ;  7  R.  n.  c.  5.  The  insti- 
tution excited  a  good  deal  of  ill-will,  even 
before  these  strong  acts  were  passed. 
Many  petitions  of  the  commons  in  the 
28th  £.  III.,  and  other  years,  complain 
of  it.    Rot.  Pari.  vol.  U. 


»  Rot.  Pari.  vol.  iii.  p.  65.  It  may  be 
observed  that  this  act,  2  E.  IT.  c.  16,  was 
not  founded  on  a  petition,  but  on  the 
king^s  answer ;  so  that  the  commons 
were  not  real  parties  to  it,  and  accord- 
ingly call  it  an  ordinance  in  their  present 
petition.  This  naturally  increased  theilf 
animosity  in  treating  it  as  an  infiringe* 
ment  of  the  subject-s  rights 


164 


VILLENAGE  OF       Chap.  VHI.  Part  IIL 


English  Const. 


THE  PEASANTRY. 


165 


Villenage 
of  the 
peasantry. 
Its  nature 
and  gradual 
extinction. 


civil  liberty  and  regular  government  are  closely  connected. 
These  are,  first,  the  servitude  or  villenage  of  the  peasantry, 
and  their  gradual  emancipation  from  that  condition;  and, 
secondly,  the  continual  increase  of  commercial  intercourse 
with  foreign  countries.  But  as  the  latter  topic  will  fall  more 
conveniently  into  the  next  part  of  this  work,  I  shall  postpone 
its  consideration  for  the  present. 

In  a  former  passage,  I  have  remarked  of  the  Anglo-Saxon 
ceorls  that  neither  their  situation  nor  that  of  their 
descendants  for  the  earher  reigns  after  the  Con- 
quest appears  to  have  been  mere  servitude.  But 
from  the  time  of  Henry  II.,  as  we  learn  from 
Glanvil,  the  villein,  so  called,  was  absolutely  de- 
pendent upon  his  lord's  will,  compelled  to  unlimited  services, 
and  destitute  of  property,  not  only  in  the  land  he  held  for  his 
maintenance,  but  in  his  own  acquisitions.^  If  a  villein  pur- 
chased or  inherited  land,  the  lord  might  seize  it ;  if  he  accu- 
mulated stock,  its  possession  was  equally  precarious.  Against 
his  lord  he  had  no  right  of  action  ;  because  his  indemnity 
in  damages,  if  he  could  have  recovered  any,  might  have 
been  immediately  taken  away.  If  he  fled  from  his  lord*« 
service,  or  from  the  land  which  he  held,  a  writ  issued  de  na- 
tivitate  probanda,  and  the  master  recovered  his  fugitive  by 
law.  His  children  were  bom  to  the  same  state  of  servitude  ; 
and,  contrary  to  the  rule  of  the  civil  law,  where  one  parent 
was  free  and  the  other  in  villenage,  the  offspring  followed 
their  father's  condition.* 

This  was  certainly  a  severe  lot ;  yet  there  are  circum- 
stances which  materially  distmguish  it  from  slavery.  The 
condition  of  villenage,  at  least  in  later  times,  was  peifecUy 


1  Glanvil,  1.  t.  c.  5. 

«  According  to  Bracton,  the  bastard  of 
a  nief,  or  female  Tillein,  was  bom  in 
senritude;  and  where  the  parents  lived 
on  a  Tillein  tenement,  the  children  of  a 
nief,  even  though  married  to  a  freeman, 
were  villeins,  1.  iv.  c.  21 ;  and  see  Beames's 
translation  of  Glanvil,  p.  109.  But  Lit- 
tleton lays  down  an  opposite  doctrine, 
that  a  bastard  was  necessarily  free  ;  be 
cause,  being  the  child  of  no  father  in  the 
contemplation  of  law,  he  could  not  be 
presumed  to  inherit  servitude  from  any 
one ;  and  makes  no  distinction  as  to  the 
parent's  residence.  Sect.  188.  I  merely 
take  notice  of  this  change  in  the  law  be- 
t«Mn  the  reigns  of  Henry  HI.  and  Ed- 


ward rV.  as  an  instance  of  the  bias  which 
the  judges  showed  in  fevor  of  personal 
freedom.  Another,  if  we  can  rely  upon 
it,  is  more  important.  In  the  reign  of 
Henry  II.  a  freeman  marrying  a  nief, 
and  settling  on  a  villein  tenement,  lost 
the  privileges  of  freedom  during  the  time 
of  his  occupation  ;  legem  terras  quasi 
nativus  amittit.  Glanvil,  1.  v.  c.  6.  This 
was  consonant  to  the  customs  of  soma 
other  countries,  some  of  which  went  fur- 
ther, and  treated  such  a  person  forever 
as  a  villein.  But,  on  the  contrary,  we 
find  in  Britton,  a  century  later,  that  the 
nief  herself  by  surh  a  marriage  became 
free  during  the  coverture,  c.  31.  [NOTl 
XIII.] 


relative ;  it  formed  no  distinct  order  in  the  political  econ- 
omy. No  man  was  a  villein  in  the  eye  of  law,  unless  his 
master  claimed  him ;  to  all  others  he  was  a  freeman,  and 
mi^ht  acquire,  dispose  of,  or  sue  for  property  without  impedi- 
ment. Hence  Sir  E.  Coke  argues  that  villeins  are  included 
in  the  29th  article  of  Magna  Charta  :  "  No  freeman  shall  be 
disseized  nor  imprisoned."  ^  For  murder,  rape,  or  mutilation 
of  his  villein,  the  lord  was  indictable  at  the  king's  suit; 
though  not  for  assault  or  imprisonment,  which  were  within 
the  sphere  of  his  seignorial  authority.* 

This  class  was  distinguished  into  villeins  regardant,  who 
had  been  attached  from  time  immemorial  to  a  certain  manor, 
and  villeins  in  gross,  where  such  territorial  prescription  had 
never  existed,  or  had  been  broken.  In  the  condition  of  these, 
whatever  has  been  said  by  some  writers,  I  can  find  no  man- 
ner of  difference ;  the  distinction  was  merely  technical,  and 
affected  only  the  mode  of  pleading. «  The  term  in  gross  is 
appropriated  in  our  legal  language  to  property  held  absolutely 
and  without  reference  to  any  other.  Thus  it  is  applied  to 
ricrhts  of  advowson  or  of  common,  when  possessed  simply 


1 1  must  confess  that  I   have  some 
doubts  how  far  this  was  law  at  the  epoch 
of  Magna  Charta.    Glanvil  and  Braxton 
both  speak  of  the  status  viUenagii  as 
opposed  to  that  of  liberty,  and  seem  to 
consider  it  as  a  civil  condition,  not  a 
merely  personal  relation.    The  civil  law 
and  the  French  treatise  of  Beaumanoir 
hold  the  same  language.    And  Sir  Rob- 
ert Cotton  maintains  without  hesitation 
that  villeins  are  not  within  the  29th  sec- 
tion of  Magna  Charta.  "being  excluded 
by  the  word  liber."    Cotton's  Posthuma, 
p.  223.    Britton,  however,  a  little  after 
Bracton,  says  that  in  an  action  the  vil- 
lein is  nnswcnible  to  all  men.  and  all  men 
to  him.    p.  79.     And  later  judges,  in  fa- 
vorem  libertatis,  gave  this  construction 
to  the  villein's  situation,  which  must 
therefore  be  considered  as  the  clear  law 
of  England  in  the  fourteenth  and  fif- 
teenth centuries. 

a  Littleton,  sect.  189, 190,  speaks  only 
of  an  appeal  in  the  two  former  cases; 
but  an  indictment  is  k  fortiori  ;  and  he 
says,  sect.194,  that  an  indictment,  though 
not  an  appeal,  lies  against  the  lord  for 
maiming  his  villein. 

s  Gurdon,  on  Courts  Baron,  p.  692,  sup- 
poses the  villein  in  gross  to  have  been 
the  Lazzus  or  Servus  of  early  times,  a 
domestic  serf,  and  of  an  inferior  species 
to  the  cultivator,  or  villein  regardant. 
Unluckily  Bracton  and  Littleton  do  not 


confirm  this  notion,  which  would  be  con- 
venient enough  ;  for  in  Domesday  Book 
there  is  a  marked  distinction  between 
the  Servi  and  Villani.    Blackstone  ex- 
presses  himself  inaccurately  when   he 
says  the  villein  in  gross  was  annexed  to 
the  person  of  the  lord,  and  transferable 
by  deed  from  one  owner  to  another.    By 
this  means  indeed  a  villein  regardant 
would  become  a  villein  in  gross,  but  all 
Tilleins  were  alike  liable  to  be  sold  by 
their  owners.  Littleton,  sect.  181.  Blome- 
field's  Norfolk,  vol.  iii.  p.  860.    Mr.  Har- 
grave  supposes  that    villeins  in    gross 
were  never  numerous  (Case  of  Somerset, 
Howell's  state  Trials,  vol.  xx.  p.  42); 
drawing  this  inference  from  the  few  cases 
relative  to  them  that  occur  in  the  Yeat 
books.    And  certainly  the  form  of  a  writ 
de  nativitate  probanda,  and  the  peculiar 
evidence  it  required,  which  may  be  found 
in  Fitzherbert's  Natura  Brevium,  or  in 
Mr.  U.'s  argument,  are  only  applicable 
to  the  other  species.    It  is  a  doubtful 
point  whether  a  freeman  could,  in  con- 
templation of  law,  become  a  villein  in 
gross;  though  his  confession  in  a  court 
of  record,  upon  a  suit  already  commenced 
(for  this  was  requisite),  would  estop  him 
from  claiming  his  liberty  ;    and  hence 
Bracton  speaks  of  this  proceeding  as  a 
mode  by  which  a  freeman  might  fall  into 
servitude. 


166 


VILLENAGE  OF      Chap.  VITl.  Part  ni. 


English  Const. 


THE  PEASANTRY. 


167 


and  not  as  incident  to  any  particular  lands.  And  there  can 
be  no  doubt  that  it  was  used  in  the  same  sense  for  the  posses- 
sion of  a  villein.^  But  there  was  a  class  of  persons,  some- 
times inaccurately,  confounded  with  villeins,  whom  it  is  more 
important  to  separate.  Villenage  had  a  double  sense,  as  it 
related  to  persons  or  to  lands.  As  all  men  were  free  or  vil- 
leins, so  all  lands  were  held  by  a  free  or  villein  tenure.  As 
a  villein  might  be  enfeoffed  of  freeholds,  though  they  lay  at 
the  mercy  of  his  lord,  so  a  freeman  might  hold  tenements  in 
villenage.  In  this  case  his  personal  liberty  subsisted  along 
with  the  burdens  of  territorial  servitude.  He  was  bound  to 
arbitrary  service  at  the  will  of  the  lord,  and  he  might  by  the 
same  will  be  at  any  moment  dispossessed ;  for  such  was  the 
condition  of  his  tenure.  But  his  chattels  were  secure  from 
seizure,  his  person  from  injury,  and  he  might  leave  the  land 
whenever  he  pleased.  * 

From  so  disadvantageous  a  condition  as  this  of  villenage  it 
may  cause  some  surprise  that  the  peasantry  of  England 
should  have  ever  emerged.  The  law  incapacitating  a  villein 
from  acquiring  property,  placed,  one  would  imagine,  an 
insurmountable  barrier  in  the  way  of  his  enfranchisement 
It  followed  from  thence,  and  is  positively  said  by  Glanvil, 
that  a  villein  could  not  buy  his  freedom,  because  the  price 
he  tendered  would  already  belong  to  his  lord.  *  And  even 
in  the  case  of  free  tenants  in  villenage  it  is  not  easy  to 
comprehend  how  their  uncertain  and  unbounded  services 
oould  ever  pass  into  slight  pecuniary  commutations ;  much 
less  how  they  could  come  to  maintain  themselves  in  their 
lands  and  mock  the  lord  with  a  nominal  tenure,  according  to 
the  custom  of  the  manor. 

This,  like  many  others  relating  to  the  progress  of  society, 
is  a  very  obscure  inquiry.  We  can  trace  the  pedigree  of 
princes,  fill  up  the  catalogue  of  towns  besieged  and  provinces 
desolated,  describe  even  the  whole  pageantry  of  coronations 
and  festivals,  but  we  cannot  recover  the  genuine  history  of 
mankind.  It  has  passed  away  with  slight  and  partial  notice 
by  contemporary  writers ;  and  our  most  patient  industry  can 
hardly  at  present  put  together  enough  of  the  fragments  to 
suggest  a  tolerably  clear  representation  of  ancient  manners 

1  [NOTB  XIV.] 

t  Bracton,  1.  ii.  c.  8 ;  1.  ir.  o.  28 ;  Littleton,  sect.  173. 
s  CUanTil,  1.  ir.  o.  6. 


and  social  life.  I  cannot  profess  to  undertake  what  would 
require  a  command  of  books  as  well  as  leisure  beyond  my 
reach ;  but  the  following  observations  may  tend  a  little  to 
illustrate  our  immediate  subject,  the  gradual  extmction  of 

villenage. 

If  we  take  what  may  be  considered  as  the  simplest  case, 
that  of  a  manor  divided  into  demesne   lands  of  the   lord's 
occupation  and  those  in  the  tenure  of  his  villeins,  performing 
all  the  services  of  agriculture  for  him,  it  is  obvious  that  his 
interest  was  to  maintain  just  so  many  of  these  as  his  estate 
required  for  its  cultivation.     Land,  the  cheapest  of  articles, 
was  the  price  of  their  labor  ;  and  though  the  law  did  not 
compel  him  to  pay  this  or  any  other  price,  yet  necessity, 
repairing   in  some  degree  the  law's   injustice,  made  those 
pretty  secure  of  food  and  dwellings  who  were  to  give  the 
strength  of  their  arms  for  his  advantage.     But  in  course  of 
time,°as  alienations  of  small  parcels  of  manors  to  free  tenants 
came  to  prevail,  the  proprietors  of  land  were  placed  in  a 
new  situation  relatively  to  its  cultivators.      The  tenements 
in  villenage,  whether  by  law  or  usage,  were  never  separated 
from  the  lordship,  while  its  domain  was  reduced  to  a  smaller 
extent  through  subinfeudations,  sales,  or  demises  for  valuable 
rent.    The  purchasers  under  these  alienations  had  occasion  for 
laborers ;   and  these  would  be  free  servants  in  respect  of 
such  employers,  though  in  villenage  to   their  original  lord. 
As  he  demanded  less  of  their  labor,  through  the  diminution 
of  his  domain,  they  had  more  to  spare  for  other  masters ; 
and  retaining  the  character  of  villeins  and  the  lands  they 
held  by  that  tenure,  became  hired  laborers  in  husbandry  for 
the  greater  part  of  the  year.     It  is  true  that  all  their  earn- 
ings were   at  the  lord's  disposal,  and  that  he  might  have 
made  a  profit  of  their  labor  when  he  ceased  to  requu-e  it  for 
his  own  land.     But  this,  which  the  rapacity  of  more  com- 
mercial times  would  have  instantly  suggested,  might  escape 
a  feudal   superior,   who,   wealthy   beyond    his   wants,   and 
guarded  by  the  haughtiness  of  ancestry  against  the  desire  of 
such  pitiful  gains,  was  better  pleased  to  win  the  affection  of 
his  dependants  than  to  improve  his  fortune  at  their  expense. 
The  services  of  villenage  were  gradually   rendered  less 
onerous  and   uncertain.     Those  of  husbandry,  indeed,  are 
naturally  uniform,  and  might  be  anticipated  with  no  small 
exactness.     Lords  of  generous  tempers  granted  indulgences 


;i 


i*u 


168 


VILLENAGE  OF       Chap.  VIH.  Part  IIL 


English  Const. 


THE  PEASAin'RY. 


169 


ll 


ti  • 


which  were  either  intended  to  be  or  readily  became  per- 
petual. And  thus,  in  the  time  of  Edward  I.,  we  find  the 
tenants  in  some  manors  bound  only  to  stated  services,  as  re- 
corded in  the  lord's  book.*  Some  of  these,  perhaps,  might 
be  villeins  by  blood ;  but  free  tenants  in  villenage  were  still 
more  likely  to  obtain  this  precision  in  their  services;  and 
from  claiming  a  customary  right  to  be  entered  in  the  court- 
roll  upon  the  same  terms  as  their  predecessors,  prevailed  at 
length  to  get  copies  of  it  for  their  security.^  Proofs  of  this 
remarkable  transformation  from  tenants  in  villenage  to  copy- 
holders are  found  in  the  reign  of  Henry  III.  I  do  not 
know,  however,  that  they  were  protected,  at  so  early  an 
epoch,  in  the  possession  of  their  estates.  But  it  is  said  in 
the  Yeai--book  of  the  42d  of  Edward  III.  to  be  "  admitted 
for  clear  law,  that,  if  the  customary  tenant  or  copyholder 
does  not  perform  his  services,  the  lord  may  seize  his  land  as 
forfeited."'  It  seems  implied  herein,  that,  so  long  as  the 
copyholder  did  continue  to  perform  the  regular  stipulations 
of  his  tenure,  the  lord  was  not  at  liberty  to  divest  him  of  his 
estate;  and  this  is  said  to  be  confirmed  by  a  passage  in 
Britton,  which  has  escaped  my  search;  though  Littleton 
intimates  that  copyholders  could  have  no  remedy  against 
their  lord.*  However,  in  the  reign  of  Edward  IV.  this  was 
put  out  of  doubt  by  the  judges,  who  permitted  the  copyholder 
to  bring  his  action  of  trespass  against  the  lord  for  disposses- 
sion. 

While  some  of  the  more  fortunate  villeins  crept  up  into 


1  Dugdale's  Warwickshire,  apud  Eden's 
State  of  the  Poor,  vol.  i.  p.  13.  A  pas- 
sage in  another  local  history  rather  seems 
to  indicate  that  some  kind  of  delinquency 
was  usually  alleged,  and  some  ceremony 
employed,  before  the  lord  entered  on  the 
Tillein^s  land.  In  Gissing  manor,  3d  E. 
III.,the  jury  present,  that  W.  G.,  a  vil- 
lein by  blood,  was  a  rebel  and  ungrateful 
toward  his  lord,  for  which  all  his  tene- 
ments were  seized.  His  offence  was  the 
having  said  that  the  lord  kept  four  stolen 
sheep  in  his  field.  Blomefield's  Norfolk, 
vol.  i.  p.  114. 

*  Gurdon  on  Courts  Baron,  p.  574. 

'  Brooke's  Abridgm.  Tenant  par  co- 
pie,  1.  By  the  extent-roll  of  the  manor 
of  Brisingham  in  Norfolk,  in  1264,  it 
appears  that  there  were  then  ninety -four 
copyholders  and  six  cottagers  in  villen- 
age ;  the  former  performing  many,  but 


determinate    services  of  labor  for   the 
lord.    Blomfleld's  Norfolk,  vol.  I.  p.  84. 

*  Littl.  sect.  77.  A  copyholder  with- 
out legal  remedy  may  seem  little  better 
than  a  tenant  in  mere  villeuagc,  except 
in  name.  But  though,  from  the  relation 
between  the  lord  and  copyholder,  the 
latter  might  not  be  permitted  to  sue  his 
superior,  yet  it  does  not  follow  that  he 
might  not  bring  bis  action  against  any 
person  acting  under  the  lord's  direction, 
in  which  the  defendant  could  not  set  up 
an  illegal  authority ;  just  as,  although  no 
writ  runs  against  the  king,  his  ministers 
or  officers  are  not  justified  in  acting  un- 
der his  command  contrary  to  law.  I 
wish  this  note  to  be  considered  as  cor- 
recting one  in  my  first  volume,  p.  198, 
where  I  have  said  that  a  similar  law  in 
France  rendered  the  distinction  between 
a  serf  and  a  homme  de  pooto  little  mora 
than  theoretical. 


property  as  well  as  freedom  under  the  name  of  copyholders, 
Sie  greater  part  enfranchised  themselves  in  a  different  man- 
ner.    The  law,  which  treated  them  so  harshly,  did  not  take 
away  the  means  of  escape ;  nor  was  this  a  matter  of  diffi- 
culty in  such  a  country  as  England.     To  this,  indeed,  the 
unequal  progression  of  agriculture  and  population  in  different 
counties  would  have  naturally  contributed.     Men  emigrated, 
as  they  always  must,  in  search  of  cheapness  or  employment, 
kccordincr  to  the  tide  of  human  necessities.     But  the  villem, 
who  had°no  additional  motive  to  urge  his  steps  away  from 
his  native  place,  might  well  hope  to  be  forgotten  or  undis- 
covered when  he  breathed  a  freer  air,  and  engaged  his  vol- 
untary labor  to  a  distant  master.     The  lord  had  indeed  an 
action  against  him ;  but  there  was  so  little  communication 
between°remote  parts  of  the  country,  that  it  might  be  deemed 
his  fault  or  singular  ill-fortune  if  he  were  compelled  to  defend 
himself.     Even  in  that  case  the  law  inclined  to  favor  him ; 
and  so  many  obstacles  were  thrown  in  the  way  of  these  suits 
to  reclaim  fugitive  villeins,  that  they  could  not  have  operated 
materially  to  retard  their  general  enfranchisement.^     In  one 
case,  indeed,  that  of  unmolested  residence  for  a  year  and  a 
day  within  a  walled  city  or  borough,  the  villein  became  free, 
and  the  lord  was  absolutely  barred  of  his  remedy.     This 
provision  is  contained  even  in  the  laws  of  William  the  Con- 
queror,  as  contained  in  Hoveden,  and,  if  it  be  not  an  inter 
polation,  may  be  supposed  to  have  had  a  view  to  strengtheJ 
the  population  of  those  places  which  were  designed  for  gar 
risons.     This  law,  whether  of  William  or  not,  is  unequivo- 
cally  mentioned  by  Glanvil.^     Nor  was  it  a  mere   letter- 
According  to  a  record  in  the  sixth  of  Edward  II.,  Sir  John 
Clavering  sued  eighteen  villeins  of  his  manor  of  Cossey,  for 
withdrawing  themselves  therefrom  with  their  chattels ;  where- 
upon a  writ  was  directed  to  them ;  but  six  of  the  number 
claimed  to  be  freemen,  alleging  the  Conqueror's  charter,  and 
offering  to  prove  that  they  had  lived  in  Norwich,  paying  scot 
and  lot,  about  thirty  years ;  which  claim  was  admitted.* 
By  such  means  a  large  proportion  of  the  peasantry  before 

1  See  the  rules  of  pleading  and  evi-  »  Blomefield's  Norfolk,  vol.  »•  P- ^; 

dence   in   questions  of  villenage   fully  I  know  not  how  far^  *^*^,  P^7^«£7^ 

stated  in  Mr.  Hargravo's  argument  in  supposed  to  J?  »"P*'^e<*,  ^^  "l^/.^.^v? 

the  case  of  SomeSet.     Howeirs  State  34  E.  III.  c.ll;  which  however  might. 

Trials,  vol.  xx.  p.  38.  I  should  conceive,  very  well  stand  along 

t  1.  V.  c.  V.  ^ith  it. 


I  f" 


\i 


170 


REGULATION  OF  WAGES.    Chap.  VIH.  Pabt  ni. 


Ehoush  Const.         POPULAR   OUTBREAKS. 


171 


the  middle  of  the  fourteenth  century  had  become  hired  la- 
borers instead  of  villeins.     We  first  hear  of  them  on  a  grand 
scale  in  an  ordinance  made  by  Edward  III.  in  the  twenty- 
third  year  of  his  reign.     This  was  just  after  the  dreadful  pes- 
tilence of  1348,  and  it  recites  that,  the  number  of  workmen 
and  servfuits  having  been  greatly  reduced  by  that  calamity, 
the   remainder  demanded   excessive  wages   from   their  em- 
ployers.     Such   an    enhancement   in    the    price   of    labor, 
though  founded  exactly  on  the  same  principles  as  regulate 
the  value  of  any  other  commodity,  is  too  frequently  treated  as 
a  sort  of  crime  by  lawgivers,  who  seem  to  grudge  the  poor 
that  transient  melioration  of  their  lot  which  the  progress  of 
population,  or  other  analogous   circumstances,  will,°without 
any  interference,  very  rapidly  take  away.     This  ordinance 
therefore  enacts  that  every  man  in  England,  of  whatever  con- 
dition, bond  or  free,  of  able  body,  and  within  sixty  years  of 
age,  not  living  of  his  own,  nor  by  any  trade,  shall  be  obliged, 
when  required,  to  serve  any  master  who  is  willing  to  hire  him 
at  such  wages  as  were  usually  paid  three  years  since,  or  for 
some  time  preceding ;  provided  that  the  lords  of  villeins  or  ten- 
ants in  villenage  shall  have  the  preference  of  their  labor,  so 
that  they  retain  no  more  than  shall  be  necessary  for  them. 
More  than  these  old  wages  is  strictly  forbidden  to  be  offered, 
as  well  as  demanded.     No  one  is  permitted,  under  color  of 
charity,  to  give  alms  to  a  beggar.     And,  to  make  some  com- 
pensation to  the  inferior  classes  for  these  severities,  a  clause 
is  mserted,  as  wise,  just,  and  practicable  as  the  rest,  for  the 
sale  of  provisions  at  reasonable  prices.^ 

This  ordinance  met  with  so  little  regard  that  a  statute  was 
made  in  parliament  two  years  after,  fixing  the  wages  of  all 
artificers  and  husbandmen,  with  regard  to  the  nature  and  sea- 
son of  their  labor.  From  this  time  it  beciune  a  frequent 
complaint  of  the  commons  that  the  statute  of  laborers  was 
not  kept.  The  king  had  in  this  case,  probably,  no  other  rea- 
son for  leaving  their  grievance  unredresssed  than  his  inability 
to  change  the  order  of  Providence.  A  silent  alteration  had 
been  wrought  in  the  condition  and  character  of  the  lower 
classes  during  the  reign  of  Edward  III.  This  was  the  effect 
of  mcreased  knowledge  and  refinement,  which  had  been  mak- 
ing a  considerable  progress  for  full  half  a  century,  though  they 

I  Stat.  28  £.  m. 


did  not  readily  permeate  the  cold  region  of  poverty  and  igno- 
rance. It  was  natural  that  the  country  people,  or  uplandish 
folk,  as  they  were  called,  should  repine  at  the  exclusion  from 
that  enjoyment  of  competence,  and  security  for  the  fruits  of 
their  labor,  which  the  inhabitants  of  towns  so  fully  possessed. 
The  fourteenth  century  was,  in  many  parts  of  Europe,  the  age 
when  a  sense  of  political  servitude  was  most  keenly  felt. 
Thus  the  insurrection  of  the  Jacquerie  in  France  about  the 
year  1358  had  the  same  character,  and  resulted  in  a  great 
measure  from  the  same  causes,  as  that  of  the  English  peasants 
in  1382.  And  we  may  account  in  a  similar  manner  for  the 
democratical  tone  of  the  French  and  Flemish  cities,  and  for 
the  prevalence  of  a  spirit  of  liberty  in  Germany  and  Switzer- 

land.i 

I  do  not  know  whether  we  should  attribute  part  of  this 
revolutionary  concussion  to  the  preaching  of  Wicliffe's  disci- 
ples, or  look  upon  both  one  and  the  other  as  phenomena  be- 
longing to  that  particular  epoch  in  the  progress  of  society. 
New  principles,  both  as  to  civil  rule  and  religion,  broke  sud- 
denly upon  the  uneducated  mind,  to  render  it  bold,  presump- 
tuous, and  turbulent.  But  at  least  I  make  little  doubt  that 
the  dislike  of  ecclesiastical  power,  which  spread  so  rapidly 
among  the  people  at  this  season,  connected  itself  with  a  spirit 
of  insubordination  and  an  intolerance  of  political  subjection. 
Both  were  nourished  by  the  same  teachers,  the  lower  secular 
clergy ;  and  however  distinct  we  may  think  a  religious  ref- 
ormation from  a  civil  anarchy,  there  was  a  good  deal  com- 
mon in  the  language  by  which  the  populace  were  inflamed  to 
either  one  or  the  other.  Even  the  scriptural  moralities  which 
were  then  exhibited,  and  which  became  the  foundation  of  our 
theatre,  afforded  fuel  to  the  spirit  of  sedition.  The  common 
original  and  common  destination  of  mankind,  with  every 
other  lesson  of  equality  which  religion  supplies  to  humble  or 
to  console,  were  displayed  with  coarse  and  glaring  features  in 
these  representations.  The  familiarity  of  such  ideas  has  dead- 
ened their  effects  upon  our  minds ;  but  when  a  rude  peasant, 
surprisingly  destitute  of  religious  instruction  during  that  cor- 
rupt age  of  the  church,  was  led  at  once  to  these  impressive 
truths,  we  cannot  be  astonished  at  the  intoxication  of  mind 
they  produced.* 


1  [NoTB  XV.]  ural  probabilities  than  testimony  in 

*  I  have  been  more  influenced  by  nat-    cribing  this  effect  to  Wicliffe's  innora- 


172 


CAUSES  OF 


Chap.  VIII.  Part  m. 


Though  I  believe  that,  compared  at  least  with  the  aris- 
tocracy of  other  countries,  the  English  lords  were  guilty  of 
very  little  cruelty  or  injustice,  yet  there  were  circumstances 
belonging  to  that  period  which  might  tempt  them  to  deal  more 
hardly  than  before  with  their  peasantry.  The  fourteenth 
century  was  an  age  of  greater  magnificence  than  those  which 
had  preceded,  in  dress,  in  ceremonies,  in  buildings ;  foreign 
luxuries  were  known  enough  to  excite  an  eager  demand 
among  the  higher  ranks,  and  yet  so  scarce  as  to  yield  inordi- 
nate prices ;  while  the  landholders  were,  on  the  other  hand, 
impoverished  by  heavy  and  unceasing  taxation.  Hence  it  is 
probable  that  avarice,  as  commonly  happens,  had  given  birth 
to  oppression ;  and  if  the  gentry,  as  I  am  inclined  to  believe, 
had  become  more  attentive  to  agricultural  improvements,  it 
is  reasonable  to  conjecture  that  those  whose  tenure  obliged 
them  to  unlimited  services  of  husbandry  were  more  harassed 
than  under  their  wealthy  and  indolent  masters  in  preceding 
times. 

The  storm  that  almost  swept  away  all  bulwarks  of  civil- 
ized and  regular  society  seems  to  have  been  long  in  collect- 
ing itself.  Perhaps  a  more  sagacious  legislature  might  have 
contrived  to  disperse  it:  but  the  commons  only  presented 
complaints  of  the  refractoriness  with  which  villeins  and  ten- 
ants in  villenage  rendered  their  due  services ;  *  and  the  exi- 
gencies of  government  led  to  the  fatal  poll-tax  of  a  groat, 
which  was  the  proximate  cause  of  the  insurrection.  By  the 
demands  of  these  rioters  we  perceive  that  territorial  servitude 
was  far  from  extinct ;  but  it  should  not  be  hastily  concluded 
that  they  were  all  personal  villeins,  for  a  large  proportion 
were  Kentish-men,  to  whom  that  condition  could  not  have 
applied;  it  being  a  good  bar  to  a  writ  de  nativitate  probanda 
that  the  party's  father  was  born  in  the  county  of  Kent.* 

After  this  tremendous  rebellion  it  might  be  expected  that 


tions,  because  the  historians  are  preju- 
diced witnesses  against  him.  Several  of 
them  depose  to  the  connection  between 
his  opinions  and  the  rebellion  of  1382 ; 
especially  Walsinjjham,  p.  288.  This  im- 
plies no  reflection  upon  Wiclifle,  any 
more  than  the  crimes  of  the  anabaptists 
in  Munster  do  upon  Luther.  Every  one 
knows  the  distich  of  John  Ball,  which 
comprehends  the  essence  of  religious 
democracy : 
"  When  Adam  delved  and  Eve  span, 
Where  was  then  the  gentleman  ?" 


The  sermon  of  this  priest,  as  related 
by  Walsingham,  p.  275,  derives  its  argu- 
ment for  equality  from  the  common 
origin  of  the  species.  Ue  is  said  to  have 
been  a  disciple  of  Wicliffe.  Turner's 
Hist,  of  England,  vol.  11.  p.  420. 

1  Stat.  1  R.  II.  c.  6 ;  Rot.  Pari.  vol.  Ui. 
p.  21. 

2  30  E.  I.,  in  Fitzherbert.  Villenage, 
apud  Lambard^s  Perambulation  of  Kentj 
p.  632.    Somner  on  Gavelkind,  p.  72. 


Emoush  Const.         POPULAR  OUTBREAKS. 


173 


the  legislature  \\ould  use  little  indulgence  towards  the  lower 
commons.     Such  unhappy  tumults  are  doubly  mischievous, 
not  more  from  the   immediate  calamities  that  attend  them 
than   from   the   fear   and  hatred  of  the  people  which  they 
generate   in  the   elevated   classes.     The   general  charter  of 
manumission  extorted  from  the  king  by  the  rioters  of  Black- 
heath  was  annulled  by  proclamation  to  the  sheriffs,^  and  this 
revocation  approved  by  the  lords  and   commons  in  parlia- 
ment ;  who  added,  as  was  very  true,  that  such  enfranchise- 
ment could  not  be  made  without  their  consent;  "which  they 
would  never  give  to  save  themselves  from  perishing  all  togeth- 
er in  one  day."  *     Riots  were  turned  into  treason  by  a  law  of 
the  same  parliament.®     By  a  very  harsh  statute  in  the  12th 
of  Richard  II.  no  servant  or  laborer   could  depart,  even  at 
the  expiration  of  his  service,  from  the  hundred  in  which  he 
lived  without  permission  under  the  king's  seal;   nor  might 
any  who  had  been  bred  to  husbandry  till  twelve  years  old 
exercise  any  other  calling.*     A  few  years   afterwards   the 
commons  petitioned  that  villeins  might  not  put  their  children 
to  school  in   order  to  advance  them  by  the  church;  "and 
this  for  the  honor  of  all  the  freemen  of  the  kingdom."     In 
the  same   parliament   they  complained   that  villeins  fly  to 
cities  and  boroughs,  whence   their  masters  cannot  recover 
them ;  and,  if  they  attempt  it,  are  hindered  by  the   people ; 
and  prayed  that  the  lords  might  seize  their  villeins  in  such 
places  without   regard   to   the   franchises  thereof.     But  on 
both  these  petitions  the  king  put  in  a  negative.'^ 

From  henceforward  we  find  little  notice  taken  of  villenage 
in  parliamentary  records,  and  there  seems  to  have  been  a 
rapid  tendency  to  its  entire  abolition.  But  the  fifteenth 
century  is  barren  of  materials ;  and  we  can  only  infer  that, 
as  the  same  causes  which  in  Edward  III.'s  time  had  con- 
verted a  large  portion  of  the  peasantry  into  free  laborers  still 


1  Rymer,  t.  vii.  p.  316,  &c.  The  king 
holds  this  bitter  language  to  the  villeins 
of  Essex,  after  the  death  of  Tyler  and 
execution  of  the  other  leaders  had  dis- 
concerted them  :  Rusticl  quidem  fuistis 
et  estis,  in  bondagio  pennanebitis,  uon 
ut  hactenus,  sed  incomparabiliter  yiliori, 
&c.    Walsingham,  p.  269. 

«  Rot.  Pari.  vol.  iii.  p.  100. 

3  R.  II.  c.  7.  The  words  are,  riot 
et  rumour  n''autres  semblables ;  rather  a 

Seneral  way  of  creating  a  new  treason ; 
at  panic  puts  an  end  to  jealousy. 


4  12R.  n.  c.  8.  _. 

6  Rot.  Pari.  15  R.  n.  vol.  iii.  p.  294, 
296.  The  statute  7  H.  IV.  c.  17,  enacts 
that  no  one  shall  put  his  son  or  daughter 
apprentice  to  any  trade  in  a  borough, 
unless  he  have  land  or  rent  to  the  value 
of  twenty  shillings  a  year,  but  that  any 
one  may  put  his  children  to  school.  The 
reason  assigned  is  the  scarcity  of  labor- 
ers in  husbandry,  in  consequence  of  peo- 
ple living  in  Upland  apprenticing  their 
children. 


Il 


174 


MANUMISSION  OF  VILLEINS.    Chap.  VIH.  Part  IU. 


XVOLISU  COKST. 


REIGN  OF  HENRY  YL 


175 


continued  to  operate,  they  must  silently  have  extinguished 
the  whole  system  of  personal  and  territorial  servitude.  The 
latter,  indeed,  was  essentially  changed  by  the  establishment 
of  the  law  of  copyhold. 

I  cannot  presume  to  conjecture  in  what  degree  voluntary 
manumission  is  to  be  reckoned  among  the  means  that  con- 
tributed to  the  abolition  of  villenage.     Charters  of  enfran- 
chisement were  very  common  upon  the  continent.     They  may 
perhaps  have  been  less  so  in  England.     Indeed  the  statute  de 
donis  must  have  operated  very  injuriously  to  prevent  the 
enfranchisement  of  villeins  regardant,  who  were  entailed  along 
with  the  land.     Instances,  however,  occur  from  time  to  time, 
and  we  cannot  expect  to  discover  many.     One  appears  as 
early  as  the  fifteenth  year  of  Henry  III.,  who  grants  to  all 
persons  bom  or  to  be  born  within  his  village  of  Contishall, 
that  they  shall  be  free  from  all  villenage  in  body  and  blood, 
paying  an  aid  of  twenty  shillings  to  knight  the  king's  eldest 
son,  and  six  shillings  a  year  as  a  quit  rent.*     So  in  the  twelfth 
of  Edward  HI.  certain  of  the  king's  villeins  are  enfranchised 
on  payment  of  a  fine.^    In  strictness  of  law,  a  fine  from  the 
villein  for  the  sake  of  enfranchisement  was  nugatory,  since 
all  he  could  possess  was  already  at  his  lord's  disposal.     But 
custom  and  equity  might  easily  introduce  different  maxims; 
and  it  was  plainly  for  the  lord's  interest  to  encourage  his 
tenants  in  the  acquisition  of  money  to  redeem  themselves, 
rather  than  to  quench  the  exertions  of  their  industry  by  availing 
himself  of  an   extreme    right.     Deeds   of  enfranchisement 
occur  in  the  reigns  of  Mary  and  Elizabeth ;®  and  perhaps  a 
conmiission   of  the   latter  princess   in    1574,  directing  the 
enfranchisement  of  her  bondmen  and  bondwomen  on  certain 
manors  upon  payment  of  a  fine,  is  the  last  unequivocal  testi- 
mony to  the  existence  of  villenage ;  *  though   it  is   highly 
probable  that  it  existed  in  remote  parts  of  the  country  some 


time  longer.* 


»  Blomefleld's  Norfolk,  vol.  ill.  p.  571. 

>  Rymer,  t.  v.  p.  44. 

3  Qurdon  on  Courts  Baron,  p.  596; 
Madox,  Formulare  Anglican um,  p.  420; 
Barrington  on  Ancient  Statutes,  p.  278. 
It  is  said  in  a  modern  book  that  villenage 
was  very  rare  in  Scotland,  and  even  that 
no  instance  exists  in  records  of  an  estate 
Bold  with  the  laborers  and  their  fami- 
lies attached  to  the  soil.  Pinkerton's 
Hist,  of  Scotland,  vol.  i.  p.  147.  But  Mr. 


Chalmers,  in  his  Caledonia,  has  brought 
several  proofs  that  this  assertion  is  too 
general. 

*  Barrington,  ubi  supra,  firom  Rymer. 

'  There  are  several  later  cases  reported 
wherein  villenage  was  pleaded,  and  one 
of  them  as  late  as  the  16th  of  James  I. 
(Noy,  p.  27.)  See  Ilargrave's  argument, 
State  Trials,  vol.  xx.  p.  41.  But  these 
are  so  briefly  stated,  that  it  is  difficult  in 
general  to  understand  them.    It  is  ob- 


From  this  general  view  of   the    English   constitution,  as 
it  stood  about  the  time  of  Henry  VI.,  we  must  Reign  of 
turn  our  eyes  to  the  political  revolutions  which  ^^"'■y  ^• 
clouded   the   latter   years   of  his   reign.      The  minority  of 
this  prince,  notwithstanding  the  vices  and  dissensions  of  hu 
court  and  the  inglorious  discomfiture  of  our  arms  in  France, 
was  not  perhaps  a  calamitous  period.      The  country  grew 
more  wealthy ;  the  law  was,  on  the  whole,  better  observed  ; 
the  power  of  parliament  more  complete  and  effectual  than 
in  preceding  times.     But  Henry's  weakness  of  understanding, 
becoming  evident  as  he  reached  manhood,  rendered  his  reign 
a  perpetual  minority.     His  marriage  with  a  princess  of  strong 
mind,  but  ambitious  and  vindictive,  rather  tended  to  weaken 
the  government  and  to  accelerate  his  downfall ;  a  certain  rev- 
erence that  had  been  paid  to  the  gentleness  of  the  king's 
disposition  being  overcome  by  her  unpopularity.     By  degrees 
Henry's  natural  feebleness  degenerated  almost  into  fatuity ; 
and  this  unhappy  condition  seems  to  have  overtaken  him 
nearly  about  the  time  when  it  became  an  arduous  task  to  with- 
stand the   assault    in    preparation  against  his  government. 
This  may  properly  introduce  a  great  constitutional  subject,  to 
which  some  peculiar  circumstances  of  our  own  age  have  im- 
periously directed  the  consideration  of  parliament.     Though 
the  proceedings  of  1788  and   1810  are  undoubtedly  prece- 
dents of  far  more  authority  than  any  that  can  be  derived 
from  our  ancient  history,  yet,  as  the  seal  of  the  legislature 
has  not  yet  been  set  upon  this  controversy,  it  is  not  perhaps 
altogether  beyond  the  possibility  of  future  discussion ;  and  at 
least  it  cannot  be  uninteresting  to  look  back  on  those  parallel 
or  analogous  cases  by  which  the  deliberations  of  parliament 
upon  the  question  of  regency  were  guided. 

While  the  kings  of  England  retained  their  continental  do- 
minions, and  were  engaged  in  the  wars  to  which  Historical 
those  ffave  birth,  they  were  of  course  frequently  instances  cf 
absent  from  this  country.     Upon  such  occasions 
the  administration  seems  at  first  to  have  devolved  oflacially 
on  the  justiciary,  as  chief  servant  of  the  crown.     But  Henry 
m.  began  the  practice  of  appointing  lieutenants,  or  guar- 

TiouB,  however,  that  judgment  was  in  by  some  persons  a  proof  of  legal  pedan- 

no  eue  given  in  favor  of  the  plea;  so  try,  that  Sir  E.  Coke,  while  he  dilates  on 

ihat  we  can  infer    nothing    as  to  the  the  law  of   villenage,    never  intimates 

ftctual  continuance  of  villenage.  that  it  was  become  antiquated. 
It  iB  Tpmarkablc,  and  may  be  deemed 


176 


HISTORICAL  INSTANCES       Chat.  VIII.  Part  m. 


English  Const. 


OF  REGENCIES. 


177 


dians  of  the  realm  (custodes  regni),  as  they  were 
th^lVof  more  usually  termed,  by  way  of  temporary  sub- 
our  kings  in  stitutes.  They  were  usually  nominated  by  the 
France ;  j,  .^^  without  conseut  of  parliament ;  and  their  of- 
fice carried  with  it  the  right  of  exercising  all  the  preroga- 
tives of  the  crown.  It  was  of  course  determined  by  the 
king's  return;  and  a  distinct  statute  was  necessary  in  the 
reign  of  Henry  V.  to  provide  that  a  parliament  called  by 
the°guardian  of  the  realm  during  the  king's  absence  should 
not  be  dissolved  by  that  event.*  The  most  remarkable  cir- 
cumstance attending  those  lieutenancies  was  that  they  were 
sometimes  conferred  on  the  heir  apparent  during  his  infancy. 
The  Black  Prince,  then  duke  of  Cornwall,  was  left  guardian 
of  the  realm  in  1339,  when  he  was  but  ten  years  old;« 
and  Richard  his  son,  when  still  younger,  in  1372,  during  Ed- 
ward in.'s  last  expedition  into  France.' 

These  do  not  however  bear  a  very  close  analogy  to  regen- 
cies in  the  stricter  sense,  or  substitutions  during  the  natural 
incapacity  of  the  sovereign.  Of  such  there  had  been  several 
at  the  instances  before  it  became  necessary  to  supply  the 

Icceslionof  deficiency  arising  from  Hcury's  derangement.  1. 
Henry  m.;  ^^  the  death  of  John,  William  carl  of  Pembroke 
assumed  the  title  of  rector  regis  et  regni,  with  the  consent  of 
the  loyal  barons  who  had  just  proclaimed  the  young  king, 
and  probably  conducted  the  government  in  a  great  measure 
by  their  advice.*  But  the  circumstances  were  too  critical,  and 
the  time  is  too  remote,  to  give  this  precedent  any  material 
weight.  2.  Edward  I.  being  in  Sicily  at  his  fa- 
of  Edward  1. ,  ^^^^,^  ^^^^^^  ^^^  nobility  met  at  the  Temple  church, 

as  we  are  informed  by  a  contemporary  writer,  and,  after 
making  a  new  great  seal,  appointed  the  archbishop  of  York, 
Edward  earl  of  Cornwall,  and  the  earl  of  Gloucester,  to  be 
ministers  and  guardians  of  the  realm  ;  who  accordingly  con- 
ducted the  administration  in  the  king's  name  until  his  return.* 
It  is  here  observable  that  the  earl  of  Cornwall,  though  near- 
est prince  of  the  blood,  was  not  supposed  to  enjoy  any  supe- 
rior title  to  the  regency,  wherein  he  was  associated  with  two 
other  persons.     But  while  the  crown  itself  was  hardly  ac- 


18H.V.  c.l. 

»  This  prince  having  been  sent  to  Ant- 
werp, six  commissioners  were  appointed 
to  open  parliament.  Kot.  Pari.  13  £.  III. 
vol.  U.  p.  107. 


»  R3nner.  t.  t1.  p.  748. 
4  Matt.  Paris,  p.  243. 
&Matt.  Westmonast.  ap.  Brady's 
tory  of  England,  toI.  ii.  p.  1. 


knowledged  to  be  unquestionably  hereditary,  it   would  be 
strange  if  any  notion  of  such  a  right  to  the  regency  had 
been  entertained.     3.  At  the  accession  of  Edward  III.,  then 
fourteen  years  old,  the  parliament,  which  was  im-  of  Edward 
mediately  summoned,  nominated  four  bishops,  four  ^^^- » 
earls,  and  six  barons  as  a  standing  council,  at  the  head  of 
which  the  earl  of  Lancaster  seems  to  have  been  placed,  to 
advise  the  king  in  all  business  of  government.     It  was  an 
article  in  the  charge  of  treason,  or,  as  it  was  then   styled, 
of  accroaching  royal  power,  against  Mortimer,  that  he  in 
termeddled  in  the  king's  household  without  the   assent   of 
this  council.^     They  may  be  deemed  therefore  a  sort  of  par- 
liamentary regency,  though  the  duration  of  their  functions 
does  not  seem  to  be  defined.     4.  The  proceedings  of  Richard 
at  the  commencement  of  the  next  reign  are  more  ^^ 
worthy  of  attention.     Edward  III.  dying  June  21,  1377,  the 
keepers  of  the  great  seal  next  day,  in  absence  of  the  chan- 
cellor beyond  sea,  gave  it  into  the  young  king's  hands  before 
his  council.     He  immediately  delivered  it  to  the  duke  of  Lan- 
caster, and  the  duke  to  Sir  Nicholas  Bode  for  safe  custody. 
Four  days  afterwards  the  king  in  council  delivered  the  seal  to 
the  bishop  of  St  David's,  who  affixed  it  the  same  day  to  di- 
vers letters  patent.^     Richard  was  at  this  time  ten  years  and 
six  months  old ;  an  age  certainly  very  unfit  for  the  personal 
execution  of  sovereign  authority.     Yet  he  was  supposed  ca- 
pable of  reigning  without  the  aid  of  a  regency.     This  might 
be  in  virtue  of  a  sort  of  magic  ascribed  by  lawyers  to  the 
great  seal,  the  possession  of  which  bars  all  further  inquiry, 
and  renders  any  government  legal.     The  practice  of  modem 
times  requiring  the  constant  exercise  of  the  sign  manual  has 
made  a  pubUc  confession  of  incapacity  necessary  in  many 
cases  where  it  might  have  been  concealed  or  overlooked  in 
earlier  periods  of  the  constitution.     But  though  no  one  was 
invested  with  the  office  of  regent,  a  council  of  twelve  was 
named  by  the  prelates  and  peers  at  the  king's  coronation, 
July  16,  1377,  without  whose  concurrence  no  public  measure 
was  to  be  carried  into  effect.     I  have  mentioned  in  another 
place  the  modifications  introduced  from  time  to  time  by  par 
liament,  which  might  itself  be   deemed  a  great  council  of 
regency  during  the  first  years  of  Richard. 


1  Rot.  Pari.  TOl.  ii.  p.  63. 
VOL.  m.  12 


*  Bymer,  t.  rii.  p.  171* 


w 


178 


HISTORICAL  INSTANCES     Chap.  Vm.  Part  HI. 


£kgli8H  Const. 


OF  REGENCIES. 


179 


INI 


5.  The  next  instance  is  at  the  accession  of  Henry  VI. 
of  H  VI  "^^^^  prince  was  but  nine  months  old  at  his  father's 
death ;  and  whether  from  a  more  evident  inca- 
pacity for  the  conduct  of  government  in  his  case  than  in  that 
of  Richard  XL,  or  from  the  progress  of  constitutional  princi- 
ples in  the  forty  years  elapsed  since  the  latter*s  accession,  far 
more  regularity  and  deliberation  were  shown  in  supplying  the 
defect  in  the  executive  authority.  Upon  the  news  arriving 
that  Henry  V.  was  dead,  several  lords  spiritual  and  temporal 
assembled,  on  account  of  the  imminent  necessity,  in  order  to 
preserve  peace,  and  provide  for  the  exercise  of  officers  ap- 
pertaining to  the  king.  These  peers  accordingly  issued  com- 
missions to  judges,  sheriffs,  escheators,  and  others,  for  various 
purposes,  and  writs  for  a  new  parliament.  This  was  opened 
by  commission  under  the  great  seal  directed  to  the  duke  of 
Gloucester,  in  the  usual  form,  and  with  the  king's  teste.* 
Some  ordinances  were  made  in  this  parliament  by  the  duke 
of  Gloucester  as  commissioner,  and  some  in  the  king's  name. 
The  acts  of  the  peers  who  had  taken  on  themselves  the  ad- 
ministration, and  summoned  parliament,  were  confirmed.  On 
the  twenty-seventh  day  of  its  session,  it  is  entered  upon  the 
roll  that  the  king,  "  considering  his  tender  age,  and  inability 
to  direct  in  person  the  concerns  of  his  realm,  by  assent  of 
lords  and  commons,  appoints  the  duke  of  Bedford,  or,  in  his 
absence  beyond  sea,  the  duke  of  Gloucester,  to  be  pi-otector 
and  defender  of  the  kingdom  and  English  church,  and  the 
king's  chief  counsellor."  Letters  patent  were  made  out  to 
this  effect,  the  appointment  being  however  expressly  during 
the  king's  pleasure.  Sixteen  councillors  were  named  in 
parliament  to  assist  the  protector  in  his  administration  ;  and 
their  concun'ence  was  made  necessary  to  the  removal  and 
appointment  of  officers,  except  some  inferior  patronage  spe- 
cifically reseiTed  to  the  protector.  In  all  important  business 
that  should  pass  by  order  of  council,  the  whole,  or  major 
part,  were  to  be  present ;  "  but  if  it  were  such  matter  that 
the  king  hath  been  accustomed  to  be  counselled  of,  that  then 
the  said  lords  proceed  not  therein  without  the  advice  of  my 
lords  of  Bedford  or  Gloucester."  *  A  few  more  councillors 
were  added  by  the  next  parliament,  and  divers  regulations 
established  for  their  observance.' 

1  Rot  Pari.  ToL  It.  p.  169.  >  Ibid.  p.  174, 176.  <  Ibid.  p.  201 


This  arrangement  was  in  contravention  of  the  late  king's 
testament,  which  had  conferred  the  regency  on  the  duke  of 
Gloucester,  in  exclusion  of  his  elder  brother.  But  the  na- 
ture and  spirit  of  these  proceedings  will  be  better  understood 
by  a  remarkable  passage  in  a  roll  of  a  later  parliament; 
where  the  house  of  lords,  in  answer  to  a  request  of  Glouces- 
ter that  he  might  know  what  authority  he  possessed  as  pro- 
tector, remind  him  that  in  the  first  parliament  of  the  king^ 
**ye  desired  to  have  had  ye  governaunce  of  yis  land; 
atfermyng  yat  hit  belonged  unto  you  of  rygzt,  as  well  by  ye 
mene  of  your  birth  as  by  ye  laste  wylle  of  ye  kyng  yat  was 
your  broyer,  whome  God  assoile ;  alleggyng  for  you  such 
groundes  and  motyves  as  it  was  yought  to  your  discretion 
made  for  your  intent;  whereupon,  the  lords  spiritual  and 
temporal  assembled  there  in  parliament,  among  which  were 
there  my  lordes  your  uncles,  the  bishop  of  Winchester  that 
now  liveth,  and  the  duke  of  Exeter,  and  your  cousin  the  earl 
of  March  that  be  gone  to  God,  and  of  Warwick,  and  other 
in  great  number  that  now  live,  had  great  and  long  delibera- 
tion and  advice,  searched  precedents  of  the  governail  of  the 
land  in  time  and  case  semblable,  when  kings  of  this  land 
have  been  tender  of  age,  took  also  information  of  the  laws 
of  the  land,  of  such  persons  as  be  notably  learned  therein, 
and  finally  found  your  said  desire  not  caused  nor  grounded 
in  precedent,  nor  in  the  law  of  the  land ;  the  which  the  king 
that  dead  is,  in  his  life  nor  might  by  his  last  will  nor  other- 
wise altre,  change,  nor  abroge,  without  the  assent  of  the  three 
estates,  nor  commit  or  grant  to  any  person  governance  or 
rule  of  this  land  longer  than  he  lived ;  but  on  that  other 
behalf,  the  said  lords  found  your  said  desire  not  according 
with  the  laws  of  this  land,  and  against  the  right  and  fredome 
of  the  estates  of  the  same  land.  Howe  were  it  that  it  be 
not  thought  that  any  such  thing  wittingly  proceeded  of  your 
intent ;  and  nevertheless  to  keep  peace  and  tranquillity,  and 
to  the  intent  to  ease  and  appease  you,  it  was  advised  and  ap- 
pointed by  authority  of  the  king,  assenting  the  three  estates 
of  this  land,  that  ye,  in  absence  of  my  lord  your  brother  of 


J  I  follow  the  orthography  of  the  roll, 
which  1  hope  will  not  be  iDCODTenient 
to  the  reader.  Why  this  orthography, 
from  obsolete  and  difficult,  so  frequently 
becomes  almost  modern,  as  will  appear 
in  the  course  of  these  extracts,  I  cannot 


conjecture.  The  usual  Irreg-alarity  of 
ancient  spelling  is  hardly  sufficient  to 
account  for  such  variations;  I  ut  if  thore 
be  any  error,  it  belongs  to  the  snpor* 
intendents  of  that  publicatioa.  and  if  ikOi 
mine. 


180 


fflSTORICAL  INSTANCES     Chap.  Vm.  Part  HL 


Ekolish  Coirar. 


OF  REGENCIES. 


181 


I 


Bedford,  should  be  chief  of  the  king's  council,  and  devised 
unto  you  a  name  different  from  other  counsellors,  not  the 
name  of  tutor,  lieutenant,  governor,  nor  of  regent,  nor  no 
name  that  should  import  authority  of  governance  of  the 
land,  but  the  name  of  protector  and  defensor,  which  import- 
eth  a  personal  duty  of  attendance  to  the  actual  defence  of 
the  land,  as  well  against  enemies  outward,  if  case  required, 
as   against   rebels   inward,   if  any  were,  that  God  forbid ; 
granting  you  therewith  certain  power,  the  which  is  specified 
and  contained  in  an  act  of  the  said  parliament,  to  endure  as 
long  as  it  liked  the  king.     In  the  which,  if  the  intent  of  the 
Baid  estates  had  been  that   ye  more  power  and  authority 
ahould  have  had,  more  should  have  been  expressed  therein ; 
to  the  which  appointment,  ordinance,  and  act,  ye  then  agreed 
you  as  for  your  person,  making  nevertheless  protestation  that 
It  was  not  your  intent  in  any  wise  to  deroge  or  do  prejudice 
unto  my  lord  your  brother  of  Bedford  by  your  said  agree- 
ment, as  toward  any  right  that  he  would  pretend  or  claim  in 
the  governance  of  this  land;  and  as  toward  any  pre-emi- 
nence that  you  might  have  or  belong  unto  you  as  chief  of 
council,  it  is  plainly  declared  in  the  said  act  and  articles,  sub- 
scribed by  my  said  lord  of  Bedford,  by  yourself,  and  the 
other  lords  of  the  council.     But  as  in  pariiament  to  which 
ye  be  called  upon  your  faith  and  ligeance  as  duke  of  Gloces- 
ter,  as  other  lords  be,  and  not  otherwise,  we  know  no  power 
nor  authority  that  ye  have,  other  than  ye  as  duke  of  Gloces- 
ter  should  have,  the  king  being  in  parliament,  at  years  of 
mest  discretion:    We  marvailing  with  all  our  hearts  that, 
considering  the  open  declaration  of  the  authority  and  power 
belonging  to  my  lord  of  Bedford  and  to  you  in  his  absence, 
and  also  to  the  king's  council  subscribed  purely  and  simply 
by  my  said  lord  of  Bedford  and  by  you,  that  you  should  in 
any  wise  be  stirred  or  moved  not  to  content  you  therewith  or 
to  pretend  you  any  other:    Namely,  considering  that  the 
kmg,  blessed  be  our  Lord,  is,  sith  the  time  of  the  said  power 
granted  unto  you,  far  gone  and  grown  in  person,  in  wit,  and 
understanding,  and  like  with  the  grace  of  God  to  occupy  his 
own  royal  power  within  few  years  :  and  forasmuch  consider- 
ing  the  things  and  causes  abovesaid,  and  other  many  that 
long  were  to  write.  We  lords  aforesaid  pray,  exhort,  and 
require  you  to  content  you  with  the  power  abovesaid  and 
decJai'ed,  of  the  which  my  lord  your  brother  of  Bedford,  the 


king's  eldest  uncle,  contented  him :  and  that  ye  none  larger 
power  desire,  will,  nor  use ;  giving  you  this  that  is  aboven 
written  for  our  answer  to  your  foresaid  deaand,  the  which 
we  will  dwell  and  abide  with,  withouten  vari;mce  or  chang- 
ing. Over  this  beseeching  and  praying  you  in  our  most 
humble  and  lowly  wise,  and  also  requiring  you  in  the  king's 
name,  that  ye,  according  to  the  king's  commandment,  con- 
tained in  his  writ  sent  unto  you  in  that  behalf,  come  to  this 
his  present  parliament,  and  intend  to  the  good  effect  and 
speed  of  matters  to  be  demesned  and  treted  in  the  same,  like 
as  of  right  ye  owe  to  do.*'^ 

It  is  evident  that  this  plain,  or  rather  rude  address  to  the 
duke  of  Gloucester,  was  dictated  by  the  prevalence  of  cardi- 
nal Beaufort's  party  in  council  and  parliament.  But  the 
transactions  in  the  former  parliament  are  not  unfairly  repre- 
sented; and,  comparing  them  with  the  passage  extracted 
above,  we  may  perhaps  be  entitled  to  infer:  1.  That  the 
king  does  not  possess  any  constitutional  prerogative  of  ap- 
pointing a  regent  during  the  minority  of  his  successor ;  and 
2.  That  neither  the  heir  presumptive,  nor  any  other  person, 
is  entitled  to  exercise  the  royal  prerogative  during  the  king's 
infancy  (or,  by  parity  of  reasoning,  his  infirmity),  nor  to  any 
title  that  conveys  them ;  the  sole  right  of  determining  the 
persons  by  whom,  and  fixing  the  limitations  under  which,  the 
executive  government  shall  be  conducted  in  the  king's  name 
and  behalf,  devolving  upon  the  great  council  of  parliament. 

The  expression  used  in  the  lords'  address  to  the  duke  of 
Gloucester,  relative  to  the  young  king,  that  he  was  far  gone 
and  grown  in  person,  wit,  and  understanding,  was  not  thrown 
out  in  mere  flattery.  In  two  years  the  party  hostile  to 
Gloucester's  influence  had  gained  ground  enough  to  abrogate 
his  office  of  protector,  leaving  only  the  honorary  title  of  chief 
counsellor.^  For  this  the  king's  coronation,  at  eight  years  of 
age,  was  thought  a  fair  pretence ;  and  undoubtedly  the  loss 
of  that  exceedingly  limited  authority  which  had  been  delegated 
to  the  protector  could  not  have  impaired  the  strength  of  govern- 
ment. This  was  conducted  as  before  by  a  selfish  and  disunited 
council ;  but  the  king's  name  was  sufficient  to  legalize  their 
measures,  nor  does  any  objection  appear  to  have  been  made 
in  parliament  to  such  a  mockery  of  the  name   of  monarchy. 


>  Rot.  ParL  6  H.  VI.  ▼ol.  It.  p.  826. 


*  Bot.  Pari.  8  H.  VI.  toI.  It.  p.  886. 


182 


DERANGEMENT  OF  HENRY  VI.    Chap.  VIH.  Part  IIL 


In  the  year  1454,  the  thirty-second  of  Henry's  reign,  his 
Henry'8  Unhappy  malady,  transmitted  perhaps  from  his 
mental  de-  maternal  grandfather,  assumed  so  decided  a  char- 
imngement.  ^^^^^  ^^  derangement  or  imbecility,  that  parliament 
could  no  longer  conceal  from  itself  the  necessity  of  a  more 
efficient  ruler.  This  assembly,  which  had  been  continued  by 
successive  prorogations  for  nearly  a  year,  met  at  Westminster 
on  the  14th  of  February,  when  the  session  was  opened  by 
tlie  duke  of  York,  as  king's  commissioner.  Kent,  archbishop 
of  Canterbury  and  chancellor  of  England,  dying  soon  after- 
wards, it  was  judged  proper  to  acquaint  the  king  at  Windsor 
by  a  deputation  of  twelve  lords  with  this  and  other  subjects 
concerning  his  government.  In  fact,  perhaps,  this  was  a 
pretext  chosen  in  order  to  ascertain  his  real  condition.  These 
peers  reported  to  the  lords*  house,  two  days  afterwards,  that 
they  had  opened  to  his  majesty  the  several  articles  of  their 
message,  but  "  could  get  no  answer  ne  sign  for  no  prayer  ne 
desire,"  though  they  repeated  their  endeavors  at  three  dif- 
ferent interviews.  This  report,  with  the  instruction  on  which 
it  was  founded,  was,  at  their  prayer,  entered  of  record  in 
Duke  of  parliament.  Upon  so  authentic  a  testimony  of  their 
York  made  sovereign's  infirmity,  the  peers,  adjourning  two 
protector.  ^^^^  ^^^  solemnity  or  deliberation,  "  elected  and 
nominated  Richard  duke  of  York  to  be  protector  and  defender 
of  the  realm  of  England  during  the  king's  pleasure."  The 
duke,  protesting  his  insufficiency,  requested  "  that  in  this 
present  parliament,  and  by  authority  thereof,  it  be  enacted 
that,  of  yourself  and  of  your  ful  and  mere  disposition,  ye 
desire,  name,  and  call  me  to  the  said  name  and  charge,  and 
that  of  any  presumption  of  myself  I  take  them  not  upon  me, 
but  only  of  the  due  and  humble  obeisance  that  I  owe  to  do 
unto  the  king  our  most  dread  and  sovereign  lord,  and  to  you 
the  peerage  of  this  land,  in  whom  by  the  occasion  of  the 
infirmity  of  our  said  sovereign  lord  resteth  the  exercise  of 
his  authority,  whose  noble  commandments  I  am  as  ready  to 
perform  and  obey  as  any  of  his  liegemen  alive,  and  that,  at 
such  time  as  it  shall  please  our  blessed  Creator  to  restore  his 
most  noble  person  to  healthful  disposition,  it  shall  like  you 
so  to  declare  and  notify  to  his  good  grace."  To  this  pro- 
testation the  lords  answered  that,  for  his  and  their  discharge, 
an  act  of  parliament  should  be  made  conformably  to  that 
enacted  in  the  king's  infancy,  since  they  were  compelled  by 


Ekoush  Combt.      duke  OF  YORK  PROTECTOR.  183 

an  equal  necessity  again  to  choose  and  name  a  protector  and 
defender.  And  to  the  duke  of  York's  request  to  be  informed 
how  far  the  power  and  authority  of  his  charge  should  extend, 
they  replied  that  he  should  be  chief  of  the  kmg's  council, 
and  "devised  therefore  to  the  said  duke  a  name  different 
from  other  counsellors,  not  the  name  of  tutor,  lieutenant, 
governor,  nor  of  regent,  nor  no  name  that  shall  import 
authority  of  governance  of  the  land ;  but  the  said  name  of 
protector  and  defensor;"  and  so  forth,  according  to  the  lan- 
gusicra  of  their  former  address  to  the  duke  of  Gloucester. 
An  act  was  passed  accordingly,  constituting  the  duke  of  York 
protector  of  the  church  and  kingdom,  and  chief  counsellor  of 
the  king,  during  the  latter's  pleasure;  or  until  the  prince  of 
Wales  "should  attain  years  of  discretion,  on  whom  the  said 
dignity  was  immediately  to  devolve.  The  patronage  of 
certain  spiritual  benefices  was  reserved  to  the  protector 
according  to  the  precedent  of  the  king's  minority,  which 
parliament  was  resolved  to  follow  m  every  particular.* 

It  may  be  conjectured,  by  the  provision  made  in  favor  of 
the  prince  of  Wales,  then  only  two  years  old,  that  the  king's 
condition  was  supposed  to  be  beyond  hope  of  restoration. 
But  in  about  nine  months  he  recovered  sufficient  speech  and 
recollection  to  supersede  the  duke  of  York's  protectorate." 
The  succeeding  transactions  are  matter  of  familiar,  though 
not,  perhaps,  very  perspicuous  history.  The  king  was  a  pris- 
oner in  his  enemies'  hands  after  the  affair  at  St.  Albans, 
when  parliament  met  in  July,  1455.  In  this  session  little 
was  done,  except  renewing  the  strongest  oaths  of  allegiance 
to  Henry  and  his  family.  But  the  two  houses  meetmg  agam 
after  a  prorogation  to  November  12,  during  which  time  the 
duke  of  York  had  strengthened  his  party,  and  was  appomted 
by  commission  the  king's  lieutenant  to  open  the  parliament,  a 
proposition  was  made  by  the  commons  that,  "  whereas  the 

1  Rot  Pari  Tol.  t.  d.  241.  sand  ordinary  chroniclers.    And  the  na- 

«  ?Ltoa  LeTS;^;  ?ol^^^^                The  ture  of  the  action,  which  w^  a  sudde^^ 

proofe  of  sound  mind  given  in  this  letter  attack  on  the  town  of  St.  -^ff »°'' ^'°^ 

are  not  Tcry  decisire,  but  the  wits  of  out  any  pitched  combat,    renders    *^« 

BovcrwigM  are  never  weighed  In  golden  larger  number  }^VJohsMe.    yfheth&m- 

gcales  Btede,  himself  abbot  of  St.  Albans  at  the 

»  This  may  seem  an  improper  appella-  time,  makes  the  duke  of  Yo«  s  army 

tion  for  what  l8  usually  termed  a  battle,  but  3000  fighting  men.  p.  ^%J^^: 

wherein  6000  men  are  said  to  have  fallen,  count  of  the  trifling  loss  of J^®  »'\^;^f 

But  I  rely  here  upon  my  faithful  guide,  battle  of  St.  Albans  is  confimed  by  a 

the  Paston  Letters^p.  100,  one  of  which,  contemporary  letter,  P^^J^^?,^.^"  „*S» 

written  immediately  after  the  engage-  ArchKologia  (zx.  519^    The  whole  num- 

ment,  says  that  only  sixscore  were  killed,  ber  of  the  slain  was  but  forty-eight,  in- 

Suraly  this  testimony  outweighs  a  thou-  eluding,  however,  several  loraa. 


184 


DUKE  OF  YORK  PROTECTOR.  Chap.  VHI.  Pabt  IH. 


king  had  deputed  the  duke  of  York  as  his  commissioner  to 
proceed  in  this  parliament,  it  was  thought  by  the  commons 
that,  if  the  king  hereafter  could  not  attend  to  the  protection 
of  the  country,  an  able  person  should  be  appointed  protector, 
to  whom  they  might  have  recourse  for  redress  of  injuries ; 
especially  as  great  disturbances  had  lately  arisen  in  the  west 
through  the  feuds  of  the  earl  of  Devonshire  and  Lord  Bon- 
vile."  ^      The  archbishop  of  Canterbury  answered  for  the 
lords  that  they  would  take  into  consideration  what  the  com- 
mons had  suggested.     Two  days  afterwards  the  latter  ap- 
peared again  with  a  request  conveyed  nearly  in  the  same 
terms.     Upon  their  leaving  the  chamber,  the  archbishop,  who 
was  also  chancellor,  moved  the  peers  to  answer  what  should 
be  done  in  respect  of  the  request  of  the  commons ;  adding 
that  "it  is  understood  that  they  will  not  further  proceed  in 
matters  of  parliament,  to  the  time  that  they  have  answer  to 
their  desire  and  request."     This  naturally  ended  in  the  re- 
appointment of  the  duke  of  York  to  his  charge  of  protector. 
The  commons  indeed  were  determined  to  bear  no  delay.     As 
if  ignorant  of  what  had  been  resolved  in  consequence  of 
their  second  request,  they  urged  it  a  third  time,  on  the  next 
day  of  meeting ;  and  received  for  answer  that  "  the  king  our 
said  sovereign  lord,  by  the  advice  and  assent  of  his  lords 
spiritual  and  temporal  being  in  this  present  parliament,  had 
named  and  desired  the  duke  of  York  to  be  protector  and  de- 
fensor of  this  land."  It  is  worthy  of  notice  that  in  these  words, 
and  indeed  in  effect,  as  appears  by  the  whole  transaction,  the 
house  of  peers  assumed  an  exclusive  right  of  choosing  the 
protector,  though,  in  the  act  passed  to  ratify  their  election, 
the  commons'  assent,  as  a  matter  of  course,  is  introduced. 
The  last  year's  precedent  was  followed  in  the  present  instance, 
excepting  a  remarkable  deviation ;  instead  of  the  words  "  dur- 
ing the  king's  pleasure,"  the  duke  was  to  hold  his  office  "  un- 
til he  should  be  discharged  of  it  by  the  lords  in  parliament."^ 
This  extraordinary  clause,  and  the  slight  allegations  on 
which  it  was  thought  fit  to  substitute  a  vicegerent  for  the 
reigning  monarch,  are  sufficient  to  prove,  even  if  the  common 
historians  were  silent,  that  whatever  passed  as  to  this  second 
protectorate  of  the  duke  of  York  was  altogether  of  a  revolu- 
tionary complexion.     In  the  actual  circumstances  of  civil 

»  See  some  account  of  these  in  Paston  Letters,  yol.  1.  n.  114. 
«  Rot.  Pari.  Tol.  v.  p.  284-290. 


EK0LI8H  COHW.       fflS  CLAIM  TO  THE  CROWN.  185 

blood  already  spilled  and  the  king  in  captivity,  we  may  justly 
wonder  that  so  much  regard  was  shown  to  the  regular  forms 
Ind  precedents  of  the  institution.     But  the  dukes  natur^ 
mode^ration  will  account  for  part  of  this,  and  the  temper  of 
7e  lords  for  much  more.      That  assembly  appears  for  the 
most  part  to  have  been  faithfully  attached  to  the  house  of 
Lanc^ter.      The  partisans  of  Richard  were  found  m  the 
^m^nTand  amon'g  the  populace      Severe^  months  dapsed 
after  the  victory  of  St.  Albans  before  an  attempt  was  thus 
made  to  set  a.ide  a  sovereign,  not  laboring,  so  far  as  we  know 
under  any  more  notorious  infirmity  than  before.      It  then 
originated  in  the  commons,  and  seems  to  have  received  but 
an  unwilling  consent  from  the  upper  ^^^^f  ^^^^^/"  ^°^^" 
stitutin<^  the  duke  of  York  protector  over  the  head  of  Henry, 
whom  Si  men  despaired  of  ever  seeing  in  a  state  to  face  the 
dangers  of  such  a  season,  the  lords  did  not  ^rget  the  rights 
of  his  son.     By  this  latter  instrument,  as  well  as  by  that  ot 
the  preceding  year  the  dukes  office  was  to  cease  upon  the 
prince  of  Wales  arriving  at  the  age  of  discretion. 

But  what  had  long  been  propagated  in  secret,  soon  became 
familiar  to  the  public  ear ;  that  the  duke  of  York  jj^^^  ^^ 
laid  claim  to  the  throne.     He  was  unquestionably  YojJ;«  ^^JjJ^. 
heir  general  of  the  royal  line,  through  his  moth- 
er,  Anne,  daughter  of  Roger  Mortimer  earl  of  March,  son  of 
Philippa,  daughter  of  Lionel  duke  of   Clarence,  third  son 
of  Edward  IH.     Roger  Mortimer's  eldest  son,  Edmund,  had 
been  declared  heir  presumptive  by  Richard  II. ;  but  his  in- 
fancy during  the  revolution  that  placed  Henry  IV.  on  the 
throne  had  caused  his  pretensions  to  be  passed  over  m  si- 
lence.    The  new  king  however  was  induced  by  a  jealousy 
natural  to  his  situation  to  detain  the  earl  of  March  in  custody. 
Henry  V.  restored  his  liberty ;  and,  though  he  had  certainly 
connived  for  a  while  at  the  conspiracy  planned  by  his  brother- 
in-law  the  earl  of  Cambridge  and  Lord  Scrope  of  Masham 
to  place  the  crown  on  his  head,  that  magnanimous  prince 
cave  him  a  free  pardon,  and  never  testified  any  displeasure. 
The  present  duke  of  York  was  honored  by  Henry  VI.  with 
the  highest  trusts  in  France  and  Ireland ;  such  as  Beautort 
and  Gloucester  could  never  have  dreamed  of  confernng  on 
him  if  his  title  to  the  crown  had  not  been  reckoned  obsolete. 
It  has  been  very  pertinenUy  remarked  that  the  crime  perpe- 
trated by  Margaret  and  her  counsellors  in  the  death  ot  the 


186 


DUKE  OF  YORK'S  CLAIM     Chap.  VIH.  Pabt  m. 


duke  of  Gloucester  was  the  destruction  of  the  house  of  Lan- 
caster.i  From  this  time  the  duke  of  York,  next  heir  in  pre- 
sumption  while  the  king  was  childless,  might  innocently  con- 
template the  prospect  of  royalty ;  and  when  such  ideas  had 
long  been  passing  through  his  mind,  we  may  judge  how  re- 
luctantly the  birth  of  prince  Edward,  nine  years  after  Hen- 
ry's marriage,  would  be  admitted  to  disturb  them.  The 
queen's  administration  unpopular,  careless  of  national  inter- 
ests, and  partial  to  his  inveterate  enemy  the  duke  of  Som- 
erset ;  2  the  king  incapable  of  exciting  fear  or  respect ;  him- 
self conscious  of  powerful  alliances  and  universal  favor;  all 
these  circumstances  combined  could  hardly  fail  to  nourish 
those  opinions  of  hereditary  right  which  he  must  have  im- 
bibed from  his  infancy. 

The  duke  of  York  preserved  through  the  critical  season  of 
rebellion  such  moderation  and  humanity  that  we  may  pardon 
him  that  bias  in  favor  of  his  own  pretensions  to  which  he 
became  himself  a   victim.     Margaret  perhaps,  by  her  san 
gumary  violence  in  the  Coventry  parliament  of  1460,  where 
the  duke  and  all  his  adherents  were  attainted,  left  him  not 
the  choice  of  remaining  a  subject  with  impunity.     But  with 
us,  who  are  to  weigh  these  ancient  factions  in  the  balance  of 
wisdom  and  justice,  there  should  be  no  hesitation  in  decid- 
mg  that  the  house  of  Lancaster  were  lawful  sovereigns  of 
England.     I  am,  indeed,  astonished  that  not  only  such  his- 
torians  as  Carte,  who  wrote   undisguisedly  upon  a  Jacobite 
system,  but  even  men  of  juster  principles,  have  been  inadver- 
tent enough  to  mention  the  right  of  the  house  of  York.     If 
the  original  consent  of  the  nation,  if  three  descents  of  the 
crown,  if  repeated  acts  of  pariiament,  if  oaths  of  allenrjance 
from  the  whole  kingdom,  and  more  particularly  from°those 
who  now   advanced   a   contrary  pretension,  if  undisturbed, 
unquestioned  possession  during  sixty  years,  could  not  securer 
the  reignmg  family  against  a  mere  defect  in  their  genealcn- 
when  were  the  people  to  expect  tranquillity  ?    Sceptres  were 
committed,  and  governments  were  instituted,  for  public  pro- 
tection and  public  happiness,  not  certainly  for  the  benefit  of 
rulers,  or  for  the  security  of  particular  dynasties.     No  prej- 
udice has   less  in   its  favor,  and  none  has  been  more  fatal 
to  the  peace  of  mankind,  than  that  which  regards  a  nation 


1  HaU,  p.  210. 

«  The  ill-will  of  York  and  the  queen 
began  as  early  as  1449,  as  we  learn  from 


an  unequirocal  testimony,  a  letter  of  that 
date  in  the  Paston  collection,  toI.  i.  o.  26 


EvoLisn  Const. 


TO  THE  CROWN. 


187 


of  subjects  as  a  family's  private  inheritance.  For,  as  this 
opinion  induces  reigning  princes  and  their  courtiers  to  look 
on  the  people  as  made  only  to  obey  them,  so,  when  the  tide  of 
events  has  swept  them  from  their  thrones,  it  begets  a  fond 
hope  of  restoration,  a  sense  of  injury  and  of  imprescriptible 
rights,  which  give  the  show  of  justice  to  fresh  disturbances 
of  public  order,  and  rebellions  against  established  authority. 
Even  in  cases  of  unjust  conquest  which  are  far  stronger  than 
any  domestic  revolution,  time  heals  the  injury  of  wounded 
independence,  the  forced  submission  to  a  victorious  enemy  is 
changed  into  spontaneous  allegiance  to  a  sovereign,  and  the 
laws  of  God  and  nature  enjoin  the  obedience  that  is  chal- 
lenged by  reciprocal  benefits.  But  far  more  does  every 
national  government,  however  violent  in  its  origin,  become  le- 
gitimate, when  universally  obeyed  and  justly  exercised,  the 
possession  drawing  after  it  the  right ;  not  certainly  that  suc- 
cess can  alter  the  moral  character  of  actions,  or  privilege 
usurpation  before  the  tribunal  of  human  opinion,  or  in  the 
pages  of  history,  but  that  the  recognition  of  a  government 
by  the  people  is  the  binding  pledge  of  their  allegiance  so  long 
as  its  corresponding  duties  are  fulfilled.*  And  thus  the  law 
of  England  has  been  held  to  annex  the  subject's  fidelity  to 
the  reigning  monarch,  by  whatever  title  he  may  have  ascend- 
ed the  throne,  and  whoever  else  may  be  its  claimant.^  But 
the  statute  of  11th  of  Henry  VII.  c.  1,  has  furnished  an  un- 
equivocal commentary  upon  this  principle,  when,  alluding  to 
the  condemnations  and  forfeitures  by  which  those  alternate 
successes  of  the  white  and  red  roses  had  almost  exhausted 
the  noble  blood  of  England,  it  enacts  that  "  no  man  for  doing 
true  and  faithful  service  to  the  king  for  the  time  being  be 
convict  or  attaint  of  high  treason,  nor  of  other  offences,  by 
act  of  parliament  or  otherwise." 

Though  all  classes  of  men  and  all  parts  of  England  were 
divided  into  factions  by  this  unhappy  contest,  yet  the  strength 
of  the  Yorkists  lay  in  London  and  the  neighboring  counties, 
and  generally  among  the  middling  and  lower  people.     And 
this  is  what  might  naturally  be  expected.     For  no- 
tions  of  hereditary  right  take  easy  hold  of  the  pop-  Lancas- 
ulace,  who  feel  an  honest  sympathy  for  those  whom  YorkLS!*^ 
they  consider  as  injured ;  while  men  of  noble  birth 

1  Upon  this  great  question  the  fourth        «  Hale's  Pleas  of  the  Crown.  toI.  I.  p. 
discourse  in  Sir  Michael  Foster's  Reports    61, 101  (edit.  1736) 
ought  particularly  to  be  read. 


188 


EDWAKD  IV. 


Chap.  Vm.  Part  m 


EvoLisH  Const. 


EDWARD  IV 


189 


, 


and  high  station  have  a  keener  sense  of  personal  duty  to  their 
sovereign,  and  of  the  baseness  of  deserting  their  allegiance. 
Not^vithstanding  the  wide-spreading  influence  of  the  Nevils, 
most  of  the  nobility  were  well  affected  to  the  reigning  dynas- 
ty. We  have  seen  how  reluctantly  they  acquiesced  in  the 
second  protectorate  of  the  duke  of  York  after  the  battle  of 
St.  Albans.  Thirty-two  temporal  peers  took  an  oath  of  feal- 
ty to  Henry  and  his  issue  in  the  Coventry  parliament  of  1460, 
which  attainted  the  duke  of  York  and  the  earls  of  Warwick 
and  Sahsbury.^  And  in  the  memorable  circumstances  of  the 
duke's  claim  personally  made  in  parliament,  it  seems  mani- 
fest that  the  lords  complied  not  only  with  hesitation  but  un- 
willingness, and  in  fact  testified  their  respect  and  duty  for 
Henry  by  confirming  the  crown  to  him  during  his  life.^  The 
rose  of  Lancaster  blushed  upon  the  banners  of  the  Staffords, 
the  Percies,  the  Veres,  the  Hollands,  and  the  Courtneys. 
All  these  illustrious  families  lay  crushed  for  a  time  under  the 
ruins  of  their  party.  But  the  course  of  fortune,  which  has 
too  great  a  mastery  over  crowns  and  sceptres  to  be  controlled 
by  men's  affection,  invested  Edward  IV.  with  a  possession 
which  the  general  consent  of  the  nation  both  sanctioned  and 
secured.  This  was  effected  in  no  slight  degree  by  the  furi- 
ous spirit  of  Margaret,  who  began  a  system  of  extermination 
by  acts  of  attainder  and  execution  of  prisoners  that  created 
abhorrence,  though  it  did  not  prevent  imitation.  And  the  bar- 
barities of  her  northern  army,  whom  she  led  towards  London 
after  the  battle  of  Wakefield,  lost  the  Lancastrian  cause  its 
former  friends,'  and  might  justly  convince  reflecting  men  that 
it  were  better  to  risk  the  chances  of  a  new  dynasty  than  trust 
the  kingdom  to  an  exasperated  faction. 

A  period  of  obscurity  and  confusion  ensues,  during  which 
Edward  IV.     ^®  ^^^®  ^^  insight  into  constitutional  as  gen- 

eral history.     There  are  no  contemporary  chroni- 

1  Rot.  Pari.  vol.  r.  p.  351.  not  reject,  unless  upon  real  grounds  of 

«  Id.  p.  875.    This  entry  in  the  roll  is  suspicion,   the  anertions  of  secondary 

highly  interesting  and  important.     It  vrritera. 

ought  to  be  read  in  preference  to  any  of  »  The  abhey  of  St.  Albans  was  stripped 

our  historians.     Hume,  who  drew  from  by  the  queen  and  her  army  after  the 

inferior  sources,  is  not  altogether  accu-  second  battle  fought  at  that  place,  Feb. 

rate.    Yet  one  remarkable  circun:istance,  17, 1461 ;  which  changed  Whcthamstede 

told  by  Hail  and  other  chroniclers,  that  the  abbot  and  historiographer,  from  a 

the  duke  of  York  stood  by  the  throne,  as  yiolent  Lanct«trian  into  a  Yorkist.    Hi< 

if  to  claim  it,  though  omitted  entirely  in  change  of  party  is  quite  sudden,  and 

the  roll,  is  confirmed  by  Whethamstede,  amusing  enough.     See  too  the  Paston 

abbot  of  St.  Albans,  who  was  probably  Letters,  vol.   i.  p.  206.    Yet  the  Paston 

then  present,  (p.  484,  edit.  Hearne.)  This  family  were  originally  Lancastrian,  and 

9I19WS  that  we  should  only  doubt,  and  returned  to  that  side  in  1470. 


clers  of  any  value,  and  the  rolls  of  parliament,  by  whose  light 
we  have  hitherto  steered,  become  mere  registers  of  private 
bills,  or  of  petitions  relating  to  commerce.  The  reign  of  Ed- 
ward rV.  is  the  first  during  which  no  statute  was  passed  for 
the  redress  of  grievances  or  maintenance  of  the  subject's  lib- 
erty. Nor  is  there,  if  I  am  correct,  a  single  petition  of  this 
nature  upon  the  roll.  Whether  it  were  that  the  commons 
had  lost  too  much  of  their  ancient  courage  to  present  any  re- 
monstrances, or  that  a  wilful  omission  has  vitiated  the  record, 
is  hard  to  determine ;  but  we  certainly  must  not  imagine  that 
a  government  cemented  with  blood  poured  on  the  scaffold,  as 
well  as  in  the  field,  under  a  passionate  and  unprincipled  sov- 
ereign, would  afford  no  scope  for  the  just  animadversion  of 
parliament.^  The  reign  of  Edward  IV.  was  a  reign  of  ter- 
ror. One  half  of  the  noble  families  had  been  thinned  by 
proscription ;  and  though  generally  restored  in  blood  by  the 
reversal  of  their  attainders  —  a  measure  certainly  deserving 
of  much  approbation  —  were  still  under  the  eyes  of  vigilant 
and  inveterate  enemies.  The  opposite  faction  would  be  cau- 
tious how  they  resisted  a  king  of  their  own  creation,  while 
the  hopes  of  their  adversaries  were  only  dormant.  And  in- 
deed, without  relying  on  this  supposition,  it  is  commonly  seen 
that,  when  temporary  circumstances  have  given  a  king  the 
means  of  acting  in  disregard  of  his  subjects*  privileges,  it  is  a 
veiy  difficult  undertaking  for  them  to  recover  a  liberty  which 
has  no  security  so  effectual  as  habitual  possession. 

Besides  the  severe  proceedings  against  the  Lancastrian 
party,  which  might  be  extenuated  by  the  common  pretences, 
retaliation  of  similar  proscriptions,  security  for  the  actual 
government,  or  just  punishment  of  rebellion  against  a  legiti- 
mate heir,  there  are  several  reputed  instances  of  violence  and 
barbarity  in  the  reign  of  Edward  IV.  which  have  not  such 
plausible  excuses.  Every  one  knows  the  common  stories  of  the 
citizen  who  was  attainted  for  treason  for  an  idle  speech  that  he 
would  make  his  son  heir  to  the  crown,  the  house  where  he 
dwelt ;  and  of  Thomas  Burdett,  who  wished  the  horns  of  his 
stag  in  the  belly  of  him  who  had  advised  the  king  to  shoot  it. 
Of  the  former  I  can  assert  nothing,  though  I  do  not  believe  it  to 

i  There  are  several  instances  of  vio-  forward  to  throw  an  odium  on  the  duke 

lence  and  oppression  apparent  on  the  of  Clarence,  who  had  been  concerned  in 

rolls  during  this  reign,  but  not  proceed-  it.    Several  passages  indicate  the  charao 

Ing  from  the  crown.    One  of  a  remark-  ter  of  the  duke  of  Gloucester, 
able  nature  (vol.  v.  p.  173)  was  brought 


190 


EDWARD  IV. 


Chap.  VIII.  Part  III. 


£xGLi8H  Const. 


EDWARD  IV. 


191 


be  accurately  reported.  But  certainly  the  accusation  against 
Burdett,  however  iniquitous,  was  not  confined  to  these  frivo- 
lous words ;  which  indeed  do  not  appear  in  his  indictment,* 
or  in  a  passage  relative  to  his  conviction  in  the  roll  of  parlia- 
ment. Burdett  was  a  servant  and  friend  of  the  duke  of  Clar- 
ence, and  sacrificed  as  a  preliminary  victim.  It  was  an  article 
of  charge  against  Clarence  that  he  had  attempted  to  persuade 
the  people  that  "Thomas  Burdett  his  servant,  which  was 
lawfully  and  truly  attainted  of  treason,  was  wrongfully  put  to 
death."  ^  There  could  indeed  be  no  more  oppressive  usage 
inflicted  upon  meaner  persons  than  this  attainder  of  the  duke 
of  Clarence  —  an  act  for  which  a  brother  could  not  be  par- 
doned had  he  been  guilty,  and  which  deepens  the  shadow  of 
a  tyrannical  age,  if,  as  it  seems,  his  offence  toward  Edward 
was  but  levity  and  rashness. 

But  whatever  acts  of  injustice  we  may  attribute,  from  au- 
thority or  conjecture,  to  Edward's  government,  it  was  very  far 
from  being  unpopular.  His  love  of  pleasure,  his  affability, 
his  courage  and  beauty,  gave  him  a  credit  with  his  subjects 
which  he  had  no  real  virtue  to  challenge.  This  restored  him 
to  the  throne,  even  against  the  prodigious  influence  of  War- 
wick, and  compelled  Henry  VII.  to  treat  his  memory  with 
respect,  and  acknowledge  him  as  a  lawful  king.*     The  latter 


1  See  in  Cro.  Car.  120,  the  indictment 
against  Burdett  for  compassing  the  king's 
death,  and  for  that  purpose  conspiring 
"With  Stacie  and  Blake  to  calculate  his 
uativity  and  his  son's,  ad  sciendum 
quando  iidem  rex  et  Edwardus  ejus  Ali- 
us morientur :  Also  for  the  same  end 
dispersing  divers  rhymes  and  ballads  de 
murmurationibus,  seditionibus  et  pro- 
ditoriis  excitationibus,  fiictas  et  fabrica- 
tas  apud  Holbourn,  to  the  intent  that 
the  people  might  withdraw  their  love 
from  the  king  and  desert  him,  ac  erga  ip- 
Bum  regem  insurgcrent,  et  guerram  erga 
ipsum  regem  levarent,  ad  finalem  de- 
structionem  ipsorum  reg^  ao  domini 
principis,  &c. 

a  Rot.  Pari.  vol.  vi.  p.  193. 

8  The  rolls  of  Henry  VII.'s  first  parlia- 
ment are  full  of  an  absurd  confusion  in 
thought  and  language,  which  is  render- 
ed odious  by  the  purposes  to  which  it  is 
applied.  Both  Henry  VI.  and  Edward 
IV.  are  considered  as  lawful  kings  ;  ex- 
cept in  one  instance,  where  Alan  Cotter- 
ell,  petitioning  for  the  reversal  of  his 
attainder,  speaks  of  Edward,  *'  late  called 
Bdward  IV.'^  (vol.  iv.  p.  290.)  But  this 
is  only  the  language  of  a  private  Lancas- 


trian. And  Henry  VI.  passes  for  having 
been  king  during  his  short  restoration  in 
1470,  when  Edward  had  been  nine  years 
upon  the  throne.  For  the  earl  of  Oxford 
is  said  to  have  been  attainted  '^for  the 
true  allegiance  and  service  he  owed  and 
did  to  Henry  VI.  at  Barnet  field  and 
otherwise."  (P- 281.)  This  might  be  rea- 
sonable enough  on  the  true  principle  that 
allegiance  is  due  to  a  king  de  facto;  if 
indeed  we  could  determine  who  was  the 
king  de  fucto  on  the  morning  of  the  bat- 
tle of  Barnet.  But  this  principle  was 
not  fairly  recognized.  Richard  III.  is 
always  called,  '^  In  deed  and  not  in  right 
king  of  Englard."  Nor  was  this  merely 
founded  on  his  usurpation  as  against  his 
nephew.  For  that  unfortunate  boy  is 
little  better  treated,  and  in  the  act  of  re- 
sumption, 1  H.  VII..  while  Edward  IV. 
is  styled  "  late  king.''  appears  only  with 
the  denomination  of  "  Edward  his  son, 
late  called  Edward  V."  (p.  836.)  Who 
then  was  king  after  the  death  of  Edward 
IV.?  And  was  his  son  really  illegiti- 
mate, as  an  usurping  uncle  pretended? 
Or  did  the  crime  of  Richard,  though  pun- 
ished in  him,  enure  to  the  benefit  of 
Henry?    These  were  points  whichf  like 


years  of  his  reign  were  passed  in  repose  at  home  after  scenes 
of  unparalleled  convulsions,  and  in  peace  abroad  after  more 
than  a  century  of  expensive  warfare.  His  demands  of  sub- 
sidy were  therefore  moderate,  and  easily  defrayed  by  a  nation 
which  was  making  rapid  advances  towards  opulence.  Accord- 
ing to  Sir  John  Fortescue,  nearly  one-fifth  of  the  whole  king- 
dom had  come  to  the  king's  hand  by  forfeiture  at  some  time 
or  other  since  the  commencement  of  his  reign.^  Many  in- 
deed of  these  lands  had  been  restored,  and  others  lavished 
away  in  grants,  but  the  surplus  revenue  must  still  have  been 
considerable. 

Edward  IV.  was  the  first  who  practised  a  new  method  of 
taking  his  subjects*  money  without  consent  of  parliament,  un- 
der the  plausible  name  of  benevolences.  These  came  in 
place  of  the  still  more  plausible  loans  of  former  monarchs, 
and  were  principally  levied  on  the  wealthy  traders.  Though 
no  complaint  appears  in  the  parliamentary  records  of  his 
reign,  which,  as  has  been  observed,  complain  of  nothing,  the 
illegality  was  undoubtedly  felt  and  resented.  In  the  remark- 
able address  to  Richard  by  that  tumultuary  meeting  which 
invited  him  to  assume  the  crown,  we  find,  among  general  as- 
sertions of  the  state's  decay  through  misgovernment,  the  fol- 
lowing strong  passage :  —  "  For  certainly  we  be  determined 
rather  to  aventure  and  committe  us  to  the  perill  of  owre  lyfs 
and  jopardie  of  deth,  than  to  lyve  in  such  thraldome  and  bond- 
age as  we  have  lyved  long  tyme  heretofore,  oppressed  and  in- 
jured by  extortions  and  newe  impositions  ayenst  the  lawes  of 
God  and  man,  and  the  libertie,  old  policie,  and  lawes  of  this 
realme,  whereyn  every  Englishman  is  inherited."  ^  According- 
ly, in  Richard  III.'s  only  parliament  an  act  was  passed  which^ 
after  reciting  in  the  strongest  terms  the  grievances  lately 
endured,  abrogates  and  annuls  forever   all  exactions  under 


the  fate  of  the  young  princes  in  the 
Tower,  he  chose  to  wrap  in  discreet  si- 
lence. But  the  first  question  he  seems 
to  have  answered  in  his  own  favor.  For 
Richard  himself,  Howard  duke  of  Nor- 
folk, Lord  Lovel,  and  some  others,  are 
attainted  (p.  276)  for  "  traiterously  in- 
tending, compassing,  and  imagining" 
the  death  of  Henry  ;  of  course  before  or 
at  the  battle  of  Bosworth ;  and  while  his 
right,  unsupported  by  possession,  could 
have  rested  only  on  an  hereditary  title 
which  it  was  an  insult  to  the  nation  to 
prefer.  These  monstrous  proceedings 
explain  the  necessity  of  that  conserva- 


tive statute  to  which  I  have  already  al- 
luded, which  passed  in  the  eleventh  year 
of  his  reign,  and  afforded  as  much  secur- 
ity for  men  following  the  plain  line  of 
rallying  round  the  standard  of  their 
country  as  mere  law  can  offer.  There  is 
some  extraordinary  reasoning  upon  this 
act  in  Carte's  History  (vol.  ii.  p.  844),  for 
the  purpose  of  proving  that  the  adherents 
of  George  II.  would  not  be  protected  by 
it  on  the  restoration  of  the  true  blood. 

1  Difference  of  Absolute  and  Limited 
Monarchy,  p.  83. 

3  Rot.  Pari.  vol.  vi.  p.  241. 


192 


CONCLUSION.         Chap.  VIII.  Part  HI. 


the  name  of  benevolence.*    The  liberties  of  this  country  were 
at  least  not  directly  impaired  by  the  usurpation  of  Richard. 
But  from  an  act  so  deeply  tainted  with  moral  guilt,  as  well  as 
so  violent  in  all  its  circumstances,  no  substantial  benefit  was 
likely  to  spring.     Whatever  difficulty  there  may  be  in  decid- 
mg  upon  the  fate  of  Richard's  nephews  after  they  were  im- 
mured in  the  Tower,  the  more  public  parts  of  the  transac- 
tion bear  unequivocal  testimony  to  his  ambitious  usurpation.^ 
It  would  therefore  be  foreign  to  the  purpose  of  this  chapter 
to  dwell  upon  his  assumption  of  the  regency,  or  upon  the  sort 
of  election,  however  curious  and  remarkable,  which  gave  a 
pretended  authority  to  his  usurpation  of  the  throne.     Nei- 
ther of  these  has  ever  been  alleged  by  any  party  in  the  way  of 
constitutional  precedent. 

At  this  epoch  I  terminate  these  inquiries  into  the  English 
constitution  ;  a  sketch  very  imperfect,  I  fear,  and  unsatisfac- 
tory,  but  which  naay  at  least  answer  the  purpose  of  fixing  the 
Conclusion,     reader's  attention  on  the  principal  objects,  and  of 
guiding  him  to  the  purest  fountains  of  constitution- 
al knowledge.     From  the  accession  of  the  house  of  Tudor  a 
new  period  is  to  be  dated  in  our  history,  far  more  prosperous 
m  the  difiusion  of  opulence  and  the  preservation  of  general 
order  than  the  preceeding,  but  less  distinguished  by  the  spirit 
of  freedom  and  jealousy  of  tyrannical  power.    We  have  seen, 
through  the  twilight  of  our  Anglo-Saxon  records,  a  form  of 
civil  policy  established  by  our  ancestors,  marked,  like  the  kin- 
dred governments  of  the  continent,  with  aboriginal  Teutonic 
features  ;  barbarous  indeed,  and  insufficient  for  the  great  ends 
of  society,  but  capable  and  worthy  of  the  improvement  it  has 
received,  because  actuated  by  a  sound  and  vital  spirit,  the 
love  of  freedom  and  of  justice.     From  these  principles  arose 
that  venerable  institution,  which  none  but  a  free  and  simple 
people  could  have  conceived,  trial  by  peers— an  institution 
common  in  some  degree  to  other  nations,  but  which,  more 
widely  extended,  more  strictly  retained,  and  better  modified 
among  ourselves,  has   become   perhaps   the   first,  certainly 
among  the  first,  of  our  securities  against  arbitrary  govern- 

l  iS;  W'  *i  w'  *  ^  ..  lAing,  who  maintain  that  the  duke  of 

™„^  Jf  *^'^®*^'*^A°'''u°°.'"  *°  *^®  Y^""*^'  *'  '««»*'  '^a*  i"  «ome  way  released 

murder  of  Edward  and  hLsbrotherseems  from    the    Tower,    and    reappeared    M 

to  me  more  probably  solred  on  the  com-  Perkin   Warbeck.      But  a  very  stronjr 

mon  supposition  that  it  was  really  per-  conviction  either  way  is  not  rwidily  at 

petrated  by  the  orders  of  Richard,  than  tainable.  «»«"/  •• 

on  that  of  Walpole,  Carte,  Henry,  and 


EifOLisH  Const. 


CONCLUSION. 


193 


ment.     We  have  seen  a  foreign  conqueror  and  his  descend- 
ants trample  almost  alike  upon  the  prostrate  nation  and  upon 
those  who  had  been  companions  of  their  victory,  introduce  the 
servitudes  of  feudal  law  with  more  than  their  usual  rigor, 
and  establish  a  large  revenue  by  continual  precedents  upon  a 
system   of  universal  and  prescriptive   extortion.      But  the 
Norman  and  English  races,  each  unfit  to  endure  oppression, 
forgetting  their  animosities  in  a  common  interest,  enforce  by 
arms  the  concession  of  a  great  charter  of  liberties.     Privi- 
leges wrested  from  one  faithless  monarch  are  preserved  with 
continual  vigilance  against  the  machinations  of  another  ;  the 
rights  of  the  people  become  more   precise,  and  their  spirit 
more  magnanimous,  during  the  long  reign  of   Henry  III. 
With  greater  ambition  and  greater  abilities  than  his  father, 
Edward  I.  attempts  in  vain  to  govern  in  an  arbitrary  man- 
ner, and  has  the  mortification  of  seeing  his  prerogative  fettered 
by  still  more  important  limitations.    The  great  council  of  the 
nation   is  opened  to  the  representatives    of  the   commons. 
They  proceed  by  slow  and   cautious  steps   to  remonstrate 
against  public  grievances,  to  check  the  abuses  of  administra- 
tion, and  sometimes  to  chastise  public  delinquency  in  the  of- 
ficers of  the  crown.     A  number  of  remedial  provisions  are 
added  to  the  statutes ;  every  Englishman  learns  to  remember 
that  he  is  the  citizen  of  a  free  state,  and  to  claim  the  common 
law  as  his  birthright,  even  though  the  violence   of  power 
should  interrupt  its  enjoyment.     It  were  a  strange  misrepre- 
sentation of  history  to  assert  that  the  constitution  had  attained 
anything  like  a  perfect  state  in  the  fifteenth  century ;  but  I 
know  not  whether  there  are  any  essential  privileges  of  our 
countrymen,  any  fundamental    securities  against  arbitrary 
power,  so  far  as  they  depend  upon  positive  institution,  which 
may  not  be  traced  to  the  time  when  the  house  of  Plantagenrt 
filled  the  English  throne. 


TOL.  m. 


13 


194 


PRIVILEGES  OF 


Notes  to 


NOTES  TO  CHAPTER  VIH. 

(Part  III.) 


Note  I.    Page  9. 


It  is  rather  a  curious  speculative  question,  and  such  only, 
we  may  presume,  it  will  long  continue,  whether  bishops  are 
entitled,  on  charges  of  treason   or  felony,  to  a  trial  by  the 
peers.     If  this  question  be  considered  either  theoretically  or 
according  to  ancient  authority,  I  think  the  affirmative  propo- 
sition  IS  beyond  dispute.     Bishops  were  at  all  times  mem- 
bers ot   the  great  national   council,  and  fully   equal  to  lay 
lords  m  temporal  power  as  well  as  dignity.     Since  the  Con 
quest  they  have  held  their  temporalities  of  the  crown  by  a 
baronial  tenure,  which,  if  there  be  any  consistency  in  law, 
must    unequivocally    distinguish    them  from  commoners  — 
smce  any  one  holding  by  barony  might  be  challenged  on  a 
jury,  as  not  being  the  peer  of  the  party  whom  he  was  to  try. 
It  is  true  that  they  take  no  share  in  the  judicial  power  of  the 
house  ot  lords  in  cases  of  treason  or  felony  ;  but  this  is  mere- 
ly  in  conformity  to  those  ecclesiastical  canons  which  prohib- 
ited the  clergy  from  partaking  in  capital  judgment,  and  they 
have  always  withdrawn  from  the  house  on  such  occasions 
under  a  protestation  of  their  right  to  remain.     Had  it  not 
been  for  this  particularity,  arising  wholly  out  of  their  own 
discipline,  the  question  of  their  peerage  could  never  have 
come  into  dispute.     As  for  the  common  argument  that  they 
are  not  tried  as  peers  because  they  have  no  inheritable  ni 
bihty,  I  consider  it  as  very  frivolous,  since  it  takes  for  granted 
the  precise  matter  in  controversy,  that  an  inheritable  nobility 
is  necessary  to  the  definition  of  peerage,  or  to  its  incidental 
pnvileges. 

If  we   come  to  constitutional  precedents,  by  which,  when 
sufficiently  numerous  and  unexceptionable,  all  questions  of 


Chai».  VIII. 


SPIRITUAL  PEERS. 


195 


this  kind  are  ultimately  to  be  determined,  the  weight  of  an- 
cient authority  seems  to  be  in  favor  of  the  prelates.  In  the 
fifteenth  year  of  Edward  III.  (1340),  the  king  brought  sev- 
eral charges  against  archbishop  Stratford.  He  came  to  par- 
liament with  a  declared  intention  of  defending  himself  before 
his  peers.  The  king  insisted  upon  his  answering  in  the  court 
of  exchequer.  Stratford  however  persevered,  and  the  house 
of  lords,  by  the  king's  consent,  appointed  twelve  of  their 
number,  bishops,  earls,  and  barons,  to  report  whether  peers 
ought  to  answer  criminal  charges  in  parliament,  and  not  else- 
where. This  committee  reported  to  the  king  in  full  parlia- 
ment that  the  peers  of  the  land  ought  not  to  be  arraigned, 
nor  put  on  trial,  except  in  parliament  and  by  their  peers. 
The  archbishop  upon  this  prayed  the  king,  that,  inasmuch  as 
he  had  been  notoriously  defamed,  he  might  be  arraigned  in 
full  parliament  before  the  peers,  and  there  make  answer ; 
which  request  the  king  granted.  (Rot.  Pari.  vol.  ii.  p.  127. 
Collier's  Eccles.  Hist.  vol.  i.  p.  543.)  The  pi-occedings  against 
Stratford  went  no  further ;  but  I  think  it  impossible  not  to 
admit  that  his  right  to  trial  as  a  peer  was  fully  recognized 
both  by  the  king  and  lords. 

This  i?^,  however,  the  latest,  and  perhaps  the  only  instance 
of  a  prelate's  obtaining  so  high  a  privilege.     In  the  preceding 
reign  of  Edward  II.,  if  we  can  rely  on  the  account  of  Wal- 
singham  (p.  119),  Adam  Orleton,  the  factious    bishop  of 
Hereford,  had  first  been  arraigned  before  the  liouse  of  lords, 
and  subsequently  convicted  by  a  common  jury ;  but  the  trans- 
action was  of  a  singular  nature,  and  the  king  might  probably 
be  influenced  by  the  difficulty  of  obtaining  a  conviction  from 
the  temporal  peers,  of  whom  many  were  disatltected  to  him, 
in  a  case  where  privilege  of  clergy  was  vehemently  claimed. 
But  about  1357  a  bishop  of  Ely,  being  accused  of  harboring 
one  guilty  of  murder,  though  he  demanded  a  trial  by  the 
peers,  was  compelled  to  abide  tlie  verdict  of  a  jury.     (Col- 
lier, p.  557.)     In  the  31st  of  Edw.  HI.  (1358)  the  abbot  of 
Missendeu  was  hanged  for  coining.     (2  Inst.  p.  635.)     The 
abbot  of  this  monastery  appears  from  Dugdale  to  have  been 
summoned  by  writ  in  the  49th  of  Henry  III.     If  he  actually 
held  by  barony,  I  do  not  perceive  any  strong  distinction  be- 
tween his  case  and  that  of  a  bishop.     The  leading  precedent, 
however,  and  that  upon  which  lawyers  principally  found  their 
denial  of  this  privilege  to  the  bishops,  is  the  case  of  Fisher 


196 


PRIVILEGES  OF  SPIRITUAL  PEERS.         Notes  to 


who  was  certainly  tried  before  an  ordinary  jury ;  nor  am  I 
aware  that  any  remonstrance  was  made  by  liimself,  or  com- 
plaint by  his  friends,  upon  this  ground.  Cranmer  was  treated 
in  the  same  manner ;  and  from  these  two,  being  the  most  re- 
cent precedents,  though  neither  of  them  in  the  best  of  times, 
the  great  plurality  of  law-books  have  drawn  a  conclusion 
that  bishops  are  not  entitled  to  trial  by  the  temporal  peers. 
Nor  can  there  be  much  doubt  that,  whenever  the  occasion 
shall  occur,  this  will  be  the  decision  of  the  house  of  lords. 

There  are  two  peculiarities,  as  it  may  naturally  appear,  in 
the  above-mentioned  resolution  of  the  lords  in  Stratford^s 
case.  The  first  is,  that  they  claim  to  be  tried,  not  only  be- 
fore their  peers,  but  in  parliament.  And  in  the  case  of  the 
bishop  of  Ely  it  is  said  to  have  been  objected  to  his  claim  of 
trial  by  his  peers,  that  parliament  was  not  then  sitting. 
(Collier,  ubi  sup.)  It  is  most  probable,  therefore,  that  the 
court  of  the  lord  high  steward,  for  the  special  purpose  of  try- 
ing a  peer,  was  of  more  recent  institution  —  as  appears  also 
from  Sir  E.  Cokeys  expressions.  (4  Inst.  p.  58.)  The 
second  circumstance  that  may  strike  a  reader  is,  that  the 
lords  assert  their  privilege  in  all  criminal  cases,  not  distin- 
guishing misdemeanors  from  treasons  and  felonies.  But  in 
this  they  were  undoubtedly  warranted  by  the  clear  language 
of  Magna  Charta,  which  makes  no  distinction  of  the  kind. 
The  practice  of  trying  a  peer  for  misdemeanors  by  a  jury  of 
commoners,  concerning  the  origin  of  which  I  can  say  noth- 
ing, is  one  of  those  anomalies  which  too  often  render  our 
laws  capricious  and  unreasonable  in  the  eyes  of  impartial 
men. 

Since  writing  the  above  note  I  have  read  Stillingfleet's 
treatise  on  the  judicial  power  of  the  bishops  in  capital  cases  — 
a  right  which,  though  now,  I  think,  abrogated  by  non-claim 
and  a  course  of  contrary  precedents,  he  proves  beyond  dis- 
pute to  have  existed  by  the  common  law  and  constitutions  of 
Clarendon,  to  have  been  occasionally  exercised,  and  to  have 
been  only  suspended  by  their  voluntary  act.  In  the  course 
of  this  argument  he  treats  of  the  peerage  of  the  bishops,  and 
produces  abundant  evidence  from  the  records  of  parliament 
that  they  were  styled  peers,  for  which,  though  convinced  from 
general  recollection,  I  had  not  leisure  or  disposition  to  search. 
But  if  any  doubt  should  remain,  the  statute  25  E.  III.  c.  6,  con 
tains  a  legislative  declaration  of  the  peerage  of  bishops.    The 


Chat.  vm. 


NATURE  OF  BARONIES. 


197 


whole  subject  is  discussed  with  much  perspicuity  and  force  by 
Stillinglieet,  who  seems  however  not  to  press  very  greatly 
the  ri5it  of  trial  by  peers,  aware  no  doubt  of  the  weight  of 
opposfte  precedents.     (Stillingfleet's  Works,  vol.  iii.  p.  820.) 
In  one  distinction,  that  the  bishops  vote  in  their  judicial  func- 
tions as  barons,  but  in  legislation  as  magnates,  which  War- 
burton  has   brought  forward  as  his  own  in  the  Alliance  of 
Church  and  State,  Stillingfleet  has  perhaps   not  taken  the 
strongest  ground,  nor  sufficiently  accounted  for  their  right  of 
sittinS  in  judgment  on  the  impeachment  of  a  commoner.    Par- 
liamentary impeachment,  upoh  charges  of  high  public  crimes, 
seems  to  be  the  exercise  of  a  right  inherent  in  the  great  council 
of  the  nation,  some  traces  of  which  appear  even  before  the 
Conquest  (Chron.  Sax.  p.  164,  169),  independent  of  and  su- 
perseding that  of  trial  by  peers,  which,  if  the  29th  section 
of  Magna  Charta  be  strictly  construed,  is  only  required  upon 
indictments  at  the  king's  suit.     And  this  consideration  is  of 
great  weight  in  the  question,  still  unsettled,  whether  a  com- 
moner can  be  tried  by  the  lords  upon  an  impeachment  for 

treason.  . 

The  treatise  of  Stillingfleet  was  written  on  occasion  ot  the 
objection  raised  by  the  commons  to  the  bishops  voting  on  the 
question  of  Lord  Danby's  pardon,  which  he  pleaded  in  bar  of 
his  impeachment.  Burnet  seems  to  suppose  that  their  right 
to  final  judgment  had  never  been  defended,  and  confounds 
judgment  with  sentence.  Mr.  Hargrave,  strange  to  say,  has 
made  a  much  greater  blunder,  and  imagined  that  the  ques- 
tion related  to  their  right  of  voting  on  a  bill  of  attainder, 
which  no  one,  I  believe,  ever  disputed.  (Notes  on  Co.  Litt. 
134  b.) 

Note  II.     Page  12. 

The  constitution  of  parliament  in  this  period,  antecedent  to 
the  Great  Charter,  has  been  minutely  and  scrupulously 
investigated  by  the  Lords'  Committee  on  the  Dignity  of  a 
Peer  in  1819.  Two  questions  may  be  raised  as  to  the  hiy 
portion  of  the  great  council  of  the  nation  from  the  Conquest 
to  the  reign  of  John:— first.  Did  it  comprise  any  members, 
whether  from  the  counties  or  boroughs,  not  holding  them- 
selves,  nor  deputed  by  others  holding  in  chief  of  the  crown 
by  knight-service  or  grand   serjeanty  ?   secondly.  Were  all 


198 


NATURE  OF  BARONIES. 


Notes  to 


Chap.  VIII. 


NATURE  OF  BARONIES. 


199 


m 


iil!t 


such  tenants  in  capite  personally,  or  in  contemplation  of 
law,  assisting,  by  advice  and  suffrage,  in  councils  held  for  the 
purpose  of  laying  on  burdens,  or  for  permanent  and  impor- 
tant legislation  ? 

The  former  of  these  questions  they  readily  determine. 
The  committee  have  discovered  no  proof,  nor  any  likelihood 
from  analogy,  that  the  great  council,  in  these  IJJ^orman  reigns, 
was  composed  of  any  who  did  not  hold  in  chief  of  the  crown 
by  a  military  tenure,  or  one  in  grand  serjeanty ;  and  they 
exclude,  not  only  tenants  in  petty  serjeanty  and  socage,  but 
such  as  held  of  an  escheated  barony,  or,  as  it  was  called,  de 
honore. 

They  found  more  difficulty  in  the  second  question.  It 
has  generally  been  concluded,  and  I  may  have  taken  it  for 
granted  in  my  text,  that  all  military  tenants  in  capite  were 
summoned,  or  ought  to  have  been  summoned,  to  any  great 
council  of  the  realm,  whether  for  the  purpose  of  levying  a 
new  tax,  or  any  other  affecting  the  public  weal.  The  com- 
mittee, however,  laudably  cautious  in  drawing  any  positive 
inference,  have  moved  step  by  step  through  this  obscure 
path  with  a  circumspection  as  honorable  to  themselves  as  it 
renders  their  ultimate  judgment  worthy  of  respect. 

"The  council  of  the  kingdom,  however  composed  (they 
are  adverting  to  the  reign  of  Henry  L),  must  have  been 
assembled  by  the  king's  command ;  and  the  king,  therefore, 
may  have  assumed  the  power  of  selecting  the  persons  to 
whom  he  addressed  the  command,  especially  if  the  object  of 
assembling  such  a  council  was  not  to  impose  any  burden  on 
any  of  the  subjects  of  the  realm  exempted  from  such  bur- 
dens except  by  their  own  free  grants.  Whether  the  king 
was  at  this  time  considered  as  bound  by  any  constitutional 
law  to  address  such  command  to  any  particular  persons, 
designated  by  law  as  essential  parts  of  such  an  assembly  for 
all  purposes,  the  committee  have  been  unable  to  ascertain. 
It  has  generally  been  considered  as  the  law  of  the  land  that 
the  king  had  a  right  to  require  the  advice  of  any  of  his 
subjects,  and  their  personal  services,  for  the  general  benefit 
of  the  kingdom ;  but  as,  by  the  terms  of  the  charters  of 
Henry  and  of  his  father,  no  aid  could  be  required  of  the 
immediate  tenants  of  the  crown  by  military  service,  beyond 
the  obligation  of  their  respective  tenures,  if  the  crown  had 
occasion   for  any  extraordinary  aid  from  those   tenants,  it 


must  have  been  necessary,  according  to  law,  to  assemble  all 
persons  so  holding,  to  give  their  consent  to  the  imposition. 
Though  the  numbers  of  such  tenants  of  the  crown  were  not 
originTiUy  very  great,  as  fiir  as  appears  from  Domesday,  yet,  if 
it  was  necessary  to  convene  all  to  form  a  constitutional  legisla- 
tive assembly,  the  distances  of  their  respective  residences,  and 
the  inconvenience  of  assembling  at  one  time,  in  one  spot,  all 
those   who   thus    held  of  the   crown,   and   upon  whom  the 
maintenance  of  the  Conquest  itself  must  for  a  considerable 
time  have  importantly  depended,  must  have  produced  diffi- 
culties, even  in  the  reign  of  the  Conqueror ;  and  the  increase 
of  their  numbers  by  subdivision  of  tenures  must  have  greatly 
increased  the  difficulty  in  the  reign  of  his  son  Henry :  and 
at  length,  in  the  reigns  of  his  successors,  it  must  have  been 
almos?  impossible  to  have  convened  such  an  assembly,  excep* 
by  general  summons  of  the  greater  part  of  the  persons  who 
were  to  form  it ;  and  unless  those  who  obeyed  the  summons 
could  bind  those  who  did  not,  the  powers  of  the  assembly 
when  convened  must  have  been  very  defective."  (p.  40.) 

Though  I  do  not  perceive  why  we  should  assume  any 
great  subdivision  of  tenures  before  the  statute  of  Quia  Emp- 
tores,  in  18  Edw.  I.,  which  prohibited  subinfeudation,  it  is  ob- 
vious that  the  committee  have  pointed  out  the  inconvenience 
of  a  scheme  which  gave  all  tenants  in  capite  (more  numerous 
in  Domesday  than   they  perhaps   were   aware)   a   right  to 
assist  at  great  councils.     Still,  as  it  is  manifest  from  the  early 
charters,  and  explicitly  admitted  by  the  committee,  that  the 
king  could  raise  no  extraordinary  contribution  from  his  imme- 
diat'e  vassals  by  his  own  authority,  and  as  there  was  no  feudal 
subordination  between  one  of  these  and  another,  however 
differing  in  wealth,  it  is  clear  that  they  were  legally  entitled 
to  a  voi°e,  be  it  through  general  or  special  summons,  in  the 
imposition  of  taxes  which  they  were  to  pay.     It  will  not 
follow  that  they  were  summoned,  or  had  an  acknowledged 
right  to  be  summoned,  on  the  few  other  occasions  when 
legislative  measures  were  in  contemplation,  or  in  the  deter- 
minations taken  by  the  king's  great  council.     This  can  only 
be  inferred  by  presumptive  proof  or  constitutional  analogy.  ^ 

The  eleventh  article  of  the  Constitutions  of  Clarendon  in 
1164  declares  that  archbishops,  bishops,  and  all  persons  of 
the  realm  who  hold  of  the  king  in  capite,  possess  their  lands 
as  a  barony,  and  are  bound  to  attend  in  the  judgments  of  the 


200 


NATURE  OF  BARONIES. 


Notes  to 


Chap.  VlU. 


NATURE  OF  BARONIES. 


201 


Hi! 


king*s  court  like  other  barons.     It  is  plain,  from  the  general 
tenor  of  these  constitutions,  that  "  universae  personae  regni  ** 
must  be  restrained  to  ecclesiastics ;  and  the  onlj  words  which 
can  be  important  in  the  present  discussion  are  "  sicut  barones 
caeteri."     "  It  seems,"  says  the  committee,  "  to  follow  that  all 
those  termed  the  king's  barons  were  tenants  in  chief  of  the 
king ;  but  it  does  not  follow  that  all  tenants  in  chief  of  the 
king  were  the  king's  barons,  and  as  such  bound  to  attend  his 
court.     They  might  not  be  bound  to  attend  unless  they  held 
their  lands  of  the  king  in  chief  *  sicut  baroniam,'  as  expressed 
in  this  article  with  respect  to  the  archbishops  and  other  clergy." 
(p.  44.)     They  conclude,  however,  thjit  "  upon  the  whole 
the  Constitutions  of  Clarendon,  if  the   existing  copies   be 
correct,  afford  strong  ground  for  presuming  that  owing  suit 
to  the  king's  great  court  rendered  the  tenant  one  of  the  king's 
barons  or  members  of  that  court,  though  probably  in  general 
none  attended  who  were  not  specially  summoned.     It  has 
been  already  observed  that  this  would  not  include  all  the 
king's  tenants  in  chief,  and  particularly  those  who  did  not  hold 
of  him  as  of  his  crown,  or   even   to   all  who   did   hold  of 
him  as   of  his   crown,   but  not  by  knight-service  or  grand 
serjeanty,  which  were  alone  deemed  military  and  honorable 
tenures;  though,  whether  all  who  held  of  the  king  as  of  his 
crown,  by  knight-service  or  grand  serjeanty,  did  originally 
owe  suit  to  the  king's  court,  or  whether  that  obligation  was 
confined  to   persons  holding  by  a  particular  tenure,  called 
tenure  per  haroniam,  as  has  been  asserted,  the  Constitutions 
of  Clarendon  do  not  assist  to  ascertain."  (p.  45.)     But  this,  as 
they  point  out,  involves  the  question  whether  the  Curia  Regis^ 
mentioned   in   these   constitutions,   was   not   only   a  judicial 
but  a  legislative  assembly,  or  one  competent  to  levy  a  tax  on 
military  tenants,  since  by  the  terms  of  the  charter  of  Henry 
I.,  confirmed   by  that   of  Henry  II.,  all   such   tenants  were 
clearly  exempted  from  taxation,  except  by  their  own  consents. 
They  touch  slightly  on  the  reign  of  Richard  I.  with  the 
remark  that  "  the  result  of  all  which  they  have  found  with 
respect  to  the  constitution  of  the  legislative  assemblies  of  the 
realm  still  leaves  the  subject  in  great  obscurity."     (p.  49.) 
But  it  is  remarkable  that  they  have  never  alluded  to  the 
presence  of  tenants  in  chief,  knights  as  well  as  barons,  at  the 
parliament  of  Northampton  under  Henry  II.     They  come 
however,  rather  suddenly  to  the  conclusion  that  "  the  records 


of  the  rei<m  of  John  seem  to  give  strong  ground  for  suppos- 
ing that  afl  the  king's  tenants  in  chief  by  military  tenure,  if 
not  all  the  tenants  in  chief,  ^  were  at  one  time  deemed  neces- 
sary members  of  the  common  councils  of  the  realm,  when 
Bummoned  for  extraordinary  purposes,  and  especially  for  the 
purpose  of  obtaining  a  grant  of  any  extraordinary  aid  to  the 
kino" :  and  this  opinion  accords  with  what  has  generally  been 
deemed  originally   the  law  in   France,   or  other  countries 
where  what  is  called  the  feudal  system  of  tenures  has  been 
established."     (p.  54.)     It  cannot  surely  admit  of  a  doubt, 
and  has  been  already  affirmed  more  than  once  by  the  com- 
mittee, that  for  an  extraordinary  grant  of  money  the  consent 
of  military  tenants  in  chief  was  required  long  before  the 
reign  of  John.     Nor  was  that  a  reign,  till  the  enactment  ot 
the  Great  Charter,  when  any  fresh  extension  of  political 
liberty   was  likely   to   have   become  estabhshed.     J3ut  the 
difficulty  may  still  remain  with  respect  to  "  extraordmary 
purposes  "  of  another  description* 

They  observe  afterwards  that  ''  they  have  found  no  docu- 
ment before  the  Great  Charter  of  John  in  which  the  term 
'maiores  barones'  has  been  used,  though  in  some  subsequent 
documents  words  of  apparently  similar  import  have  been 
used.     From  the  instrument  itself  it  might  be  presumed  that 
the  term  *  majores  barones '  was  then  a  term  m  some  de- 
gree understood ;  and  that  the  distinction  had,  therefore,  an 
earlier  origin,  though  the  committee  have  not  found  the  term 
in  any  earlier  instrument."     (p.  67.)     But  though  the  Dia- 
lo-ue  on  the  Exchequer,  generally  referred  to  the  reign  ot 
Henry  II.,  is  not  an  instrument,  it  is  a  law-book  of  sufiicient 
reputation,  and  in  this  we  read-"Quidam  de  rege  tenent 
in  capite  quae  ad  coronam  pertinent;  baronias  scilicet  majores 
sen  minores."     (Lib.  ii.  cap.  10.)     It.would  be  trifling  to 
dispute  that  the  tenant  of  a  haronia  major  might  be  called  a 
haro  major.     And  what  could  the  secundcB  dignitatis  barones 
at  Northampton  have  been  but  tenants  in  capite  holding  faels 
by  some  line  or  other  distinguishable  from  a  superior  class .'' 


1  This  hypothetical  clause  \s  somewhat 
remarkahlu  Orand  serjeanty  is  of  course 
Included  by  parity  under  military  service. 
But  did  any  hold  of  the  kins  in  socage, 
except  on  ilia  demesne  lands?  There 
might  be  some  by  petty  serjeanty.  let 
the  committee,  as  we  have  just  seen,  ab- 
Bolutely  exclude  these  from  any  share  in 


the  great  councils  of  the  Conqueror  and 
his  immediate  descendants. 

2  Mr.  Spence  has  ingeniously  conjec- 
tured, observing  that  in  some  passages  of 
Domesday  (he  quotes  two,  but  I  only  find 
one)  the  barons  who  held  more  than  six 
manors  paid  their  relief  directly  to  the 
king,  while  those  who  had  six  or  less  paid 


i 


202 


NATURE  OF  BARONIES. 


Notes  ix) 


m 


It  appears,  therefore,  on  the  whole,  that  in  the  judgment 

of  l%T"'''"'%^y  "°  '"^''"^  '"''"'g«"'  i"  "'«'■•  riqufsition 
of  evidence,  or  disposed  to  take  the  more  popular  side  aU 

the  mihtary  tenants  incapite  were  constitutionally  memben, 

cons  itutbrTh'"""'"""  "^  ""^v':''"''"  ''"""°  'h«  Norman 
constitution.     This  commune  concilium  the  committee  distin- 

wh!,!.    T  "  "^5"»"»  concjVim,  though  it  seems  doubtful 
Bufih";  .k"""  ''"■'  ""^  ^"^  ''''fi""«  li^«  between  the  two 

tinn  ,1  """',?'  °    "''^'^  '^"""'^  »''««  "^quired  for  taxa- 

tion they  repeatedly  acknowledge.     And  there  appears  suffl- 

fZnw  ■',""''  ""*'  "'^  *•-''■"  occasionally  present  for  other 
important  purposes.  It  is,  however,  /ery  probable  that 
wrt»  of  summons  were  actually  addressed  only  to  those  of 
distinguished  name,  to  those  resident  near  the  place  of  meet- 
ing, or  to  the  servants  and  favorites  of  the  crown.     This 

S  Iff'il,  l"""'  ^'■""^  "'"  "'""'^  '"  'h«  Great  Charter! 
which  limit  the  king's  engagement  to  summon  all  tenants  in 
chief,  through  the  sheriff,  to  the  case  of  his  i-equirin..  a"  a  S 
or  scutage,  and  still  more  from  the  withdrawin..°of  th U 
promise  m  the  first  year  of  Henry  III.  The  privilege  of 
attending  on  such  occasions,  though  legally  genem^'maT 
never  have  been  generally  exercised.     °    ■'   "  '      ^ 

The  committee  seem  to  have  been  perplexed  about  the 
word  ma^«a,,,  employed  in  several  reco4  to  express  part 

k  a^  w!l!"'''?K '  '"  «?'"  '''™'="^-     I"  g«n«™'  the/interpret 
l,.M  Tl  ^fu    *"  '""""^  P/oceres,  to  include  persons  not  distin- 
guished by  the  name  ^'barones;"  a  word  which  in  the  rei4 
ot  Henry  III.  seems  to  have  been  chiefly  used  in  the  re- 
stricted sense  it  has  latterly  acquired.     Yet  in  one  instance 
a  letter  addressed  to  the  justiciar  of  Ireland,  1    Hen.   HI 
they  suppose  the  word  magnates  to  "exclude  those  temied 
therein  'ahiquamplurimi;'  and  consequently  to  be  conS 
o  prelates,  earls  and  barons.     This  may  be^deemedlmZ- 
tant  ,n  the  consideration  of  many  other  instruments  in  wWch 
he  word  magnates  Im  been  used  to  express  persons  cS 
tuting  the  '  commune  concilium  regni.' "     But  tliis  strikes  me 
as  an  erroneous  construction  of  the  letter.    The  words  are 


Chap.  VIII. 


NATURE  OF  BARONIES. 


203 


as  follows:  —  "Convenerunt  apud  Glocestriam  plures  regni 
nostri  magnates,  episcopi,  abbates,  comites,  et  barones,  qui 
patri  nostro  viventi  semper  astiterunt  fideliter  et  devote,  et 
alii  quamplurimi ;  applaudentibus  clero  et  populo,  &c.,  pub- 
lice  iuimus  in  regem  Angliae  inuncti  et  coronati."  (p.  77.)  I 
think  that  magnates  is  a  collective  word,  including  the  "  alii 
quaii'iplurimi."  It  appears  to  me  that  magnates,  and  perhaps 
some  other  Latin  words,  correspond  to  the  witan  of  the 
Anglo-Saxons,  expressing  the  legislature  in  general,  under 
which  were  comprised  those  who  held  peculiar  dignities, 
whether  lay  or  spiritual.  And  upon  the  whole  we  may  be 
led  to  believe  that  the  Norman  great  council  was  essentially 
of  the  same  composition  as  the  witenagemot  which  had  pre- 
ceded it ;  the  king's  thanes  being  replaced  by  the  barons  of 
the  first  or  second  degree,  who,  whatever  may  have  been  the 
distinction  between  them,  shared  one  common  character,  one 
source  of  their  legislative  rights  —  the  derivation  of  their 
lands  as  immediate  fiefs  from  the  crown. 

The  result  of  the  whole  inquiry  into  the  constitution  of 
parliament  down  to  the  reign  of  John  seems  to  be — 1. 
That  the  Norman  kings  explicitly  renounced  all  prerogative 
of  levying  money  on  the  immediate  military  tenants  of  the 
crown,  without  their  consent  given  in  a  great  council  of  the 
realm  ;  this  immunity  extending  also  to  their  sub-tenants  and 
dependants.  2.  That  all  these  tenants  in  chief  had  a  consti- 
tutional right  to  attend,  and  ought  to  be  summoned;  but 
whether  they  could  attend  without  a  summons  is  not  mani- 
fest. 3.  That  the  summons  was  usually  directed  to  the 
higher  barons,  and  to  such  of  a  second  class  as  the  king 
pleased,  many  being  omitted  for  different  reasons,  though  aU 
had  a  right  to  it.  4.  That  on  occasions  when  money  was 
not  to  be  demanded,  but  alterations  made  in  the  law,  some 
of  these  second  barons,  or  tenants  in  chief,  were  at  least  oc- 
casionally summoned,  but  whether  by  strict  right  or  usage 
does  not  fully  appear.  5.  That  the  irregularity  of  passing 
many  of  them  over  when  councils  were  held  for  the  purpose 
of  levying  money,  led  to  the  provision  in  the  Great  Charter 
of  John  by  which  the  king  promises  that  rhey  shall  all  be 
summoned  through  the  sheriff  on  such  occasions;  but  the 
promise  does  not  extend  to  any  other  subject  of  parliamen- 
tary deliberation.  6.  That  even  this  concession,  though  but 
the  recognition  of  a  known  right,  appeared  so  dangerous  to 


204 


NATURE  OF  BARONIES. 


Notes  to 


some  in  the  government  that  it  was  withdrawn  in  the  first 
charter  of  Henry  III. 

The  charter  of  John,  as  has  just  been  observed,  while  it 
removes  all  doubt,  if  any  could  have  been  entertained,  as  to 
the  right  of  every  military  tenant  in  capite  to  be  summoned 
through  the  sheriff,  when  an  aid  or  scutage  was  to  be  de- 
manded, will  not  of  itself  establish  their  right  of  attending 
parliament  on  other  occasions.  We  cannot  absolutely  as- 
sume any  to  have  been,  in  a  general  sense,  members  of  the 
legislature  except  the  prelates  and  the  majores  harones.  But 
who  were  these,  and  how  distinguished  ?  For  distinguished 
they  must  now  have  become,  and  that  by  no  new  provision, 
since  none  is  made.  The  right  of  personal  summons  did  not 
constitute  them,  for  it  is  on  majores  harones^  as  already  a  de- 
terminate rank,  that  the  right  is  conferred.  The  extent  of 
property  afforded  no  definite  criterion ;  at  least  some  baro- 
nies, which  appear  to  have  been  of  the  first  class,  compre- 
hended very  few  knights'  fees ;  yet  it  seems  probable  that 
this  was  the  original  ground  of  distinction.^ 

The  charter,  as  renewed  in  the  first  year  of  Henry  IH., 
does  not  only  omit  the  clause  prohibiting  the  imposition  of 
aids  and  scutages  without  consent,  and  providing  for  the  sum- 
mons of  all  tenants  in  capite  before  either  could  be  levied, 
but  give§  the  following  reason  for  suspending  this  and  other 
articles  of  king  John's  charter  :  —  "  Quia  vero  quajdam  capit- 
ula  in  priori  carta  continebantur,  quae  gravia  et  dubitabilia 
videbantur,  sicut  de  scutagiis  et  auxiliis  assidendis  ....  pla- 
cuit  supra-dictis  pinelatis  et  magnatibus  ea  esse  in  respectu, 
quousque  plenius  consilium  habuerimus,  et  tunc  faciemus  plu- 
rissime,  tam  de  his  quam  de  ahis  quae  occurrerint  emendan- 
da,  quae  ad  communem  omnium  utilitatem  pertinuerint,  et 
pacem  et  statum  nostrum  et  regni  nostri."  This  charter  was 
made  but  twenty-four  days  after  the  death  of  John  ;  and  we 
may  agree  with  the  committee  (p.  77)  in  thinking  it  extraor- 
dmary  that  these  deviations  from  the  charter  of  Runnymede, 
in  such  important  particulars,  have  been  so  little  noticed.  It 
is  worthy  of  consideration  in  what  respects  the  provisions  re- 
specting the  levying  of  money  could  have  a})peared  grave  and 
doubtful.    We  cannot  believe  that  the  earl  of  Pembroke,  and 

1  See  quotation  from  Spence's  Equita-  which  was  aftt»rwanls  reduced  to  throe, 

ble  Jurisdiction,  a  little  above.    The  bar-  Nicolas's   Report  of  Claim  to  Barony  0 

ony  of  Berkeley  was  granted  in  1  Ric.  I.,  L'lflle,  Appendix,  p.  318. 
to  be  holden  by  the  senrice  of  five  knights, 


CHAP.  VBfl. 


ELECTION  OF  KNIGHTS. 


205 


the  other  barons  who  were  with  the  young  king,  himself  a 
child  of  nine  years  old  and  incapable  of  taking  a  part,  meant 
to  abandon  the  constitutional  privilege  of  not  being  taxed  in 
aids  without  their  consent.  But  this  they  might  deem  suffi- 
ciently provided  for  by  the  charters  of  former  kings  and  by 
general  usage.  It  is  not,  however,  impossible  that  the  gov- 
ernment demurred  to  the  prohibition  of  levying  scutage,  which 
stood  on  a  different  footing  from  extraordinary  aids  ;  for  scu- 
tage appears  to  have  been  formerly  taken  without  consent  of 
the  tenants ;  and  in  the  second  charter  of  Henry  III.  there  is 
a  clause  that  it  should  be  taken  as  it  had  been  in  the  time  of 
Henry  II.  This  was  a  certain  payment  for  every  knight's 
fee ;  but  if  the  original  provision  of  the  Runnymede  charter 
had  been  maintained,  none  could  have  been  levied  without 
consent  of  parliament. 

It  seems  also  highly  probable  that,  before  the  principle  of 
representation  had  been  established,  the  greater  barons  looked 
with  jealousy  on  the  equality  of  suffrage  claimed  by  the  in- 
ferior tenants  in  capite.  That  these  were  constitutionally 
members  of  the  great  council,  at  least  in  respect  of  taxation, 
has  been  sufficiently  shown ;  but  they  had  hitherto  come  in 
small  numbers,  likely  to  act  always  in  subordination  to  the 
more  potent  aristocracy.  It  became  another  question  whether 
they  should  all  be  summoned,  in  their  own  counties,  by  a  writ 
selecting  no  one  through  favor,  and  in  its  terms  compelhng 
all  to  obey.  And  this  question  was  less  for  the  crown,  which 
might  possibly  find  its  advantage  in  the  disunion  of  its  ten- 
ants, than  for  the  barons  themselves.  They  would  naturally 
be  jealous  of  a  second  order,  whom  in  their  haughtiness  they 
held  much  beneath  them,  yet  by  whom  they  might  be  out- 
numbered in  those  councils  where  they  had  bearded  the  king. 
No  effectual  or  permanent  compromise  could  be  made  but  by 
representation,  and  the  hour  for  representation  was  not  come. 

NoTEin.    Page  22. 

The  Lords'  committee,  though  not  very  confidently,  take 
the  view  of  Brady  and  Blackstone,  confining  the  electors  of 
knights  to  tenants  in  capite.  They  admit  that  "  the  subse- 
quent usage,  and  the  subsequent  statutes  founded  on  that 
usage,  afford  ground  for  supposing  that  in  the  49th  of  Henry 
in.  and  in  the  reign  of  Edward  I.  the  knights  of  the  shires  re- 


206 


ELECTION  OF  KNIGHTS. 


Notes  to 


Chap.  VIII. 


ELECTION  OF  KNIGHTS. 


207 


I 


II 


f 


turned  to  parliament  were  elected  at  the  county  courts  and  by 
the  suitors  of  those  courts.  If  the  knights  of  tfie  shires  were 
so  elected  in  the  reigns  of  Henry  III.  and  Edward  I.,  it 
seems  important  to  discover,  if  possible,  who  were  the  suitors 
of  the  county  courts  in  these  reigns  "  (p.  149).  The  subject, 
they  are  compelled  to  confess,  after  a  discussion  of  some 
length,  remains  involved  in  great  obscurity,  which  their  in- 
dustry has  been  unable  to  disperse.  They  had,  however,  in 
an  earlier  part  of  their  report  (p.  30),  thought  it  highly  prob- 
able that  the  knights  of  the  shires  in  the  reign  of  Edward 
III.  represented  a  description  of  persons  who  might  in  the 
reign  of  the  Conqueror  have  been  termed  barons.  And  the 
general  spirit  of  their  subsequent  investigation  seems  to  favor 
this  result,  though  they  finally  somewhat  recede  from  it,  and 
admit  at  least  that,  before  the  close  of  Edward  III.*s  reign, 
the  elective  franchise  extended  to  freeholders. 

The  question,  as  the  committee  have  stated  it,  will  turn  on 
the  character  of  those  who  were  suitors  to  the  county  court. 
And,  if  this  may  be  granted,  I  must  own  that  to  my  appre- 
hension there  is  no  room  for  the  hypothesis  that  the  county 
court  was  differently  constituted  in  the  reign  of  Edward  I.  or 
of  Edward  III.  from  Avhat  it  was  very  lately,  and  what  it 
was  long  before  those   princes  sat  on  the  throne.     In  the 
Anglo-Saxon  period  we  find  this  court  composed  of  thanes, 
but  not  exclusively  of  royal  thanes,  who  were  comparatively 
few.     In  the  laws  of  Henry  I.  we  still  find  sufficient  evidence 
that  the  suitors  of  the  court  were  all  who  held  freehold  lands, 
terrantm  domini ;  or,  even  if  we  please  to  limit  this  to  lords 
of  manors,  which  is  not  at  all  probable,  still  without  distinc- 
tion of  a  mesne  or  immediate   tenure.     Vavassors,  that   is, 
mesne  tenants,  are  particularly  mentioned  in  one  enumeration 
of  barons  attending  the  court.     In  some  counties  a  limitation 
to  tenants  in  capite  would  have  left  this  important  tribunal 
very  deficient  in  numbers.     And  as  in  all  our  law-books  we 
find  the  county  court  composed  of  freeholders,  we  may  rea- 
sonably demand  evidence  of  two  changes  in  its  constitution, 
which  the  adherents  to  the  theory  of  restrained  representation 
must  combine  — one  which  excluded  all  freeholders  except 
those  who  held  immediately  of  the  crown  ;  another  which  re- 
stored them.    The  notion  that  the  county  court  was  the  kin^y's 
court  baron  (Report,  p.  150),  and  thus  bore  an  analogy  % 
that  of  the  lord  in  every  manor,  whether  it  rests  on  any  mod- 


em legal  authority  or  not,  seems  delusive.  The  court  baron 
was  essentially  a  feudal  institution ;  the  county  court  was 
from  a  different  source  ;  it  was  old  Teutonic,  and  subsisted  in 
this  and  other  countries  before  the  feudal  jurisdictions  had 
taken  root.  It  is  a  serious  error  to  conceive  that,  because 
many  great  alterations  were  introduced  by  the  Normans, 
there  was  nothing  left  of  the  old  system  of  society.^ 

It  may,  however,  be  naturally  inquired  why,  if  the  king*8 
tenants  in  chief  were  exclusively  members  of  the  national 
council  before  the  era  of  county  representation,  they  did  not 
retain  that  privilege ;  especially  if  we  conceive,  as  seems  on 
the  whole  probable,  that  the  knights  chosen  in  38  Henry  IIL 
were  actually  representatives  of  the  military  tenants  of  the 
crown.  The  answer  might  be  that  these  knights  do  not  ap- 
pear to  have  been  elected  in  the  county  court ;  and  when  that 
mode  of  choosing  knights  of  the  shire  was  adopted,  it  was 
but  consonant  to  the  increasing  spirit  of  liberty,  and  to  the 
weight  also  of  the  barons,  whose  tenants  crowded  the  court, 
that  no  freeholder  should  be  debarred  of  his  equal  suffrage. 
But  this  became  the  more  important,  and  we  might  almost 
add  necessary,  when  the  feudal  aids  were  replaced  by  subsi- 
dies on  movables ;  so  that,  unless  the  mesne  freeholders  could 
vote  at  county  elections,  they  would  have  been  taxed  without 
their  consent  and  placed  in  a  worse  condition  than  ordinary 
burgesses.  This  of  itself  seems  almost  a  decisive  argument 
to  prove  that  they  must  have  joined  in  the  election  of  knights 
of  the  shu'e  after  the  Confirmatio  Chartarum.  If  we  were 
to  go  down  so  late  as  Richard  II.,  and  some  pretend  that  the 
mesne  freeholders  did  not  vote  before  the  reign  of  Henry  IV., 
we  find  Chaucer's  franklin,  a  vavassor,  capable  even  of  sitting 
in  parliament  for  his  shire.  For  I  do  not  think  Chaucer  ig- 
norant of  the  proper  meaning  of  that  word.  And  Allen  says 
(Kdlnb.  Rev.  xxviii.  145)  —  "  In  the  earliest  records  of  the 
house  of  commons  we  have  found  many  instances  of  sub-vas- 
sals who  have  represented  their  counties  in  parliament." 


1  A  charter  of  Henry  I.,  published  in 
the  new  edition  of  Rymer  (i.  p.  12),  fully 
confirms  what  is  here  said.  Sciatis  quod 
concedo  et  praecipio,  ut  k  modo  comita- 
tufl  mei  et  hundreda  in  illis  locis  et  iis- 
dem  terminis  eedeant,  sicut  sederunt  in 
tempore  regis  Edwardi,  et  non  aliter. 
Ego  enim,  quando  voluero,  faciam  ea 
satis  summoneri  propter  mea  dominica 
necessaria  ad  Toluntatem  meam.  £t  si 
modo  exurgat  placitum  de  diyisione  ter- 


rarum,  si  est  inter  barones  meos  domfol- 
cos,  tractetur  placitum  in  curea  mea. 
Et  si  est  inter  vavassores  duorum  domi- 
norum,  tractetur  in  comitatu.  Et  hoc 
duello  fiat,  nisi  in  eis  remanserit.  Et 
Tolo  et  praecipio,  ut  omnes  de  comitatu 
eant  ad  comitatus  et  hundreda,  sicut  fe- 
cerunt  in  tempore  regis  Edwardi.  But 
it  is  also  easily  proved  from  the  Leges 
Henrici  Primi. 


Hi 


208 


MUNICIPAL  RIGHTS 


Notes  to 


Chap.  Vin. 


|i; 


If,  however,  it  should  be  suggested  that  the  practice  of  ad- 
mitting the  votes  of  mesne  tenants  at  county  elections  may 
have  crept  in  by  degrees,  partly  by  the  constitutional  princi- 
ple of  common  consent,  partly  on  account  of  the  broad  de- 
marcation of  tenants  in  capite  by  knight-service  from  barons, 
which  the  separation  of  the  houses  of  parliament  produced, 
thus  tending,  by  diminishing  the  importance  of  the  former,  to 
bring  them  down  to  the  level  of  other  freeholders ;  partly, 
also,  through  the  operation  of  the  statute  Quia  Emptores  (18 
Edward  I.),  which,  by  putting  an  end  to  subinfeudation,  cre- 
ated a  new  tenant  of  tlie  crown  upon  every  alienation  of  land, 
however  partial,  by  one  who  was  such  already,  and  thus  both 
multiplied  their  numbers  and  lowered  their  dignity ;  this  sup- 
position, though  incompatible  with  the  argument  built  on  the 
nature  of  the  county  court,  would  be  sufficient  to  explain  the 
facts,  provided  we  do  not  date  the  establishment  of  the  new 
usage  too  low.  Tlie  Lords'  committee  themselves,  after  much 
wavering,  come  to  the  conclusion  that  "  at  length,  if  not  al- 
ways, two  persons  were  elected  by  all  the  freeholders  of  the 
county,  whether  holding  in  chief  of  the  crown  or  of  others" 
(p.  331).  This  they  infer  from  the  petitions  of  the  commons 
that  the  mesne  tenants  should  be  charged  with  the  wages  of 
knights  of  the  shire ;  since  it  would  not  be  reasonable  to  levy 
such  wages  from  those  who  had  no  voice  in  the  election. 
They  ultimately  incline  to  the  hypothesis  that  the  change 
came  in  silently,  favored  by  the  growing  tendency  to  enlarge 
the  basis  of  the  constitution,  and  by  the  operation  of  the  stat- 
ute Quia  Emptores,  which  may  not  have  been  of  inconsider- 
able influence.  It  appears  by  a  petition  in  51  Edward  III. 
that  much  confusion  had  arisen  with  respect  to  tenures ;  and 
it  was  frequently  disputed  whether  lands  were  held  of  the 
king  or  of  other  lords.  This  question  would  often  turn  on 
the  date  of  alienation  ;  and,  in  the  hurry  of  an  election,  the 
bias  being  always  in  favor  of  an  extended  suffrage,  it  is  to  be 
supposed  that  the  sheriff  would  not  reject  a  claim  to  vote 
which  he  had  not  leisure  to  investigate. 

Note  IV.    Page  23. 

It  now  appears  more  probable  to  me  than  it  did  that  some 
of  the  greater  towns,  but  almost  unquestionably  London,  did 
enjoy  the  right  of  electing  magistrates  with  a  certain  ju- 
risdictioD  before  the  Conquest.     The  notion  which  I  found 


OF  TOWNS. 


209 


prevailing  among  the  writers  of  the  last  century,  that  the 
municipal  privileges  of  towns  on  the  continent  were  merely 
derived  from  charters  of  the  twelfth  century,  though  I  was 
aware  of  some  degree  of  limitation  which  it  required,  sway- 
ed me  too  much  in  estimating  the  condition  of  our  own  bur- 
gesses. And  I  must  fairly  admit  that  I  have  laid  too  much 
stress  on  the  silence  of  Domesday  Book ;  which,  as  has  been 
justly  pointed  out,  does  not  relate  to  matters  of  internal 
government,  unless  when  they  involve  some  rights  of  prop- 
erty. 

I  do  not  conceive,  nevertheless,  that  the  municipal  govern- 
ment of  Anglo-Saxon  boroughs  was  analogous  to  that  gener- 
ally established  in  our  corporations  from  the  reign  of  Henry 
II.  and  his  successors.  The  real  presumption  has  been  acute- 
ly indicated  by  Sir  F.  Palgrave,  arising  from  the  universal 
institution  of  the  court-leet,  which  gave  to  an  alderman,  or 
otherwise  denominated  officer,  chosen  by  the  suitors,  a  juris- 
diction, in  conjunction  with  themselves  as  a  jury,  over  the 
gi-eater  part  of  civil  disputes  and  criminal  accusations,  as  well 
as    general   police,   that   might   arise   within   the   hundred. 
Wherever  the  town  or  borough  was  too  large  to  be  included 
within  a  hundred,  this  would  imply  a  distinct  jurisdiction, 
which  may  of  course  be  called  municipal.     It  would  be  simi- 
lar to  that  which,  till  lately,  existed  in  some  towns  —  an  elec- 
tive high  baihff  or  principal  magistrate,  without  a  represen- 
tative body  of  aldermen  and  councillors.     But  this  is  more 
distinctly  proved  with  respect  to  London,  which,  as  is  well 
known,  does  not  appear  in  Domesday,  than  as  to  any  other 
town.     It  was  divided  into  wards,  answering  to  hundreds  in 
the  county ;  each  having  its  own  wardmote,  or  leet,  under  its 
elected  alderman.     "The  city  of  London,  as  well  within  the 
walls,  as  its  liberties  without  the  walls,  has  been  divided  from 
time  immemorial  into  wards,  bearing  nearly  the  same  relation 
to  the  city  that  the  hundred  anciently  did  to  the  shire.    Each 
ward  if'   for  certain  purposes,  a  distinct  jurisdiction.     The 
organization  of  the  existing  municipal  constitution  of  the  city 
is,  and  always  has  been,  as  far  as  can  be  traced,  entirely 
founded  upon  the  ward  system."    (Introduction  to  the  French 
Chronicle  of  London.  —  Camden  Society,  1844.) 

Sir  F.  Palgrave  extends  this  much  further:  —  "There 
were  certain  districts  locally  included  within  the  hundreds, 
which  nevertheless  constituted  independent  bodies  politic 

tOL.  IXL  14 


210 


MUNICIPAL  RIGHTS 


NOTX8  TO 


The  burgesses,  the  tenants,  the  resiants  of  the  king's  burghs 
and  manors  in  ancient  demesne,  owed  neither  suit  nor  service 
to  the  Imndred  leet.  They  attended  at  their  own  leet,  which 
differed  in  no  essential  respect  from  the  leet  of  the  hundred. 
The  principle  of  frank-pledge  required  that  each  friborg 
should  appear  by  its  head  as  its  representative ;  and  conse- 
quently, the  jurymen  of  the  leet  of  the  burgh  or  manor  are 
usually  described  under  the  style  of  the  twelve  chief  pledges. 
The  legislative  and  remedial  assembly  of  the  burgh  or  manor 
was  constituted  by  the  meeting  of  the  heads  of  its  component 
parts.  The  portreeve,  constable,  headborough,  bailiff,  or 
other  the  chief  executive  magistrate,  was  elected  or  present- 
ed by  the  leet  jury.  Offences  against  the  law  were  repressed 
by  their  summary  presentments.  They  who  were  answer- 
able to  the  community  for  the  breach  of  the  peace  punished 
the  crime.  Responsibility  and  authority  were  conjoined.  In 
their  legislative  capacity  they  bound  their  fellow-townsmen 
by  making  by-laws."  (Edin.  Rev.  xxxvi.  309.)  "  Domesday 
Book,"  he  says  afterwards,  "does  not  notice  the  hundred 
court,  or  the  county-court;  because  it  was  unnecessary  to 
inform  the  king  or  his  justiciaries  of  the  existence  of  the  tri- 
bunals which  were  in  constant  action  throughout  all  the  land. 
It  was  equally  unnecessary  to  make  a  return  of  the  leets 
which  they  knew  to  be  inherent  in  every  burgh.  Where  any 
special  municipal  jurisdiction  existed,  as  in  Chester,  Stam- 
ford, and  Lincoln,  then  it  became  necessary  that  the  franchise 
should  be  recorded.  The  twelve  lagemen  in  the  two  latter 
burghs  were  probably  hereditary  aldermen.  In  London  and 
in  Canterbury  aldermen  occasionally  held  their  sokes  by  in- 
heritance.^ The  negative  evidence  extorted  out  of  Domes- 
day has,  therefore,  little  weight."     (p.  313.) 

It  seems,  however,  not  unquestionable  whether  this  repre- 
sentation of  an  Anglo-Saxon  and  Anglo-Norman  municipality 
is  not  urged  rather  beyond  the  truth.  The  portreeve  of 
London,  their  principal  magistrate,  appears  to  have  been  ap- 
pointed by  the  crown.  It  was  not  till  1188  that  Henry  Fitz- 
alwyn,  ancestor  of  the  present  Lord  Beaumont,*  became  the 


1  See  the  ensuing  part  of  this  note.  than  Norman,  so  that  we  may  presume 

*  This  pedigree  is  elaborately  and  with  the  first  mayor  to  have  been  of  English 

pious  care,  traced  by  Mr.  Stapleton,  in  descent ;  but  whether  he  were  a  mer- 

his   excellent   introduction  to  the  old  chant,  or  a  landholder  living  in  the  ci^, 

ehrouiele  of  London,    already  quoted,  must  be  undecided. 

The  name  Alwyn  appears  rather  Saxon 


Chap.  VHI. 


OF  TOWNS. 


211 


first  mayor  of  London.  But  he  also  was  nominated  by  the 
crown,  and  remained  twenty-four  years  in  office.  In  the 
same  year  the  first  sheriffs  are  said  to  have  been  made  {facti). 
But  John,  immediately  after  his  accession  in  1199,  granted 
the  citizens  leave  to  choose  their  own  sheriffs.  And  his 
charter  of  1215  permits  them  to  elect  annually  their  mayor. 
(Maitland's  Hist  of  London,  p.  74,  76.)  We  read,  however, 
under  the  year  1200,  in  the  ancient  chronicle  lately  published, 
that  twenty-five  of  the  most  discreet  men  of  the  city  were 
chosen  and  sworn  to  advise  for  the  city,  together  with  the 
mayor.  These  were  evidently  different  from  the  aldermen, 
and  are  the  original  common  council  of  the  city.  They  were 
perhaps  meant  in  a  later  entry  (1229):  —  "Omnes  alder- 
manni  et  magnates  civitatis  per  assensum  universorum  civi- 
um,"  who  are  said  to  have  agreed  never  to  permit  a  sheriff 
to  remain  in  office  during  two  consecutive  years. 

The  city  and  liberties  of  London,  were  not  wholly  under 
the  jurisdiction  of  the  several  wardmotes  and  their  aldermen. 
Landholders,  secular  and  ecclesiastical,  possessed  their  exclu- 
sive sokes,  or  jurisdictions,  in  parts  of  both.  One  of  these 
has  left  its  name  to  the  ward  of  Portsoken.  The  prior  of 
the  Holy  Trinity,  in  right  of  this  district,  ranked  as  an  al- 
derman, and  held  a  regular  wardmote.  The  wards  of  Far- 
ringdon  are  denominated  from  a  family  of  that  name,  who 
held  a  part  of  them  by  hereditary  right  as  their  territorial 
franchise.  These  sokes  gave  way  so  gradually  before  the 
power  of  the  citizens,  with  whom,  as  may  be  supposed,  a  per- 
petual conflict  was  maintained,  that  there  were  nearly  thirty 
of  them  in  the  early  part  of  the  reign  of  Henry  III.,  and 
upwards  of  twenty  in  that  of  Edward  I.  With  the  excep- 
tion of  Portsoken,  they  were  not  commensurate  with  the  city 
wards,  and  we  find  the  juries  of  the  wards,  in  the  third  of 
Edward  I.,  presenting  the  sokes  as  liberties  enjoyed  by  pri- 
vate persons  or  ecclesiastical  corporations,  to  the  detriment 
of  the  crown.  But,  though  the  lord  of  these  sokes  trenched 
materially  on  the  exclusive  privileges  of  the  city,  it  is  re- 
markable that,  no  condition  but  inhabitancy  being  required 
in  the  thirteenth  century  for  civic  franchises,  both  they  and 
their  tenants  were  citizens,  having  individually  a  voice  in 
municipal  affairs,  though  exempt  from  municipal  jurisdiction. 
I  have  taken  most  of  this  paragraph  from  a  valuable  though 
short  notice  of  the  state  of  London  in  the  thirteenth  century, 


812 


POPULATION  OF  LONDON. 


N0TB3  TO 


ChAP.VHL 


POPULATION  OF  LONDON. 


213 


published  in  the  fourth  volume  of  the  Archaeological  Jour- 
nal (p.  273). 

The  inference  which  suggests  itself  from  these  facts  is  that 
London,  for  more  than  two  centuries  after  the  Conquest,  was 
not  so  exclusively  a  city  of  traders,  a  democratic  municipality, 
as  we  have  been  wont  to  conceive.  And  as  this  evidently 
extends  back  to  the  Anglo-Saxon  period,  it  both  lessens  the 
improbability  that  the  citizens  bore  at  times  a  part  in  political 
affairs,  and  exhibits  them  in  a  new  light,  as  lords  and  tenants 
of  lords,  as  well  as  what  of  course  they  were  in  part,  engaged 
in  foreign  and  domestic  commerce.  It  will  strike  every  one, 
in  running  over  the  list  of  mayors  and  sheriffs  in  the  thir- 
teenth century,  that  a  large  proportion  of  the  names  are 
French ;  indicating,  perhaps,  that  the  territorial  proprietors 
whose  sokes  were  intermingled  with  the  city  had  influence 
enough,  through  birth  and  wealth,  to  obtain  an  election.  The 
general  polity,  Saxon  and  Norman,  was  aristocratic;  what- 
ever infusion  there  might  be  of  a  more  popular  scheme  of 
government,  and  much  certainly  there  was,  could  not  resist, 
even  if  resistance  had  been  always  the  people's  desire,  the 
joint  predominance  of  rank,  riches,  military  habits,  and  com- 
mon alliance,  which  the  great  baronage  of  the  realm  enjoyed. 
London,  nevertheless,  from  its  populousness,  and  the  usual 
character  of  cities,  was  the  centre  of  a  democratic  power, 
which,  bursting  at  times  into  precipitate  and  needless  tumult 
easily  repressed  by  force,  kept  on  its  silent  course  till,  near 
the  end  of  the  thirteenth  century,  the  rights  of  the  citizens 
and  burgesses  in  the  legislature  were  constitutionally  estab- 
lished.    [1848.] 


Note  V.    Page  28. 

If  Fitz-Stephen  rightly  informs  us  that  in  London  there 
were  126  parish  churches,  besides  13  conventual  ones,  we 
may  naturally  think  the  population  much  underrated  at  40,000. 
But  the  fashion  of  building  churches  in  cities  was  so  general, 
that  we  cannot  apply  a  standard  from  modern  times.  Nor- 
wich contained  sixty  parishes. 

Even  under  Henry  II.,  as  we  find  by  Fitz-Stephen,  the  prel- 
ates and  nobles  had  town  houses.  "  Ad  haec  omnes  fere  epis- 
oopi,  abbates,  et  magnates  Angliae,  quasi  cives  et  municipes 


sunt  urbis  Lundoniae  ;  sua  ibi  habentes  oBdificia  praeclara ;  ubi 
se  recipiunt,  ubi  divites  impensas  faciunt,  ad  concilia,  ad  con- 
ventus  celebres  in  urbem  evocati,  k  domino  rege  vel  metro- 
politano  suo,  sen  propriis  tracti  negotiis."  The  eulogy  of 
London  by  this  writer  is  very  curious ;  its  citizens  were  thus 
early  distinguished  by  their  good  eating,  to  which  they  added 
amusements  less  congenial  to  later  liverymen,  hawking,  cock- 
fighting,  and  much  more.  The  word  cockney  is  not  improba- 
bly derived  from  cocayne,  the  name  of  an  imaginary  land  of 
ease  and  jollity. 

The  city  of  London  within  the  walls  was  not  wholly  built, 
many  gardens  and  open  spaces  remaining.  And  the  houses 
were  never  more  than  a  single  story  above  the  ground-floor, 
according  to  the  uniform  type  of  English  dwellings  in  the 
twelfth  and  following  centuries.  On  the  other  hand,  the  liber- 
ties contained  many  inhabitants ;  the  streets  were  narrower 
than  since  the  fire  of  1666  ;  and  the  vast  spaces  now  occupied 
by  warehouses  might  have  been  covered  by  dwelling-houses. 
Forty  thousand,  on  the  whole,  seems  rather  a  low  estimate 
for  these  two  centuries ;  but  it  is  impossible  to  go  beyond  the 
vaguest  conjecture. 

The  population  of  Paris  in  the  middle  ages  has  been  esti- 
mated with  as  much  diversity  as  that  of  London.  M.  Dula- 
ure,  on  the  basis  of  the  taiUe  in  1313,  reckons  the  inhabitants 
at  49,110.*  But  he  seems  to  have  made  unwarrantable  as- 
sumptions where  his  data  were  deficient.  M.  Gu^rard,  on 
the  other  hand  (Documens  In^dits.  1841),  after  long  calcula- 
tions, brings  the  population  of  the  city  in  1292  to  215,861. 
This  is  certainly  very  much  more  than  we  could  assign  to 
London,  or  probably  any  European  city ;  and,  in  fact,  his  es- 
timate goes  on  two  arbitrary  postulates.  The  extent  of  Paris 
in  that  age,  which  is  tolerably  known,  must  be  decisive  against 
80  high  a  population.^ 

The  Winton  Domesday,  in  the  possession  of  the  Society  of 
Antiquaries  of  London,  furnishes  some  important  informa- 
tion as  to  that  city,  which,  as  well  as  London,  does  not  appear 
in  the  great  Domesday  Book.    This  record  is  of  the  reign  of 


1  mst.  de  Paris,  yol.  iii.  p.  2S1. 

>  John  of  TroyM  says,  in  1497,  that 
from  sixty  to  eighty  thousand  men  ap- 
peared inarms.  Dulaure(Ulst.  de  Paris, 
Tol.  iii.  p.  605)  says  this  gives  120.000 
for  the  whole  population  ;  but  it  ^yes 


double,  which  is  incredible.  In  the 
thirteenth  and  fourteenth  centuries  the 
houses  were  still  cottages:  only  four 
streets  were  paved ;  they  were  very  nar- 
row and  dirty,  and  often  inundated  bt 
the  Seine.    lb.  p.  198 


214 


EARLIEST  WRITS  TO  TOWNS. 


Notes  to 


Henry  I.  Winchester  had  been,  as  is  well  known,  the  capi- 
tal of  the  Anglo-Saxon  kings.  It  has  been  observed  that 
"  the  opulence  of  the  inhabitants  may  possibly  be  gathered 
from  the  frequent  recurrence  of  the  trade  of  goldsmith  in  it, 
and  the  populousness  of  the  town  from  the  enumeration  of 
the  streets."  (Cooper's  PubHc  Records,  i.  226.)  Of  these 
we  find  sixteen.  "  In  the  petition  from  the  city  of  Winches- 
ter to  king  Henry  VI.  in  1450,  no  less  than  nine  of  these 
streets  are  mentioned  as  having  been  ruined."  As  York  ap- 
pears to  have  contained  about  10,000  inhabitants  under  the 
CJonfessor,  we  may  probably  compute  the  population  of  Win- 
chester at  nearly  twice  that  number. 


Note  VI.    Page  33. 

The  Lords'  Committee  extenuate  the  presumption  that  ei- 
ther knights  or  burgesses  sat  in  any  of  these  parliaments.  The 
"  cunctarum  regni  civitatum  pariter  et  burgorum  potentiores," 
mentioned  by  Wikes  in  1269  or  1270,  they  suppose  to  have 
been  invited  in  order  to  witness  the  ceremony  of  translating  the 
body  of  Edward  the  Confessor  to  his  tomb  newly  prepared  in 
Westminster  Abbey  (p.  161).  It  is  evident,  indeed,  that  this 
assembly  acted  afterwards  as  a  parliament  in  levying  money. 
But  the  burgesses  are  not  mentioned  in  this.  It  cannot,  never- 
theless, be  presumed  from  the  silence  of  the  historian,  who  had 
previously  informed  us  of  their  presence  at  Westminster,  that 
they  took  no  part.  It  may  be,  perhaps,  more  doubtful  wheth- 
er they  were  chosen  by  theii*  constituents  or  merely  summoned 
as  "  potentiores." 

The  words  of  the  statute  of  Marlbridge  (51  Hen.  HI.), 
which  are  repeated  in  French  by  that  of  Gloucester  (6  Edw. 
I.)  do  not  satisfy  the  committee  that  there  was  any  repre- 
sentation either  of  counties  or  boroughs.  "  They  rather  im- 
port a  selection  by  the  king  of  the  most  discreet  men  of 
every  degree"  (p.  183).  And  the  statutes  of  13  Edw.  L,  re- 
ferring to  this  of  Gloucester,  assert  it  to  have  been  made 
by  the  king,  "  with  prelates,  earls,  barons,  and  his  council," 
thus  seeming  to  exclude  what  would  afterwards  have  been 
called  the  lower  house.  The  assembly  of  1271,  described  in 
the  Annals  of  Waverley,  "  seems  to  have  been  an  extraordi- 
nary convention,  warranted  rather  by  the  particular  circum- 


chap.  vni. 


EARLIEST  WRITS  TO  TOWNS. 


215 


stances  under  which  the  country  was  placed  than  by  any 
constitutional  law  "  (p.  173.)  It  was,  however  a  case  of  rep- 
resentation ;  and  following  several  of  the  like  nature,  at  least 
as  far  as  counties  were  concerned,  would  render  the  principle 
familiar.  The  committee  are  even  unwilling  to  admit  that 
"  la  communaut^  de  la  terre  illocques  summons  "  in  the  stat- 
ute of  Westminster  I.,  though  expressly  distinguished  from 
the  prelates,  earls  and  barons,  appeared  in  consequence  of 
election  (p.  173).  But,  if  not  elected,  we  cannot  suppose 
less  than  that  all  the  tenants  in  chief,  or  a  large  number  of 
them,  were  summoned ;  which,  after  the  experience  of  repre- 
sentation, was  hardly  a  probable  course. 

The  Lords'  committee,  I  must  still  incline  to  think,  have 
gone  too  far  when  they  come  to  the  conclusion  that,  on  the 
whole  view  of  the  evidence  collected  on  the  subject,  from  the 
49th  of  Hen.  III.  to  the  18th  of  Edw.  I.,  there  seems  strong 
ground  for  presuming  that,  after  the  49th  of  Hen.  HI.,  the 
constitution  of  the  legislative  assembly  returned  generally  to 
its  old  course ;  that  the  writs  issued  in  the  49th  of  Hen.  III.,  be- 
ing a  novelty,  were  not  afterwards  precisely  followed,  as  far  as 
appears,  in  any  instance ;  and  that  the  writs  issued  in  the  11th  of 
Edw.  I.,  "  for  assembling  two  conventions,  at  York  and  North- 
ampton, of  knights,  citizens,  burgesses,  and  representatives  of 
towns,  without  prelates,  earls,  and  barons,  were  an  extraordi- 
nary measure,  probably  adopted  for  the  occasion,  and  never 
afterwards  followed ;  and  that  the  writs  issued  in  the  18th  of 
Edw  I.,  for  electing  two  or  three  knights  for  each  shire  without 
corresponding  writs  for  election  of  citizens  or  burgesses,  and 
not  directly  founded  on  or  conformable  to  the  writs  issued  in 
the  49th  of  Henry  III.,  were  probably  adopted  for  a  partic- 
ular purpose,  possibly  to  sanction  one  important  law  [the  stat- 
ute Quia  Emptor es],  and  because  the  smaller  tenants  in  chief 
of  the  crown  rarely  attended  the  ordinary  legislative  assemblies 
when  summoned,  or  attended  in  such  small  numbers  that  a  rep- 
resentation of  them  by  knights  chosen  for  the  whole  shire  was 
deemed  advisable,  to  give  sanction  to  a  law  materially  affecting 
all  the  tenants  in  chief,  and  those  holding  under  them  '(p.  204). 
The  election  of  two  or  three  knights  for  the  parliament  of 
18th  Edw.  I.,  which  I  have  overlooked  in  my  text,  appears 
by  an  entry  on  the  close  roll  of  that  year,  directed  to  the 
sheriff  of  Northumberland ;  and  it  is  proved  from  the  sanae 
roU  that  similar  writs  were  directed  to  all  the  sheriffs  in 


216 


EARLIEST  WRITS  TO  TOWNS. 


NOTKS  TO 


England.  We  do  not  find  that  the  citizens  and  burgesses 
were  present  in  this  parliament ;  and  it  is  reasonably  con- 
jectured  that,  the  object  of  summoning  it  being  to  procure  a 
legislative  consent  to  the  statute  Quia  Emptores,  which  put 
an  end  to  the  subinfeudation  of  lands,  the  towns  were  thouo-ht 
to  have  httle  interest  in  the  measure.  It  is,  however,  another 
earty  precedent  for  county  representation ;  and  that  of  22d 
of  Edw.  I.  (see  the  writ  in  Report  of  Committee,  p.  209)  is 
more  regular.  We  do  not  find  that  the  citizens  and  bur- 
gesses were  summoned  to  either  parliament. 

But,  after  the  23d  of  Edward  I.,  the  legislative  constitu- 
taon  seems  not  to  have  been  unquestionably  settled,  even  in 
the  essential  point  of  taxation.     The  Confirmation  of  the 
Charters,  m  the  25th  year  of  that  reign,  while  it  contained  a 
positive  declaration  that  no  "  aids,  tasks,  or  prizes  should  be 
levied  in  future,  without  assent  of  the  realm,"  was  made  in 
consideration  of  a  grant  made  by  an  assembly  in  which  rep- 
resentatives of  cities  and  boroughs  do  not  appear  to  have 
been   present     Yet,   though   the  words   of  the   charter  or 
statute  are   prospective,  it  seems  to  have  long  before  been 
re(Joned  a  cleai-  right  of  the  subject,  at  least  by  himself,  not 
to  be  taxed  without  his  consent     A  tallage  on  royal  towns 
and  demesnes,  nevertheless,  was  set  without  authority  of 
parliament  four  years  afterwards.     This   "  seems   to   show, 
either  that  the  king's  right  to  tax  his  demesnes  at  his  pleas- 
ure was  not  intended  to  be  included  in  the  word  talla^re  in 
that  statute  [meaning  the  supposed  statute  de  tallagio  non 
conce^ndo'],  or  that  the  king  acted  in  contravention  of  it 
But  if  the  king's  cities  and  boroughs  were  still  liable  to  tal- 
lage at  the  will  of  the  crown,  it  may  not  have  been  deemed 
inconsistent  that  they  should  be  required  to  send  representa- 
tives for  the  purpose  of  granting  a  general  aid  to  be  assessed 
on  the  same  cities  and  boroughs,  together  with  the  rest  of 
the  kingdom,  when  such  general  aid  was  granted,  and  yet 
should  be  liable  to  be  taUaged  at  the  will  of  the  crown  when 
no  such  general  aid  was  granted"  (p.  244). 

If  in  these  later  years  of  Edward's  reign  the  king  could 
venture  on  so  strong  a  measure  as  the  imposition  of  a  tallage 
without  consent  of  those  on  whom  it  was  levied,  it  is  less 
surprising  that  no  representatives  of  the  commons  appear  to 
have  been  summoned  to  one  pariiament,  or  perhaps  two,  in 
his  twenty-seventh  year,  when  some  statutes  were  enacted. 


Chap.  Vm. 


BOROUGH  REPRESENTATION. 


217 


But,  as  this  is  merely  inferred  from  the  want  of  any  extant 
writ,  which  is  also  the  case  in  some  parliaments  where,  from 
other  sources,  we  can  trace  the  commons  to  have  been 
present,  little  stress  should  be  laid  upon  it 

In  the  remarks  which  I  have  offered  in  these  notes  on  the 
Report  of  the  Lords'  Committee,  I  have  generally  abstained 
from  repealing  any  which  Mr.  Allen  brought  forward.  ^  But 
the  reader  should  have  recourse  to  his  learned  criticism  in  the 
Edinburgh  Review.  It  >vill  appear  that  the  committee  over- 
looked not  a  few  important  records,  both  in  the  reign  of  Ed- 
ward I.  and  that  of  his  son. 

Note  VH.    Page  36. 

Two  considerable  authorities  have,  since  the  first  publica- 
tion of  this  work,  placed  themselves,  one  very  confidently, 
one  much  less  so,  on  the  side  of  our  older  lawyers  and  in  fa- 
vor of  the  antiquity  of  borough  representation.     Mr.  Allen, 
who,  in  his  review  of  my  volumes  (Edinb.  Rev.  xxx.  169), 
observes,  as  to  this  point,  — "We  are  inclined,  in  the  main, 
to  agree  with  Mr.  Hallam,"  lets  us  know,  two  or  three  years 
afterwards,  that  the  scale  was  tending  the  other  way,  when, 
in  his  review  of  the  Report  of  the  Lords'  Committee,  who 
give  a  decided  opinion  that  cities  and  boroughs  were  on  no 
occasion  called  upon  to  assist  at  legislative  meetings  before 
the  forty-ninth  of  Henry  III.,  and  are  much  disposed  to  be- 
lieve that  none  were  originally  summoned  to  parliament,  ex- 
cept cities  and  boroughs  of  ancient  demesne,  or  in  the  hands 
of  the  king  at  the  time  when  they  received  the  summons,  he 
says, "We  are  inclined  to  doubt  the  first  of  these  proposi- 
tions, and  convinced  that  the  latter  is  entirely  erroneous." 
(Edinb.    Rev.   xxxv.   30.)     He   allows,   however,  that  our 
kings  had  no  motive  to  summon  their  cities  and  boroughs  to 
the'' legislature,  for  the  purpose  of  obtaining  money,  "this 
being  procured  through  the  justices  in  eyre,  or  special  com- 
missioners ;  and  therefore,  if  summoned  at  all,  it  is  probable 
that  the  citizens  and  burgesses  were  assembled  on  particular 
occasions  only,  when  their  assistance  or  authority  was  wanted 
to  confirm  or  establish  the  measures  in  contemplation  by  the 
government"     But  as  he  alleges  no  proof  that  this  was  ever 
done,  and  merely  descants  on  the  importance  of  London  and 
other  cities  both  before  and  after  the  Conquest,  and  as  such 


218 


ANTIQUITY  OF 


Notes  to 


an  occasional  summons  to  a  great  councfl,  for  the  utirpose  of 
adyice,  would  by  no  means  involve  the  necessity  ofl^sk- 
Uve  consent,  we  can  hardly  reckon  this  very  acute  S 
among  the  positive  advocates  of  a  high  antLuy  foTthe 
commons  in  parliament.  '"quuy  lor  tne 

H.^.^/"^"™  ^''''S'^';^  '•as  taken  much  higher  ground,  and 
his  theory,  m  part  at  least,  would  have  been  haikd  with  ao- 
plause  by  the  pai-liaments  of  Charles  I.    Accorf'n-  to  thfs 
we  are  not  to  look  to  feudal  principles  for  our  great^cmincls 
of  ady.ce  and  consent     They  were  the  a.r.^e^ie  of  Zre 
sentotives  from  the  courts-leet  of  each  shlfTSd  eachXr- 

Uje  people  and  to  suggest  their  remedies.  The  a^semblv 
summoned  by  William  the  Conqueror  appeal  to  him  no^ 
only  as  u  did  to  lord  Hale,  " a  sufficient  Srment''l°  a 

^T SlThic?"P"'"°/''t  •=>:  »"•*  «'""g  the  fnhiation  t^ 
^b.l^wh.ch^quired  the  king's  consent."     (Ed.  Rev. 

^-  i'  jdr'''        "^^  cannot,"  he  proceeds,  «  discover  anv  ««. 

:Cof''£T:;  r^"  r  ?" '^^^ '''  »>>- juriea  :"d',i: 

snare  ot  the  legii^lative  authority  which  was  cnjoved  bv  the 
commons  at  a  period  when  the'constitution  aSd  a  mor^ 

rireven  Irri^  of  .Uustration  which  distinguish  his  thfo- 
^tisf!Jtorv  t  -'^  ''^"?'  °^^''  *"'™  something  not  quite 
^•S^S7„i  ."  TT'  '["»"'''''  ■"«»  ^^'>en  thdr  absolute 
Sf  Vh  '"•'•'""'  '.°  '"^^'«"  '^  "f  ^^^  reasonably  sus- 
" Snlv th.'  ""•  "°TJ°  ^  *^^"  P^'S^^  '»  'he  conclusL- 
f„  „.  i'^u^*'^®  '^  ""  "•^°'7  so  improbable,  so  irreconcilable 
to  general  history  or  to  the  peculiar  spirit  ol^  our™So„ 
as  the  opinions  which  are  held  by  those  whrde^  the  u^ 
stantia  antiquity  of  the  house  of  Emmons.     No  pamdoxt 

X  sS^"illr"'"f°"  ^'  "><=  •^'"■S"*^  and'^bu'gefse" 
wno  stole  into  the  great  council  between  the  close  of  tl.n 

reign  of  John  and  the  beginning  of  the  re^  of  EdwarH 

should  convert  themselves  at  once'into  the  thXslf  of  ?£e 

realm,  and  stand  before  the  king  and  his  pee«  i™essbn 

iCoisiaiure  could  neither  dispute  nor  withstanrl "   tr.    ^^o\ 

r     ir.^^^^^^^  '-  ^"r^hemnce  of  ToS! 

Pi^iamenf     Nn   ^"\^^^^  respecting  the  feudal  origin^of 
paxhament.    No  one   has  considered  it  as  a  common-law 


Chap.  VIII.         BOROUGH  REPRESENTATION. 


219 


I  do  not  know  that  it  is  necessary  to  believe  in  a  properly 
feudal  origin  of  parliament,  or  that  this  hypothesis  is  gener- 
ally received.     The  great  council  of  the  Norman  kings  was, 
as  in  common  with  Sir  F.  Palgrave  and  many  others  I  be- 
lieve, little  else  than  a  continuation  of  the  witenagemot,  the 
immemorial  organ  of  the  Anglo-Saxon  aristocracy  in  their 
relation  to  the  king.     It  might  be  composed,  perhaps,  more 
strictly  according  to  feudal  principles ;  but  the  royal  thanes 
had  always  been  consenting  parties.     Of  the  representation 
of  courts-leet  we  may  require  better  evidence :  aldermen  of 
London,   or  persons   bearing   that   name,   perhaps  as  land- 
owners rather  than  citizens  (see  a  former  note),  may  possi- 
bly have  been   occasionally   present;   but  it  is   remarkable 
that  neither  in  historians  nor  records  do  we  find  this  men- 
tioned;   that  aldermen,  in  the  municipal  sense,  are   never 
enumerated  among  the  constituents  of  a  witenagemot  or  a 
council,  though  they  must,  on  the  representative  theory,  have 
composed  a  large  portion  of  both.     But,  waiving  this  hy- 
pothesis,  which  the  author  seems  not  here  to  insist   upon, 
though  he  returns  to  it  in  the  Rise  and  Progress  of  the  Eng- 
lish Commonwealth,  why  is  it  "  a  startling  paradox  to  deny 
the  substantial  antiquity  of  the  house  of  commons"?     By 
this   I   understand   him  to  mean  that  representatives  from 
counties  and  boroughs  came  regularly,  or  at  least  frequently, 
to  the  great  councils  of  Saxon  and  Norman  kings.     Their 
indispensable  consent  in  legislation  I  do  not  apprehend  him 
to  affirm,  but  rather  the  reverse :  —  "  The  supposition  that  in 
any  early  period  the  burgesses  had  a  voice  in  the  solemn 
acts  of  the  legislature  is  untenable."     (Rise  and  Progress, 
«&c.,  i.  314.)     But  they  certainly  did,  at  one  time  or  other, 
obtain  this  right,  "or  convert  themselves,"  as  he  expresses 
it,  "  into  the  third  estate  of  the  realm ; "  so  that  upon  any 
hypothesis  a  great  constitutional  change  was  wrought  in  the 
powers  of  the  commons.     The   revolutionary  character  of 
Montfort's  parliament  in  the  49th  of  Hen.  III.  would  suffi- 
ciently account  both  for  the  appearance  of  representatives 
from  a  democracy  so  favorable  to  that  bold  reformer  and  for 
the  equality  of  power  with  which  it  was  probably  designed 
to  invest  them.     But  whether  in  the  more  peaceable  times 
of  Edward  I.  the  citizens  or  burgesses  were  recognized  as 
essential  parties  to  every  legislative  measure,  may,  as  I  have 
shown,  be  open  to  much  doubt. 


220 


AUTHORITY  OF  THE 


KOTES  TO 


I  cannot  upon  the  whole  overcome  the  argument  from  the 
silence  of  all  historians,  from  the  deficiency  of  all  proof  as 
to  any  presence  of  citizens  and  burgesses,  in  a  representative 
character  as  a  house  of  commons,  before  the  49th  year  of 
Henry  III. ;  because  after  this  time  historians  and  chroniclers 
exactly  of  the  same  character  as  the  former,  or  even  less 
copious  and  valuable,  do  not  omit  to  mention  it.     We  are 
accustomed  in  the  sister  kingdoms,  so  to  speak,  of  the  conti- 
nent, founded  on  the  same  Teutonic  original,  to  argue  against 
the  existence  of  representative  councils,  or  other  institutions, 
from  the   same   absence   of  positive   testimony.      No   one 
believes  that  the  three  estates  of  France  were  called  together 
before  the   time  of  Philip  the   Fair.     No  one  strains  the 
representation  of  cities  in  the  cortes  of  Castile  beyond  the 
date  at  which  we  discover  its  existence  by  testimony.     It  is 
true  that  unreasonable  inferences  may  be  made  from  what  is 
usually  called  negative  evidence ;  but  how  readily  and  how 
often  are  we  deceived  by  a  reliance  on  testimony  !     In  many 
instances  the  negative  conclusion  carries  with  it  a  conviction 
equal  to   a  great  mass  of  afiirmative   proof.     And  such  I 
reckon  the  inference  from  the  language  of  Roger  Hoveden, 
of  Matthew  Paris,  and  so  many  more  who  speak  of  councils 
and  parliaments  full  of  prelates  and  nobles,  without  a  syllable 
of  the  burgesses.     Either  they  were  absent,  or  they  were  too 
insignificant  to  be  named ;  and  in  that  case  it  is  hai*d  to  per- 
ceive any  motive  for  requiring  their  attendance. 


Note  VIH.    Page  43. 

A  record,  which  may  be  read  in  Brady's  History  of  Eng- 
land (vol.  ii.  Append,  p.  6Q)  and  in  Rymer  (t.  iv.  p.  1237), 
relative  to  the  proceedings  on  Edward  Il.'s  flight  into  Wales 
and  subsequent  detention,  recites  that,  "  the  king  having  left 
his  kingdom  without  government,  and  gone  away  with  no- 
torious enemies  of  the  queen,  prince,  and  realm,  divers 
prelates,  eai'ls,  barons,  and  knights,  then  being  at  Bristol  in 
the  presence  of  the  said  queen  and  duke  (prince  Edward, 
duke  of  Cornwall),  hy  the  assent  of  the  whole  commonalty  of 
the  realm  there  being,  unanimously  elected  the  said  duke  to 
be  guardian  of  the  said  kingdom ;  so  that  the  said  duke  and 
guardian  should  rule  and  govern  the  said  realm  in  the  name 
and  by  the  authority  of  the  king  his  father,  he  being  thus 


Chaf.  vni. 


HOUSE  OF  COMMONS. 


221 


absent"  But  the  king  being  taken  and  brought  back  into 
England,  the  power  thus  delegated  to  the  guardian  ceased  of 
course ;  whereupon  the  bishop  of  Hereford  was  sent  to  press 
the  king  to  permit  that  the  great  seal,  which  he  had  with 
him,  the  prince  having  only  used  his  private  seal,  should  be 
used  in  all  things  that  required  it.  Accordingly  the  king 
sent  the  great  seal  to  the  queen  and  prince.  The  bishop  is 
said  to  have  been  thus  commissioned  to  fetch  the  seal  by  the 
prince  and  queen,  and  by  the  said  prelates  and  peers,  with 
the  assent  of  the  said  commonalty  then  being  at  Hereford,  It  is 
plain  that  these  were  mere  words  of  course ;  for  no  parliament 
had  been  convoked,  and  no  proper  representatives  could  have 
been  either  at  Bristol  or  Hereford.  However,  this  is  a  very 
curious  record,  inasmuch  as  it  proves  the  importance  attached 
to  the  forms  of  the  constitution  at  this  period. 

The  Lords*  Committee  dwell  much  on  an  enactment  in  the 
parliament  held  at  York  in  15  Edw.  U.  (1322)^  which  they 
conceived  to  be  the  first  express  recognition  of  the  constitu- 
tional powers  of  the  lower  house.  It  was  there  enacted 
that  "  f6r  ever  thereafter  all  manner  of  ordinances  or  pro- 
visions made  by  the  subjects  of  the  king  or  his  heirs,  by  any 
power  or  authority  whatsoever,  concerning  the  royal  power 
of  the  king  or  his  heirs,  or  against  the  estate  of  the  crown, 
should  be  void  and  of  no  avail  or  force  whatsoever ;  but  the 
matters  to  be  estabUshed  for  the  estate  of  the  king  and  of 
his  heirs,  and  for  the  estate  of  the  realm  and  of  the  people, 
should  be  treated,  accorded,  and  established  in  parliament  by 
the  king,  and  by  the  assent  of  the  prelates,  earls,  and  barons, 
and  the  commonalty  of  the  realm,  according  as  had  been 
before  accustomed.  This  proceeding,  therefore,  declared  the 
legislative  authority  to  reside  only  in  the  king,  with  the 
assent  of  the  prelates,  earls,  and  barons,  and  commons  assem- 
bled in  parliament ;  and  that  every  legislative  act  not  done 
by  that  authority  should  be  deemed  void  and  of  no  effect. 
By  whatever  violence  this  statute  may  have  been  obtained, 
it  declared  the  constitutional  law  of  the  realm  on  this  im- 
portant subject."  (p.  282.)  The  violence,  if  resistance  to 
the  usurpation  of  a  subject  is  to  be  called  such,  was  on  the 
part  of  the  king,  who  had  just  sent  the  earl  of  Lancaster  to 
the  scaffold,  and  the  present  enactment  was  levelled  at  the 
ordinances  which  had  been  forced  upon  the  crown  by  his 
Action.    The  lords  ordainers,  nevertheless,  had  been  ap- 


222 


BABONS  IN  PAELIAMENT: 


KOTSS  TO 


Dointed  with  consent  of  the  commons,  as  has  been  mentioned 
rte  tlxt;  so  that  this  provision  in  15  Edward  II.  seems 
rather  to  limit  than  to  enhance  the  supreme  power  of  parha- 
ment,  if  it  were  meant  to  prohibit  any  future  enactment  of 
Se  «tme  kind  by  its  sole  authority.     But  the  statute  is  de- 
claratory in  its  nature;  nor  can  we  any  more  doub    that  the 
legislative  authority  was   reposed   in  the  kmg,  lords,  and 
commons  before  this  era  than  that  it  was  ^^^^^'^  ^^^^^ute 
Unsteady  as  the  constitutional  usage  had  been  through  the 
rei-n  of  Edward  I.,  and  wilUng  as  both  he  and  his  son  may 
tave  been  to  prevent  its  complete  estabUshment,  the  necessity 
of  parliamentary  consent  both  for  levying  money  and  enacting 
Sws  must  haveVcome  an  article  of  the  public  creed  before 
his  death.    If  it-be   true  that  even  after  this  declaratory 
statute  kws  were  made  without  the  assent  or  P;f;"««  f  «« 
commons,  as  the  Lords'  Committee  mchne  to  hold  (p.  285, 28b, 
287^,  it  was  undeniably  an  irregular  and  unconstitutional 
proceeding ;  but  this  can  only  show  that  we  ought  to  be  vei7 
slow  in  presuming  eariier  proceedings  of  the  «une  nature  to 
have  teen  more^conformable  to  the   spirit  of  the   existing 
constitution.    The  Lords'  Committee  too  often  reason  from  the 
fact  to  the  right,  as  well  as  from  the  words  to  the  fact;  both 
are  falkcious,  and  betray  them  into  some  vacillation  and  per- 
plexity.     They  do  not,  however,  question,  on  the  whole,  but 
Lt  a  new  constitution  of  the  legislative  assemblies  of  the 
realm  had  been  introduced  before  the  15th  year  of  Edward 
n.,  and  that  "the  practice  had  prevailed  so  long  before  as  to 
eive  it,  in  the  opinion  of  the  pariiament  then  assembled,  the 
for^lnd  effect  of  a  custom,  which  the  Parliament  dedared 
should  thereafter  be  considered  as  estabhshed  law.    (V-^^f-) 
This  appears  to  me  rather  an  inadequate  «^P°^'!'«"  ^l  *^ 
public  spirit,  of  the  tendency  towards  enlarging  the  basis  ot 
the  constitution,  to  which  the  «  practice  and  custom    owed  its 
origin  i  but  the  positive  facts  are  truly  stated. 

Note  IX.    Page  120. 

Writs  are  addressed  in  11th  of  Edw.  II.  "  comitibus,  ma- 
iorL  baJ^nibus,  et  pr^latis,"  whence  the  Lords  committee 
Mer  thatX  style  used  in  John's  charter  was  still  preserved 
"^p"  And  though  in  those  times  there  migh^ 

be  much  irregularity  in  issuing  writs  of  summons,  the  term 


Chap.  VIH.         NATURE  OF  THEIR  SUMMONS. 


223 


•^  majores  barones "  must  have  had  an  application  to  definite 
persons.  Of  the  irregularity  we  may  judge  by  the  fact  that 
under  Edward  1.  about  eighty  were  generally  summoned; 
under  his  son  never  so  many  as  fifly,  sometimes  less  than 
forty,  as  may  be  seen  in  Dugdale's  Summonitiones  ad  Par- 
liamentum.  The  committee  endeavor  to  draw  an  inference 
from  this  against  a  subsisting  right  of  tenure.  But  if  it  is 
meant  that  the  king  had  an  acknowledged  prerogative  of 
omitting  any  baron  at  his  discretion,  the  higher  English 
nobility  must  have  lost  its  notorious  privileges,  sanctioned  by 
long  usage,  by  the  analogy  of  all  feudal  governments,  and 
by  the  charter  of  John,  which,  though  not  renewed  in  terms, 
nor  intended  to  be  retained  in  favor  of  the  lesser  barons,  or 
tenants  in  capite,  could  not,  relatively  to  the  rights  of  the 
superior  order,  have  been  designedly  relinquished. 

The  committee  wish  to  get  rid  of  tenure  as  conferring  a 
right  to  summons ;  they  also  strongly  doubt  whether  the  sum- 
mons conferred  an  hereditary  nobihty  ;  but  they  assert  that, 
in  the  loth  of  Edward  III.,  "those  who  may  have  been 
deemed  to  have  been  in  the  reign  of  John  distinguished  as 
majores  harones  by  the  honor  of  a  personal  writ  of  sum- 
mons, or  by  the  extent  and  influence  of  their  property,  from 
the  other  tenants  in  chief  of  the  crown,  were  now  clearly  be- 
come, with  the  earls  and  the  newly  created  dignity  of  duke, 
a  distinct  body  of  men  denominated  peers  of  the  land,  and 
having  distinct  personal  rights ;  while  the  other  tenants  in 
chief,  whatsoever  their  rights  may  have  been  in  the  reign 
of  John,  sunk  into  the  general  mass."  (p.  314.) 

The  appellation  "  peers  of  the  land "  is  said  to  occur  for 
the  first  time  in  14  Edward  11.  (p.  281),  and  we  find  them 
very  distinctly  in  the  proceedings  against  Bereford  and  others 
at  the  beginning  of  the  next  reign.  They  were,  of  course, 
entitled  to  trial  by  their  own  order.  But  whether  all  laymen 
summoned  by  particular  writs  to  parliament  were  at  that  time 
considered  as  peers,  and  triable  by  the  rest  as  such,  must  b9 
questionable,  unless  we  could  assume  that  the  writ  of  sum- 
mons already  ennobled  the  blood,  which  is  at  least  not  the 
opinion  of  the  committee.  K,  therefore,  the  writ  did  not  con- 
stitute an  hereditary  peer,  nor  tenure  in  chief  by  barony  give 
a  right  to  sit  in  parliament,  we  should  have  a  difficulty  in 
finding  any  determinate  estate  of  nobility  at  all,  exclusive  of 
earls,  who  were,  at  all  times  and  without  exception,  mdispu- 


224 


BARONS  IN  PARLIAMENT: 


Notes  to 


tably  noble ;  an  hypothesis  manifestly  paradoxical,  and  con- 
tradicted by  history  and  law.  If  it  be  said  that  prescription 
was  the  only  title,  this  may  be  so  far  granted  that  the  majores 
barones  had  by  prescription,  antecedent  to  any  statute  or 
chai-ter,  been  summoned  to  parliament ;  but  this  prescription 
would  not  be  broken  by  the  omission,  through  negligence  or 
policy,  of  an  individual  tenant  by  barony  in  a  lew  parlia- 
ments. The  prescription  was  properly  in  favor  of  the  class, 
the  majores  barones  generally,  and  as  to  them  it  was  perfect, 
extending  itself  in  right,  if  not  always  in  fact,  to  every  one 
who  came  within  its  scope. 

In  the  Third  Report  of  the  Lords*  Committee,  apparently 
drawn  by  the  same  hand  as  the  Second,  they  "  conjecture 
that  after  the  establishment  of  the  commons'  house  of  parlia- 
ment as  a  body  by  election,  separate  and  distinct  from  the 
lords,  all  idea  of  a  right  to  a  writ  of  summons  to  parliament 
by  reason  of  tenure  had  ceased,  and  that  the  dignity  of  baron, 
if  not  conferred  by  patent,  was  considered  as  derived  only 
from  the  king's  writ  of  summons."  (Third  Report,  p.  226.) 
Yet  they  have  not  only  found  many  cases  of  persons  sum- 
moned by  writ  several  times  whose  descendants  have  not 
been  summoned,  and  hesitate  even  to  approve  the  decision 
of  the  house  on  the  Clifton  barony  in  1673,  when  it  was  de- 
termined that  the  claimant's  ancestor,  by  writ  of  summons 
and  sitting  in  parliament,  was  a  peer,  but  doubt  Whether 
«  even  at  this  day  the  dootrine  of  that  case  ought  to  be  con- 
sidered as  generally  applicable,  or  may  be  limited  by  time 
and  circumstances."  ^  (p.  33.)  ^ 

It  seems,  with  much  deference  to  more  learned  investiga- 
tors, rather  improbable  that,  either  before  or  after  the  regu- 
lar admission  of  the  knights  and  burgesses  by  represenUi- 
tion,  and  consequently  the  constitution  of  a  distinct  lords 
house  of  parliament,  a  writ  of  summons  could  have  been 
lawfully  withheld  at  the  king's  pleasure  from  any  one  holding 

1  This    doubt   was    soon    afterwards  been  an  universal  practice.    It  was  held 

changed  into  a  pi-oposition,  strenuously  by  Lord  R«df,^*i«'  **»^*',f  ''^f '  ^^*^ 

maintained  by  the  supposed  compiler  of  the  statute  of  5  Richard  II.  c.  4,  no  he- 

these  Reporti,   Lord  Redesdale,  on  the  reditary  or  even  personal  "pht  to  tt» 

claim  to  the  Urony  of  L'Isle  in  1829.  peerage  was  created  by  the  ^vrU  of  sum- 

The  ancestor  had  b^n  called  by  writ  to  mons.    The  house  of  lords  ^J^te^l  thj 

several  parliaments  of  Edw.  III.;  and  claim,  though  the  languase  of  their  reso- 

having   only  a  daughter,  the  negative  lut ion  is  not  conclusive  as  to  the  prin- 

argument  f^m  the  omLssion  of  his  pos-  ciple.    The  opinion  of  Ix)rd  11.  has  been 

terity  is  of  little  value ;  for  though  the  »t)ly  impugned  by  Sir  Hams  Nicolas,  in 

husbands  of  heiresses  were  frequently  his  Report  of  the  L'lata  Peerage,  1829. 
Bummonad,  this  does  not  seem  to  hare 


Chap.  Vin.         NATURE  OF  THEIR  SUMMONS. 


225 


such  lands  by  barony  as  rendered  him  notoriously  one  of  the 
majores  barones.     Nor  will  this  be  much  affected  by  argu- 
ments from  the  inexpediency  or  supposed  anomaly  of  permit- 
ting the  right  of  sitting  as  a  peer  of  parliament  to  be  trans- 
ferred by  alienation.    The  Lords'  Committee  dwell  at  length 
upon  them.     And  it  is  true  that,  in  our  original  feudal  con- 
stitution, the  fiefs  of  the  crown  could  not  be  alienated  without 
its  consent.     But  when  this  was  obtained,  when  a  barony  had 
passed  by  purchase,  it  would  naturally  draw  with  it,  as  an  in- 
cident of  tenure,  the  privilege  of  being  summoned  to  parlia 
ment,  or,  in  language  more  accustomed  in  those  times,  the 
obligation  of  doing  suit  and  service  to  the  king  in  his  high 
court.     Nor  was  the  alienee,  doubtless,  to  be  taxed  without 
his  own  consent,  any  more  than  another  tenant  in  capita. 
What  incongruity,  therefore,  is  there  in  the  supposition  that, 
after  tenants  in  fee-simple  acquired  by  statute  the  power  of 
alienation   without   previous   consent  of  the  crown,  the  new 
purchaser  stood  on  the  same  footing  in  all  other  respects  as 
before  the  statute  ?     It  is  also  much  to  be  observed  that  the 
claim  to  a  summons  might  be  gained  by  some  methods  of 
purchase,  using  that  word,  of  course,  in  the  legal  sense.    Thus 
the  husbands  of  heiresses  of  baronies  were  frequently  sum- 
moned, and  sat  as  tenants  by  courtesy  after  the  wife's  death ; 
though  it  must  be  owned  that  the  committee  doubt,  in  their 
Third  Report  (p.  47),  whether  tenancy  by  courtesy  of  a  dig- 
nity was  ever  allowed  as  a  right.     Thus,  too,  every  estate 
created  in  tail  male  was  a  diversion  of  the  inheritance  by  the 
owner's  sole  will  from  its  course  according  to  law.     Yet  in 
the  case  of  the  barony  of  Abergavenny,  even  so  late  as  the 
reign  of  James  I.,  the  heir  male,  being  in  seizin  of  the  lands, 
was  called  by  writ  as  baron,  to  the  exclusion  of  the  heir  gen- 
eral.    Surely  this  was  an  authentic  recognition,  not  only  of 
baronial  tenure  as  the  foundation  of  a  right  to  sit  in  parlia- 
ment, but  of  its  alienability  by  the  tenant.^ 

If  it  be  asked  whether  the  posterity  of  a  baron  aliening 
the  lands  which  gave  him  a  right  to  be  summoned  to  the 
king's  court  would  be  entitled  to  the  privileges  of  peerage 
by  nobility  of  blood,  it  is  true  that,  according  to  Collins, 
whose  opinion  the  committee  incline  to  follow,  there  are  in- 

»  The  Lords'  Committee  (Second  Re-  the  Fanes  for  the  particular  barony  in 

port,  p.  43G)  endeavor  to  elude  the  force  question ;  though  some  satisfaction  was 

of  this  authority ;  but  it  manifestly  ap-  made  to  the  claimant  of  the  latter  family 

pears  that  the  Nevilles  were  preferred  to  by  calling  her  to  a  different  peerage. 

VOL.  ui.  15 


III 


226 


BARONS  m  PARLIAMENT: 


NOTBS  TO 


stances  of  persons  in  such  circumstances  being  summoned. 
But  this  seems  not  to  prove  anything  to  the  purpose.  The 
king,  no  one  doubts,  from  the  time  of  Edward  I.,  used  to 
summon  by  writ  many  who  had  no  baronial  tenure  ;  and  the 
circumstance  of  having  alienated  a  barony  could  not  render 
any  one  incapable  of  attending  parliament  by  a  different  title. 
It  is  very  hard  to  determine  any  question  as  to  times  of  much 
irregularity ;  but  it  seems  that  the  posterity  of  one  who  had 
parted  with  his  baronial  lands  would  not,  in  those  early  times, 
as  a  matter  of  course,  remain  noble.  A  right  by  tenure 
seems  to  exclude  a  right  by  blood ;  not  necessarily,  because 
two  collateral  titles  may  coexist,  but  in  the  principle  of  the 
constitution.  A  feudal  principle  was  surely  the  more  ancient ; 
and  what  could  be  more  alien  to  this  than  a  baron,  a  peer,  an 
hereditary  counsellor,  without  a  fief  ?  NobiUty,  that  is,  gen- 
tility of  birth,  might  be  testified  by  a  pedigree  or  a  bearing ; 
but  a  peer  was  to  be  in  arms  for  the  crown,  to  grant  his  own 
money  as  well  as  that  of  others,  to  lead  his  vassals,  to  advise, 
to  exhort,  to  restrain  the  sovereign.  The  new  theory  came 
in  by  degrees,  but  in  the  decay  of  every  feudal  idea ;  it  was 
the  substitution  of  a  different  pride  of  aristocracy  for  that  of 
baronial  wealth  and  power ;  a  pride  nourished  by  heralds, 
more  peaceable,  more  indolent,  more  accommodated  to  the 
rules  of  fixed  law  and  vigorous  monarchy.  It  is  diflicult  to 
trace  the  progress  of  this  theory,  which  rested  on  nobility  of 
blood,  but  yet  so  remarkably  modified  by  the  original  princi- 
ple of  tenure,  that  the  privileges  of  this  nobility  were  ever 
confined  to  the  actual  possessor,  and  did  not  take  his  kindred 
out  of  the  class  of  commoners.  This  sufficiently  demonstrates 
that  the  phrase  is,  so  to  say,  catachrestic,  not  used  in  a  proper 
sense ;  inasmuch  as  the  actual  seizin  of  the  peerage  as  an 
hereditament,  whether  by  writ  or  by  patent,  is  as  much  requi- 
<*ite  at  present  for  nobility,  as  the  seizin  of  an  estate  by  barony 
was  in  the  reign  of  Henry  III. 

Tenure  by  barony  appears  to  have  been  recognized  by  the 
house  of  lords  in  the  reign  of  Henry  VI.,  when  the  earldom 
of  Arundel  was  claimed  as  annexed  to  the  "  castle,  honor, 
and  lordship  aforesaid.'*  The  Lords*  Committee  have  elabo- 
rately disproved  the  allegations  of  descent  and  tenure,  on 
which  this  claim  was  allowed.  (Second  Report,  p.  406-426.) 
But  all  with  which  we  are  concerned  is  the  decision  of  the 
crown  and  of  the  house   in  the  11th  year  of  Henry  VI., 


i 


Chap.  VIIL 


NATURE  OF  THEIR  SUMMONS. 


227 


! 


whether  it  were  right  or  wrong  as  to  the  particular  facts  of 
the  case.  And  here  we  find  that  the  king,  by  the  advice  and 
assent  of  the  lords,  "  considering  that  Richard  Fitzalan,  &c., 
was  seized  of  the  castle,  honor,  and  lordship  in  fee,  and  by 
reason  of  his  possession  thereof,  without  any  other  reason  or 
creation,  was  earl  of  Arundel,  and  held  the  name,  style,  and 
honor  of  earl  of  Arundel,  and  the  place  and  seat  of  earl  of 
Arundel  in  parliament  and  councils  of  the  king,"  &c.,  admits 
him  to  the  same  seat  and  place  as  his  ancestors,  earls  of 
Arundel,  had  held.  This  was  long  afterwards  confirmed  by 
act  of  parliament  (3  Car.  I.),  reciting  the  dignity  of  earl  of 
Arundel  to  be  real  and  local,  &c.,  and  settling  the  title  on 
certain  persons  in  tail,  with  provisions  against  alienation  of 
the  castle  and  honor.  This  appears  to  establish  a  tenure  by 
barony  in  Arundel,  as  a  recent  determination  had  done  in 
Abergavenny.  Arundel  was  a  very  peculiar  instance  of  an 
earldom  by  tenure.  For  we  cannot  doubt  that  all  earls  were 
peers  of  parliament  by  virtue  of  that  rank,  though,  in  fact,  all 
held  extensive  lands  of  the  crown.  But  in  1669  a  new  doc- 
trine, which  probably  had  long  been  floating  among  lawyers 
and  in  the  house  of  lords,  was  laid  down  by  the  king  in  coun- 
cil on  a  claim  to  the  title  of  Fitzwalter.  The  nature  of  a 
barony  by  tenure  having  been  discussed,  it  was  found  "  to 
have  been  discontinued  for  many  ages,  and  not  in  being "  (a 
proposition  not  very  tenable,  if  we  look  at  the  Abergavenny 
case,  even  setting  aside  that  of  Arundel  as  peculiar  in  its 
character,  and  as  settled  by  statute) ;  "  and  so  not  fit  to  be  re- 
ceived, or  to  admit  any  pretence  of  right  to  succession  there- 
to." It  is  fair  to  observe  that  some  eminent  judges  were 
present  on  this  occasion.  The  committee  justly  say  that  "  this 
decision "  (which,  after  all,  was  not  in  the  house  of  lords) 
**  may  perhaps  be  considered  as  amounting  to  a  solemn  opin- 
ion that,  although  in  early  times  the  right  to  a  writ  of  sum- 
mons to  parliament  as  a  baron  may  have  been  founded  on 
tenure,  a  contrary  practice  had  prevailed  for  ages,  and  that, 
therefore,  it  was  not  to  be  taken  as  then  forming  part  of  the 
constitutional  law  of  the  land."  (p.  446.)  Thus  ended  bar- 
ony by  tenure.  The  final  decision,  for  such  it  has  been  con- 
sidered, and  recent  attempts  to  revive  the  ancient  doctrine 
have  been  defeated,  has  prevented  many  tedious  investiga- 
tions of  claims  to  baronial  descent,  and  of  alienations  in  times 
long  past.     For  it  could  not  be  pretended  that  every  fraction 


228 


BARONS  IN  PAKLIAMENT. 


NOTBS  TO 


of  a  barony  gave  a  right  to  summons ;  and,  on  the  other  hand, 
alienations  of  parcels,  and  descents  to  coparceners,  must  have 
been  common,  and  sometimes  difficult  to  disprove.  It  was 
held,  indeed,  by  some,  that  the  caput  haronice,  or  principal 
lordship,  contained,  as  it  were,  the  vital  principle  of  the  peer- 
age, and  that  its  owner  was  the  true  baron ;  but  this  assump- 
tion seems  uncertain. 

It  is  not  very  easy  to  reconcile  this  peremptory  denial  of 
peerage  by  tenure  with  the  proviso  in  the  recent  statute  tak- 
ing away  tenure  by  knight-service,  and,  inasmuch  as  it  con- 
verts all  tenure  into  socage,  that  also  by  barony,  "  that  this 
act  shall  not  infringe  or  hurt  any  title  of  honour,  feudal  or  oth- 
er, by  which  any  person  hath  or  may  have  right  to  sit  in  the 
lords'  house  of  parliament,  as  to  his  or  their  title  of  honour,  or 
sitting  in  parliament,  and  the  privilege  belonging  to  them  as 
peers."  (Stat.  12  Car.  II.  c.  24,  s.  11.) 

Surely  this  clause  was  designed  to  preserve  the  incident  to 
baronial  tenure,  the  privilege  of  being  summoned  to  parlia- 
ment, while  it  destroyed  its  original  root,  the  tenure  itself. 
The  privy  council,  in  their  decision  on  the  Fitzwalter  claim, 
did  not  allude  to  this  statute,  probably  on  account  of  the  above 
proviso,  and  seem  to  argue  that,  if  tenure  by  barony  was  no 
longer  in  being,  the  privilege  attached  to  it  must  have  been 
extinguished  also.  It  is,  however,  observable  that  tenure  by 
barony  is  not  taken  away  by  the  statute,  except  by  implica- 
tion. No  act  indeed  can  be  more  loosely  drawn  than  this, 
which  was  to  change  essentially  the  condition  of  landed  prop- 
erty throughout  the  kingdom.  It  literally  abolishes  all  ten- 
ure in  capite  ;  though  this  is  the  basis  of  the  crown's  right 
to  escheat,  and  though  lands  in  common  socage,  which  the  act 
with  a  strange  confusion  opposes  to  socage  in  capite,  were  as 
much  holden  of  the  king  or  other  lord  as  those  by  knight-ser- 
vice. Whether  it  was  intended  by  the  silence  about  tenure 
by  barony  to  pass  it  over  as  obsolete,  or  this  arose  from  negli- 
gence alone,  it  cannot  be  doubted  that  the  proviso  preserving 
3ie  right  of  sitting  in  parliament  by  a  feudal  honor  was  intro- 
duced in  order  to  save  that  privilege,  as  well  for  Arundel  and 
Abergavenny  as  for  any  other  that  might  be  entitled  to  it.^ 

1  The  continuance  of  barony  by  tenure  possession  of  Berkeley  castle,  published 

has  been  controverted  by  Sir  Harris  Nico-  as  an  Ap{>endix  to  hia  Report  of    the 

bus,  in  some  remarks  on  such  a  claim  L^Isle  Peerage.    In  the  particular  caM 

preferred  by  the  present  earl  Fitzharding  there  seem  to  hare  been  several  difflcul- 

vhUs  jet  a  commoner,  in  yirtue  of  the  ties,  independentlj  of  the  great  one, 


Chap.  Vm. 


COURT  OF  CHANCERY.  229 


Note  X.    Page  137. 

The  equitable  jurisdiction  of  the  Court  of  Chancery  has 
been  lately  traced,  in  some  respects,  though  not  for  the  special 
purpose  mentioned  in  the  text,  higher  than  the  reign  of  Rich- 
ard II.  This  great  minister  of  the  crown,  as  he  was  at  least 
from  the  time  of  the  conquest,^  always  till  the  reign  of  Ed- 
ward III.  an  ecclesiastic  of  high  dignity,  and  honorably  dis- 
tinguished as  the  keeper  of  the  king's  conscience,  was  pecu- 
liarly intrusted  with  the  duty  of  redressing  the  grievances  of 
the  subject,  both  when  they  sprung  from  misconduct  of  the 
government,  through  its  subordinate  officers,  and  when  the  in- 
jury had  been  inflicted  by  powerful  oppressors.  He  seems 
generally  to  have  been  the  chief  or  president  of  the  council, 
when  it  exerted  that  jurisdiction  which  we  have  been  sketch- 
ing in  the  text,  and  which  will  be  the  subject  of  another  note. 
But  he  is  more  prominent  when  presiding  in  a  separate  tribu- 
nal as  a  single  judge. 

The  Court  of  Chancery  is  not  distinctly  to  be  traced  under 
Henry  HI.  For  a  passage  in  Matthew  Paris,  who  says  of 
Radulfus  de  Nevil  —  "  Erat  regis  fidelissimus  cancellarius,  et 
inconcussa  columna  veritatis,  singulis  sua  jura,  praecipue  pau- 
peribus,  juste  reddens  et  indilate,"  may  be  construed  of  his 
judicial  conduct  in  the  council.  This  province  naturally,  how- 
ever, led  to  a  separation  of  the  two  powers.  And  in  the 
reign  of  Edward  I.  we  find  the  king  sending  certain  of  the 
petitions  addressed  to  him,  praying  extraordinary  remedies,  to 
the  chancellor  and  master  of  the  rolls,  or  to  either  separate- 
ly, by  writ  under  the  privy  seal,  which  was  the  usual  mode 
by  which  the  king  delegated  the  exercise  of  his  prerogative 


that,  in  the  reign  of  Charles  II.,  barony 
by  tenure  had  been  finally  condemned. 
But  there  is  surely  a  great  general  diffi- 
culty on  the  opposite  side,  in  the  hy- 
pothesis that,  while  it  is  acknowledged 
that  there  were,  in  the  reigns  of  Edward 
I.  and  >Mward  IT.,  certain  known  per- 
sons holding  by  barony  and  called  peers 
of  the  realm,  it  could  have  been  agree- 
able to  the  feudal  or  to  the  English  con- 
stitution that  the  king,  by  refusing  to 
the  posterity  of  such  barons  a  wi*it  of 
summons  to  parliament,  might  depriye 
ttMm  of  their  nobility,  and  reduce  them 
fcwrer  to  the  rank  of  commoners. 
^  It  has  been  doubted,  notwithstand- 


ing the  authority  of  Spelman,  and  some 
earlier  but  rather  precarious  testimony, 
whether  the  chancellor  before  the  Con- 
quest was  any  more  than  a  scribe  or 
secretary.  Palgrave,  in  the  Quarterly 
Review,  xxxiv.  291.  The  Anglo-Saxon 
charters,  as  far  as  I  have  observed,  never 
mention  him  as  a  witness  ;  which  seems 
a  very  strong  circumstance*.  Ingulfus, 
indeed,  has  given  a  pompous  account  of 
chancellor  Turkettil ;  and,  if  the  history 
ascribed  to  Ingulfus  be  genuine,  the  office 
must  have  been  of  high  dignity.  Lord 
Campbell  assumes  this  in  his  Lives  of 
the  Chancellors. 


ti 


1 


230 


JURISDICTION  OF  THE 


NOTSS  TO 


to  his  council,  directing  them  to  give  such  remedy  as  should 
appear  to  be  consonant  to  honesty  (or  equity,  honestati). 
« There  is  reason  to  believe,"  says  Mr.  Spence  (Equitable 
Jurisdiction,  p.  335),  "that  this  was  not  a  novelty."  But  I 
do  not  know  upon  what  grounds  this  is  believed.  Writs,  both 
those  of  course  and  others,  issued  from  Chancery  in  the  same 
reign.  (Palgrave*s  Essay  on  King's  CJouncil,  p.  15.)  Lord 
Campbell  has  given  a  few  specimens  of  petitions  to  the  coun- 
cil, and  answers  endorsed  upon  them,  in  the  reign  of  Edward 
I.,  communicated  to  him  by  Mr.  Hardy  from  the  records  of 
the  Tower.  In  all  these  the  petitions  are  referred  to  the  chan- 
cellor for  justice.  The  entry,  at  least  as  given  by  lord  Camp- 
bell, is  commonly  so  short  that  we  cannot  always  determine 
whether  the  petition  was  on  account  of  wrongs  by  the  crown 
or  others.  The  following  is  rather  more  clear  than  the  rest : 
"18  Edw.  I.  The  kin^s  tenants  of  Aulton  complain  that 
Adam  Gordon  ejected  them  from  their  pasture,  contrary  to 
the  tenor  of  the  king's  writ.  Resp.  Veniant  partes  coram 
cancellario,  et  ostendat  ei  Adam  quare  ipsos  ejecit,  et  fiat  iis 
justitia."  Another  is  a  petition  concerning  concealment  of 
dower,  for  which,  perhaps,  there  was  no  legal  remedy. 

In  the  reign  of  Edward  II.  the  peculiar  jurisdiction  of  the 
chancellor  was  still  more  distinctly  marked.  "  From  petitions 
and  answers  lately  discovered,  it  appears  that  during  this 
reign  the  jurisdiction  of  the  Court  of  Chancery  was  consider- 
ably extended,  as  the  *  consuetudo  cancellariae '  is  often  famil- 
iarly mentioned.  We  find  petitions  referred  to  the  chancellor  in 
his  court,  either  separately,  or  in  conjunction  with  the  king's 
justices,  or  the  king's  Serjeants ;  on  disputes  respecting  the 
wardship  of  infants,  partition,  dower,  rent-charges,  tithes, 
and  goods  of  felons.  The  chancellor  was  in  full  possession 
of  his  jurisdiction  over  charities,  and  he  superintended  the 
conduct  of  coroners.  Mere  wrongs,  such  as  malicious  prose- 
cutions and  trespasses  to  personal  property,  are  sometimes  the 
subject  of  proceedings  before  him;  but  I  apprehend  that 
those  were  cases  where,  from  powerful  combinations  and  con- 
federacies, redress  could  not  be  obtained  in  the  courts  of  com- 
mon law."     (Lives  of  Chanc.  vol.  i.  p.  204). 

Lord  Campbell,  still  with  materials  furnished  by  Mr.  Har- 
dy, has  given  not  less  than  thirty-eight  entries  during  the 
reign  of  Edward  H.,  where  the  petition,  thougli  sometimes 
directed  to  the  council,  is  referred  to  the  chancellor  for  deter- 


Chap.  Vlil. 


COUKT  OF  CHANCERY. 


231 


mination.  One  only  of  these,  so  far  as  we  can  judge  from 
their  very  brief  expression,  implies  anything  of  an  equitable 
jurisdiction.  It  is  again  a  case  of  dower,  and  the  claimant  is 
remitted  to  the  Chancery  ;  "  et  fiat  sibi  ibidem  justitia,  quia 
non  potest  juvari  per  communem  legem  per  breve  de  dote." 
This  case  is  in  the  Rolls  of  Parliament  (i.  340),  and  had  been 
previously  mentioned  by  Mr.  Bruce  in  a  learned  memoir  on 
the  Court  of  Star-Chamber.  (Archaeologia,  xxv.  345.)  It 
is  difficult  to  say  whether  this  fell  within  the  modern  rules  of 
equity,  but  the  general  principle  is  evidently  the  same. 

Another  petition  is  from  the  commonalty  of  Suffolk  to  the 
council,  complaining  of  false  indictments  and  presentments  in 
courts-leet.  It  is  answered  —  "  Si  quis  sequi-voluerit  adver- 
sus  falsos  indicatores  et  procuratores  de  falsis  indictamentis, 
sequatur  in  Cancell.  et  habebit  remedium  consequens."  Sev- 
eral other  entries  in  this  list  are  illustrative  of  the  jurisdiction 
appertaining,  in  fact  at  least,  to  the  council  and  the  chancel- 
lor; and  being  of  so  early  a  reign  form  a  valuable  accession 
to  those  which  later  records  have  furnished  to  Sir  Matthew 
Hale  and  others. 

The  Court  of  Chancery  began  to  decide  causes  as  a  court 
of  equity,  according  to  Mr.  Hardy,  in  the  reign  of  Edward 
III.,  probably  about  22  Edw.  III.  (Introduction  to  Close 
Rolls,  p.  28.)  Lord  Campbell  would  carry  this  jurisdiction 
higher,  and  the  instances  already  mentioned  may  be  sufficient 
just  to  prove  that  it  had  begun  to  exist.  It  certainly  seems 
no  unnatural  supposition  that  the  great  principle  of  doing  jus- 
tice, by  which  the  council  and  the  chancellor  professed  to  guide 
their  exercise  of  judicature,  may  have  led  them  to  grant  re- 
lief in  some  of  those  numerous  instances  where  the  common 
law  was  defective  or  its  rules  too  technical  and  unbending. 
But,  as  has  been  observed,  the  actual  entries,  as  far  as  quoted, 
do  not  afford  many  precedents  of  equity.  Mr.  Hardy,  indeed, 
suggests  (p.  25)  that  the  Curia  Regis  in  the  Norman  period 
proceeded  on  equitable  principles ;  and  that  this  led  to  the 
removal  of  plaints  into  it  from  the  county-court.  This  is, 
perhaps,  not  what  we  should  naturally  presume.  The  subtle 
and  technical  spirit  of  the  Norman  lawyers  is  precisely  that 
which  leads,  in  legal  procedure,  to  definite  and  unbending 
rules  ;  while  in  the  lower  courts,  where  Anglo-Saxon  thanes 
had  ever  judged  by  the  broad  rules  of  justice,  according  to 
the  circumstances  of  the  case,  rather  than  a  strict  line  of  law 


\ 


«i 


232 


JURISDICTION  OF  THE 


Notes  to 


which  did  not  yet  exist,  we  might  expect  to  find  all  the  un- 
certainty and  inconsistency  which  belongs  to  a  system  of  equi- 
ty, until,  as  in  England,  it  has  acquired  by  length  of  time 
the  uniformity  of  law,  but  none  at  least  of  the  technical- 
ity so  characteristic  of  our  Norman  common  law,  and  by 
which  the  great  object  of  judicial  proceedings  was  so  contin- 
ually defeated.  This,  therefore,  does  not  seem  to  me  a  prob- 
able cause  of  the  removal  of  suits  from  the  county  court  or 
court-baron  to  those  of  Westminster.  The  true  reason,  as  I 
have  observed  in  another  place,  was  the  partiality  of  these 
local  tribunals.  And  the  expense  of  trying  a  suit  before  the 
iustices  in  eyre  might  not  be  very  much  greater  than  in  the 
county  court. 

I  conceive,  therefore,  that  the  three  supreme  courts  at  West- 
minster proceeded  upon  those  rules  of  strict  law  which  they  had 
chiefly  themselves  established  ;  and  this  from  the  date  of  their 
separation  from  the  original  Curia  Regis.  But  whether  the 
king's  council  may  have  given  more  extensive  remedies  than 
the  common  law  afforded,  as  early  at  least  as  the  reign  of 
Henry  III.,  is  what  we  are  not  competent,  apparently,  to 
affirm  or  deny.  We  are  at  present  only  concerned  with 
the  Court  of  Chancery.  And  it  will  be  interesting  to  quote 
the  deUberate  opinion  of  a  late  distinguished  writer,  who  has 
taken  a  different  view  of  the  subject  from  any  of  his  prede- 
cessors. 

"  After  much  deliberation,'*  says  Lord  Campbell,  "  I  must 
express  my  clear  conviction  that  the  chancellor's  equitable 
jurisdiction  is  as  indubitable  and  as  ancient  as  his  common- 
law  jurisdiction,  and  that  it  may  be  traced  in  a  manner 
equally  satisfactory.  The  silence  of  Bracton,  Glanvil,  Fleta, 
and  other  early  juridical  writers,  has  been  strongly  relied 
upon  to  disprove  the  equitable  jurisdiction  of  the  chancellor ; 
but  they  as  httle  notice  his  common-law  jurisdiction,  most  of 
them  writing  during  the  subsistence  of  the  Aula  Eegia  ;  and 
they  all  speak  of  the  Chancery,  not  as  a  court,  but  merely  as 
an  office  for  the  making  and  sealing  pf  writs.  There  are  no 
very  early  decisions  of  the  chancellors  on  points  of  law  any 
more  than  of  equity,  to  be  found  in  the  Year-books  or  old 

abridgments By  *  equitable  jurisdiction'  must   be 

understood  the  extraordinary  interference  of  the  chancellor, 
without  common-law  process  or  regard  to  the  common-law 
mles  of  proceeding,  upon  the  petition  of  a  party  grieved  who 


Chap.  VIII. 


COURT  OF  CHANCERY. 


233 


was  without  adequate  remedy  in  a  court  of  common  law ; 
whereupon  the  opposite  party  was  compelled  to  appear  and 
to  be  examined,  either  personally  or  upon  written  interroga- 
tories :  and  evidence  being  heard  on  both  sides,  without  the 
interposition  of  a  jury,  an  order  was  made  secundum  cBquum 
et  bonunty  which  was  enforced  by  imprisonment.  Such  a 
jurisdiction  had  belonged  to  the  Aula  Regia,  and  was  long 
exercised  by  parliament;  and,  when  parliament  was  not 
sitting,  by  the  king's  ordinary  council.  Upon  the  dissolution 
of  the  Aula  Regia  many  petitions,  which  parliament  or  the 
council  could  not  conveniently  dispose  of,  were  referred  to 
the  chancellor,  sometimes  with  and  sometimes  without  asses- 
sors. To  avoid  the  circuity  of  applying  to  parliament  or  the 
council,  the  petition  was  very  soon,  in  many  instances,  ad- 
dressed originally  to  the  chancellor  himself."  (Lives  of 
Chancellors,  i.  7.) 

In  the  latter  part  of  Edward  III.'s  long  reign  this  equitable 
jurisdiction  had  become,  it  is  likely,  of  such  frequent  exercise, 
that  we  may  consider  the  following  brief  summary  by  lord 
Campbell  as  probable  by  analogy  and  substantially  true,  if  not 
sustained  in  all  respects  by  the  evidence  that  has  yet  been 
brought  to  light :  —  "  The  jurisdiction  of  the  Court  of  Chan- 
cery was  now  established  in  all  matters  where  its  own  officers 
were  concerned,  in  petitions  of  right  where  an  injury  was  al- 
leged to  be  done  to  a  subject  by  the  king  or  his  officers  in 
relieving  against  judgments  in  courts  of  law  (lord  C.  gives 
two  instances),  and  generally  in  cases  of  fraud,  accident,  and 
trust"     (p.  291.) 

In  the  reign  of  Richard  11.  the  writ  of  subpoena  was  in- 
vented by  John  de  Waltham,  master  of  the  rolls ;  and  to  this 
a  great  importance  seems  to  have  been  attached  at  the  time, 
as  we  may  perceive  by  the  frequent  complaints  of  the  com- 
mons in  parliament,  and  by  the  traditionary  abhorrence  in 
which  the  name  of  the  inventor  was  held.  "  In  reality,"  says 
lord  Campbell,  "  he  first  fi-amed  it  in  its  present  form  when 
a  clerk  in  Chancery  in  the  latter  end  of  the  reign  of  Edward 
III. ;  but  the  invention  consisted  in  merely  adding  to  the 
old  clause,  Quibusdam  certis  de  cau^is,  the  words  *  JEt  hoc  sub 
poena  centum  librarum  nuUatenus  omittas  ; '  and  I  am  at  a  loss 
to  conceive  how  such  importance  was  attached  to  it,  or  how 
it  was  supposed  to  have  brought  about  so  complete  a  revolu- 
tion in  equitable  proceedings,  for  the  penalty  was  never  en- 


234 


JURISDICTION  OF  THE 


Notes  to 


forced ;  and  if  the  party  failed  to  appear,  his  default  was 
treated,  according  to  the  practice  prevailing  in  our  own  time, 
as  a  contempt  of  court,  and  made  the  foundation  of  compul- 
sory process."     (p.  296.) 

The  commons  in  parliament,  whose  sensitiveness  to  public 
grievances  was  by  no  means  accompanied  by  an  equal  sagac- 
ity in  devising  remedies,  had,  probably  without  intention,  vast- 
ly enhanced  the  power  of  the  chancellor  by  a  clause  in  a  re- 
medial act  passed  in  the  thirty-sixth  year  of  Edward  III.,  that, 
"  If  any  man  that  feeleth  himself  aggrieved  contrary  to  any 
of  the  articles  above  written,  or  others  contained  in  divers 
statutes,  will  come  into  the  Chancery,  or  any  for  him,  and 
thereof  make  his  complaint,  he  shall   presently  there  have 
remedy  by  force  of  the  said  articles  or  statutes,  without  else- 
where pursuing  to  have  remedy.'*    Yet  nothing  could  be  more 
obvious  than  that  the  breach  of  any  statute  was  cognizable 
before  the  courts  of  law.     And  the  mischief  of  permitting 
men  to  be  sued  vexatiously  before  the  chancellor  becoming 
felt,  a  statute  was  enacted,  thirty  years  indeed  after  this  time 
(17  Ric.  II.  c.  6),  analogous  altogether  to  those  in  the  late 
reign  respecting  the  jurisdiction  of  the  council,  which,  re- 
citing that  "  people  be  compelled  to  come  before  the  king's 
council,  or  in  the  Chancery  by  writs  grounded  on  untrue  sug- 
gestions," provides  that  "  the  chancellor  for  the  time  being, 
presently  after  that  such  suggestions  be  duly  found  and  proved 
untrue,  shall  have  power  to  ordain  and  award  damages,  ac- 
cording to  liis  discretion,  to  him  which  is  so  troubled  unduly 
as  aforesaid."     "This    remedy,"    lord  Campbell   justly  re- 
marks, "  which  was  referred  to  the  discretion  of  the  chan- 
cellor   himself,    whose   jurisdiction   was    to    be    controlled, 
proved,  as  might  be  expected,  wholly  ineffectual ;  but  it  was 
used  as  a  parliamentary  recognition  of  his  jurisdiction,  and 
a  pretence  for  refusing  to  establish  any  other  check  on  it." 
(p.  247.) 

A  few  years  before  this  statute  the  commons  had  petitioned 
(13  Ric.  II.,  Rot.  Pari.  iii.  269)  that  the  chancellor  might 
make  no  order  against  the  common  law,  and  that  no  one 
should  appeal-  before  the  chancellor  where  remedy  was  given 
by  the  common  law.  "  This  carries  with  it  an  admission,"  as 
lord  C.  observes,  "  that  a  power  of  jurisdiction  did  reside  in 
the  chancellor,  so  long  as  he  did  not  determine  against  the 
common  law,  nor  interfere  where  the  common  law  furnished 


Chap.  Vm. 


COURT  OF  CHANCERY. 


235 


a  remedy.  The  king's  answer,  *  that  it  should  continue  as  the 
usage  had  been  heretofore,*  clearly  demonstrates  that  such  an 
authority,  restrained  within  due  bounds,  was  recognized  by 
the  constitution  of  the  country."  (p.  305.) 

The  act  of  17  Ric.  II.  seems  to  have  produced  a  greater 
regularity  in  the  proceedings  of  the  court,  and  put  an  end  to 
such  hasty  interference,  on  perhaps  verbal  suggestions,  as  had 
given  rise  to  this  remedial  provision.  From  the  very  year  in 
which  the  statute  was  enacted  we  find  bills  in  Chancery,  and 
the  answers  to  them,  regularly  filed ;  the  grounds  of  demand- 
ing relief  appear,  and  the  chancellor  renders  himself  in  ev- 
ery instance  responsible  for  the  orders  he  has  issued,  by  thus 
showing  that  they  came  within  his  jurisdiction.  There  are 
certainly  many  among  the  earlier  bills  in  Chancery,  which, 
according  to  the  statute  law  and  the  great  principle  that  they 
were  determinable  in  other  courts,  could  not  have  been  heard; 
but  we  are  unable  to  pronounce  how  far  the  allegation  usual- 
ly contained  or  implied,  that  justice  could  not  be  had  else- 
where, was  founded  on  the  real  circumstances.  A  calendar 
of  these  early  proceedings  (in  abstract)  is  printed  in  the  In- 
troduction to  the  first  volume  of  the  Calendar  of  Chancery 
Proceedings  in  the  Reign  of  Elizabeth,  and  may  also  be  found 
in  Cooper's  Public  Records,  i.  356. 

The  struggle,  however,  in  behalf  of  the  common  law  was  not 
at  an  end.  It  is  more  than  probable  that  the  petitions  against 
encroachments  of  Chancery,  which  fill  the  rolls  under  Henry 
IV.,  Henry  V.,  and  in  the  minority  of  Henry  VI.,  emanated 
from  that  numerous  and  jealous  body  whose  interests  as  well 
as  prejudices  were  so  deeply  affected.  Certain  it  is  that  the 
commons,  though  now  acknowledging  an  equitable  jurisdiction, 
or  rather  one  more  extensive  than  is  understood  by  the  word 
"  equitable,"  in  the  greatest  judicial  officer  of  the  crown,  did 
not  cease  to  remonstrate  against  his  transgression  of  these 
boundaries.  They  succeeded  so  far,  in  1436,  as  to  obtain  a 
statute  (15  Henry  VI.  c.  4)  in  these  words: — "  For  that  di- 
vers persons  have  before  this  time  been  greatly  vexed  and 
grieved  by  writs  of  suhpmna,  purchased  for  matters  deter- 
minable by  the  common  law  of  this  land,  to  the  great  damage 
of  such  persons  so  vexed,  in  suspension  and  impediment  of  the 
common  law  as  aforesaid ;  Our  lord  the  king  doth  command 
that  the  statutes  thereof  made  shall  be  duly  observed,  accord- 
ing to  the  form  and  effect  of  the  same,  and  that  no  writ 


236 


COURT  OF  CHANCERY. 


NOTB8  TO 


Chap.  Vm. 


THE  KING'S  COUNCHi. 


237 


II 


of  subpoena  be  granted  from  henceforth  until  surety  be 
found  to  satisfy  the  party  so  grieved  and  vexed  for  his  dam- 
ages and  expenses,  if  so  be  that  the  matter  cannot  be  made 
good  which  is  contained  in  the  bill."  It  was  the  intention  of 
the  commons,  as  appears  by  the  preamble  of  this  statute  and 
more  fully  by  their  petition  in  Rot.  Pari.  (iv.  101),  that  the 
matters  contained  in  the  bill  on  which  the  subpoena  was  issued 
should  be  not  only  true  in  themselves,  but  such  as  could  not 
be  determined  at  common  law.  But  the  king's  answer  ap- 
pears rather  equivocal. 

The  principle  seems  nevertheless  to  have  been  generally 
established,  about  the  reign  of  Henry  VI.,  that  the  Court  of 
Chancery  exercises  merely  a  remedial  jurisdiction,  not  indeed 
controllable  by  courts  of  law,  unless  possibly  in  such  circum- 
stances as  cannot  be  expected,  but  bound  by  its  general  re- 
sponsibility to  preserve  the  limits  which  ancient  usage  and 
innumerable  precedents  have  imposed.  It  was  at  the  end  of 
this  reign,  and  not  in  that  of  Richard  II.,  according  to  the 
writer  so  often  quoted,  that  the  great  enhancement  of  the 
chancellor's  authority,  by  bringing  feoffments  to  uses  within 
it,  opened  a  new  era  in  the  history  of  our  law.  And  this  the 
judges  brought  on  themselves  by  their  narrow  adherence  to 
technical  notions.  They  now  began  to  discover  this ;  and 
those  of  Edward  IV.,  as  lord  Campbell  well  says,  were  "  very 
bold  men,"  having  repealed  the  statute  de  donis  by  their  own 
authority  in  Taltarum's  case  —  a  stretch  of  judicial  power  be- 
yond any  that  the  Court  of  Chancery  had  ventured  upon. 
They  were  also  exceedingly  jealous  of  that  court ;  and  in  one 
case,  reported  in  the  Year-books  (22  Edw.  IV.  37),  advised 
a  party  to  disobey  an  injunction  from  the  Court  of  Chancery, 
telling  him  that,  if  the  chancellor  committed  him  to  the  Fleet, 
they  would  discharge  the  prisoner  by  habeas  corpus.  (Lord 
Campbell,  p.  394.)  The  case  seems  to  have  been  one  where, 
in  modem  times,  no  injunction  would  have  been  granted,  the 
courts  of  law  being  competent  to  apply  a  remedy. 

Note  XI.    Page  139. 

This  intricate  subject  has  been  illustrated,  since  the  first 
publication  of  these  volumes,  in  an  Essay  upon  the  original 
Authority  of  the  King's  Council,  by  Sir  Francis  Palgrave 
(1834),  written  with  remarkable  perspicuity  and  freedom 


from  diffusiveness.  But  I  do  not  yet  assent  to  the  judg- 
ment of  the  author  as  to  the  legality  of  proceedings  be- 
fore the  council,  which  I  have  represented  as  unconstitu- 
tional, and  which  certainly  it  was  the  object  of  parliament  to 
restrain. 

"It  seems,"  he  says,  "that  in  the  reign  of  Henry  HI.  the 
council  was  considered  as  a  court  of  peers  within  the  terms 
of  Magna  Charta;  and  before  which,  as  a  court  of  original 
jurisdiction,  the  rights  of  tenants  holding  in  capite  or  by 
barony  were  to  be  discussed  and  decided,  and  it  unquestiona- 
bly exercised  a  direct  jurisdiction  over  all  the  king's  subjects" 
(p.  34).  The  first  volume  of  Close  Rolls,  published  by  Mr. 
Hardy  since  Sir  F.  Palgrave's  Essay,  contains  no  instances 
of  jurisdiction  exercised  by  the  council  in  the  reign  of  John. 
But  they  begin  immediately  afterwards,  in  the  minority  of 
Henry  III. ;  so  that  we  liave  not  only  the  fullest  evidence 
that  the  council  took  on  itself  a  coercive  jurisdiction  in  mat- 
ters of  law  at  that  time,  but  that  it  had  not  done  so  before  : 
for  the  Close  Rolls  of  John  are  so  full  as  to  render  the  nega- 
tive argument  satisfactory.  It  will,  of  course,  be  understood 
that  I  take  the  facts  on  the  authority  of  Mr.  Hardy  (Intro- 
duction to  Close  Rolls,  vol.  ii.),  whose  diligence  and  accuracy 
are  indisputable.  Thus  this  exercise  of  judicial  power  be- 
gan immediately  after  the  Great  Charter.  And  yet,  if  it  is 
to  be  reconciled  with  the  twenty-ninth  section,  it  is  difficult  to 
perceive  in  what  manner  that  celebrated  provision  for  person- 
al liberty  against  the  crown,  which  has  always  been  accounted 
the  most  precious  jewel  in  the  whole  coronet,  the  most  valua- 
ble stipulation  made  at  Runnymede,  and  the  most  enduring 
to  later  times,  could  merit  the  fondness  with  which  it  has  been 
regarded.  "  Non  super  eum  ibimus,  nee  super  eum  mittemus, 
nisi  per  legale  judicium  parium  suorum,  vel  per  legem  terrae." 
If  it  is  alleged  that  the  jurisdiction  of  the  king's  council  was 
the  law  of  the  land,  the  whole  security  falls  to  the  ground 
and  leaves  the  grievance  as  it  stood,  unredressed.  Could  the 
judgment  of  the  council  have  been  reckoned,  as  Sir  F.  Pal- 
grave supposes,  a  "judicium  parium  suorum,"  except  perhaps 
in  the  case  of  tenants  in  chief?  The  word  is  commonly  un- 
derstood of  that  trial  per  pais  which,  in  one  form  or  another, 
is  of  immemorial  antiquity  in  our  social  institutions. 

"Though  this  jurisdiction,"  he  proceeds,  "was  more  fre- 
quently called  into  action  when  parUament  was  sitting,  still  it 


238 


JURISDICTION  OF 


Noras  TO 


was  no  less  inherent  in  the  council  at  all  other  times ;  and 
until  the  middle  of  the  reign  of  Edward  III.  no  exception  had 
ever  been  taken  to  the  form  of  its  proceedings."  He  sub- 
joins indeed  in  a  note,  "  Unless  the  statute  of  5  Edw.  III.  c. 
9,  may  be  considered  as  an  earlier  testimony  against  the  au- 
thority of  the  council.  This,  however,  is  by  no  means  clear, 
and  there  is  no  corresponding  petition  in  the  parliament  roll 
from  which  any  further  information  could  be  obtained"  (p.  34). 

The  irresistible  conclusion  from  this  passage  is,  that  we 
have  been  wholly  mistaken  in  supposing  the  commons  under 
Edward  III.  and  his  successors  to  have  resisted  an  illegal  en- 
croachment of  power  in  the  king's  ordinary  council,  while  it 
had  in  truth  been  exercising  an  ancient  jurisdiction,  never 
restrained  by  law  and  never  complained  of  by  the  subject. 
This  would  reverse  our  constitutional  theory  to  no  small  de- 
gree, and  affect  so  much  the  spirit  of  my  own  pages,  that  I 
cannot  suffer  it  to  pass,  coming  on  an  authority  so  respectable, 
without  some  comment.  But  why  is  it  asserted  that  this  ju- 
risdiction was  inherent  in  the  council  ?  Why  are  we  to  inter- 
pret Magna  Charta  otherwise  than  according  to  the  natural 
meaning  of  the  words  and  the  concurrent  voice  of  parliament? 
The  silence  of  the  commons  in  parliament  under  Edward  II. 
as  to  this  grievance  will  hardly  prove  that  it  was  not  felt, 
when  we  consider  how  few  petitions  of  a  public  nature,  during 
that  reign,  are  on  the  rolls.  But  it  may  be  admitted  that  they 
were  not  so  strenuous  in  demanding  redress,  because  they 
were  of  comparatively  recent  origin  as  an  estate  of  parlia- 
ment, as  they  became  in  the  next  long  reign,  the  most  impor- 
tant, perhaps,  in  our  early  constitutional  history. 

It  is  doubted  by  Sir  F.  Palgrave  whether  the  statute  of  5 
Edw.  III.  c.  9,  can  be  considered  as  a  testimony  against  the 
authority  of  the  council.  It  is,  however,  very  natural  so  to 
interpret  it,  when  we  look  at  the  subsequent  statutes  and  peti- 
tions of  the  commons,  directed  for  more  than  a  century  to  the 
same  object.  "No  man  shall  be  taken,**  says  lord  Coke 
(2  Inst.  46),  "that  is,  restrained  of  liberty,  by  petition  or  sug- 
gestion to  the  king  or  to  his  council,  unless  it  be  by  indict- 
ment or  presentment  of  good  and  lawful  men,  where  such 
deeds  be  done.  This  branch  and  divers  other  parts  of  this 
act  have  been  wholly  explained  by  divers  acts  of  parliament, 
&c.,  quoted  in  the  margent."  He  then  gives  the  titles  of  six 
statutes,  the  first  being  this  of  5  Edw.  III.  c.  9.     But  let  us 


Chap.  VIII. 


THE  KING'S  COUNCIL. 


239 


suppose  that  the  petition  of  the  commons  in  25  Edw.  III.  de- 
manded an  innovation  in  law,  as  it  certainly  did  in  long-estab- 
lished usage.  And  let  us  admit  what  is  justly  pointed  out 
by  Sir  F.  Palgrave,  that  the  king's  first  answer  to  their  peti- 
tion is  not  commensurate  to  its  request,  and  reserves,  though 
it  is  not  quite  easy  to  see  what,  some  part  of  its  extraordinary 
jurisdiction.^  Still  the  statute  itself,  enacted  on  a  similar  peti- 
tion in  a  subsequent  parliament,  is  explicit  that  "  none  shall 
be  taken  by  petition  or  suggestion  to  the  king  or  his  council, 
unless  it  be  by  indictment  or  presentment"  (in  a  criminal 
charge),  "or  by  writ  original  at  the  common  law"  (in  a  civil 
suit),  "nor  shall  be  put  out  of  his  franchise  of  freehold,  unless 
he  have  been  duly  put  to  answer,  and  forejudged  of  the  same 
by  due  course  of  law." 

Lord  Hale  has  quoted  a  remarkable  passage  from  a  Tear- 
book,  not  long  after  these  statutes  of  25  Edw.  III.  and  28 
Edw.  III.,  which,  if  Sir  F.  Palgrave  had  not  overlooked,  he 
would  have  found  not  very  favorable  to  his  high  notions  of 
the  king's  prerogative  in  council.  "In  after  ages,"  says  Hale, 
"the  constant  opinion  and  practice  was  to  disallow  any  rever- 
sals of  judgment  by  the  council,  which  appears  by  the  nota- 
ble case  in  Year-book,  39  Edw.  III.  14."  (Jurisdiction  of 
Lords*  House,  p.  41.)  It  is  indeed  a  notable  case,  wherein 
the  chancellor  before  the  council  reverses  a  judgment  of  a 
court  of  law.  "Mes  les  justices  ne  pristoient  nul  regard  al 
reverser  devant  le  council,  par  ceo  que  ce  ne  fust  place  ou 
jugement  purroit  estre  reverse.**  If  the  council  could  not 
exercise  this  jurisdiction  on  appeal,  which  is  not  perhaps  ex- 
pressly taken  away  by  any  statute,  much  less  against  the  lan- 
guage of  so  many  statutes  could  they  lawfully  entertain  any 
original  suit.     Such,  however,  were  the  vacillations  of  a  mot- 


»  The  words  of  the  petition  and  answer 
are  the  following :  — 

"  Item,  que  nul  franc  homme  ne  soit 
mys  a  respondre  do  son  franc  tenement, 
ne  de  riens  qui  touche  vie  et  membre, 
fyns  ou  redemptions,  par  apposailles  de- 
rant  le  conseil  notre  seigneur  le  roi, 
ne  devant  scs  ministres  queconques,  sl- 
noun  par  proccs  de  ley  de  ces  en  arere 
use." 

"  II  pleat  a  notre  seigneur  le  roi  que 
tea  leies  de  son  roialme  soient  tenuz  et 
gardez  en  lour  force,  et  que  nul  homme 
Boit  tenu  a  respondre  de  son  fraunk  tene- 
ment, sinoun  par  processe  de  ley:  mes 
ie  chose  que  touch»  vio  ou  membre,  con- 


temptz  ou  excesse,  soit  fait  come  ad  este 
use  ces  en  arere."    Rot.  Par.  ii.  228. 

It  is  not  easy  to  perceive  what  was  re- 
served by  the  words  "  chose  que  touche 
vie  ou  membre  ;  "  for  the  council  never 
determined  these.  Possibly  it  regarded 
accusations  of  treason  or  felony,  which 
they  might  entertain  as  an  inquest, 
though  they  would  ultimately  be  tried 
by  a  jury.  Contempts  are  easily  under- 
stood ;  and  by  excesses  were  meant  riots 
and  seditions.  These  political  offences, 
which  could  not  be  always  safely  tried 
in  a  lower  court,  it  was  the  constant 
intention  of  the  government  to  nserr* 
for  the  counciL 


240 


JURISDICTION  OF 


NOT£8  TO 


ley  assembly,  so  steady  the  perseverance  of  government  in 
retaining  its  power,  so  indefinite  the  limits  of  ancient  usage, 
BO  loose  the  phrases  of  remedial  statutes,  passing  sometimes 
by  their  generality  the  intentions  of  those  who  enacted  them, 
so  useful,  we  may  add,  and  almost  indispensable,  was  a  por- 
tion of  those  prerogatives  which  the  crown  exercised  through 
the  council  and  chancery,  that  we  find  soon  afterwards  a  stat- 
ute (37  Edw.  III.  c.  18),  which  recognizes  in  some  measure 
those  irregular  proceedings  before  the  council,  by  providing 
only  that  those  who  make  suggestions  to  the  chancellor  and 
great  council,  by  which  men  are  put  in  danger  against  the 
form  of  the  charter,  shall  give  security  for  proving  them. 
This  is  rendered  more  remedial  by  another  act  next  year  (38 
Edw.  III.  c.  9),  which,  however,  leaves  the  liberty  of  making 
such  suggestions  untouched.  The  truth  is,  that  the  act  of  25 
Edw.  III.  went  to  annihilate  the  legal  and  equitable  jurisdic- 
tion of  the  Court  of  Chancery — the  former  of  which  had 
been  long  exercised,  and  the  latter  was  beginning  to  spring 
up.  But  the  42  Edw.  III.  c.  3,  which  seems  to  go  as  far  as 
the  former  in  the  enacting  words,  will  be  found,  according  to 
the  preamble,  to  regard  only  criminal  charges. 

Sir  Francis  Palgrave  maintains  that  the  council  never  in- 
termitted its  authority,  but  on  the  contrary  *'  it  continually  as- 
sumed more  consistency  and  order.  It  is  probable  that  the 
long  absences  of  Henry  V.  from  England  invested  this  body 
with  a  greater  degree  of  importance.  After  every  minority 
and  after  every  appointment  of  a  select  or  extraordinary  coun- 
cil by  authority  of  the  legislature,  we  find  that  the  ordinary 
council  acquired  a  fresh  impulse  and  further  powers.  Hence 
the  next  reign  constitutes  a  new  era"  (p.  80).  He  proceeds 
to  give  the  same  passage  which  I  have  quoted  from  Rot.  Pari. 
8  Hen.  VI.,  vol.  v.  p.  343,  as  well  as  one  in  an  earlier  par- 
liament (2  Hen.  VI.  p.  28).  But  I  had  neglected  to  state 
the  whole  case  where  I  mention  the  articles  settled  in  parlia- 
ment for  the  regulation  of  the  council.  In  the  first  place,  this 
was  not  the  king's  ordinary  council,  but  one  specially  appointed 
by  the  lords  in  parhament  for  the  government  of  the  realm 
during  his  minority.  They  consisted  of  certain  lords  spir- 
itual and  temporal,  the  chancellor,  the  treasurer,  and  a  few 
commoners.  These  commissioners  delivered  a  schedule  of 
provisions  "for  the  good  and  the  governance  of  the  land,  which 
the  lords  that  be  of  the  king's  council  desireth"  (p.  28).     It 


Chap.  VIII. 


THE  KING'S  COUNCIL. 


241 


does  not  explicitly  appear  that  the  commons  assented  to  these 
provisions ;  but  it  may  be  presumed,  at  least  in  a  legal  sense, 
by  their  being  present  and  by  the  schedule  being  delivered 
into  parliament,  "baillez  en  meme  le  parlement."  But  in  the 
8  Hen.  VI.,  where  the  same  provision  as  to  the  jurisdiction 
of  this  extraordinary  council  is  repeated,  the  articles  are  said, 
after  being  approved  by  the  lords  spiritual  and  temporal,  to 
have  been  read  "coram  domino  rege  in  eodem  parliamento, 
in  presentia  trium  regni  statuum"  (p.  343).  It  is  always 
held  that  what  is  expressly  declared  to  be  done  in  presence 
of  all  the  estates  is  an  act  of  parliament. 

We  find,  therefore,  a  recognition  of  the  principle  which  had 
always  been  alleged  in  defence  of  the  ordinary  council  in  this 
parliamentary  confirmation  —  the  principle  that  breaches  of 
the  law,  which  the  law  could  not,  through  the  weakness  of  its 
ministers,  or  corruption,  or  partiality,  sufficiently  repress,  must 
be  reserved  for  the  strong  arm  of  royal  authority.  "Thus," 
says  Sir  Francis  Palgrave,  "did  the  council  settle  and  define 
its  principles  and  practice.  A  new  tribunal  was  erected, 
and  one  which  obtained  a  virtual  supremacy  over  the 
conamon  law.  The  exception  reserved  to  their  *  discretion* 
of  interfering  wherever  their  lordships  felt  too  much  might 
on  one  side,  and  too  much  unmight  on  the  other,  was  of 
itself  sufficient  to  embrace  almost  every  dispute  or  trial" 
(p.  81).  ^       . 

But,  in  the  first  place,  this  latitude  of  construction  was  not 
by  any  means  what  the  parliament  meant  to  allow,  nor  could 
it  be  taken,  except  by  wilfully  usurping  powers  never  im- 
parted ;  and,  secondly,  it  was  not  the  ordinary  council  which 
was  thus  constituted  during  the  king's  minority ;  nor  did  the 
jurisdiction  intrusted  to  persons  so  specially  named  in  parlia- 
ment extend  to  the  regular  officers  of  the  crown.  The  re- 
straining statutes  were  suspended  for  a  time  in  favor  of  a  new 
tribunal.  But  I  have  already  observed  that  there  was  always 
a  class  of  cases  precisely  of  the  same  kind  as  those  mentioned 
in  the  act  creating  this  tribunal,  tacitly  excluded  from  the  op- 
eration of  those  statutes,  wherein  the  coercive  jurisdiction  of 
the  king's  ordinary  council  had  great  convenience,  namely, 
where  the  course  of  justice  was  obstructed  by  riots,  combina- 
tions of  maintenance,  or  overawing  influence.  And  there  is 
no  doubt  that,  down  to  the  final  abolition  of  the  Court  of  Star 
Chamber  (which  was  no  other  than  the  consilium  ordinarium 

VOL.   lU.  16 


242 


JURISDICTION  OF 


Notes  to 


Chap.  VIII. 


THE  KING'S  COUNCIL. 


213 


[ 


t^ 


under  a  different  name),  these  offences  were  cognizable  in  it, 
without  the  regular  forms  of  the  common  law.^ 

"  From  the  reign  of  Edward  IV.  we  do  not  trace  any 
further  opposition  to  the  authority  either  of  the  chancery  or 
of  the  council.  These  courts  had  become  engrafted  on  the 
constitution  ;  and  if  they  excited  fear  or  jealousy,  there  was 
no  one  who  dared  to  complain.  Yet  additional  parliamen- 
tary sanction  was  not  considered  as  unnecessary  by  Henry 
VII.,  and  in  the  third  year  of  his  reign  an  act  was  passed 
for  giving  the  Court  of  Star  Chamber,  which  had  now 
acquired  its  determinate  name,  further  authority  to  punish 
divers  misdemeanors."     (Palgrave,  p.  97.) 

It  is  really  more  than  we  can  grant  that  the  jurisdiction 
of  the  consilium  ordinarium  had  been  engrafted  on  the  con- 
stitution, when  the  statute-book  was  full  of  laws  to  restrain, 
if  not  to  abrogate  it.     The  acts  already  mentioned,  in  the 
reign  of   Henry  VI.,  by  granting  a  temporary  and  limited 
jurisdiction  to  the  council,  demonstrate  that  its  general  exer- 
cise was  not  acknowledged   by  parliament.     We  can  only 
say  that  it  may  have  continued  without  remonstrance  in  the 
reign  of  Edward  IV.     I  have  observed  in  the  text  that  the 
Rolls  of  Parliament  under   Edward   IV.  contain  no  com- 
plaints of  grievances.     But  it  is  not  quite  manifest  that  the 
council  did  exercise  in  that  reign  as  much  jurisdiction  as  it 
had  once  done.     Lord  Hale  tells  us  that  "  this  jurisdiction 
was  gradually  brought  into  great  disuse,  though  there  remain 
some  straggling  footsteps  of  their  proceedings  till  near  3  Hen. 
VII."   (Hist,  of  Lords'  Jurisdiction,  p.  38.)     And  the  fomous 
statute  in  that  year,  which  erected  a  new  court,  sometimes 
improperly  called  the  Court  of  Star  Chamber,  seems  to  have 
been  prompted   by  a  desire  to  restore,  in  a  new  and  more 
legal  form,  a  jurisdiction  which  was  become  almost  obsolete, 
and,  being  in  contradiction  to  acts  of  parliament,  could  not 
well  be  rendered  effective  without  one.^ 

We  cannot  but  discover,  throughout  the  learned  and  lumi- 
nous Essay  on  the  Authority  of  the  King's  Council,  a  strong 
tendency  to  represent  its  exercise  as  both  constitutional  and 
salutary.  The  former  epithet  cannot,  I  think,  be  possibly 
applicable  in  the  face  of  statute  law ;  for  what  else  determines 
our  constitution  ?     But  it  is  a  problem  with  some,  whether 

1  See  Note  in  p.  139,  for  the  statute  31 11.  VI.  c.  2. 

»  Sec  Constitutional  llistory  of  England,  toI.  i.  p  49.  (1842.) 


?• 


t 


the  powers  actually  exerted  by  this  anomalous  court,  admit- 
ting them  to  have  been,  at  least  latterly,  in  contravention  of 
many  statutes,  may  not  have  been  rendered  necessary  by  the 
disorderly  condition  of  society  and  the  comparative  impotence 
of  the  common  law.  This  cannot  easily  be  solved  with  the 
defective  knowledge  that  we  possess.  Sometimes,  no  doubt, 
the  **  might  on  one  side,  and  unraight  on  the  other,"  as  the 
answer  to  a  petition  forcibly  expresses  it,  afforded  a  justifi- 
cation which,  practically  at  least,  the  commons  themselves 
were  content  to  allow.  But  were  these  exceptional  instances 
Bo  frequent  as  not  to  leave  a  much  greater  number  wherein 
the  legal  remedy  by  suit  before  the  king's  justices  of  assize 
might  have  been  perfectly  effectual  ?  For  we  are  not  con- 
cerned with  the  old  county  courts,  which  were  perhaps 
tumultuary  and  partial  enough,  but  with  the  regular  admin- 
istration, civil  and  criminal,  before  the  king's  justices  of  oyer 
and  terminer  and  of  gaol  delivery.  Had  not  they,  generally 
speaking,  in  the  reign  of  Edward  HI.  and  his  successors, 
such  means  of  enforcing  the  execution  of  law  as  left  no 
sufficient  pretext  for  recurring  to  an  arbitrary  tribunal? 
Liberty,  we  should  remember,  may  require  the  sacrifice  of 
some  degree  of  security  against  private  wrong,  which  a 
despotic  government,  with  an  unlimited  power  of  restraint, 
can  alone  supply.  If  no  one  were  permitted  to  travel  on 
the  high  road  without  a  license,  or,  as  now  so  usual,  without 
a  passport,  if  no  one  could  keep  arms  without  a  registry,  if 
every  one  might  be  indefinitely  detained  on  suspicion,  the 
evil  doers  of  society  would  be  materially  impeded,  but  at  the 
expense,  to  a  certain  degree,  of  every  man's  freedom  and 
enjoyment.  Freedom  being  but  a  means  to  the  greatest 
good,  times  might  arise  when  it  must  yield  to  the  security  of 
still  higher  blessings  ;  but  the  immediate  question  is,  whether 
such  were  the  state  of  society  in  the  fourteenth  and  fifteenth 
centuries.  Now,  that  it  was  lawless  and  insecure,  compara- 
tively with  our  own  tunes  or  the  times  of  our  fathers  is 
hardly  to  be  disputed.  But  if  it  required  that  arbitrary 
government  which  the  king's  council  were  anxious  to  main- 
tain, the  representatives  of  the  commons  in  parliament, 
knights  and  burgesses,  not  above  the  law,  and  much 
interested  in  the  conservation  of  property,  must  have  com- 
plained very  unreasonably  for  more  than  a  hundred  years. 
They  were  apparently  as  well  able  to  judge  as  our  writers 


244 


NATURE  OF  THE  MONARCHY. 


Notes  to 


Chap.  VHI.  NATURE  OF  THE  MONARCHY. 


245 


4l 


can  be  ;  and  if  they  reckoned  a  trial  by  jury  at  nisi  prius 
more  likely,  on  the  whole,  to  insure  a  just  adjudication  of  a 
civil  suit,  than  one  before  the  great  officers  of  state  and  other 
constituent  members  of  the  ordinary  council,  it  does  not  seem 
clear  to  me  that  we  have  a  right  to  assert  the  contrary. 
This  mode  of  trial  by  jury,  as  has  been  seen  in  another 
place,  had  acquired,  by  the  beginning  of  the  fifteenth  century, 
its  present  form  ;  and  considering  the  great  authority  of  the 
judges  of  assize,  it  may  not,  probably,  have  given  very 
frequent  occasion  for  complaint  of  partiality  or  corrupt 
influence. 

Note  XH.    Page  150. 

The  learned  author  of  the  Inquiry  into  the  Rise  and  Growth 
of  the  Royal  Prerogative  in  England  has  founded  his  histori- 
cal theory  on  the  confusion  which  he  supposes  to  have  grown 
up  between  the  ideal  king  of  the  constitution  and  the  personal 
king  on  the  throne.  By  the  former  he  means  the  personifi- 
cation of  abstract  principles,  sovereign  power,  and  absolute 
justice,  which  the  law  attributes  to  the  genus  king,  but  which 
flattery  or  other  motives  have  transferred  to  the  possessor  of 
the  crown  for  the  time  being,  and  have  thus  changed  the  Teu- 
tonic cyntng,  the  first  man  of  the  commonwealth,  the  man  of 
the  highest  weregild,  the  man  who  was  so  much  responsible 
that  he  might  be  sued  for  damages  in  his  own  courts  or  de- 
posed for  misgovernment,  into  the  sole  irresponsible  person 
of  indefeasible  prerogatives,  of  attributes  almost  divine,  whom 
Bracton  and  a  long  series  of  subsequent  lawyers  raised  up  to 
a  height  far  beyond  the  theory  of  our  early  constitution. 

This  is  supported  with  great  acuteness  and  learning ;  nor 
is  it  possible  to  deny  that  the  king  of  England,  as  the  law- 
books represent  him,  is  considerably  different  from  what  we 
generally  conceive  an  ancient  German  chieftain  to  have  been. 
Yet  I  doubt  whether  Mr.  Allen  has  not  laid  too  much  stress 
on  this,  and  given  to  the  fictions  of  law  a  greater  influence 
than  they  possessed  in  those  times  to  which  his  inquiry  re- 
lates ;  and  whether,  also,  what  he  calls  the  monarchical  the- 
ory was  so  much  derived  from  foreign  sources  as  he  appre- 
hends. We  have  no  occasion  to  seek,  in  the  systems  of  civil- 
ians or  the  dogmas  of  churchmen,  what  arose  from  a  deep- 
seated  piinciple  of  human  nature.     A  king  is  a  person ;  to 


fl 


persons  alone  we  attach  the  attributes  of  power  and  wisdom; 
on  persons  we  bestow  our  affection  or  our  ill-will.  An  ab- 
straction, a  politic  idea  of  royalty,  is  convenient  for  lawyers ; 
it  suits  the  speculative  reasoner,  but  it  never  can  become  so 
familiar  to  a  people,  especially  one  too  rude  to  have  listened 
to  such  reasoners,  as  the  simple  image  of  the  king,  the  one 
man  whom  we  are  to  love  and  to  fear.  The  other  idea  is  a 
sort  of  monarchical  pantheism,  of  which  the  vanishing  point 
is  a  republic.  And  to  this  the  prevalent  theory,  that  kings 
are  to  reign  but  not  to  govern,  cannot  but  lead.  It  is  a  plaus- 
ible, and  in  the  main,  perhaps,  for  the  times  we  have  reached, 
a  necessary  theory ;  but  it  renders  monarchy  ultimately  scarce- 
ly possible.  And  it  was  neither  the  sentiment  of  the  Anglo- 
Saxons,  nor  of  the  Norman  baronage ;  the  feudal  relation  was 
essentiidly  and  exclusively  personal;  and  if  we  had  not  enough, 
in  a  more  universal  feeling  of  human  nature,  to  account  for 
loyalty,  we  could  not  mistake  its  inevitable  connection  with 
the  fealty  and  homage  of  the  vassal.  The  influence  of  Ro- 
man notions  was  not  inconsiderable  upon  the  continent ;  but 
they  never  prevailed  very  much  here ;  and  though,  after  the 
close  alliance  between  the  church  and  state  established  by  the 
Reformation,  the  whole  weight  of  the  former  was  thrown  into 
the  scale  of  the  crown,  the  mediaeval  clergy,  as  I  have  ob- 
served in  the  text,  were  anything  rather  than  upholders  of 
despotic  power. 

It  may  be  very  true  that,  by  considering  the  monarchy  as 
a  merely  political  institution,  the  scheme  of  prudent  men  to 
avoid  confusion,  and  confer  the  minimum  of  personal  author- 
ity on  the  reigning  prince,  the  principle  of  his  irresponsibiUty 
seems  to  be  better  maintained.  But  the  question  to  which  we 
are  turning  our  eyes  is  not  a  political  one ;  it  relates  to  the 
positive  law  and  positive  sentiments  of  the  English  nation  in 
the  mediajval  period.  And  here  I  cannot  put  a  few  necessa- 
ry fictions  grown  up  in  the  courts,  such  as,  the  king  never 
dies,  the  king  can  do  no  wrong,  the  king  is  everywhere,  against 
the  tenor  of  our  constitutional  language,  which  implies  an  act- 
ual and  active  personality.  Mr.  Allen  acknowledges  that  the 
act  against  the  Dispensers  under  Edward  II.,  and  recon- 
firmed after  its  repeal,  for  promulgating  the  doctrine  that  al- 
legiance had  more  regard  to  the  crown  than  to  the  person  of 
the  king,  "seems  to  estabhsh,  as  the  deliberate  opinion  of  the 


246 


NATURE  OF  THE  MONARCHY. 


Notes  to 


! 


legislature,  that  allegiance  is  due  to  the  person  of  the  Img 
Kenerally,  and  not  merely  to  his  crown  or  politic  capacity,  so 
L  to  be  released  and  destroyed  by  his  misgovernment  ot  the 
Wn-dom"  (p.  U);  which,  he  adds,  is  not  easily  reconcilable 
with  the  deposition  of  Richard  II.  But  that  was  acco^Pl'^^"^ 
by  force,  with  whatever  formaliUes  it  may  have  been  thought 

expedient  to  surround  it.  ,      ,    ,      ..„„  »f  »i,« 

We   cannot,  however,  infer  from  the  declaration  of  the 

legislature,  that  allegiance  is  due  to  the  king's  ?««''"«"'' "»' 
to  his  politic  capacity,  any  such  consequence  as  that  it  is  no^ 
in  any  V>5sible  case,  to  be  released  by  h,s  n'l^S°^'«^"'"^"^ 
Thisi^s  surely  not  in  the  spirit  of  any  parhament  un  er 
Edward  II.  or  Edward  III.;  and  it  is  Ff  ^cl?  !'«,'^''»^„\""^; 
giance  is  due  to  the  person,  that,  upon  either  feudal  or  naturrf 

principles,  it  might  be  cancelled  by  P^'-^o"'^!  •"'^^^"•^"^  '  f! 
^ntrary  language  was  undoubtedly  held  under  the  Stuarts, 
but  it  was  not  that  of  the  mediaival  period. 

The  tenet  of  our  law,  that  all  the  soil  belongs  theoretically 
to  the  king,  is  undoubtedly  an  enormous  fiction,  and  very 
repugnant  To  the  barbaric  theory  preserved  by  the  Saxons 
ftat^all  unappropriated  land  belonged  to  the  folk,  «nd  was 
unalienable  without  its  consent.'    It  was,  however,  but  an 
extension  of  the  feudal  tenure  to  the  whole  k>nK.''o'n'  f"* 
rested  on  the  personality  of  feudal  homage.    William  estab- 
lished it  more  by  his  power  than  by  any  theory  of  lawyere , 
S'  doubtless\is  successors  often  found  lawyers  J^^  ready 
to  shape  the  acts  of  power  into  a  theory  as  if  they  had 
originally  projected  them.     And  thus   grew  up  the  hi^h 
schemes  of  prerogative,  which,  for  many  centunes,  ^yere  m 
conflict  with  thoserf  liberty.     We  are  not  able,  "everth«les  , 
to  define  the  constitutional  authority  of  the  Saxon  kings;  it 
was  not  legislative,  nor  was  that  of  William  and  his  sue- 
censors  ever  such ;  it  was  not  exclusive  of  redress  for  pr.v^e 
wron-,  nor  was  this  ever  the  theory  of  Enghsh  Ia.w,  though 
the  method  of  remedy  might  not  be  sufficiently  efiective;  y«  it 
had  certainly  grown  before  the  Conquest  with  "«  help  f^m 
Roman  notions,  to  something  very  unlike  that  of  the  German 
kings  in  Tacitus. 

Utta,  l«n  mentioned  in  .  former    fol'tandtad  .c,»tod  theappellaUon  l^- 
note,  oVMrTAUen'.  authority,  tliat  the    ra  «gu  before  the  Conquest. 


CHAP.  VIII.       VILLENAGE  OF  TUE  I'EASANTKY.  247 

Note  XIII.    Page  164. 

The  reduction  of  the  free  ceorls  into  ^i"'=°»S?r«^«f  J. 
if  as  general  as  is  usually  assumed,  is  one  of  the  mo=t  le- 
ma^lable  innovations  during  the  Anglo-Norman  period ;  and 
oneSh  as  far  as  our  published  records  e-tend  we  cannot 
wholly  explain.     Observations  have  been  made  on  it  by  Mn 
Wri"lit,  in  the  Archaeologia  (vol.    xxx.   p.   22o).     Alter 
adverting  to  the  oppression  of  the  peasants  in  Noiinandy 
which   p'roduced   seVeral    rebellions    he   proceeds  thu^- 
« These  feelings  of  hatred  and  contempt  for  the  peasantiy 
were  brought  into  our  island  by  the  Norman  barons  m  the 
b^rSV  tlie  eleventh  century.     The  faxon  kws^^ 
customs  continued ;  but  the  Normans  acted  as  the  Franks 
had  done   towards  the  Roman  coloni ;   they  enforced  wUh 
harshness  the  laws  which  were   in  their  own  favor,  and 
g^dua»y  tl '■•ew  aside,  or  broke  through,  those  which  were 
in  favor  of  the  miserable  serf."         „    ,    ,  ., ,    „f  .u. 

In  the  Laws  of  Henry  I.  we  find  the  wercgild   of  the 
twyhinder,  or  villein,  set  it  200  shillings  in  Wessex,  "  qu» 
c^pu    reo^i  est  et  legum"  (c.  70).     But  this   expres  wn 
Sgues  an  Anglo-Saxon  source ;  and,  in  fivct,  so  much  in  that 
treatise  seems^to  be  copied,  without  regard  to  the  .change  of 
times,  from  old  authorities,  mixed  up  with  pro^'^'""^  "^  « 
feudal  or  Norman  character,  that  we  h=^f  y  kn<m  how^ 
distinguish  what  belongs  to   each  period.     "  "^f"^  t'"?^ 
fmpXble  that  villenag^e,  in  the  sense  the  word  afterwards 
bore,  that  is,  an  absolutely  servile  teimre  of  lands,  not  only 
without  legal  rights  over  them,  but  with  an  '"capaciy  of  ac- 
quiring either  immovable  or  movable  property  against  the  lord 
mavhave  made   considerable   strides  before   the  re^n  of 
Henry  II.'     But  unless  light  should  be  thrown  on  its  history 
by  the  publication  of  more  records,  it  seems  almost  impossible 
to  detemine  the  introduction  of  predial  villenage  more  pre- 
cisely than  to  say  it  does  not  appear  in  the  law^  ^^  ^ngland 
at  the  Conquest,  and  it  does  so  in  the  time  of  Glanvil.    Mr 


1  A  presumptive  proof  of  this  may  be 
drawn  from  a  chapter  in  tlie  Laws  of 
Henry  I.  c.  81,  where  the  penalty  paya- 
ble by  a  villein  for  certain  petty  offences 
|8  set  at  thirty  pence ;  that  of  a  cotsf.t  at 
fifteen  ;  and  of  a  theow  at  six.  The  pas- 
saKO  i8  extremely  obscure  ;  and  this  pro- 


portion of  the  three  classes  of  men  is  d- 
most  the  only  part  that  appears  evident. 
The  cotset,  who  is  often  mentioned  in 
Domesday,  may  thus  have  J>een  an  ij^ 
rior  villein,  nearly  similar  to  what  Glan- 
vil and  later  law-books  call  such. 


248 


VILLENAGE  OF 


KOTES  TO 


Chap.  VIII. 


THE  PEASANTRY. 


249 


Wright's  Memoir  in  the  Archaeologia,  above  quoted,  contains 
some  interesting  matter;  but  he  has  too  much  confounded 
the  theow,  or  Anglo-Saxon  slave,  with  the  ceorl;  not  even 
mentioning  the  latter,  though  it  is  indisputable  that  viUanus 
is  the  equivalent  of  ceorl,  and  servus  of  theow. 

But  I  suspect  that  we  go  a  great  deal  too  far  in  setting 
down  the  descendants  of  these  ceorls,  that  is,  the  whole 
Anglo-Saxon  population  except  thanes  and  burgesses,  as 
almost  universally  to  be  counted  such  villeins  as  we  read  of 
in  our  law-books,  or  in  concluding  that  the  cultivators  of  the 
land,  even  in  the  thirteenth  century,  were  wholly,  or  at  least 
generally,  servile.  It  is  not  only  evident  that  small  free- 
holders were  always  numerous,  but  we  are,  perhaps,  greatly  de- 
ceived in  fancying  that  the  occupiers  of  villein  tenements  were 
usually  villeins.  Terre-tenants  en  viUenage  and  tenants  par 
copie,  who  were  undoubtedly  free,  appear  in  the  early  Year- 
books, and  we  know  not  why  they  may  not  always  have  ex- 
isted.^ This,  however,  is  a  subject  which  I  am  not  sufficiently 
conversant  with  records  to  explore ;  it  deserves  the  attention 
of  those  well-informed  and  diligent  antiquaries  whom  we  pos- 
sess. Meantime  it  is  to  be  observed  that  the  lands  occupied 
by  villani  or  bordarii,  according  to  the  Domesday  survey, 
were  much  more  extensive  than  the  copyholds  of  the  present 
day ;  and  making  every  allowance  for  enfranchisements,  we 
can  hardly  believe  that  all  these  lands,  being,  in  fact,  by  far 
the  greater  part  of  the  soil,  were  the  villenagia  of  Glanvil's 
and  Bracton's  age.  It  would  be  interesting  to  ascertain  at 
what  time  the  latter  were  distinguished  from  libera  tene- 
menta ;  at  what  time,  that  is,  the  distinction  of  territorial 
servitude,  independent  as  it  was  of  the  personal  state  of  the 
occupant,  was  established  in  England. 


Note  XIV.    Page  166. 

This  identity  of  condition  between  the  villein  regardant 
and  in  gross  appears  to  have  been,  even  lately,  called  in 
question,  and  some  adhere  to  the  theory  which  supposes  an 

1  The  foUowing  passage  in  the  Chroni-  cuidam  Anglico  natione,  glebet  adscripto, 

cle  of  BrakeloQd  does  not  mention  any  de  cujus  fldelitate  plenius  confldebat  quia 

manumission  of  the  ceorl  on  whom  abbot  bonus  agricola  erat,  et  quia  neaciebat  lo- 

Samson   conferred   a   manor  :  —  Unum  qui  Gallice.    p.  24. 
■olum  manerium  carta  sua  confinuaTit 


i 


inferiority  in  the  latter.     The  following  considerations  will 
prove  that  I  have  not  been  mistaken  in  rejecting  it:  — 

I.  It  will  not  be  contended  that  the  words  "  regardant  ** 
and  "in  gross"  indicate  of  themselves  any  specific  difference 
between  the  two,  or  can  mean  anything  but  the  title  by  which 
the  villein  was  held ;  prescriptive  and  territorial  in  one  case, 
absolute  in  the  other.     For  the  proof,  therefore,  of  any  such 
difference  we  require  some  ancient  authority,  which  has  not 
been  given.      II.    The    villein  regardant  might  be  severed 
from  the  manor,  with  or  without  land,  and  would  then  become 
a  villein  in  gross.     If  he  was  sold  as  a   domestic  serf,  he 
might,   perhaps,  be   practically  in   a   lower   condition   than 
before,  but  his  legal  state  was  the  same.     If  he  was  aliened 
with  lands,  parcel  of  the  manor,  as  in  the  case  of  its  descent 
to  coparceners  who  made  partition,  he  would  no  longer  be 
regardant,  because  that  implied  a  prescriptive  dependence  on 
the  lord,  but  would  occupy  the  same  tenements  and  be  in 
exactly  the  same  position  as  before.     "  Villein  in  gross,"  says 
Littleton,  "  is  where  a  man  is  seised  of  a  manor  whereunto  a 
villein  is  regardant,  and  granteth  the  same  villein  by  deed  to 
another;  then  he  is  a  villein  in  gross,  and  not  regardant.** 
(Sect.  181.)     III.  The  servitude  of  all  villeins  was  so  com- 
plete that  we  cannot  conceive  degrees  in  it.     No  one  could 
purchase  lands  or  possess  goods  of  his  own ;  we  do  not  find 
that  any  one,  being  strictly  a  villein,  held  by  certain  services ; 
"  he  must  have  regard,"  says  Coke,  "  to  that  which  is  com- 
manded unto  him ;  or,  in  the  words  of  Bracton,  *  a  quo  prae- 
standum  servitium  incertum  et  indeterminatum,  ubi  scire  non 
poterit  vespere  quod   servitium   fieri   debet  mane.*"      (Co. 
Lit.  120,  b.)    How  could  a  villein  in  gross  be  lower  than  this  ? 
It  is  true  that  the  villein  had  one  inestimable  advantage  over 
the  American  negro,  that  he  was  a  freeman,  except  relatively 
to  his  lord;  possibly  he  might  be  better  protected  against 
personal   injury ;    but  in  his  incapacity  of  acquiring  secure 
property,  or  of  refusing  labor,  he  was  just  on  the  same  footing. 
It  may  be  conjectured  that  some  villeins  in  gross  were  de- 
scended from  the  servi,  of  whom  we  find  25,000  enumerated 
in  Domesday.     Littleton  says,  "  If  a  man  and  his  ancestors, 
whose  heir  he  is,  have  been  seised  of  a  villein  and  of  his 
ancestors,  as  of  villeins  in  gross,  time  out  of  memory  of  man, 
these  are  villeins  in  gross."     (Sect.  182.) 

It  has  been  oflen  asserted  that  villeins  in  gross  seem  not  to 


250 


VILLENAGE  OF  THE  PEASANTRY. 


Notes  to 


Chap.  Vm. 


POPULAR  POETRY. 


251 


II 


have  been  a  numerous  class,  and  it  might  not  be  easy  to  ad- 
duce distinct  instances  of  them  in  the  fourteenth  and  fifteenth 
centuries,  though  we  should  scarcely  infer,  from  the  pains 
Littleton  takes  to  describe  them,  that  none  were  left  in  his 
time.  But  some  may  be  found  in  an  earlier  age.  In  the 
ninth  of  John,  William  sued  Ralph  the  priest  for  granting 
away  lands  which  he  held  to  Canford  priory,  Ralph  pleaded 
that  they  were  his  freehold.  William  replied  that  he  held 
them  in  villenage,  and  that  he  (the  plaintiff)  had  sold  one  of 
Ralph's  sisters  for  four  shillings.  (Blomcfield's  Norfolk,  vol. 
iii.  p.  860,  4to  edition.)  And  Mr.  Wright  has  found  in 
Madox's  Formulare  Anglicanum  not  less  than  five  instances 
of  villeins  sold  with  their  family  and  chattels,  but  without 
land.  (Archasologia,  xxx.  228.)  Even  where  they  were 
sold  along  with  land,  unless  it  were  a  manor,  they  would,  as 
has  been  observed  before,  have  been  villeins  in  gross.  I  have, 
however,  been  informed  that  in  valuations  under  escheats  in 
the  old  records  a  separate  value  is  never  put  upon  villeins ; 
their  alienation  without  the  land  was  apparently  not  contem- 
plated. Few  cases  concerning  villeins  in  gross,  it  has  been 
said,  occur  in  the  Year-books ;  but  villenage  of  any  kind 
does  not  furnish  a  great  many ;  and  in  several  I  do  not  per- 
ceive, in  consulting  the  report,  that  the  party  can  be  shown 
to  have  been  regardant.  One  reason  why  villeins  in  gross 
should  have  become  less  and  less  numerous  was  that  they 
could,  for  the  most  part,  only  be  claimed  by  showing  a  writ- 
ten grant,  or  by  prescription  through  descent ;  so  that,  if  the 
title-deed  were  lost,  or  the  descent  unproved,  the  villein  be- 
came free. 

Manumissions  were  often,  no  doubt,  gratuitous;  in  some 
cases  the  villein  seems  to  have  purchased  his  freedom.  For 
though  in  strictness,  as  Glanvil  tells  us,  he  could  not  "liber- 
tatem  suam  suis  denariis  quaerere,"  inasmuch  as  all  he  pos- 
sessed already  belonged  to  the  lord,  it  would  have  been  thought 
a  meanness  to  insist  on  so  extreme  a  right.  In  order,  how- 
ever, to  make  the  deed  more  secure,  it  was  usual  to  insert  the 
name  of  a  third  person  as  paying  the  consideration-money 
for  the  enfranchisement.     (Archoeologia,  xxx.  228.) 

It  appears  not  by  any  means  improbable  that  regular  mon- 
ey payments,  or  other  fixed  liabilities,  were  often  substituted 
instead  of  uncertain  services  for  the  benefit  of  the  lord  as 
well  as  the  tenant.     And  when  these  had  lasted  a  considera- 


ble time  in  any  manor,  the  villenage  of  the  latter,  without  any 
manumission,  would  have  expired  by  desuetude.  But,  per- 
haps, an  entry  of  his  tenure  on  the  court-roll,  with  a  copy 
given  to  himself,  would  operate  of  itself,  in  construction  of 
law,  as  a  manumission.     This  I  do  not  pretend  to  determine. 

Note  XV.    Page  171. 

The  public  history  of  Europe  in  the  middle  ages  inade- 
quately represents  the  popular  sentiment,  or  only  when  it  is 
expressed  too  loudly  to  escape  the  regard  of  writers  intent 
sometimes  on  less  important  subjects.  But  when  we  descend 
below  the  surface,  a  sullen  murmur  of  discontent  meets  the 
ear,  and  we  perceive  that  mankind  was  not  more  insensible  to 
wrongs  and  sufferings  than  at  present.  Besides  the  various 
outbreakings  of  the  people  in  several  counties,  and  their  com- 
plaints in  parliament,  after  the  commons  obtained  a  represen- 
tation, we  gain  a  conclusive  insight  into  the  spirit  of  the  times 
by  their  popular  poetry.  Two  very  interesting  collections  of 
this  kind  have  been  lately  published  by  the  Camden  Society, 
through  the  diligence  of  Mr.  Thomas  Wright ;  one,  the  Po- 
ems attributed  to  Walter  Mapes;  the  other,  the  Political 
Songs  of  England,  from  John  to  Edward  II. 

Mapes  lived  under  Henry  II.,  and  has  long  been  known  as 
the  reputed  author  of  humorous  Latin  verses ;  but  it  seems 
much  more  probable,  that  the  far  greater  part  of  the  collec- 
tion lately  printed  is  not  from  his  hand.  They  may  pass,  not 
for  the  production  of  a  single  person,  but  rather  of  a  class, 
during  many  years,  or,  in  general  words,  a  century,  ending 
with  the  death  of  Henry  III.  in  1272.  Many  of  them  are 
professedly  written  by  an  imaginary  Golias. 

"They  are  not  the  expressions  of  hostility  of  one  man 
against  an  order  of  monks,  but  of  the  indignant  patriotism 
of  a  considerable  portion  of  the  English  nation  against  the 
encroachments  of  civil  and  ecclesiastical  tyranny."  (Intro- 
duction to  Poems  ascribed  to  Walter  Mapes,  p.  21.)  The 
poems  in  this  collection  reflect  almost  entirely  on  the  pope 
and  the  higher  clergy.  They  are  all  in  rhyming  Latin,  and 
chiefly,  though  with  exceptions,  in  the  loose  trochaic  metre 
called  Leonine.  The  authors,  therefore,  must  have  been 
clerks,  actuated  by  the  spirit  which,  in  a  church  of  great  in- 
equality in  its  endowments,  and  with  a  very  numerous  body 


52 


POPULAR  POETRY. 


Notes  to 


of  poor  clergy,  is  apt  to  gain  strength,  but  certainly,  as  eccle- 
siastical history  bears  witness,  not  one  of  mere  envious  ma- 
lignity towards  the  prelates  and  the  court  of  Rome.  These 
deserved  nothing  better,  in  the  thirteenth  century,  than  biting 
satire  and  indignant  reproof,  and  the  poets  were  willing  enough 
to  bestow  both. 

But  this  popular  poetry  of  the  middle  ages  did  not  confine 
itself  to  the  church.  In  the  collection  entitled  *  Political 
Songs'  we  have  some  reflecting  on  Henry  III.,  some  on  the 
general  administration.  The  famous  song  on  the  battle  of 
Lewes  in  1264  is  the  earliest  in  English ;  but  in  the  reign  of 
Edward  I.  several  occur  in  that  lansjuasje.  Others  are  in 
French  or  in  Latin ;  one  complaining  of  the  taxes  is  in  an 
odd  mixture  of  these  two  languages ;  which,  indeed,  is  not 
without  other  examples  in  mediaeval  poetry.  Tliese  Latin 
songs  could  not,  of  course,  have  been  generally  understood. 
But  what  the  priests  sung  in  Latin,  they  said  in  English ; 
the  lower  clergy  fanned  the  flame,  and  gave  utterance  to 
what  others  felt.  It  may,  perhaps,  be  remarked,  as  a  proof 
of  general  sympathy  with  the  democratic  spirit  which  was 
then  fermenting,  that  we  have  a  song  of  exultation  on  the 
great  defeat  which  Philip  IV.  had  just  sustained  at  Courtrai, 
in  1302,  by  the  burgesses  of  the  Flemish  cities,  on  whose 
liberties  he  had  attempted  to  trample  (p.  187).  It  is  true 
that  Edward  I.  was  on  ill  terms  with  France,  but  the  politi- 
cal interests  of  the  king  would  not,  perhaps,  have  dictated  the 
popular  ballad. 

It  was  an  idle  exaggeration  in  him  who  said  that,  if  he 
could  make  the  ballads  of  a  people,  any  one  might  make 
their  laws.  Ballads,  like  the  press,  and  especially  that  por- 
tion of  the  press  which  bears  most  analogy  to  them,  generally 
speaking,  give  vent  to  a  spirit  which  has  been  at  work  before. 
But  they  had,  no  doubt,  an  influence  in  rendering  more  de- 
terminate, as  well  as  more  active,  that  resentment  of  wrong, 
that  indignation  at  triumphant  oppression,  that  belief  in  the 
vices  of  the  great,  which,  too  often  for  social  peace  and  their 
own  happiness,  are  cherished  by  the  poor.  In  comparison, 
indeed,  with  the  eflScacy  of  the  modern  press,  the  power  of 
ballads  is  trifling.  Their  lively  sprightliness,  the  humorous 
tone  of  their  satire,  even  their  metrical  form,  sheathe  the 
sting ;  and  it  is  only  in  times  when  political  bitterness  is  at 
its  height  that  any  considerable  influence  can  be  attached  to 


CBAP.ym. 


POPULAR  POETRY. 


253 


them,  and  then  it  becomes  undistinguishable  from  more  en- 
ergetic motives.  Those  which  we  read  in  the  collection 
above  mentioned  appear  to  me  rather  the  signs  of  popular 
discontent  than  greatly  calculated  to  enhance  it.  In  that 
sense  they  are  very  interesting,  and  we  cannot  but  desire  to 
see  the  promised  continuation  to  the  end  of  Richard  II.'s 
reign.^  They  are  said  to  have  become  afterwards  less  fre- 
quent, though  the  wars  of  the  Roses  were  likely  to  bring 
them  forward. 

Some  of  the  political  songs  are  written  in  France,  though 
relating  to  our  kings  John  and  Henry  III.  Deducting  these, 
we  have  two  in  Latin  for  the  former  reign ;  seven  in  Latin, 
three  in  French  (or  what  the  editor  calls  Anglo-Norman, 
which  is  really  the  same  thing),  one  in  a  mixture  of  the  two, 
and  one  in  English,  for  the  reign  of  Henry  III.  In  the 
reigns  of  Edward  I.  and  Edward  U.  we  have  eight  in  Latin, 
three  in  French,  nine  in  English,  and  four  in  mixed  lan- 
guages ;  a  style  employed  probably  for  amusement.  It  must 
be  observed  that  a  large  proportion  of  these  songs  contain 
panegyric  and  exultation  on  victory  rather  than  satire ;  and 
that  of  the  satire  much  is  general,  and  much  falls  on  the 
church;  so  that  the  animadversions  on  the  king  and  the 
nobility  are  not  very  frequent,  though  with  considerable  bold- 
ness ;  but  this  is  more  shown  in  the  Latin  than  the  English 
poems. 

1  Mr.  Wright  has  given  a   few  speci-  may  reckon  Piers  Plowman  an  instance 

mens  in  Essays  on  the  Literature  and  of  popular  satire,  though  far  superior  to 

Popular  Superstition  of  England  in  the  the  rest 
Ifiddie  Ages,  toI.  i.  p.  257.    In  fiMt  we 


254 


INTRODUCTION. 


Chat.  IX.  Pabt  L 


CHAPTER  IX.» 

ON   THE    STATE    OP   SOCIETY  IN   EUROPE   DURING   THE 

MIDDLE   AGES. 


PART  I. 


il 


Introduction— Decline  of  Literature  in  the  latter  Period  of  the  Roman  Empire  — 
Its  Causes  —  Corruption  of  the  I^tin  Language  —  Means  by  which  it  was  effected 

—  Formation  of  new  Languages  —  General  Ignorance  of  the  Dark  Ages  —  Scarcity 
of  Books  — Causes  that  prevented  the  total  Extinction  of  Learning  —  Prevalence 
of  Superstition  and  Fanaticism  —  General  Corruption  of  Religion  —  Monasteries 

—  their  Effects  -  Pilgrimages  —  Love  of  Field  Sports  — State  of  Agriculture  — 
of  Internal  and  Foreign  Trade  down  to  the  End  of  tho  Eleyenth  Century  —  Im- 
provement of  Europe  dated  from  that  Age. 

It  has  been  the  object  of  every  preceding  chapter  of  this 
work,  either  to  trace  the  civil  revolutions  of  states  during  the 
period  of  the  middle  ages,  or  to  investigate,  with  rather  more 
minute  attention,  their  political  institutions.  There  remains 
a  large  tract  to  be  explored,  if  we  would  complete  the  circle 
of  historical  information,  and  give  to  our  knowledge  that 
copiousness  and  clear  perception  which  arise  from  compre- 
hending a  subject  under  numerous  relations.  The  philosophy 
of  history  embraces  far  more  than  the  wars  and  treaties,  the 
factions  and  cabals  of  common  political  narration ;  it  extends 
to  whatever  illustrates  the  character  of  the  human  species  in 
a  particular  period,  to  their  reasonings  and  sentiments,  their 
arts  and  industry.  Nor  is  this  comprehensive  survey  merely 
interesting  to  the  speculative  philosopher;  without  it  the 
statesman  would  form  very  erroneous  estimates  of  events, 
and  find  himself  constantly  misled  in  any  analogical  applica- 
tion of  them  to  present  circumstances.  Nor  is  it  an  uncom- 
mon source  of  error  to  neglect  the  general  signs  of  the  times, 


1  The  subject  of  the  present  chapter,  so 
for  as  it  relates  to  the  condition  of  litera- 
ture in  the  middle  ages,  has  been  again 
treated  by  me  in  the  first  and  second 
chapters  of  a  work,  published  in  1836, 


the  Introduction  to  the  History  of  Liter- 
ature in  the  Fifteenth,  Sixteenth,  and 
Seventeenth  Centuries.  Some  things  will 
be  found  in  it  more  exactly  stated,  others 
newly  supplied  from  recent  sourcea. 


State  of  Society. 


INTRODUCTION. 


255 


i 


and  to  deduce  a  prognostic  from  some  partial  coincidence 
with  past  events,  where  a  more  enlarged  comparison  of  all 
the  facts  that  ought  to  enter  into  the  combination  would 
destroy  the  whole  parallel.  The  philosophical  student,  how- 
ever, will  not  follow  tlie  antiquary  into  his  minute  details ; 
and  though  it  is  hard  to  say  what  may  not  supply  matter  for 
a  reflecting  mind,  there  is  always  some  danger  of  losing 
sight  of  grand  objects  in  historiciil  disquisition,  by  too  labori- 
ous a  research  into  trifles.  I  may  possibly  be  thought  to 
furnish,  in  some  instances,  an  example  of  the  error  I  con- 
demn. But  in  the  choice  and  disposition  of  topics  to  which 
the  present  chapter  relates,  some  have  been  omitted  on 
account  of  their  comparative  insignificance,  and  others  on 
account  of  their  want  of  connection  with  the  leading  subject. 
Even  of  those  treated  I  can  only  undertake  to  give  a 
transient  view ;  and  must  bespeak  the  reader's  candor  to 
remember  that  passages  which,  separately  taken,  may  often 
appear  superficial,  are  but  parts  of  the  context  of  a  single 
chapter,  as  the  chapter  itself  is  of  an  entire  work. 

The  Middle  Ages,  according  to  the  division  I  have 
adopted,  comj^rise  about  one  thousand  years,  from  the  invasion 
of  France  by  Clovis  to  that  of  Naples  by  Charles  VIII. 
This  period,  considered  as  to  the  state  of  society,  has  been 
esteemed  dark  through  ignorance,  and  barbarous  through 
poverty  and  want  of  refinement.  And  although  this  character 
is  much  less  applicable  to  the  last  two  centuries  of  the 
period  than  to  those  which  preceded  its  commencement,  yet 
we  cannot  expect  to  feel,  in  respect  of  ages  at  best  imper- 
fectly civilized  and  slowly  progressive,  that  interest  which 
attends  a  more  perfect  development  of  human  capacities,  and 
more  brilliant  advances  in  improvement.  The  first  moiety 
indeed  of  these  ten  ages  is  almost  absolutely  barren,  and 
presents  little  but  a  catalogue  of  evils.  The  subversion  of 
the  Roman  empire,  and  devastation  of  its  provinces,  by  bar- 
barous nations,  either  immediately  preceded,  or  were  coinci- 
dent with  the  commencement  of  the  middle  period.  We 
begin  in  darkness  and  calamity;  and  though  the  shadows 
grow  fainter  as  we  advance,  yet  we  are  to  break  off  our 
pursuit  as  the  morning  breathes  upon  us,  and  the  twilight 
reddens  into  the  lustre  of  day. 

No  circumstance  is  so  prominent  on  the  first  survey  of 
society  during  the  earlier  centuries  of  this  period  as  the 
depth  of  ignorance  in  which  it  was  immersed ;  and  as  from 


256 


DECLINE   OF  LEARNING      Cuap.  IX.  Pakt  L 


Decune  of      ^^'^^J  ?"°^?  ^^^^,  ^"7  single  causc,  the  moral  and 

karning  in     social  evils  which  those  ages  experienced  appear 

empiJJ.         ^o  have  been  derived  and  perpetuated,  it  deserves 

to  occupy  the  first  place  in  the  arrangement  of 

our  present  subject.     We  must  not  altogether  ascribe  the 

rum  of  literature  to  the  barbarian  destroyers  of  the  Roman 

empire.     So  gradual,   and,   apparently,  so  irretrievable  a 

decay  had  long  before  spread  over  all  liberal  studies,  that  it 

IS   impossible  to   pronounce  whether  they  would  not  have 

been  almost  equally  extinguished  if  the  august  throne  of  the 

Caesars  had  been  left  to  moulder  by  its  intrinsic  weakness. 

Under   the   paternal   sovereignty  of  Marcus   Aurelius   the 

approaching  declension  of  learning  might  be  scarcely  per- 

ceptible  to  an  incurious  observer.     There  was  much  indeed 

to  distmguish  his  times  from  those  of  Augustus ;  much  lost 

m  origmality  of  genius,  in  correctness  of  taste,  in  the  masterly 

conception  and  consummate  finish  of  art,  in  purity  of  the 

Latm,  and  even  of  the  Greek  language.     But  there  were 

men  who  made  the  age  famous,  grave  lawyers,  judicious  his- 

torians,  wise  philosophers ;  the  name  of  learning  was  honor- 

able.   Its    professors  were   encouraged;  and  along  the  vast 

surface  of  the  Roman  empire  there  was  perhaps°a  greater 

number  whose  minds  were  cultivated  by  intellectual  discipline 

than  under  the  more  brilliant  reign  of  the  first  emperor. 

It  is  not,  I  think,  very  easy  to  give  a  peifectly  satisfactory 
Its  causes,      solution  of  the  rapid  downfall  of  literature  between 
the  ages  of  Antonine  and  of  Diocletian.     Perhaps 
the  prosperous  condition  of  the  empire  from  Trajan  to  Marcus 
Aurelius,  and  the  patronage  which  those  good  princes  be- 
stowed on  letters,  gave  an  artificial  health  to  them  for  a 
moment,  and  suspended  the  operation  of  a  disease  which  had 
already  begun  to  undermine  their  vigor.     Perhaps  the  Intel- 
iectual  energies  of  mankind  can  never  remain  stationary; 
and  a  nation  that  ceases  to  produce  original  and  inventive 
minds,  born  to  advance  the  landmarks  of  knowled«^e  or  skill 
will  recede  from  step  to  step,  till  it  loses  even  the°  econdary 
ments  of  imitation  and  industry.     During  the  third  century, 
not  only  there  were  no  great  writers,  but  even  few  names  of 
indifferent  writers   have   been   recovered  by  the   diligence 
of  modern  inquu-y.i     Law  neglected,  philosophy  perverted 

i^VI?®  '^^I^?"  of  Histoire  Litteraire  de    authority  ;  two  of  whom  are  now  losfc 

era  of  Gaul   no  inconsiderable  part  of    was  considerably  neater       "**  ""™oe» 
the  Koman  Empire,  mentioned  upon  any  "«*«««oijr  greater. 


M 


STATE  OF  SociETi.    Jj  THE  ROMAN  EMPIRE.  257 

till  it  became  contemptible,  history  nearly  silent,  the  Latin 
tongue  growng  rapidly  barbarous,  poetry  rarely  and  It^ 
attempted,  art  more  and  more  vitiated;  such  wereThe  S 
toms  by  which  the  age  previous  to  C^^.JJt;  ^   P" 

the  decline  of  the  ■-mL'TnXt.'^rrL'rTn' 
account  for  this  unhappy  change,  as  I  have  observed  wl 
must,  however,  assign  much  wefght  to  the  degradation  If 
Rome  and  My  m  the  system  of  Severus  and  hfs  succesjf 
to    he  admission  of  barbarians  into  the  military  and  even 

wWch  followed  fir  h!^^   sovereigns,  and  to  the   calamities 

S;fs  STeltat'S  De^t'^O^JthK^^^^  ''  *,^ 

literature  the  fourth  centurv  sunnliS^  }^  ^  '=°'"^""'"  ""^ 

If  under  tho  I,«„cl^,f  ?>    ^.  supplied  no  permanent  remedy. 
iLZrTJ.f  f  Constantine  the  Roman  world  suffered 

ather  less  from  civil  warfare  or  barbarous  invasions  thaT  in 
the   preceding  age,  yet   every  other   cause   of  decline^„,t 

~y"se't  T"^'  "'*  i'^^^'^''  force;  anJteUth 
centuiy   set    in    storms,   sufficiently   destructive    in    tho™ 

SsVofrmr:  :l  *••"•=  ^^'^'"""^^  whTcrhumWeJZ' 
"oTl'nd'otThel?;  ZZIZT^L^'  -"^-^P^- 
and  final  ruin  before  its  teimina^r"  "^"^'^  '"  ^"^"^"'^ 
1  he  diffusion  of  literature  is  perfectly  distin<ruishable  from 
us  advancement;  and  whatever  obscurity  we  m^v  tod  in T 
plmning  the  variations  of  the  one  there  are  n  &  •  ? 
causes  which  seem  to  account  for  th'e  oth'.KnoidSll 

illyZlVXT  'f  '""  "°^^  *"  *«  '^-ard  S 
This  .1.      •      •     .  g^°eral  respect  and  applause  of  ^ocietv 

hasat  af.T"°  ""'"^■"^nt.  »•>«  genial  sunshine  of  approbation" 

wi?h  the  c^intry  ?f  r'  "^^''T'  ^"^  '"  '''^''  'o"^^^^^ 
literature,  we  s/onu  "^'^,'"■^  **  '°"™^^  "'"■<=''  """rish 
become  scantv^rJ    "^1"'"^"^  expect  that  they  must  have 

AccoTdingrTn 'he  7J'''"  ''%"'"°  ^^S'^'^^^^^' or  empires. 
pral  in,T;ff  ^'^''  ^Ses  of  the  Roman  empire  a  !?en. 

chl  ct'Sr:;  iSi^?«  r  r  ■""  "^  "^"-^^^ '~  "e 

by  anstaatine  jTC   rf  ?•  •  ^^^^-^T  '"'^''^  ^"^^'^d 
VOL.  itt       '  ^^^°'  Theodosius,  and  other  emperors,  for 


258 


DECLINE  OF  LEARNING    Chap.  IX.  Part  L 


1 


the  encouragement  of  learned  men  and  the  promotion  of  lib- 
eral education.  But  these  laws,  which  would  not  perhaps 
have  been  thought  necessary  in  better  times,  were  unavailing 
to  counteract  the  lethargy  of  ignorance  in  which  even  the 
native  citizens  of  the  empire  were  contented  to  repose.  This 
alienation  of  men  from  their  national  literature  may  doubtless 
be  imputed  in  some  measure  to  its  own  demerits.  A  jargon 
of  mystical  philosophy,  half  fanaticism  and  half  imposture,  a 
barren  and  inflated  eloquence,  a  frivolous  philology,  were  not 
among  those  charms  of  wisdom  by  which  man  is  to  be  diverted 
from  pleasure  or  aroused  from  indolence. 

In  this  temper  of  the  public  mind  there  was  little  probabil- 
ity that  new  compositions  of  excellence  would  be  produced, 
and  much  doubt  whether  the  old  would  be  preserved.  Since 
the  invention  of  printing,  the  absolute  extinction  of  any  con- 
siderable work  seems  a  danger  too  improbable  for  apprehen- 
sion. The  press  pours  forth  in  a  few  days  a  thousand  vol- 
umes, which,  scattered  like  seeds  in  the  air  over  the  republic 
of  Europe,  could  hardly  be  destroyed  without  the  extirpation 
ef  its  inhabitants.  But  in  the  times  of  antiquity  manuscripts 
were  copied  with  cost,  labor,  and  delay  ;  and  if  the  diffusion 
of  knowledge  be  measured  by  the  multiplication  of  books,  no 
unfair  standard,  the  most  golden  ages  of  ancient  learning  could 
never  bear  the  least  comparison  with  the  last  three  centuries. 
The  destruction  of  a  few  libraries  by  accidental  fire,  the  des- 
olation of  a  few  provinces  by  unsparing  and  illiterate  barba- 
rians, might  annihilate  every  vestige  of  an  author,  or  leave  a 
few  scattered  copies,  which,  from  the  public  indifference,  there 
was  no  inducement  to  multiply,  exposed  to  sunilar  casualties 
in  succeeding  times. 

We  are  warranted  by  good  authorities  to  assign  as  a  col- 
lateral cause  of  this  irretrievable  revolution  the  neglect  of 
heathen  literature  by  the  Christian  church.  I  am  not  versed 
enough  in  ecclesiastical  writers  to  estimate  the  degree  of  this 
neglect ;  nor  am  I  disposed  to  deny  that  the  mischief  was  be- 
yond recovery  before  the  accession  of  Constantine.  From 
the  primitive  ages,  however,  it  seems  that  a  dislike  of  pagan 
learning  was  pretty  general  among  Christians.  Many  of  the 
fathers  undoubtedly  were  accomplished  in  liberal  studies,  and 
we  are  indebted  to  them  for  valuable  fragments  of  authors 
whom  we  have  lost.  But  the  literary  character  of  the  church 
is  not  to  be  measured  by  that  of  its  more  illustrious  leaders. 


m 


State  op  Society.    IN  THE  ROMAN  EMPIRE.  259 

Proscribed  and  persecuted,  the  early  Christians  had  not  per- 
haps access  to  the  public  schools,  nor  inclination  to  studies 
which  seemed,  very  excusably,  uncongenial  to  the  character 
of  their  profession.    Their  prejudices,  however,  survived  the 
establishment  of  Christianity.      The  fourth  council  of  Car> 
thage  in  398  prohibited  the  reading  of  secular  books  by  bish- 
ops.     Jerome  plainly  condemns  the  study  of  them  except  for 
pious  ends.      All  physical  science  especially  was  held  in 
avowed  contempt,  as  inconsistent  with  revealed  truths.     Nor 
do  there  appear  to  have  been  any  canons  made  in  favor  of 
learning  or  any  restriction  on  the  ordination  of  persons  abso- 
lu  ely  illiterate.^     There  was  indeed  abundance  of  what  is 
called  theological  learning  displayed  in  the  controversies  of 
the  fourth  and  fifth  centuries ;  and  those  who  admire  such 
disputations  may  consider  the  principal  champions  in  them  as 
contributing  to  the  glory,  or  at  least  retarding  the  decline,  of 
literature.     But  I  believe  rather  that  polemical  disputes  wiU 
be  found  not  only  to  corrupt  the  genuine  spirit  of  religion, 
but  to  degrade  and  contract  the  faculties.     What  keenness 
and  subtlety  these  may  sometimes  acquire  by  such  exercise  is 
more  like  that  worldly  shrewdness  we  see  in  men  whose  trade 
It  is  to  outwit  their  neighbors  than  the  clear  and  calm  dis- 
crimination of  philosophy.     However  this  may  be,  it  cannot 
be  doubted  that  the  controversies  agitated  in  the  church  durinff 
these  two  centuries  must  have  diverted  studious  minds  from 
profane  literature,  and  narrowed  more  and  more  the  circle  of 
that  knowledge  which  they  were  desirous  to  attain. 

The  torrent  of  irrational  superstitions  which  carried  all  be- 
tore  it  in  the  fifth  century,  and  the  progress  of  ascetic  enthu- 
siasm, had  an  influence  still  more  decidedly  inimical  to  learn- 
ing. I  cannot  indeed  conceive  any  state  of  society  more  ad- 
verse to  the  intellectual  improvement  of  mankind  than  one 
which  admitted  of  no  middle  line  between  gross  dissoluteness 
and  fanatical  mortification.  An  equable  tone  of  public  mor- 
als, social  and  humane,  verging  neither  to  voluptuousness  nor 
austerity  seems  the  most  adapted  to  genius,  or  at  least  to  let- 
lers,  as  it  is  to  individual  comfort  and  national  prosperity. 
Alter  the  introduction  of  monkery  and  its  unsocial  theory  of 

deavo'r?to'devaS*h5«t'  ,  .^'^.^o^chl  en-  ops  in  the  general  councils  of  Ephe- 
the  early  Christian^f"  'J'l^T'Tl''^  «"^  """^  ^^^^^^^^^  ^°"i^  V°'  ^"^  '^^ 
however^  asserts  r^iP,^«,^fjS;2:    --«  p.^"-'"  -   ^ci-ia^t.     Hirt. 


260 


DECLINE  OF  LEARNING.    Chap.  IX.  Pabt  L 


duties,  the  serious  and  reflecting  part  of  mankind,  on  whom 
science  most  relies,  were  turned  to  habits  which,  in  the  most 
favorable  view,  could  not  quicken  the  intellectual  energies ; 
and  it  might  be  a  difficult  question  whether  the  cultivators 
and  admirers  of  useful  literature  were  less  likely  to  be  found 
among  the  profligate  citizens  of  Rome  and  their  barbarian 
conqu'erors  or  the  melancholy  recluses  of  the  wilderness. 

Such  therefore  was  the  state  of  learning  before  the  subver- 
sion of  the  Western  Empire.  And  we  may  form  some  notion 
how  little  probability  there  was  of  its  producing  any  excel- 
lent fruits,  even  if  that  revolution  had  never  occurred,  by 
considering  what  took  place  in  Greece  during  the  subsequent 
ages ;  where,  although  there  was  some  attention  shown  to 
preserve  the  best  monuments  of  antiquity,  and  diligence  in 
compiling  from  them,  yet  no  one  original  writer  of  any  supe- 
rior merit  arose,  and  learning,  though  plunged  but  for  a  short 
period  into  mere  darkness,  may  be  said  to  have  languished 
in  a  middle  region  of  twilight  for  the  greater  part  of  a 
thousand  years. 

But  not  to  delay  ourselves  in  this  speculation,  the  final 
settlement  of  barbarous  nations  in  Gaul,  Spain,  and  Italy  con- 
summated the  ruin  of  literature.     Their  first  irruptions  were 
uniformly  attended  with  devastation  ;   and  if  some  of  the 
Gothic  kings,  after  their  establishment,  proved  humane  and 
civilized  sovereigns,  yet  the  nation  gloried  in  its  original 
rudeness,  and  viewed  with  no  unreasonable  disdain  arts  which 
had  neither  preserved  their  cultivators  from  corruption  nor 
raised  them  from  servitude.     Theodoric,  the  most  famous  of 
the  Ostrogoth  kings  in  Italy,  could  not  write  his  name,  and  is 
said  to  have  restrained  his  countrymen  from  attending  those 
schools  of  learning  by  which  he,  or  rather  perhaps  his  minis- 
ter Cassiodorus,  endeavored  to  revive  the  studies  of  his  Ital- 
ian subjects.     Scarcely  one  of  the  barbarians,  so  long  as  they 
continued  unconfused  with  the  native  inhabitants,  acquired 
the  slightest  tincture  of  letters ;  and  the  praise  of  equal  igno- 
rance was  soon  aspired  to  and  attained  by  the  entire  mass  of 
the  Roman  laity.    They,  however,  could  hardly  have  divested 
themselves  so  completely  of  all  acquaintance  with  even  the 
elements  of  learning,  if  the  language  in  which  books  were 
written  had  not  ceased  to  be  their  natural  dialect.     This  re- 
markable change  in  the  speech  of  France,  Spain,  and  Italy 
is  most  intimately  connected  with  the  extinction  of  learning ; 


State  of  Society.    CORRUPTION  OF  LATIN. 


261 


and  there  is  enough  of  obscurity  as  well  as  of  interest  in  the 

subject  to  deserve  some  discussion. 

It  is  obvious,  on  the  most  cursory  view  of  the  French  and 
Spanish  languages,  that  they,  as  well  as  the  Ital- 
ian,  are  derived  from  one  common  source,  the  Lat-  ofSS 
in.    That  must  therefore  have  been  at  some  period,  ^^"g^'^ge. 
and  certainly  not  since  tlie  establishment  of  the  barbarous  na- 
tions in  Spain  and  Gaul,  substituted  in  ordinary  use  for  the 
original  dialects  of  those  countries  which  are  generally  sup- 
posed to  liave  been  Celtic,  not  essentially  differing  from  those 
which  are  spoken  in  Wales  and  Ireland.    Rome,  says  Augus- 
tin,  imposed  not  only  her  yoke,  but  her  language,  upon  con- 
quered nations.     The  success  of  such  an  attempt  is  indeed 
very  remarkable.^    Though  it  is  the  natural  effect  of  con- 
quest, or  even  of  commercial  intercourse,  to  ingraft  fresh 
words  and  foreign  idioms  on  the  stock  of  the  original  lan- 
guage, yet  the  entire  disuse  of  the  latter,  and  adoption  of  one 
radically  different,  scarcely  takes  place  in  the  lapse  of  a  far 
longer  period  than  that  of  the   Roman  dominion   in  GauL 
Thus,  in  part  of  Britany  the  people  speak  a  language  which 
has  perhaps  sustained  no  essential  alteration  from  the  revolu- 
tion of  two  thousand  years ;  and  we  know  how  steadily  an- 
other Celtic  dialect  has  kept  its  ground  in  Wales,  notwith- 
standing English  laws  and  government,  and  the  long  line  of 
contiguous  frontier  which  brings  the  natives  of  that  princi- 
pality into  contact  with  Englishmen.     Nor  did  the  Romans 
ever  establish  their  language  (I  know  not  whether  they  wished 
to  do  so)  in  this  island,  as  we  perceive  by  that  stubborn  Brit- 
ish tongue  which  has  survived  two  conquests.^ 

In  Gaul  and  in  Spain,  however,  they  did  succeed,  as  the 
present  state  of  the  French  and  peninsular  languages  renders 
undeniable,  though  by  gradual  changes,  and  not,  as  the  Ben- 


»  Gibbon  roundly  asserts  that  "the 
language  of  Virgil  and  Cicero,  though 
With  some  inevitable  mixture  of  corrup- 
toon,  was  so  universally  adopted  in  Africa, 
Spain  Gaul.  Great  Britain,  and  Pannonia 
that  the  faint  traces  of  the  Punic  or 
Celtic  Idioms  were  preserved  only  in  the 
mountains  or  among  the  peasants."    De- 

vlTu"^,^-^'}}'  ''°^-  *•  P-  60,  (8vo.  edit.) 
For  Britjun  he  quotes  Tacitus's  Life  of 
Agricola  as  his  voucher.  But  the  only 
passage  m  this  work  that  gives  the  least 


color  to  Gibbon's  assertion  is  one  in 
which  Agricola  is  said  to  have  encour- 
aged the  children  of  British  chieftains 
to  acquire  a  taste  for  liberal  studies,  and 
to  have  succeeded  so  much  by  judicious 
commendation  of  their  abilities,  ut  qui 
modo  linguam  Ilomanam  abnuebant,  elo- 
quentiam  concupiscerent.  (c.  21.)  This, 
it  is  sufficiently  obvious,  is  very  differenfc 
from  the  national  adootion  of  Latin  as  s 
mother-tongue. 


r^ 


262 


ANCIENT  LATIN 


Chap.  IX.  Part  I. 


edictinc  authors  of  the  Histoire  Litteraire  de  la  France  seem 
to  ima^hie,  by  a  sudden  and  arbitrary  innovation.  ihis  i3 
neithe?  possible  in  itself,  nor  agreeable  to  the  testimony  ot 
Irenajus,  bishop  of  Lyons  at  the  end  of  the  second  century, 
who  laments  the  necessity  of  learning  Celtic.^  But  although 
the  inhabitants  of  these  provinces  came  at  length  to  make  use 
of  Latin  so  completely  as  their  mother-tongue  that  lew  ves- 
tiges of  their  original  Celtic  could  perhaps  be  discovered  in 
their  common  speech,  it  does  not  follow  that  they  spoke  with 
t,he  pure  pronunciation  of  Italians,  far  less  with  that  coniorra- 
ity  to  the  written  sounds  which  we  assume  to  be  essential  to 
the  expression  of  Latin  words. 

It  appears  to  be  taken  for  granted  that  the  Romans  pro- 
nounced their  language  as  we  do  at  present,  so  tar 
irtfn^pro-      at  least  as  the  enunciation  of  all  the  consonants, 
nunciation     ho^yever  wc  may  admit  our  deviations  from  the 
classical  standard  in  propriety  of  sounds  and  in  measure  of 
time.    Yet  the  example  of  our  own  language,  and  of  t  rencli, 
micrht  show  us  that  orthography  may  become  a  very  inade- 
quate representative  of  pronunciation.     It  is  indeed  capable 
of  proof  that  in  the  purest  ages  of  Latinity  some  vanation 
existed   between  these  two.      Those  numerous  changes  m 
spellin<r  which  distinguish  the  same  words  in  the  poetry  ot 
Ennius°and  of  Virgil  are  best  explained  by  the  supposition 
of  their  being  accommodated  to  the  current  pronunciation. 
Harsh  combinations  of  letters,  softened  down  through  delicacy 
of  ear  or  rapidity  of  utterance,  gradually  lost  their  place  in 
the  written  language.     Thus  exfregit  and  adrogamt  assumed 
a  form  representing  their  more  liquid  sound ;  and  awc^or  was 
latterly  spelled  autor,  which  has  been  followed  in  French  and 
Italian.     Aulor  was  probably  so  pronounced  at  all  times ;  and 
the  orthography  was  afterwards  corrected  or  corrupted,  which- 
ever we  please  to  say,  according  to  the  sound.     We  have  the 
best  authority  to  assert  that  the  final  m  was  very  faintly  pro- 
nounced, rather  it  seems  as  a  rest  and  short  interval  between 
two  syllables  than  an  articulate  letter ;  nor  indeed  can  we 
conceive  upon  what  other  ground  it  was  subject  to  ehsion  be- 
fore a  vowel  in  verse,  since  we  cannot  suppose  that  the  nice 

1  ♦  x\\  T^rpface  t^*'  C«^**c  waa  spoken  In  Gaul,  or  at 

5  Uapperrs!  by  a  passage  quoted  from  least  parts  of  it,  as  weU  as  Pumo  In 

the   digest  by  M.    Bonamy,    Mem.  de  Africa. 

I'Acad.  des  Inscriptions,  t.  xxiv.  p.  689, 


State  of  Society. 


PRONUNCIATION. 


263 


ears  of  Rome  would  have  submitted  to  a  capricious  rule  of 
poetry  for  which  Greece  presented  no  analogy.^ 

A  decisive  proof,  in  my  opinion,  of  the  deviation  which 
took  place,  through  the  rapidity  of  ordinary  elocution,  from 
the  strict  laws  of  enunciation,  may  be  found  in  the  metre  of 
Terence.  His  verses,  which  are  absolutely  refractory  to  the 
common  laws  of  prosody,  may  be  readily  scanned  by  the  appli- 
cation of  this  principle.  Thus,  in  the  first  act  of  the  Heauton  • 
timorumenos,  a  part  selected  at  random,  I  have  found:  I.  Vow- 
els contracted  or  dropped  so  as  to  shorten  the  word  by  a  syl- 
lable ;  in  rei,  via,  diutius,  ei,  solius,  earn,  unius,  suam,  divitias, 
senex,  voluptatem,  illius,  semeL  II.  The  proceleusmatic  foot, 
or  four  short  syllables,  instead  of  the  dactyl ;  seen.  i.  v.  59, 
73,  76,  88, 109  ;  seen.  ii.  v.  36.  HI.  The  elision  of  s  in  words 
ending  with  us  or  is  short,  and  sometimes  even  of  the  whole 
syllable,  before  the  next  word  beginning  with  a  vowel;  in 
seen.  i.  V.  30,  81,  98, 101, 116, 119  ;  seen.  ii.  v.  28.  IV.  The 
first  syllable  of  ille  is  repeatedly  shortened,  and  indeed  nothing 
is  more  usual  in  Terence  than  this  license;  whence  we  may  col- 
lect how  ready  this  word  was  for  abbreviation  into  the  French 
and  Italian  articles.  V.  The  last  letter  of  apud  is  cut  off, 
seen.  i.  v.  120 ;  and  seen.  ii.  v.  8.  VI.  Ilodie  is  used  as  a 
pyrrhichius,  in  seen.  ii.  v.  11.  VII.  Lastly,  there  is  a  clear 
instance  of  a  short  syllable,  the  antepenultimate  of  impulerim, 
-lengthened  on  account  of  the  accent  at  the  113th  verse  of  the 
first  scene. 

These  licenses  are  in  all  probability  chiefly  colloquial,  and 
would  not  have  been  adopted  in  public  harangues,  j^^  ^^ 
to  which  the  precepts  of  rhetorical  writers  com-  tion  by  the 
monly  relate.     But  if  the  more  elegant  language  p^p^^'^^^®' 
of  the  Romans,  since  such  we  must  suppose  to   have  been 
copied  by  Terence  for  his  higher  characters,  differed  so  much 
in  ordinary  discourse  from  their  orthography,  it  is  probable 
that  the  vulgar  went   into  much  greater  deviations.     The 
popular   pronunciation   errs   generally,  we   might   say  per- 
haps  invariably,  by  abbreviation  of  words,  and  by  lique- 
fying consonants,  as  is  natural  to  the  rapidity  of  colloquial 
speech.^     It  is  by  their  knowledge  of  orthography  and  ety- 


1  Atque  eadem  ilia  litera,  quoties  ul- 
tima est,  et  yocalem  verbi  sequentis  ita 
contingit,  ut  in  earn  transire  possit,  etiam 
■>/cribitur,  tamen  parum  exprimitur,  ut 
MuUum  ille,  et  Quantum  erat :  adeo  ut 
pene  cujusda  w  novae  Ii  terse  sonum  reddat. 


Neque  enim  eximitur,  sed  obscuratur,  et 
tantum  aliqua  inter  duos  vocales  velut 
nota  est,  ne  ipsae  coeant.  Quintilian,  In- 
stitut.  1.  ix.  c.  4,  p.  585.  edit.  Capperonier. 
2  The  foUowinj?  passage  of  Quintilian  is 
an  eTidence  both  of  the  omission  of  harsh 


264 


CORRUPTION  OF 


Chap.  DC.  Pabt  I- 


gTATK  or  SociETT.     LATIN  PRONUNCIATION. 


265 


i 


mology  that  the  more  educated  part  of  the  community  is 
preserved  from  these  corrupt  modes  of  pronunciation.  There 
is  always  therefore  a  standard  by  which  common  speech  may 
be  rectified ;  and  in  proportion  to  the  diffusion  of  knowledge 
and  politeness  the  deviations  from  it  will  be  more  slight  and 
and  the  gradual.  But  in  distant  provinces,  and  especially 
provincials,  where  the  language  itself  is  but  of  recent  intro- 
duction, many  more  changes  may  be  expected  to  occur. 
Even  m  France  and  England  there  are  provincial  dialects, 
which,  if  written  with  all  their  anomalies  of  pronunciation 
as  well  as  idiom,  would  seem  strangely  out  of  unison  with 
the  regular  language ;  and  in  Italy,  as  is  well  known,  the 
varieties  of  dialect  are  still  more  striking.  Now,  in  an 
advancing  state  of  society,  and  especially  with  such  a  vigor- 
ous political  circulation  as  we  experience  in  England,  lan- 
guage will  constantly  approximate  to  uniformity,  as  provincial 
expressions  are  more  and  more  rejected  for  incorrectness  or 
inelegance.  But,  where  literature  is  on  the  decline,  and 
public  misfortunes  contract  the  circle  of  those  who  are  solici- 
tous about  refinement,  as  in  the  last  ages  of  the  Roman 
empire,  there  will  be  no  longer  any  definite  standard  of 
living  speech,  nor  any  general  desire  to  conform  to  it  if  one 
could  be  found ;  and  thus  the  vicious  corruptions  of  the  vulgar 
will  entirely  predominate.  The  niceties  of  ancient  idiom 
will  be  totally  lost,  while  new  idioms  will  be  formed  out  of 
violations  of  grammar  sanctioned  by  usage,  which,  among  a 
civilized  people,  would  have  been  proscribed  at  their  ap- 
pearance. 

Such  appears  to  have  been  the  progress  of  corruption  in 
the  Latin  language.  The  adoption  of  words  from  the  Teu- 
tonic dialects  of  the  barbarians,  which  took  place  very  freely, 
would  not  of  itself  have  destroyed  the  character  of  that  lan- 
guage, though  it  suljied  its  purity.  The  worst  Law  Latin  of 
the  middle  ages  is  still  Latin,  if  its  barbarous  terms  have 
been  bent  to  the  regular  inflections.     It  is  possible,  on  the 


or  superflnous  letters  by  the  best  speak- 
ers, and  of  the  corrupt  abbreviations  usu- 
al with  the  worst.  Dilucida  vero  erit 
pronuDciatio  primum,  si  verba  tota  exe- 
gerit,  quorum  pars  devorari,  pars  destitui 
solet,  plerisqueextremas  syllabas  non  pro- 
ferentibus.  dum  priorum  sono  indulgent. 
TJt  est  autem  necessaria  verborum  expla- 
natio,  ita  omnes  computare  et  velut  ad- 


numerare  litems,  molestum  et  odiosuni. 
—  Nam  et  vocales  frcquentissime  cocunt, 
et  consonantium  quacdam  itisequente  vo- 
cali  did.simulantur ;  utriusque  exemplum 
posuimus  ;  Multum  ille  et  terris.  Vitatur 
etiam  duriorum  inter  se  con^^rcssus,  unde 
pellexit  et  coUegit,  et  quie  alio  loco  dicta 
sunt.  1.  ii.  c.  3t  p.  696 


Other  hand,  to  write  whole  pages  of  Italian,  wherein  every 
word  shall  be  of  unequivocal  Latin  derivation,  though  the 
character  and  personality,  if  I  may  so  say,  of  the  language  be 
entirely  dissimilar.  But,  as  I  conceive,  the  loss  of  literature 
took  away  the  only  check  upon  arbitrary  pronunciation  and 
upon  erroneous  grammar.  Each  people  innovated  through 
caprice,  imitation  of  their  neighbors,  or  some  of  those  inde- 
scribable causes  which  dispose  the  organs  of  different  nations 
to  different  sounds.  The  French  melted  down  the  middle 
consonants;  the  Italians  omitted  the  final.  Corruptions 
arising  out  of  ignorance  were  mingled  with  those  of  pronun- 
ciation. It  would  have  been  marvellous  if  illiterate  and 
semi-barbarous  provincials  had  preserved  that  delicate  pre- 
cision in  using  the  inflections  of  tenses  which  our  best  scholars 
do  not  clearly  attain.  The  common  speech  of  any  people  whose 
language  is  highly  complicated  will  be  full  of  solecisms. 
The  French  inflections  are  not  comparable  in  number  or 
delicacy  to  the  Latin,  and  yet  the  vulgar  confuse  their  most 
ordinary  forms. 

But,  in  all  probability,  the  variation  of  these  derivative 
languages  from  popular  Latin  has  been  considerably  less 
than  it  appears.  In  the  purest  ages  of  Latinity  the  citizens 
of  Rome  itself  made  use  of  many  terms  which  we  deem 
barbarous,  and  of  many  idioms  which  we  should  reject  as 
modern.  That  highly  complicated  grammar,  which  the  best 
writers  employed,  was  too  elliptical  and  obscure,  too  deficient 
in  the  connecting  parts  of  speech,  for  general  use.  We  can- 
not indeed  ascertain  in  what  degree  the  vulgar  Latin  differed 
from  that  of  Cicero  or  Seneca.  It  would  be  highly  absurd 
to  imagine,  as  some  are  said  to  have  done,  that  modem 
Italian  was  spoken  at  Rome  under  Augustus.^  But  I  believe 
it  may  be  asserted  not  only  that  much  the  greater  part  of 
those  woi^ds  in  the  present  language  of  Italy  which  strike 
us  as  incapable  of  a  Latin  etymology  are  in  fact  derived 
from  those  current  in  the  Augustan  age,  but  that  very  many 
phrases  which  offended  nicer  ears  prevailed  in  the  same  ver- 
nacular speech,  and  have  passed  from  thence  into  the  modern 
French  and  Itahan.     Such,  for  example,  was  the  frequent 

1  Tiraboschi  (Storia   dell.   Lett.  Ital.    believe  that  either  of  them  could  main- 
t.  iii.  preface,  p.  v.)  imputes  this  parodox    tsdn  it  in  a  literal  sense. 
lo  Bembo  and  Quadrio ;  but  I  can  hardly 


2G6 


CORRUPTION  OF 


Chap.  IX.  Part  t 


use  of  prepositions  to  indicate  a  relation  between  two  parts 
of  a  sentence  which  a  classical  writer  would  have  made  to 
depend  on  mere  inflection.* 

From  the  difficuhj  of  retaining  a  right  discrimination  of 
tense  seems  to  have  proceeded  the  active  auxiliary  verb.  It 
is  possible  that  this  was  borrowed  from  the  Teutonic*  Ian- 
guages  of  the  barbarians,  and  accommodated  both  by  them 
and  by  the  natives  to  words  of  Latin  origin.  The  passive 
auxih"ary  is  obtained  by  a  very  ready  resolution  of  any  tense 
m  that  mood,  and  has  not  been  altogether  dispensed  with 
even  in  Greek,  while  in  Latin  it  is  used  much  more  fre- 
quently. It  is  not  quite  so  easy  to  perceive  the  propriety  of 
the  active  habeo  or  teneo,  one  or  both  of  which  all  modem 
languages  have  adopted  as  their  auxiliaries  in  conjuo^atinc» 
the  verb.  But  in  some  instances  this  analysis  is  not  im^ 
proper;  and  it  may  be  supposed  that  nations,  careless  of 
etymology  or  correctness,  applied  the  same  verb  by  a  rude 
analogy  to  cases  where  it  ought  not  strictly  to  have  been 
employed.- 

Next  to  the  changes  founded  on  pronunciation  and  to  the 
substitution  of  auxiliary  verbs  for  inflections,  the  usance  of 
the  definite  and  indefinite  articles  in  nouns  appears  the°most 
considerable  step  in  the  transmutation  of  Latin  into  its  deriva- 
tive languages.  None  but  Latin,  I  believe,  has  ever  wanted 
this  part  of  speech ;  and  the  defect  to  which  custom  recon- 
ciled the  Romans  would  be  an  insuperable  stumblino-.block 
to  nations  who  were  to  translate  their  original  idiom  into 
that  language.  A  coarse  expedient  of  applying  imus,  ipse,  or 
lUe  to  the  purposes  of  an  article  might  perhaps  be  no  unfre- 
quent  vulgarism  of  the  provincials;  and  after  the  Teutonic 
tribes  brought  in  their  own  grammar,  it  was  natural  that  a 
corruption  should  become  universal,  which  in  fact  supplied  a 
real  and  essential  deficiency. 

That  the  quantity  of  Latin  syllables  is  neglected,  or  rather 


1  M.  Bonamy,  in  an  essay  printed  in 
Mem.  de  I'Academie  des  Inscriptions,  t. 
xxiv.,  has  produced  several  proofs  of  this 
from  the  classical  writers  on  agriculture 
and  other  arts,  though  some  of  his  in- 
stances are  not  in  poiut.  as  any  schoolboy 
would  have  told  him.  This  essay,  which 
by  some  accident  had  escaped  my  notice 
till  I  had  nearly  finished  the  observations 
In  my  text,  contains,  I  think,  the  best 


view  that  I  have  seen  of  the  process  of 

transition   by  which  Latin  was  changed 

into  French  and  Italian.    Add  however 

the  preface  to  Tiraboschi's  third  volume 

and  the  thirty-second  dissertation  of  Mu- 
ratori. 

2  See  Lanzi,  Saggio  delta  Lingua  Etrua- 
ca,  1. 1.  c.  431;  Mem.  do  I'Acad.  des  la. 
scrip,  t.  xxiv.  p.  632. 


State  of  Society.    LATIN  PRONUNCIATION. 


267 


lost,  in  modern  pronunciation,  seems  to  be  generally  pronuncia- 
admitted.      Whether,  indeed,  the  ancient  Romans,  t»on  no 
in  their  ordinary  speaking,  distinguished  the  meas-  ^gS^ated 
ure  of  syllables  with  such  uniform  musical  ac-  ^y  quantity. 
curacy  as  we  imagine,  giving  a  certain  time  to  those  termed 
long,  and  exactly  half  that  duration  to  the  short,  might  very 
reasonably  be  questioned;  though  this  was  probably  done,  or 
attempted  to  be  done,  by  every  reader  of  poetry.     Certainly, 
however,  the  laws  of  quantity  were  forgotten,  and  an   ac- 
centual pronunciation  came  to  predominate,  before  Latin  had 
ceased  to  be  a  living  language.     A  Christian  writer  named 
Commodianus,  who  lived  before  the  end  of  the  third  century 
according  to  some,  or,  as  others  think,  in  the  reign  of  Con- 
stantino, has  left  us  a  philological  curiosity,  in  a  series  of 
attacks  on  the  pagan  superstitions,  composed  in  what  are 
meant  to  be  verses,  regulated  by  accent  instead  of  quantity, 
exactly  as  we  read  Virgil  at  present.^ 

It  is  not  improbable  that  Commodianus  may  have  written 
in  Africa,  the  province  in  which  more  than  any  the  purity  of 
Latin  was  debased.  At  the  end  of  the  fourth  century  St. 
Augustin  assailed  his  old  enemies,  the  Donatists,  with  nearly 
the  same  arms  that  Commodianus  had  wielded  against  hea- 
thenism. But  as  the  refined  and  various  music  of  hexame- 
ters was  unlikely  to  be  relished  by  the  vulgar,  he  prudently 
adopted  a  different  measure."   All  the  nations  of  Europe  seem 


1  No  description  can  give  so  adequate  a 
notion  of  this  extraordinary  performance 
as  a  short  specimen.  Take  the  intro- 
ductory lines;  which  really,  prejudices 
of  education  apart,  arc  by  no  means  in- 
harmonious :  — 

Prffifatio  nostra  viam  erranti  demon- 

strat, 
Respectumque    bouum,  cum  vcncrit 

sscculi  meta, 
.£tcruum  fieri,  quod  discredunt  inscia 

corda. 
Ego  similiter  erravi  tempore  multo, 
Fana  proscqueudo,  parentibus  insciis 

ipsia. 
Abstuli  me  tandem  inde,  legcndo  de 

lege. 
Testificor  Dominum,  doleo,  proh  I  ci- 

vica  turba 
Inscia  quod  perdit,  pergens  deos  quae- 

rere  vanos. 
Ob  ea  perdoctus  ignores  instruo  verum. 

Commodianus  however  did  not  keep 
up  this  ex'clleuce  in  every  part.  Some 
Of  his  lines  are  not  reducible  to  any  pro- 


nunciation, without  the  summary  rules 
of  Procrustes;  as  for  instance — 

Paratus  ad  epulas,  et  refugiscere  prae- 
cepta:  or,  CapiUos  iaficitis,  oculos  full- 
gine  retinitis. 

It  must  be  owned  that  this  text  is 
exceedingly  corrupt,  and  I  should  not 
despair  of  seeing  a  truly  critical  editor, 
unscrupulous  as  his  fraternity  are  apt  to 
be,  improve  his  lines  into  unblemished 
hexameters.  Till  this  time  arrives,  how- 
ever, we  must  consider  him  either  aa 
utterly  ignorant  of  metrical  distinctions, 
or  at  least  as  aware  that  the  populace 
whom  he  addressed  did  not  observe  them 
in  speaking.  Commodianus  is  published 
by  Dawes  at  the  end  of  his  edition  of 
Minucius  Felix.  Some  specimens  are 
quoted  in  Harris's  Philological  Inquiries. 

'■i  Arcboeologia,  vol.  xiv.  p.  188.  The 
following  are  the  fi^rst  lines  :  — 

Abundantia  peccatorum    solet  fratres 

conturbare ; 
Propter  hoc  Dominus  noster  voluit  nos 

praemouere, 


268        NOT  REGULATED  BY  QUANTITY.      Chap.  TX.  Part  L 

to  love  the  trochaic  verse ;  it  was  frequent  on  the  Greek  and 
Roman  stage ;  it  is  more  common  than  any  other  in  the 
popular  poetry  of  modern  languages.  This  proceeds  from 
its  simplicity,  its  liveliness,  and  its  ready  accommodation  to 
dancing  and  music.  In  St.  Austin's  poem  he  united  to  a 
trochaic  measure  the  novel  attraction  of  rhyme. 

As  Africa  must  have  lost  all  regard  to  the  rules  of  measure 
in  the  fourth  century,  so  it  appears  that  Gaul  was  not  more 
correct  in  the  next  two  ages.     A  poem  addressed  by  Aus- 
picius  bishop  of  Toul  to  count  Arbogastes,  of  earlier  date 
probably  than  the  invasion  of  Clovis,  is  written  with  no  regard 
to  quantity.^     The  bishop  by  whom  this  was  composed  is 
mentioned  by  his  contemporaries   as   a   man   of  learning. 
Probably  he  did  not  chose  to  perplex  the  barbarian  to  whom 
he  was  writing  (for  Arbogastes  is  plainly  a  barbarous  name) 
by  legitimate  Roman  metre.     In  the  next  century  Gregory 
of  Tours  informs  us  that  Chilperic  attempted  to  write  Latin 
verses ;  but  the  lines  could  not  be  reconciled  to  any  division 
of  feet ;   his  ignorance   having   confounded   long  and  short 
syllables   together.^     Now  Chilperic   must  have   learned  to 
speak  Latin  like  other  kings  of  the  Franks,  and  was  a  smat- 
terer  in  several  kinds  of  literature.     If  Chilpenc  therefore 
was  not  master  of  these  distinctions,  we  may  conclude  that 
the  bishops  and  other  Romans  with  whom  he  conversed  did 
not  observe  them ;  and  that  his  blunders  in  versification  arose 
from  ignorance  of  rules,  which,  however  fit  to  be  preserved  in 
poetry,  were  entirely  obsolete  in  the  living  Latin  of  his  age. 
Indeed  the  frequency  of  fiilse  quantities  in  the  poets  even  of 
the  fifth,  but  much  more  of  the  sixth  century,  is  palpable. 
Fortunatus  is  quite  full  of  them.     This   seems   a  decisive 
proof  that  the  ancient  pronunciation  was  lost.     Avitus  tells 


Comparans  regnum  coelorum  reticulo 

misso  ia  mare, 
Congreganti  multos  pieces,  omno  genus 

liiDc  et  inde, 
Quos  cum  traxissent  ad  littus,  tunc 

coeperunt  separare, 
Bonos  in  vasa  miseruat,reUquos  malo3 

in  mare. 

This  trash  is  much  below  the  level  of 
Augustin;  but  it  could  not  have  been 
later  than  his  age. 

1  Recueil  des  Historiens,  t,  i.  p.  814; 
It  begins  in  the  following  manner  :  — 

PrsDcclso    expectabili    bis    Arbogasto 
comiti 


Auspicius,    qui    diligo,  salutem   dico 

plurimam. 
Magnas  coelesti  Domino  repcndo  cordo 

gratias 
Quod  te  Tullcnpi  proximo  magnum  in 

urbe  vidimus. 
Multis    me   tuis   artibus   lactificabas 

an  tea, 
Sed  nunc  fecisti  maximo  me  exultarc 

gaudio. 

9  Chilpericus  rex confecit 

duoslibro?,  quorum  versicull  debiles  nul- 
lispedibussubsistorc  possunt :  inquibus, 
dum  non  iutcUigebat,  pro  longis  syllabaa 
broves  posuit,  et  pro  brevibus  longa«  Bt»- 
tuebat.    1.  vi.  c.  46. 


State  of  Society.     LATIN  BECOMES  ROMANCE. 


269 


us  that  few  preserved  the  proper  measure  of  syllables  in 
singing.  Yet  he  was  bishop  of  Vienne,  where  a  purer  pronun- 
ciation might  be  expected  than  in  the  remoter  parts  of  Gaul.* 

Defective,  however,  as  it  had  become  in  respect  of  pro- 
nunciation, Latin  was  still  spoken  in  France  during  change  of 
the  sixth  and  seventh  centuries.     We  have  com-  Latin  into 
positions  of  that  time,  intended  for  the  people,  in    °™*°'^®' 
grammatical  language.     A  song  is  still  extant  in  rh3rme  and 
loose  accentual  measure,  written  upon  a  victory  of  Chlotaire 
IL  over  the  Saxons  in  622,  and  obviously  intended  for  circu 
lation  among  the  people.^     Fortunatus  says,  in  his  Life  of 
St.  Aubin  of  Angers,  that  he  should  take  care  not  to  use  any 
expression  unintelligible  to  the  people.®     Baudemind,  in  the 
middle  of  the  seventh  century,  declares,  in  his  Life  of  St. 
Amand,  that  he  writes  in  a  rustic  and  vulgar  style,  that  the 
reader  may  be  excited  to  imitation.*     Not  that  these  legends 
were  actually  perused  by  the  populace,  for  the  very  art  of 
reading  was  confined  to  a  few.     But  they  were  read  publicly 
in  the  churches,  and  probably  with  a  pronunciation  accommo 
dated  to  the   corruptions  of  ordinary   language.     Still   the 
Latin  synti\x  must  have  been  tolerably  understood ;  and  we 
may  therefore  say  that  Latin  had  not  ceased  to  be  a  living 
language,  in  Gaul   at   least,  before   the   latter  part  of  the 
seventh  century.     Faults  indeed  against  the  rules  of  gram- 
mar, as  well  as  unusual  idioms,  perpetually  occur  in  the  best 
writers   of  the  Merovingian   period,   such   as   Gregory  of 
Tours;  while   charters   drawn   up   by  less  expert  scholars 
deviate  much  further  from  jmrity.^ 

The  corrupt  provincial  idiom  became  gradually  more  and 
more  dissimilar  to  grammatical  Latin ;  and  the  lingua  Ro- 
mana  rustica,  as  the  vulgar  patois  (to  borrow  a  word  that  I 
cannot  well  translate)   had  been  called,  acquired  a  distinct 


1  Mem.  de  1' Academic  des  Inscrip- 
tions, t.  xvii.  Hist.  Litteraire  de  la 
France,  t.  ii.  p.  28.  It  seems  rather  prob- 
able that  the  poetry  of  Avitus  belongs 
to  the  fifth  century,  though  not  very  far 
from  its  termination.  He  was  the  cor- 
respondent of  Sidonius  Apolliuaris,  who 
died  in  489,  and  we  may  presume  his 
poetry  to  have  been  written  rather  early 
in  life. 

2  One  stanza  of  this  song  will  suffice  to 
•how  that  the  Latin  language  was  yet 
unchanged :  — 

Do  Clotario  est  canere  rege  Francorum, 


Qui  ivi  pugnare  cum  gente  Saxonum, 
Quam  graviter  provenisset  missis  Sax- 
onum, 
Si  non  fuisset  inclitus  Faro  de  gente 
Burgundionum. 

3  Praecavendum  est,  ne  ad  aures  po- 
puli  minus  allquid  intelligibile  profe- 
ratur.    Mem.  de  I'Acad.  t.  xvii.  p.  712. 

♦  Rustico  et  plebeio  sermone  propter 
exemplum  et  imitationem.     Id.  ibid. 

6  Hist.  Litteraire  de  la  France,  t.  iii.  p. 
5.  Mem.  de  I'Academie,  t.  xxiv.  p.  617. 
Nouveau  Traite  de  Diplomatique,  t.  ir. 
p.  485. 


270  rrS  CORRUPTION  in  ITALY.    Chap.  IX.  Part  I. 

character  as  a  new  language  in  the  eighth  century.^    Latin 
ortho-raphy,  which  had  been  hitherto  pretty  well  manitamed 
in  books,  though  not  always  in  charters,  gave  way  to  a  new 
spelling,   conformably  to  the  current  pronunciation.     Thus 
we  find  lui,  for  illius,  in  the  Formularies  of  Marculfus;  and 
Tu  lo  iuva  in  a  liturgy  of  Charlemagne's  age,  tor  Tu  il  um 
iuva.     When  this  barrier  was  once  broken  down,  such  a 
delu-e  of  innovation  poured  in  that  all  the  characteristics  of 
LatiS  were  effaced  in  writing  as  well  as  speaking,  and  the 
existence   of  a  new   language   became    undeniable.     In   a 
council  held  at  Tours  in  813  the  bishops  are  ordered  to  have 
certain   homilies  of  the   fathers   translated   into   the   rustic 
Roman,  as  well  as  the  German  tongue.'^     After  this  it  is 
unnecessary  to  multiply  proofs  of  the  change  which  Latin 

had  undergone.  t   x-    i 

In  Italy  the  progressive  corruptions  of  the  Latin  language 
Its  corrup-     wcrc  aualogous  to  those  which  occurred  in  France, 
tion  in  Italy,  thou^h  wc  do  uot  find  in  writings  any  unequivocal 
specimens  of  a°new  formation  at  so  early  a  period.     But  the 
old  inscriptions,  even  of  the  fourth  and  fifth  centuries,  are 
full  of  solecisms  and  corrupt  orthography.     In  legal  instru- 
ments under  the  Lombard  kings  the  Latin  inflections  are  indeed 
used,  but  with  so  little  regard  to  propriety  that  it  is  obvious  the 
writers  had  not  the  slightest  tincture  of  grammatical  knowl- 
ed're.    This  observation  extends  to  a  very  large  proportion  ot 
such  documents  down  to  the  twelfth  century,  and  is  as  ap- 
phcable  to  France   and  Spain  as   it   is  to  Italy.     In  these 
charters  the  peculiar   characteristics  of  Italian   orthography 
and  grammar  frequently  appear.     Thus  we  find,  m  the  eighth 
century,  diveatis  for  debeatis,  da  for  de  in  the  ablative,  avendi 
for  habendi,  dava  for  dabat,  cedo   a  deo,  and   ad   ecclesia, 
amoncr  many  similar  corruptions.^     Latin  was  so  changed, 
it  is  °said  by  a  writer  of  Charlemagne's  age,  that  scarcely 
any  part  of  it  was  popularly  known.     Italy  indeed  had  suf- 
fered more  than  France  itself  by  invasion,  and  was  reduced 


State  of  Society.     GENERAL  IGNORANCE. 


271 


J  Hist.  Litteniire  de  la  Franw,  t.  Tii. 
p.  12.  The  editors  say  that  it  b  men- 
tioned by  name  even  in  the  seventh  cen- 
tury, which  is  >ery  natural,  as  the  cor- 
ruption of  Latin  had  then  become  strik- 
ing. It  is  familiarly  known  that  illiterate 
persons  understand  a  more  correct  lan- 
guage than  they  use  themselves ;  so  that 
the  corruption  of  Latin  might  have  gone 
to  a  considerable  length  among  the  peo- 


ple, while  gennons  were  preached,  and 
tolerably  comprehended,  in  a  purer 
grammar. 

a  Mem.  de  I'Acad.  des.  Insc.  t.  xvii. 
See  two  memoirs  in  this  volume  by  du 
Clos  and  le  Boeuf,  especially  the  latter, 
as  well  as  that  already  mentioned  ia  t. 
xxiv.  p.  582,  bv  M.  Bonamy. 

a  Muratori,  bis:5ert.  i.  and  xliii. 


to  a  lower  state  of  barbarism,  though  probably,  from  the 
gi'cater  distinctness  of  pronunciation  habitual  to  the  Italians, 
they  lost  less  of  their  original  language  than  the  French.  I 
do  not  find,  however,  in  the  writers  who  have  treated  this 
subject,  any  express  evidence  of  a  vulgar  language  distinct 
from  Latin  earlier  than  the  close  of  the  tenth  century,  when 
it  is  said  in  the  epitaph  of  Pope  Gregory  V.,  who  died  in 
999,  that  he  instructed  the  people  in  three  dialects  —  the 
Frankish  or  German,  the  vulgar,  and  the  Latin.* 

When  Latin  had  thus  ceased  to  be  a  living  language,  the 
whole  treasury  of  knowledge  was  locked  up  from 
the  eyes  of  the  people.  The  few  who  might  have  cons*Jqu^t 
imbibed  a  taste  for  literature,  if  books  had  been  on  the  disuse 
accessible  to  them,  were  reduced  to  abandon  pur- 
suits that  could  only  be  cultivated  through  a  kind  of  education 
not  easily  within  their  reach.  Schools,  confined  to  cathedrals 
and  monasteries,  and  exclusively  designed  for  the  purposes 
of  religion,  afforded  no  encouragement  or  opportunities  to 
the  laity .^  The  worst  effect  was,  that,  as  the  newly-formed 
languages  were  hardly  made  use  of  in  writing,  Latin  being 
still  preserved  in  all  legal  instruments  and  public  corre- 
spondence, the  very  use  of  letters,  as  well  as  of  books,  was 
forgotten.  For  many  centuries,  to  sum  up  the  account  of 
ignorance  in  a  word,  it  was  rare  for  a  layman,  of  whatever 
rank,  to  know  how  to  sign  his  name.®  Their  charters,  till 
the  use  of  seals  became  general,  were  subscribed  with  the 
mark  of  the  cross.  Still  more  extraordinary  it  was  to  find 
one  who  had  any  tincture  of  learning.  Even  admitting 
every  indistinct  commendation  of  a  monkish  biographer 
(with  whom  a  knowledge  of  church-music  would  pass  for 
literature*),  we  could  make  out  a  very  short  list  of  scholars. 


1  Usus   Franciscl,    vulgari,    et   voce 

Latin^. 
Instituit  populos  cloquio  tripici. 

Fontanini  dell'  Eloqucnza  Italiana,  p. 
15.    Muratori.  Dissert,  xxxii. 

2  llistolre  Litteraire  de  la  France,  t.  vi. 
p.  20.    Muratori,  Dissert,  xliii. 

3  Nouveau  Traite  de  Diplomatique,  t. 
li.  p.  419.  This  became,  the  editors  say, 
inuch  less  unusual  about  the  end  of  the 
thirteenth  century  ;  a  pretty  late  period  1 
A  few  Pignatures  to  deeds  appear  in  the 
fourUt'nth  century  ;  in  the  next  they 
are  more  frequent.  Ibid.  The  emperor 
Frederic  Harbarossa  could  not  read 
(Struvius,  Corpus  Hist.  German,  t.  i. 


p.  377),  nor  John  king  of  Bohemia  in  the 
middle  of  the  fourteenth  century  (Sis- 
mondi,  t.  v.  p.  205),  nor  Philip  the 
Hardy,  king  of  France,  although  the 
son  oi'  St.  Louis.    (Velly,  t.  vi.  p.  426) 

*  Louis  IV.,  king  of  France,  laughing 
at  Fulk,  count  of  Anjou,  who  sang  an- 
thems among  the  choristers  of  Tours, 
received  the  following  pithy  epistle  from 
his  learned  vassal :  Noveritis,  domines 
quod  rex  illiteratus  est  asinus  coronatus. 
Gcsta  Comitum  Andegavensium.  In  the 
same  book,  Geofifrey,  father  of  our  Henry 
II.,  is  said  to  be  optime  literatus  ;  which 
perhaps  imports  little  more  learning 
than  his  ancestor  Fulk  pos^ssed. 


270  ITS  CORRUPTION  IN  ITALY.    Chap.  IX.  Part  I. 

character  as  a  new  language  in  the  eighth  century.*  Latin 
oSSAvhich  had  been  hitherto  pretty  well  mamta.ned 
Air^Lgi.  not  always  in  c^^^^^^^^ 

Tu  lo  iuva  in  a  liturgy  of  Charlemagne's  age,  for  Tu  .1  nm 
Tuvx  When  flns  harrier  was  once  ^roken  down  such  a 
ielute  of  innovation  poured  in  that  all  the  charactenst.os  of 

r  cTheia'at  C^s  Inffihe  hishops  a.,  ordered  to  have 

JnneSsary  to  multiply  proofs  of  the  change  which  Latm 

''In^Sy'rprogressive  corruptions  of  the  Latin  language 
were  analogous  to  those  which  occuiTcd  m  France, 
'uouTZiy.  though  we  do  not  find  in  writings  any  unequivocal 
^necimens  of  a°new  formation  at  so  early  a  period.     But  the 
X  irripUons,  even  of  the  fourth  and  ««''  -n;;u[.es  ar^^ 
fnll  of  solecisms  and  corrupt  orthography.     In  legal  instru- 
mentf urder  tL  Lombard  Jgs  the  Latin  if-Uons  are  mdeed 
used,  but  with  so  little  regard  to  propriety  that  it  '^  ol^yous  the 
writers  had  not  the  slightest  tincture  ot  grammatical  knowl- 
rd"eThi  observation  extends  to  a  very  large  propo-^'-o"  of 
such  documents  down  to  the  tweiaii  century  and  is  as  ap- 
plicable to  France  and  Spain  as  it  is  to  Italy.    In  these 
Charters  the  peculiar  characteristics  of  Italian  orthogmphy 
S  I'—  freqnently  appear.    Thus  we  find    n  the  cghth 
centuSeatis  for  debeatis,  da  for  de  in  the  ablative,  avendi 
for  habendi,  dava  for  dabat,  cedo  a  deo,  and  ad  ecclesia, 
amon'  many  similar  corruptions.'    Latin  was  so  changed 
Hs  said  by  a  writer  of  Charlemagne^,  age,  that  scarcely 
any  part  of  it  was  popularly  known.    Italy  indeed  had  sul- 
fe"  cd  more  than  France  itself  by  invasion,  and  was  reduced 

n  12     The  editors  Kiy  that  it  U  men-  tolerably    comprenenaeu, 

Sonea  by  name  even  ta  the  seTenth  cen-  Bi^mjiw.  ^^    ^^    ^^^ 

tury,  which  is  .ery  natural,  as  the  cor-        '  »'«"'•  °°',      j^  m,  roiume  by  da 

mpl'ion  of  Latin  had  then  bKOm.  stnt  ^  '^°,  "^nauf,  V^iall,  the  latter, 

Ing   It  is  familiarly  known  that  iUiterato  ^'e^r'isti.at  already  mentioned  to  t. 

pemns  un,lemanU  a  more  correct  Ian-  M  well  l«^nat        ^ 

fej-nTuWurrirhav^  'X    "■  Mllra^'.  *«-«"•  '■  "*  '^ 
to  a  considerable  length  among  the  peo- 


State  of  Society.     GENERAL  IGNORANCE. 


271 


to  a  lower  state  of  barbarism,  though  probably,  from  the 
gi-eater  distinctness  of  pronunciation  habitual  to  the  Italians, 
they  lost  less  of  their  original  language  than  the  French.  I 
do  not  find,  however,  in  the  writers  who  have  treated  this 
subject,  any  express  evidence  of  a  vulgar  language  distinct 
from  Latin  earlier  than  the  close  of  the  tenth  century,  when 
it  is  said  in  the  epitaph  of  Pope  Gregory  V.,  who  died  in 
999,  that  he  in.structed  the  people  in  three  dialects  —  ihe 
Frankish  or  German,  the  vulgar,  and  the  Latin.^ 

When  Latin  had  thus  ceased  to  be  a  living  language,  the 
whole  treasury  of  knowledge  was  locked  up  from 
the  eyes  of  the  people.  The  few  who  might  have  conSqu^t 
imbibed  a  taste  for  literature,  if  books  had  been  on  the  disuse 
accessible  to  them,  were  reduced  to  abandon  pur- 
suits that  could  only  be  cultivated  through  a  kind  of  education 
not  easily  within  their  reach.  Schools,  confined  to  cathedrals 
and  monasteries,  and  exclusively  designed  for  the  purposes 
of  religion,  afforded  no  encouragement  or  opportunities  to 
the  laity .^  The  worst  effect  was,  that,  as  the  newly-formed 
languages  were  hardly  made  use  of  in  writing,  Latin  being 
still  preserved  in  all  legal  instruments  and  public  corre- 
spondence, the  very  use  of  letters,  as  well  as  of  books,  was 
forgotten.  For  many  centuries,  to  sum  up  the  account  of 
ignorance  in  a  word,  it  was  rare  for  a  layman,  of  whatever 
rank,  to  know  how  to  sign  his  name.^  Their  charters,  till 
the  use  of  seals  became  general,  were  subscribed  with  the 
mark  of  the  cross.  Still  more  extraordinary  it  was  to  find 
one  who  had  any  tincture  of  learning.  Even  admitting 
every  indistinct  commendation  of  a  monkish  biographer 
(with  whom  a  knowledge  of  church-music  would  pass  for 
literature*),  we  could  make  out  a  very  short  list  of  scholars. 


1  Usus   Francisca,    Tulgari,   et  voce 

LatinOk. 
Instituit  populos  cloquio  tripicl. 

Fontanini  dell'  Eloqucnza  Itallana,  p. 
15.    Muratori,  DLssert.  xxxii. 

2  Ilistoire  LittOraire  de  la  France,  t.  vi. 
p.  20.     Muratori,  Dissert,  xliii. 

3  Nouveau  Traite  de  Diplomatique,  t. 
ii.  p.  419.  This  became,  the  editors  say, 
much  less  unusual  about  the  end  of  the 
thirteenth  century  ;  a  pretty  late  period ! 
A  few  signatures  to  deeds  appear  in  the 
fourteenth  century  ;  in  the  next  they 
are  more  frequent.  Ibid.  The  emperor 
Fredei-ic  Harbaros.<;a  could  not  read 
(StruTius,  Corpus  Hist.  German,  t.  i. 


p.  377),  nor  John  king  of  Bohemia  in  the 
middle  of  the  fourteenth  century  (Sis- 
mondi,  t.  v.  p.  205),  nor  Philip  the 
Hardy,  king  of  France,  although  the 
son  of  St.  Louis.    (Velly,  t.  vi.  p.  426) 

*  Louis  IV.,  king  of  France,  laughing 
at  Fulk,  count  of  Anjou,  who  sang  an- 
thems among  the  choristers  of  Tours, 
received  the  following  pithy  epistle  from 
his  learned  vassal :  Noveritis,  domines 
quod  rex  illiteratus  est  asinus  coronatus. 
Qesta  Comitum  Andegavensium.  In  the 
same  book,  Geoffrey,  father  of  our  Henry 
II.,  is  said  to  be  optime  literatus  ;  which 
perhaps  imports  little  more  learning 
than  his  ancestor  Fulk  possessed. 


272 


IGNORANCE  CONSEQUENT  ON    Chap.  IX.  Part  I. 


None  certainly  were  more  distinguished  as  such  than  Charle- 
magne and  Alfred.  But  the  former,  unless  we  reject  a  very 
plain  testimony,  was  incapable  of  writing;*  and  Alfred  found 
difficulty  in  making  a  translation  from  the  pastoral  instruc- 
tion of  St.  Gregory,  on  account  of  his  imperfect  knowledge 

of  Latin. ^ 

Whatever  mention,  therefore,  we  find  of  learning  and  the 
learned  during  these  dark  ages,  must  be  understood  to  relate 
only  to  such  as  were  within  the  pale  of  clergy,  which  indeed 
was  pretty  extensive,  and  comprehended  many  who  did  not 
exercise  the  offices  of  rehgious  ministry.  But  even  the 
clergy  were,  for  a  long  period,  not  very  materially  superior, 
as  a'^body,  to  the  uninstructed  laity.  A  cloud  of  ignorance 
overspread  the  whole  face  of  the  church,  hardly  broken  by 
a  few  glimmering  lights,  who  owe  much  of  their  distinction 
to  the  Surrounding  darkness.  In  the  sixth  century  the  best 
writers  in  Latin  were  scarcely  read ;  ^  and  perhaps  from  the 
middle  of  this  age  to  the  eleventh  there  was,  in  a  general 
view  of  literature,  little  diffi^rence  to  be  discerned.  If  we 
look  more  accurately,  there  will  appear  certain  gradual 
shades  of  twilight  on  each  side  of  the  greatest  obscurity. 
France  reached  her  lowest  point  about  the  beginning  of  the 
ei*»hth  century ;  but  England  was  at  that  time  more  respecta- 
ble, and  did  not  fall  into  complete  degradation  till  the  middle 
of  the  ninth.     There  could  be  nothing  more  deplorable  than 


1  The  passage  in  Eginhard,  which  has 
occasioned  so  much  dispute,  speaks  for 
itself:  Tentabat  et  scribere,  tabulasque 
et  codicillos  ad  hoc  in  lecticula  sub 
cervicalibus  circumferre  solebat,  ut,  cum 
vacuum  tempus  essct,  manum  effigiandis 
Uteris  assuefiiceret ;  sed  parum  prosper^ 
successit  labor  praeposterus  ac  sero  in- 
choatus. 

Many  are  still  unwilling  to  belieye 
that  Charlemagne  could  not  write.  M. 
Ampere  observes  that  the  emperor  asserts 
himself  to  have  been  the  author  of  the 
Libri  Carolini,  and  is  said  by  some  to 
have  composed  verses.  Hist.  Litt.  de  la 
France,  iii.  37.  But  did  not  Uenry  VIII. 
claim  a  book  against  Luther,  which  was 
not  written  by  himself?  Qui  faeit  per 
alium,  faeit  per  se,  is  in  all  cases  a  royal 
prerogative.  Even  if  the  book  were 
Charlemagne's  own,  might  he  not  have 
dictated  it  ?  I  have  been  informed  that 
there  is  a  manuscript  at  Vienna  with 
autograph  notes  of  Charlemagne  in  the 
margin.    But  is  there  sufilcient  evidence 


of  their  genuineness  ?  The  great  diffi- 
culty is  to  get  over  the  words  which  I 
have  quoted  from  Eginhard.  M.  Ampere 
ingeniously  conjectures  that  the  pass.nge 
does  not  relate  to  simple  common  writ- 
ing, but  to  calligraphy  ;  the  art  of  delin- 
eating chanictt-rs  in  a  lieautiful  manner, 
practified  by  the  copyists,  and  of  which  a 
contemporaneous  specimen  may  be  Feen 
in  the  well-known  Bible  of  the  British 
Museum.  Yet  it  must  be  remembered 
that  Charlemagne's  early  life  passed  in 
the  depths  of  ignoranre  ;  and  Eginhard 
gives  a  fair  reason  why  lie  f.iiled  iu 
acquiring  the  art  of  writing,  that  ho 
began  too  late.  Fingers  of  fifty  are  not 
made  for  a  new  skill.  It  is  not,  of 
course,  implied  by  the  words  that  he 
could  not  write  his  own  name;  but  that 
he  did  not  acquire  such  a  facility  as  he 
desired.     [1848.] 

3  Spelman,  Vit.  Alfred.  Append. 

3  liist.  Litteraire  de  la  France,  t.  iii. 
p.  5. 


State  of  Society.     THE  DISUSE  OF  LA.TIN. 


273 


the  state  of  letters  in  Italy  and  in  England  during  the  suc- 
ceeding century ;  but  France  cannot  be  denied  to  have  been 
uniformly,  though  very  slowly,  progressive  from  the  time  of 
Charlemagne.^ 

Of  this  prevailing  ignorance  it  is  easy  to  produce  abun- 
dant testimony.     Contracts  were  made  verbally,  for  want  of 
notaries  capable  of  drawing  up  charters ;  and  these,  when 
written,  were  frequently  barbarous  and  ungrammatical  to  an 
incredible  degree.     For  some  considerable  intervals  scarcely 
any  monument  of  literature  has  been  preserved,  except  a  few 
j(-junc  chronicles,  the  vilest  legends  of  saints,  or  verses  equally 
destitute  of  spirit  and  metre.     In  almost  every  council  the 
ignorance  of  the  clergy  forms  a  subject  for  reproach.     It  is 
asserted  by  one  held  in  992  that  scarcely  a  single  person  was 
to  be  found  in  Rome  itself  who  knew  the  first  elements  of 
Ietters.2     Not  one  priest  of  a  thousand  in  Spain,  about  the 
age  of  Charlemagne,  could  address  a  common  letter  of  salu- 
tation  to  another.8     In  England,  Alfred  declares   that  he 
could  not  recollect  a  single  priest  south  of  the  Thames  (the 
most  civilized  part  of  England),  at  the  time  of  his  accession, 
who  understood  the  ordinary  prayers,  or  could  translate  Latin 
mto  his  mother-tongue.*     Nor  was  this  better  in  the  time  of 
Dunstan,  when,  it  is  said,  none  of  the  clergy  knew  how  to 
write  or  translate  a  Latin  letter.^     The  homilies  which  they 


}  These  four  dark  centuries,  the  eighth, 
ninth,  tenth,  and  eleventh,  occupy  five 
large  quarto  volumes  of  the  Literary 
History  of  France,  by  the  fathers  of  St. 
Maur.  But  the  most  useful  part  will 
be  found  in  the  general  view  at  the  com- 
mencement   of  each  volume;    the    re- 

f"?*"  u^  ^  *^^^^  "P  ^'^i  biographies, 
into  which  a  reader  may  dive  at  random, 
and  sometimes  bring  up  a  curious  fact. 
I  may  refer  also  to  the  14th  volume  of 
Lel^r,  Collections  Relatives  k  I'Histoire 
Ce  *  ranee  where  some  learned  dLsserta- 

little  before  the  middle  of  the  last  cen- 
U'  "e  reprinted.  [Note  I.l 
TiraboschK  Storia  della  Letteratura, 
t  in  and  Muratori'g  forty-third  Disser' 
Sm^^  T^  5,^'*  authorities  for  the  con- 
dition of  letters  in  Italy  ;  but  I  cannot 

St  Ih  T^'/®  references  to  all  the  books 
which  I  have  consulted 

2  Tiraboschi,  t.  iii.  p.  198. 

»  Mabillon  De  Re  Diplomatica,  p.  55. 
The  reason  alleged,  indeed,  is  that  they 
were  wholly  occupied  with  studying 
Arabic,  in  order  to  carry  on  a  contn? 

VOL.   IU.  jg 


rersy  with  the  Saracens.  But,  as  this  is 
not  very  credible,  we  may  rest  with  the 
main  fact  that  they  could  write  no  Latin. 

*  Spelman,  Vit.  Alfred.  Append.     The 
whole  drift  of  Alfred's  preface  to  this 
translation  is  to  defend  the  expediency 
of  rendering  books  into  English,  on  ac- 
count of  the  general  ignorance  of  Latin. 
The  zeal   which    this    excellent    prince 
shows  for  literature  is  delightful.     Let 
us  endeavor,  he  says,  that  all  the  Eng- 
lish youth,  especially  the    children    of 
those  who  are  free-born,  and  can  educate 
them,  may  learn  to  read  English  before 
they   take  to  any  employment.     After- 
wards such  as  please  may  be  instructed 
in   Latin.     Before   the  Danish  invasion 
indeed,  he  tells  us,  churches  were  wel 
furnished  with   books;  but  the  priests 
got  little  good  from  them,  being  written 
in  a  foreign   language  which  they  could 
not  understand. 

5  Mabillon,  De  Re  Diplomatic^,  p.  55. 
Ordericus  Vitalis,  a  more  candid  judge  of 
our  unfortunate  ancestors  than  other 
contemporary  annalists,  says  that  the 
English  were,  at  the  Conquest,  rude  and 


274  SCARCITY  OF  BOOKS.      Ciiap.  IX.  Part  I 

preached  were   compiled  for  their   use    by  some    bisliops 
from  former  works  of  the  same  kind,  or  the  writmgs  ot  the 

fathers.  ,  •  i  vi 

This  universal  ignorance  was  rendered  unavoidable,  among 
scarcity  of  Other  causcs,  by  the  scarcity  of  books,  which  could 
bS  only  be  procured  at  an  immense  price.     From  the 

conquest  of  Alexandria  by  the  Saracens  at  the  beginmng  of 
the  seventh  century,  when   the   Egyptian   papyrus   almost 
ceased  to  be  imported  into  Europe,  to  the  close  of  the  e  ev- 
enth,  about  which  time  the  art  of  making  paper  from  cotton 
ra-s  seems  to  have  been  introduced,  there  were  no  materials 
fo^writin-  except  parchment,  a  substance  too  expensive  to  be 
readily  spm-ed  fbr  mere  purposes  of  litemture.^     Hence  an 
unfortunate  practice  gained  ground,  of  erasing  a  manuscrrpt 
in  order  to  substitute  another  on  the  same  skin.     This  occa- 
sioned the  loss  of  many  ancient  authors,  who  have  made  way 
for  the  legends  of  saints,  or  other  ecclesiastical  rubbish. 
If  we  would  listen  to  some  literary  historians,  we  should 
believe  that  the  darkest  ages  contained  many  mdi- 
^*°'  °f        viduals,  not  only  distinguished  among  their  contem- 
Ten  ?S'         poraries,  but  positively  eminent  for  abilities  and 
uterature.      ^^Q^^iea^re.     A  proncncss  to  extol  every  monk  ot 
whose  production  a  few  letters  or  a  devotional  treatise  sur- 
vives,  every  bishop  of  whom  it  is  related  that  he  composed 
homilies,  runs  through  the  laborious  work  of  the  Benedic- 


almost  illiterate,  which  he  ascrib^  to 
the  Danish  invasion.    Du  Chesne,  Hist. 
Norm.  Script,  p.  618.    However,  Ingulfu3 
tells  us  that  the  library  of  Croyland  con- 
tained above  three    hundred  volumes, 
till  the  unfortunate  fire  that  destroyed 
that  abbey  in  1091.   Gale,  XV  Scriptores, 
t.  i.  93.    Such  a  library  was  very  ex- 
traordinary in  the  eleventh  century,  and 
could  not  have  been  equalled  for  some 
ages  afterwards.    Ingulf  us  mentions  at 
the  same  time  a  nadir,  as  he  calls  it,  or 
planetarium,  executed  in  various  metals. 
This  had  been  presented  to  abbot  Tur- 
ketul  in  the  tenth  century  by  a  king  of 
France,  and  was,  I  make  no  doubt,  of 
Arabian  or  Grejk  manufacture. 

1  Parchment  was  so  scarce  that  none 
eould  be  procured  about  1120  for  an 
Illuminated  copy  of  the  Bible.  Warton  s 
Hist,  of  English  Poetry,  Dissert.  II.  I 
suppose  the  deficiency  was  of  skins  beau- 
tiful enough  for  this  purpose  ;  it  cannot 
be  meant  that  there  was  no  parchment 
ft>r  legal  instruments. 


Manuscripts  written  on  papyrus,  as 
may  be  supposed  from  the  fragihty  of 
the  material,  as  well  as  the  difficulty  of 
procuring  it,  are  of  extreme  rarity.  That 
in  the  British  Museum,  being  a  charter 
to  a  church  at  llavenna  in  672,  is  in 
every  respect  the  most  curious  :  and  in- 
deed both  Mabillon  and  Muratori  seem 
never  to  have  seen  anything  written  on 
papyrus,  though  they  trace  its  occasional 
use  down  to  the  eleventh  or  twelfth  cen 
tunes.    Mabillon,  Do  Re  Diplomatica,  I. 
ii.  ;  Muratori,  Antichiti  Italiane,   Dis- 
sert, xliii.  p.  602.    But  the  authors  ol 
the  Nouveau  Traite    de    Diplomatique 
speak  of  several  manuscripts   on  this 
material  as  extant  in  France  and  Italy. 

t-  i-  P-  493.  ,  .^        ^  ^.  . 

As  to  the  general  scarcity  and  high 
price  of  books  in  the  middle  ages,  Rob- 
ertson (Introduction  to  Hist.  Charles 
V.  note  X.),  and  Warton  in  the  above- 
cited  dissertation,  not  to  quote  author? 
less  accessible,  have  collected  some  of  the 
leading  foots ;  to  whom  I  refer  the  read«X 


State  of  Society.    WANT  OF  LITERARY  EMINENCE.  275 


tines  of  St.  Maur,  the  Literary  History  of  France,  and,  in  a 
less  degree,  is  observable  even  in  Tiraboschi,  and  in  most 
books  of  this  class.  Bede,  Alcuin,  Hincmar,  Raban,  and  a 
number  of  inferior  names,  become  real  giants  of  learning  in 
their  uncritical  panegyrics.  But  one  might  justly  say  that 
ignorance  is  the  smallest  defect  of  the  writers  of  these  dark 
ages.  Several  of  them  were  tolerably  acquainted  with  books ; 
but  that  wherein  they  are  uniformly  deficient  is  original  aro-u- 
ment  or  expression.  Almost  every  one  is  a  compiler  ^'of 
scraps  from  the  fathers,  or  from  such  semi-classical  authors  as 
Boethius,  Cassiodorus,  or  Martianus  Capella.^  Indeed  I  am 
not  aware  that  there  appeared  more  than  two  really  consider- 
able men  in  the  republic  of  letters  from  the  sixth  to  the  mid- 
dle of  the  eleventh  century  —  John,  surnamed  Scotus  or 
Erigena,  a  native  of  Ireland ;  and  Gerbert,  who  became 
pope  by  the  name  of  Silvester  II. :  the  first  endowed  with  a 
bold  and  acute  metaphysical  genius  ;  the  second  excellent,  for 
the  time  when  he  lived,  in  mathematical  science  and  mechan- 
ical inventions.* 


1  Lest  I  should  seem  to  have  spoken 
too  peremptorily,  I  wish  it  to  be  under- 
stood that  I  pretend  to  hardly  any  direct 
acquaintance  with  the.se  writers,  and 
found  my  censure  on  the  authority  of 
others,  chiefly  indeed  on  the  admissions 
of  those  who  are  too  disposed  to  fall  into 
a  strain  of  panegyric.  See  Ilistoire 
Litteraire  de  la  France,  t.  iv.  p.  281  et 
alibi. 

«  John  Scotus,  who,  it  is  almost  need- 
less to  say,  must  not  be  confounded  with 
the  still  more  famous  metaphysician 
Duns  Scotus,  lived  under  Charles  the 
Bald,  in  the  middle  of  the  ninth  century. 
It  admits  of  no  doubt  that  John  Scotus 
VThs,  in  a  literary  and  philosophical  sense, 
the  most  remarkable  man  of  the  dark 
ages ;  nc  one  else  had  his  boldness,  his 
subtlety  in  threading  the  labyrinths  of 
metapliysical  speculations  which,  in  the 
west  of  Europe,  had  been  utterly  disre- 
Pi™«d.  But  it  is  another  question 
Whether  he  can  be  reckoned  an  original 
writer;  those  who  have  attended  most  to 
his  treati.'^e  Do  Divisione  Natur»,  the 
most  abstruse  of  his  works,  consider  it  as 
the  development  of  an  oriental  philos- 
ophy, acquired  during  his  residence  in 
Greece  and  nearly  coinciding  with  some 

Lhil^i  h'  ,P"^  ".'^^^  of  tbe  Alexandrian 
school,  but  with  a  more  unequivocal 
tendency  to  pantheism.  This  manifests 
itself  iti  some  extracts  which  have  lat- 
terly been  made  from  the  treatise  De 
DiTisione  Naturae;   but  though  Scotus 


had  not  the  reputation  of  unblemished 
orthodoxy,  the  drift  of  his   philosophy 
was  not  understood  in  that  barbarous 
period.    He  might,  indeed,  have  excited 
censure  by  his  intrepid    preference    of 
reason  to  authority.     "  Authority,"  h« 
says,  "  springs  from  rea-son,  not  reason 
from  authority  —  true  reason  needs  not 
be  confirmed    by  any  authority.''    La 
veritable    importance    historique,    says 
Ampere,  de  Scot  Erigene  n'est  done  pas 
dans  ses  opinions  ;  celles-ci  n'ont  d'autre 
interet  que  leur  date  et  le  lieu  ou  elles 
apparaissent.    Sans  doute,  il  est  piquant 
et  bizarre  de  voir  ces  opinions  orientales 
et  alexandrines  surgir  au  IXe  eiecle,  k 
Paris,  k  la  cour  de  Charles  le  Chauve: 
mais  ce  qui  n'est  pas  seulement  piquant 
et  bizarre,  ce  qui  interesse  le  developpe- 
ment  de  I'esprit  humain,  c'est  que  la 
question  ait  6te  posee,  des  lors,  si  nette- 
ment  entre  I'autorite  et  la  raison,  et  si 
energiquement  resolue  en  faveur  de  la 
seconde.    En  un  mot,  par  ses  idees,  Scot 
Erigene  est  encore  un  philosophe  de  I'an- 
tiquite  Grecque ;  et  par  I'independance 
hautement  accusee  de  son  point  de  vue 
philosophique,  il  est  deji  un  devancier 
de  la  philosophic  moderne.    Hist.  Litt. 
iii.  146. 

Silvester  II.  died  in  1003.  Whether 
he  first  brought  the  Arabic  numeration 
into  Europe,  as  has  been  commonly  said, 
seems  uncertain ;  it  was  at  least  not 
much  practised  for  some  centuries  after 
his  death. 


276 


CAUSES  OF  THE 


Chap.  IX.  Pabt  I 


State  op  SociErr.    PRESERVATION  OF  LEARNING. 


277 


If  it  be  demanded  by  what  cause  it  happened  that  a  few 
sparks  of  ancient  learning  survived  throughout  this 
preservatioa  ^oug  wintcF,  wc  Can  Only  ascribe  their  preservation 
^  learning  to  the  establishment  of  Christianity.  Religion  alone 
made  a  bridge,  as  it  were,  across  the  chaos,  and  has 
linked  the  two  periods  of  ancient  and  modem  civilization. 
Without  this  connecting  principle,  Europe  might  indeed  have 
awakened  to  intellectual  pursuits,  and  the  genius  of  recent 
times  needed  not  to  be  invigorated  by  the  imitation  of  antiq- 
uity. But  the  memory  of  Greece  and  Rome  would  have 
been  feebly  preserved  by  tradition,  and  the  monuments  of 
those  nations  might  have  excited,  on  the  return  of  civilization, 
that  vague  sentiment  of  speculation  and  wonder  with  which 
men  now  contemplate  Persepolis  or  the  Pyramids.  It  is  not, 
however,  from  religion  simply  that  we  have  derived  this  ad- 
vantage, but  from  religion  as  it  was  modified  in  the  dark  ages. 
Such  is  the  complex  reciprocation  of  good  and  evil  in  the  dis- 
pensations of  Providence,  that  we  may  assert,  with  only  an 
apparent  paradox,  that,  had  religion  been  more  pure,  it  would 
have  been  less  permanent,  and  that  Christianity  has  been  pre- 
served by  means  of  its  corruptions.  The  sole  hope  for  lit- 
erature depended  on  the  Latin  language ;  and  I  do  not  see 
why  that  should  not  have  been  lost,  if  three  circumstances  in 
the  prevailing  religious  system,  all  of  which  we  are  justly 
accustomed  to  disapprove,  had  not  conspired  to  maintain  it  — 
the  papal  supremacy,  the  monastic  institutions,  and  the  use  of » 
a  Latin  liturgy.  1.  A  continual  intercourse  was  kept  up,  in| 
consequence  of  the  first,  between  Rome  and  the  several  na-' 
tions  of  Europe  ;  her  laws  were  received  by  the  bishops,  her' 
legates  presided  in  councils ;  so  that  a  common  language  was 
as  necessary  in  the  church  as  it  is  at  present  in  the  diplo- 
matic relations  of  kingdoms.  2.  Throughout  the  whole  course 
of  the  middle  ages  there  was  no  learning,  and  very  little  regu- 
larity of  manners,  among  the  parochial  clergy.  Almost  every 
distinguished  man  was  either  the  member  of  a  chapter  or  of 
a  convent.  The  monasteries  were  subjected  to  strict  rules 
of  discipline,  and  held  out,  at  the  worst,  more  opportunities 
for  study  than  the  secular  clergy  possessed,  and  i'ewer  for 
worldly  dissipations.  But  their  most  important  service  was 
as  secure  repositories  for  books.  All  our  manuscripts  have 
been  preserved  in  this  manner,  and  could  hardly  have  de- 
scended to  us  by  any  other  channel ;  at  least  there  were  in« 


/ 


tervals  when  I  do  not  conceive  that  any  royal  or  private 
libraries  existed.^  3.  Monasteries,  however,  would  probably 
have  contributed  very  little  towards  the  preservation  of  learn- 
ing, if  the  Scriptures  and  the  liturgy  had  been  translated  out 
of  Latin  when  that  language  ceased  to  be  intelligible.  Every 
rational  principle  of  religious  worship  called  for  such  a  change ; 
but  it  would  have  been  made  at  the  expense  of  posterfty. 
One  might  presume,  if  such  refined  conjectures  were  con- 
sistent with  historical  caution,  that  the  more  learned  and 
sagacious  ecclesiastics  of  those  times,  deploring  the  gradual 
corruption  of  the  Latin  tongue,  and  the  danger  of  its  absolute 
extinction,  were  induced  to  maintain  it  as  a  sacred  language, 
and  the  depository,  as  it  were,  of  that  truth  and  that  science 
which  would  be  lost  in  the  barbarous  dialects  of  the  vulgar. 
But  a  simpler  explanation  is  found  in  the  radical  dislike  of 
innovation  which  is  natural  to  an  established  clergy.  Nor 
did  they  want  as  good  pretexts,  on  the  ground  of  convenience, 
as  are  commonly  alleged  by  the  opponents  of  reform.  They 
were  habituated  to  the  Latin  words  of  the  church-service, 
which  had  become,  by  this  association,  the  readiest  instru- 
ments of  devotion,  and  with  the  majesty  of  which  the  Ro- 
mance jargon  could  bear  no  comparison.  Their  musical 
chants  were  adapted  to  these  sounds,  and  their  hymns  de- 
pended, for  metrical  effect,  on  the  marked  accents  and  power- 
ful rhymes  which  the  Latin  language  affords.  The  vulgate 
Latin  of  the  Bible  was  still  more  venerable.  It  was  like 
a  copy  of  a  lost  original ;  and  a  copy  attested  by  one  of  the 


»  Charlemagne  had  a  library  at  Alx- 
la-Chapelle,  which  he  directed  to  be  sold 
at  his  death  for  the  benefit  of  the  poor. 
nis  son  Louis  is  said  to  have  collected 
some  books.  But  this  rather  confirms, 
on  the  whole,  my  supposition  that,  in 
come  periods,  no  royal  or  private  libraries 
existed,  since  there  were  not  always 
princes  or  nobles  with  the  spirit  of  Char- 
lem.-iRne,  or  <-ven  Louis  the  Debonair. 

'  We  possess  a  catalogue,"  says  M. 
U°&  (quoting  d'Achery's  Spicile-ium, 
H.  810),  ';  of  the  library  in  thS  abbey  of 

rio-!'**"!*''''  '''"*^'"  *»  831 ;  it  consists 
or  Ajb  volumes,  some  containing  several 
works  Christian  writers  are  in  great 
m^jonty ;  but  we  find  also  tha  Eclogues 
of  Virgil    the  Rhetoric  of   Cicero,  the 

5f"^''«^%I>»'=tys  and  Dares."  Ampdre, 
Vti.lf'  M*°  anything  be  lower  than 
this,  If  nothing  is  omitted  more  valuable 
than  what  is  mentioned »     Thu  llhetorio 


of  Cicero  was  probably  the  spurious  books 
Ad  Herennium.  But  other  libraries  must 
have  been  somewhat  better  furnished 
than  this  :  else  the  Latin  authors  would 
have  been  still  less  known  in  the  ninth 
century  than  they  actually  were. 

In  the  gradual  progress  of  learning,  a 
very  small  number  of  princes  thought  it 
honorable  to  collect  books.  Perhaps  no 
earlier  instance  can  be  mentioned  than 
that  of  a  most  respectable  man,  William 
III.,  Duke  of  Guienne,  in  the  first  part 
of  the  eleventh  century.  Fuit  dux  iste, 
says  a  contemporary  writer,  a  pueritia 
doctus  Uteris,  et  satis  notitiam  Scrip- 
turarum  habuit  ;  librorum  copiam  in 
palatio  suo  servavit;  et  si  forte  a  fre- 
quentia  causarum  et  tumultu  vacaret, 
lectioni  per  seipsum  operam  dabat  long!- 
oribus  noctibus  elucubrans  in  libris^ 
donee  somno  vinceretur.  Rec.  des  Hist. 
X.  155. 


<l 


278 


SUPERSTITIONS. 


Chat.  IX.  Fart  I. 


most  eminent  fathers,  and  by  the  general  consent  of  the 
church.  These  are  certainly  no  adequate  excuses  for  keep- 
ing the  people  in  ignorance ;  and  the  gross  corruption  of  the 
middle  ages  is  in  a  great  degree  assignable  to  this  policy. 
But  learning,  and  consequently  religion,  have  eventually  de- 
rived from  it  the  utmost  advantage. 

In  the  shadows  of  this  universal  ignorance  a  thousand 
Supersti-  superstitions,  like  foul  animals  of  night,  were  prop- 
tions.  agated  and  nourished.     It  would  be  very  unsatis- 

factory to  exhibit  a  few  specimens  of  this  odious  brood,  when 
the  real  character  of  those  times  is  only  to  be  judged  by 
their  accumulated  multitude.     In  every  age  it  would  be  easy 
to  select  proofs  of  irrational  superstition,  which,  separately 
considered,  seem  to  degrade  mankind  from  its  level  in  the 
creation;  and  perhaps   the  contemporaries  of  Swedenborg 
and  Southcote  have  no  right  to  look  very  contemptuously 
upon   the  fanaticism  of  their  ancestors.     There  are  many 
books  from  which  a  sufficient  number  of  instances  may  be 
collected  to  show  the  absurdity  and  ignorance  of  the  middle 
ages  in  this  respect.     I  shall  only  mention  two,  as  affording 
more  general  evidence  than  any  local  or  obscure  supersti- 
tion.    In  the  tenth  century  an  opinion  prevailed  everywhere 
that  the  end  of  the  world  was  approaching.     Many  charters 
begin  with  these  words,  "  As  the  world  is  now  drawing  to  its 
close."     An  army  marching  under  the  emperor  Otho  I.  was 
80  terrified  by  an  eclipse  of  the  sun,  which  it  conceived  to 
announce  this  consummation,  as  to  disperse  hastily  on  all 
sides.     As  this  notion  seems  to  have  been  founded  on  some 
confused  theory  of  the  millennium,  it  naturally  died  away 
when  the  seasons  proceeded  in  the  eleventh  century  with 
their  usual  regularity.*     A  far  more  remarkable  and  perma- 
nent superstition  was  the  appeal  to  Heaven  in  judicial  con- 
troversies, whether  through  the  means  of  combat  or  of  ordeal. 
The  principle  of  these  was  the  same ;  but  in  the  former  it 
was  mingled  with  feelings  independent  of  religion  —  the  nat- 
ural dictates  of  resentment  in  a  brave  man  unjustly  accused, 
and  the  sympathy  of  a  warlike  people  with  the  display  of 
skill  and  intrepidity.     These,  in  course  of  time,  almost  oblit- 
erated the   primary  character  of  judicial  combat,  and  ulti- 
mately changed  it  into  the  modern  duel,  in  which  assuredly 

t  Robertson,   Introduction    to   Hist.    Allemands,  t.  ii.  p.  880;  Hist.  Litt^rain 
Oharles  V.  note  13;  Schmidt.  Hist,  des    de  la  France,  t.  yi. 


State  of  Society. 


SUPERSTITIONS. 


279 


there  is  no  mixture  of  superstition.*  But,  in  the  various 
tests  of  innocence  which  were  called  ordeals,  this  stood  un- 
disguised and  unqualified.  It  is  not  necessary  to  describe 
what  is  so  well  known  —  the  ceremonies  of  trial  by  handling 
hot  iron,  by  plunging  the  arm  into  boiling  fluids,  by  floating 
or  sinking  in  cold  water,  or  by  swallowing  a  piece  of  conse- 
crated bread.  It  is  observable  that,  as  the  interference  of 
Heaven  was  relied  upon  as  a  matter  of  course,  it  seems  to 
have  been  reckoned  nearly  indifferent  whether  such  a  test 
was  adopted  as  must,  humanly  considered,  absolve  all  the 
guilty,  or  one  that  must  convict  all  the  innocent.  The  or- 
deals of  hot  iron  or  water  were,  however,  more  commonly 
used ;  and  it  has  been  a  perplexing  question  by  what  dex- 
terity these  tremendous  proofs  were  eluded.  They  seem  at 
least  to  have  placed  the  decision  of  all  judicial  controversies 
in  the  hands  of  the  clergy,  who  must  have  known  the  secret, 
whatever  that  might  be,  of  satisfying  the  spectators  that  an 
accused  person  had  held  a  mass  of  burning  iron  with  impu- 
nity. For  several  centuries  this  mode  of  investigation  was 
in  great  repute,  though  not  without  opposition  from  some 
eminent  bishops.  It  does  discredit  to  the  memory  of  Charle- 
magne that  he  was  one  of  its  warmest  advocates.'^  But  the 
judicial  combat,  which  indeed  might  be  reckoned  one  species 
of  ordeal,  gradually  put  an  end  to  the  rest ;  and  as  the  church 
acquired  better  notions  of  law,  and  a  code  of  her  own,  she 


1  Duelling,  in  the  modem  sense  of  the 
word,  exclusive  of  casual  frays  and  single 
combat  during  war,  was  unknown  before 
the  sixteenth  century.  But  we  find  one 
anecdote  which  seems  to  illustrate  its 
derivation  from  the  judicial  combat. 
The  dukes  of  Lancaster  and  Brunswick, 
having  some  differences,  agreed  to  decide 
them  by  duel  before  John  king  of  France. 
The  lists  were  prepared  with  the  solem- 
nity of  a  real  trial  by  battle ;  but  the 
king  interfered  to  prevent  the  engage- 
ment. Villaret,  t.  ix.  p.  71.  The  bar- 
barous practice  of  wearing  swords  as  a 
part  of  domestic  dress,  which  tended 
very  much  to  the  frequency  of  duelling, 
was  not  introduced  till  the  latter  part  of 
the  15th  century.  I  can  only  find  one 
print  in  Montfaucon's  Monuments  of  the 
French  monarchy  where  a  sword  is  worn 
without  armor  before  the  reign  of 
Charles  VIII. :  though  a  few,  as  early 
as  the  reign  of  Charles  VI.,  have  short 
daggers    in    their  girdles.    The  excep- 


tion is  a  figure  of  Charles  VU.  t.  iii. 
pi.  47. 

2  Baluzii  Capitularia.  p.  444.  It  was 
prohibited  by  Louis  the  Debonair ;  a  man, 
as  I  have  noticed  in  another  place,  not 
inferior,  as  a  legislator,  to  his  father. 
Ibid.  p.  668.  ''The  spirit  of  party," 
says  a  late  writer,  »'  has  often  accused 
the  church  of  having  devised  these  bar- 
barous methods  of  discovering  truth  — 
the  duel  and  the  ordeal ;  nothing  can  be 
more  unjust.  Neither  one  nor  the  other 
is  derived  from  Christianity  ;  they  existed 
long  before  in  the  Germanic  usages." 
Ampere,  Hist.  Litt.  de  la  France,  iii. 
180.  Any  one  must  have  been  very  ig- 
norant who  attributed  the  invention  of 
ordeals  to  the  church.  But  during  the 
dark  ages  they  were  always  sanctioned. 
Agobard,  from  whom  M.  Ampere  gives  a 
quotation,  in  the  reign  of  Louis  the 
Debonair  wrote  strongly  against  them; 
but  this  was  the  remonstrance  of  a 
superior  man  in  an  age  that  was  ill- 
inclined  to  hear  him. 


280 


ENTHUSIASTIC  RISINGS.     Chap.  IX.  Pabi  I 


State  of  Society.     ENTHUSIASTIC  RISINGS. 


281 


strenuously  exerted  herself  against  all  these  barbarous  super- 
stitions.^ 

But  the  religious  ignorance  of  the  middle  ages  sometimes 
Enthusiastic  buFst  out  in  ebullitions  of  epidemical  enthusiasm, 
risings.  moTe  remarkable  than  these  superstitious  usages, 

though  proceeding  in  fact  from  similar  causes.  For  enthu- 
siasm is  Httle  else  than  superstition  put  in  motion,  and  is 
equally  founded  on  a  strong  conviction  of  supernatural  agency 
without  any  just  conceptions  of  its  nature.  Nor  has  any  de- 
nomination of  Christians  produced,  or  even  sanctioned,  more 
fanaticism  than  the  church  of  Rome.  These  epidemical 
frenzies,  however,  to  which  I  am  alluding,  were  merely 
tumultuous,  though  certainly  fostered  by  the  creed  of  per- 
petual miracles  which  the  clergy  inculcated,  and  drawing  a 
legitimate  precedent  for  religious  insurrection  from  the  cru- 
saSes.  For  these,  among  other  evil  consequences,  seem  to 
have  principally  excited  a  wild  fanaticism  that  did  not  sleep 
for  several  centuries.^ 

The  first  conspicuous  appearance  of  it  was  in  the  reign  of 
Philip  Augustus,  when  the  mercenary  troops,  dismissed  from 
the  pay  of  that  prince  and  of  Henry  II.,  committed  the 
greatest  outrages  in  the  south  of  France.  One  Durand,  a 
carpenter,  deluded  it  is  said  by  a  contrived  appearance  of  the 
Virgin,  put  himself  at  the  head  of  an  army  of  the  populace, 
in  order  to  destroy  these  marauders.  His  followers  were 
styled  Brethren  of  the  White  Caps,  from  the  linen  coverings 
of  their  heads.     They  bound  themselves  not  to  play  at  dice 


I  Ordeals  were  not  actually  abolished 
in  France,  notwithstanding  the  law  of 
Louis  above-mentioned,  so  late  as  the 
eleventh  century  (Bouquet,  t.  xi.  p.  430), 
nor  in  England  till  the  reign  of  Henry 
m.    Some  of  the  stories  we  read,  where- 
in accused  persons  have  passed  trium- 
phantly through  these  severe  proofs,  are 
perplexing  enough;   and  perhaps  it  is 
safer,  as  well  as  easier,  to  deny  than  to 
explain  them.    For  example,  a  writer  in 
the  Archaeologia  (vol.  xv.    p.  172)  has 
shown  that  Emma,  queen  of  Edward  the 
Confessor,  did  not  perform  her  trial  by 
stepping  between,  as  Blackstone  imagines, 
but  upon  nine  red-hot  ploughshares.  But 
he  seems  not  aware  that  the  whole  story 
Is  unsupported  by  any  contemporary  or 
even  respectable  testimony.     A  similar 
anecdote  is  related  of  Cunegunda,  wife 
of  the  emperor  Henry  IT.,  which  proba- 
bly gave  rise  to  that  of  Emma.    There 
are,  however,  medicaments,  as  is  well 


known,  that  protect  the  skin  to  a  certain 
degree  against  the  effect  of  fire.  This  phe- 
nomenon would  pass  for  miraculous,  and 
form  the  basis  of  those  exaggerated 
stories  in  monkish  books. 

2  The  most  singular  effect  of  this  cru- 
sading spirit  was  witnessed  in  1211,  when 
a  multitude,  amountin;;.  as  some  say,  to 
90,000,  chiefly  composed  of  children,  and 
commanded  by  a  child,  set  out  for  the 
purpose  of  recovering  the  Holy  Land. 
They  came  for  the  most  part  from  Ger- 
many, and  reached  Genoa  without  harm. 
But,  finding  there  an  obstacle  which  their 
imperfect  knowledge  of  geography  had 
not  anticipated,  they  soon  dispersed  in 
various  directions.  Thirty  thousand  ar- 
rived at  Marseilles,  where  part  were  mur- 
dered, part  probably  starved,  and  the 
rest  sold  to  the  Saracens.  Annali  di  Mu» 
ratori,  A.  D.  1211 ;  Velly,  Hist,  de France, 
t.  iv.  p.  206. 


nor  frequent  taverns,  to  wear  no  affected  clothing,  to  avoid 
perjury  and  vain  swearing.  After  some  successes  over  the 
plunderers,  they  went  so  far  as  to  forbid  the  lords  to  take 
any  dues  from  their  vassals,  on  pain  of  incurring  the  indig- 
nation of  the  brotherhood.  It  may  easily  be  imagined  that 
they  were  soon  entirely  discomfited,  so  that  no  one  dared  to 
own  that  he  had  belonged  to  them.^ 

During  the  captivity  of  St.  Louis  in  Egypt,  a  more  exten- 
sive and  terrible  ferment  broke  out  in  Flanders,  and  spread 
from  thence  over  great  part  of  France.  An  impostor  de- 
clared himself  commissioned  by  the  Virgin  to  preach  a  cru- 
sade, not  to  the  rich  and  noble,  who  for  their  pride  had  been 
rejected  of  God,  but  the  poor.  His  disciples  were  called 
Pastoureaux,  the  simplicity  of  shepherds  having  exposed 
them  more  readily  to  this  delusion.  In  a  short  time  they 
were  swelled  by  the  confluence  of  abundant  streams  to  a 
moving  ma<s  of  a  hundred  thousand  men,  divided  into  com- 
panies, with  banners  bearing  a  cross  and  a  lamb,  and  com- 
manded by  the  impostor's  lieutenants.  He  assumed  a  priestly 
character,  preaching,  absolving,  annulling  marriages.  At 
Amiens,  Bourges,  Orleans,  and  Pai'is  itself,  he  was  received 
as  a  divine  prophet.  Even  the  regent  Blanche,  for  a  time, 
was  led  away  by  the  popular  tide.  His  main  topic  was  re- 
proach of  the  clergy  for  their  idleness  and  corruption — a 
theme  well  adapted  to  the  ears  of  the  people,  who  had  long 
been  uttering  similar  strains  of  complaint.  In  some  towns 
his  followers  massacred  the  priests  and  plundered  the  monas- 
teries. The  government  at  length  began  to  exert  itself;  and 
the  public  sentiment  turning  against  the  authors  of  so  much 
confusion,  this  rabble  was  put  to  the  sword  or  dissipated.^ 
Seventy  years  afterwards  an  insurrection,  almost  exactly 
parallel  to  this,  burst  out  under  the  same  pretence  of  a  cru- 
sade. These  insurgents,  too,  bore  the  name  of  Pastoureaux, 
and  their  short  career  was  distinguished  by  a  general  mas- 
sacre of  the  Jews.' 

But  though  the  contagion  of  fanaticism  spreads  much 
more  rapidly  among  the  populace,  and  in  modern  times  is  al- 
most entirely  confined  to  it,  there  were  examples,  in  the  middle 

1  Velly,  t.  iii.  p.  295 ;  Du  Cange,  t.  «  Velly,  Hist,  de  France,  t.  viii.  p.  99. 
Capuciati.  The  continuator  of  Nangis  says,  sicut 

2  Velly,   IHst.  de  France,  t.  v.  p.  7;  fumus  sublto  evanuittota  ilia  commotio. 
Du  Cange,  v  Pastorelli.  Spicilegium,  t.  iii.  p.  77. 


I 


282 


ENTHUSIASTIC  RISINGS.     Chap.  IX.  Part  I. 


ages,  of  an  epidemical  religious  lunacy,  from  which  no  class 
was  exempt.     One  of  these  occurred  about  the  year  1260, 
when  a  multitude  of  every  rank,  age,  and  sex,  marching  two 
by  two  in  procession   along  the  streets   and   public  roads, 
mingled   groans    and   dolorous   hymns   with   the    sound   of 
leathern  scourges  which  they  exercised  upon  their   naked 
backs.     From  this  mark  of  penitence,  which,  as  it  bears  at 
least  all  the  appearance  of  sincerity,  is  not  uncommon  in  the 
church   of  Rome,  they   acquired   the  name   of  Flagellants. 
Their  career  began,  it  is  said,  at  Perugia,  whence  they  spread 
over  the  rest  of  Italy,  and  into  Germany  and  Poland.     As 
this  spontaneous  fanaticism  met  with  no  encouragement  from 
the  church,  and  was  prudently  discountenanced  by  the  civil 
magistrate,  it  died  away  in  a  very  short  time.^    But  it  is  more 
surprising  that,  after  almost  a  century  and  a  half  of  continual 
improvement  and  illumination,  another  irruption  of  popular 
extravagance   burst    out    under   circumstances   exceedingly 
similar.^     "In  the  month  of  August  1399,"  says  a  contem- 
porary historian,  "  there  appeared  all  over  Italy  a  description 
of  persons,  called  Bianchi,  from   the   white   linen  vestment 
that  they  wore.     They  passed  from  province  to  province, 
and  from  city  to  city,  crying  out  Misericordia !  with  their 
faces   covered  and  bent   towards   the   ground,  and  bearing 
before  them  a  great  crucifix.     Their  constant  song  was,  Stabat 
Mater  dolorosa.     This  lasted  three  months  ;  and  whoever  did 
not  attend  their  procession  was  reputed  a  heretic."*     Almost 
every  Italian  writer  of  the  time  takes  notice  of  these  Bianchi ; 
and  Muratori  ascribes  a  remarkable  reformation  of  manners 
(though  certainly  a  very  transient  one)  to  their  influence.* 
Nor  were  they  confined  to  Italy,  though  no  such  meritorious 
exertions  are  imputed  to  them  in  other  countries.     In  France 
their  practice  of  covering  the  face  gave  such  opportunity  to 
crimes  as  to  be  prohibited  by  the  government ;  ^  and  we  have 
an  act  on  the  rolls  of  the  first  parliament  of  Henry  IV.,  ibr- 


1  Velly,  t.  V.  p.  279 ;  Du  Cange,  ▼. 
Vcrberatio. 

2  Something  of  a  similar  kind  is  men- 
tioned by  G.  Villani,  under  the  year 
1310.    1.  viii.  c.  122. 

3  Annal.  Mediolan.  in  Murat.  Script. 
Rer.  Ital.  t.  xvi.  p.  832;  G.  Stella.  Ann. 
Qenuens.  t.  xvii.  p.  10?2 ;  Chron.  Foro- 
iiriense,  t.  xix.  p.  874;  Ann.  Bonin- 
contri,  t.  xxi.  p.  79. 

*  Dissert,  75.  Sudden  transitions  from 
profligate  to  austere  manners  were  so 


common  amonj;  individuals,  that  we  can- 
not be  surprised  at  their  sometimes 
becoming  in  a  manner  national.  Aza- 
rius,  a  chronicler  of  Milan,  after  describ- 
ing the  almost  incredible  di.<solutenesfl 
of  Pavia,  gives  an  account  of  an  instan- 
taneous reformation  wrought  by  the 
prearhing  of  a  certain  friar.  This  was 
about  1360.  Script.  Uer.  Ital  t.  xvi. 
p.  376. 
»  VUIaret,  t.  xU.  p.  827. 


State  of  Socihty.     PRETENDED  MIRACLES. 


283 


bidding  any  one,  "  under  pain  of  forfeiting  all  his  worth,  to 
receive  the  new  sect  in  white  clothes,  pretending  to  great 
sanctity,"  which  had  recently  appeared  in  foreign  parts.^ 

The  devotion  of  the  multitude  was  wrought  to  this  feverish 
height  by  the  prevailing  system  of  the  clergy.  In  pretended 
that  singular  polytheism,  which  had  been  gi'afted  on  miracles. 
Christianity,  nothing  was  so  conspicuous  as  the  belief  of  perpet- 
ual miracles — if  indeed  those  could  properly  be  termed  mir- 
acles which,  by  their  constant  recurrence,  even  upon  trifling 
occasions,  might  seem  within  the  ordinary  dispensations  of 
Providence.  These  superstitions  arose  in  what  are  called 
primitive  times,  and  are  certainly  no  part  of  popery,  if  in  that 
word  we  include  any  especial  reference  to  the  Roman  see. 
But  successive  ages  of  ignorance  swelled  the  delusion  to  such 
an  enormous  pitch,  that  it  was  as  difficult  to  trace,  we  may  say 
without  exaggeration,  the  real  religion  of  the  Gospel  in  the 
popular  belief  of  the  laity,  as  the  real  history  of  Charle- 
magne in  the  romance  of  Turpin.  It  must  not  be  supposed 
that  these  absurdities  were  produced,  as  well  as  nourished, 
by  ignorance.  In  most  cases  they  were  the  work  of  deliber- 
ate imposture.  Every  cathedral  or  monastery  had  its  tutelar 
saint,  and  every  saint  his  legend,  fabricated  in  order  to  enrich 
the  churches  under  his  protection,  by  exaggerating  his  vir- 
tues, his  miracles,  and  consequently  his  power  of  servino- 
those  who  paid  liberally  for  his  patronage.^  Many  of  those 
saints  were  imaginary  persons;  sometimes  a  blundered  in- 
scription added  a  name  to  the  calendar,  and  sometimes,  it  is 
said,  a  heathen  god  was  surprised  at  the  company  to  which 
he  was  introduced,  and  the  rites  with  which  he  was  honored.' 

It  would  not  be  consonant  to  the  nature  of  the  present 
work  to  dwell  upon  the  erroneousness  of  this  re- 
ligion ;  but  its  effect  upon  the  moral  and  intellect-  JiS^pg®*^ 
ual  character  of  mankind  was  so  prominent,  that  from  this 
no   one   can    take    a    philosophical  view  of  the  ^''p«'^""°"' 
middle  ages  without  attending  more  than  is  at  present  fash- 
ionable to  their  ecclesiastical  history.     That  the  exclusive 
worship  of  saints,  under  the  guidance  of  an  artful  though 


1  Rot.  Pari.  T.  iii.  p.  428. 

•  This  is  confessed  by  the  authors  of 
Histoire  Litterairc  de  laFrance,  t.  ii.  p.  4, 
and  indeed  by  many  catholic  writers.  I 
need  not  quote  Moi«heim,  who  more  than 
•onflrms  every  word  of  my  text. 


5  Middleton's  Letter  from  Rome.  If 
some  of  our  eloquent  countryman's  po- 
sitions should  be  disputed,  there  are  still 
abundant  catholic  testimonies  that  imag- 
inary saints  have  been  cauonized. 


284 


MISCHIEFS  OF  SUPERSTITION.    Chap.  IX.  Pakt  L 


w^ 


\\i\-A 


illiterate  priesthood,  degraded  the  understanding  and  begot  a 
stupid  credulity  and  fanaticism,  is  sufficiently  evident.  But 
it  was  also  so  managed  as  to  loosen  the  bonds  of  religion  and 
pervert  the  standard  of  morality.  If  these  inhabitants  of 
heaven  had  been  represented  as  stern  avengers,  accepting  no 
slight  atonement  for  heavy  offences,  and  prompt  to  interpose 
their  control  over  natural  events  for  the  detection  and  pun- 
ishment of  guilt,  the  creed,  however  impossible  to  be  recon- 
ciled with  experience,  might  have  proved  a  salutary  check 
upon  a  rude  people,  and  would  at  least  have  had  the  only 
palliation  that  can  be  offered  for  a  religious  imposture,  its 
political  expediency.  In  the  legends  of  those  times,  on  the 
contrary,  they  appeared  only  as  perpetual  intercessors,  so 
good-natured  and  so  powerful,  that  a  sinner  was  more  em- 
phatically foolish  than  he  is  usually  represented  if  he  failed 
to  secure  himself  against  any  bad  consequences.  For  a  little 
attention  to  the  saints,  and  especially  to  the  Virgin,  with  due 
liberality  to  their  servants,  had  saved,  he  would  be  told,  so 
many  of  the  most  atrocious  delinquents,  that  he  might 
equitably  presume  upon  similar  luck  in  his  own  case. 

This  monstrous  superstition  grew  to  its  height  in  the  twelfth 
century.  For  the  advance  that  learning  then  made  was  by 
no  means  sufficient  to  counteract  the  vast  increase  of  monas- 
teries, and  the  opportunities  which  the  greater  cultivation  of 
modem  languages  afforded  for  the  diffusion  of  legendary 
tales.  It  was  now,  too,  that  the  veneration  paid  to  the 
Virgin,  in  early  times  very  great,  rose  to  an  almost  exclusive 
idolatry.  It  is  difficult  to  conceive  the  stupid  absurdity  and 
the  disgusting  profaneness  of  those  stories  which  were  in- 
vented by  the  monks  to  do  her  honor.  A  few  examples  have 
been  thrown  into  a  note.^ 


1  Le  Grand  d'Aussy  has  given  us,  in 
the  fifth  volume  of  his  Fabliaux,  several 
of  the  religious  tales  by  which  the  monks 
endeavored  to  withdraw  the  people  from 
romances  of  chivalry.  The  following 
specimens  will  abundantly  confirm  my 
assertions,  which  may  perhaps  appear 
harsh  and  extravagant  to  the  reader. 

There  was  a  man  whose  occupation 
was  highway  robbery  ;  but  whenever  he 
set  out  on  any  such  expedition,  he  was 
careful  to  address  a  prayer  to  the  Virgin. 
Taken  at  last,  he  was  sentenced  to  be 
hanged.  While  the  cord  was  round  his 
neck  he  made  his  usual  prayer,  nor  was 
it  ineffectual.    The  Virgin  supported  iiis 


feet  "  with  her  white  hands,"  and  thus 
kept  him  alive  two  days,  to  the  no  small 
surprise  of  the  executioner,  who  at- 
tempted to  complete  his  work  with 
strokes  of  a  sword.  But  the  same  in- 
visible hand  turned  aside  the  weapon, 
and  the  executioner  was  compelled  to 
release  his  victim,  acknowledging  the 
miracle.  The  thief  retired  into  a  mon- 
astery, which  is  always  the  termination 
of  these  deliverances. 

At  the  monastery  of  St.  Peter,  near 
Cologne,  lived  a  monk  perfectly  dissolute 
and  irreligious,  but  very  devout  towards 
the  Apostle.  Unluckily  he  died  sud- 
denly without  confession.     The  fiends 


State  of  Society.     NOT  UNMIXED  WITH  GOOD. 


285 


Whether  the  superstition  of  these  dark  ages  had  actually 
passed  that  point  when  it  becomes  more  injurious 
to  public  morals  and  the  welfare  of  society  than  altogether 
the   entire  absence  of  all   religious  notions  is  a  ^"^h'^'ood 
very  complex  question,  upon  which  I  would  by  no 
means  pronounce  an  affirmative  decision.^     A  salutary  in- 
fluence, breathed  from  the  spirit  of  a  more  genuine  religion. 


came  as  usual  to  seize  his  soul.  St.  Pe- 
ter, vexed  at  losing  so  faithful  a  votary, 
besought  God  to  admit  the  monk  into 
Paradise.  His  prayer  was  refused ;  and 
though  the  whole  body  of  saints,  apos- 
tles, angels,  and  martyrs  joined  at  his 
request  to  make  interest,  it  was  of  no 
avail.  In  this  extremity  he  had  recourse 
to  the  Mother  of  God.  "  Fair  lady,"  he 
said,  "  my  monk  is  lost  if  you  do  not 
interfere  for  him  ;  but  what  is  impossible 
for  us  will  be  but  sport  to  you,  if  you 
please  to  assist  us.  Your  Son,  if  you  but 
speak  a  word,  must  yield,  since  it  is 
in  your  power  to  command  him."  The 
Queen  Mother  assented,  and,  followed  by 
all  the  virgins,  moved  towards  her  Son. 
He  who  had  himself  given  the  precept, 
Honor  thy  father  and  thy  mother,  no 
sooner  saw  his  own  parent  approach 
than  he  rose  to  receive  her ;  and  taking 
her  by  the  hand  inquired  her  wishes. 
The  rest  may  be  easily  copjectured. 
Compare  the  gross  stupidity,  or  rather 
the  atrocious  impiety  of  this  tale,  with 
the  pure  theism  of  the  Arabian  Nights, 
and  judge  whether  the  Deity  was  better 
worshipped  at  Cologne  or  at  Bagdad. 

It  is  unnecessary  to  multiply  instances 
of  this  kind.  In  one  tale  the  Virgin 
takes  the  shape  of  a  nun,  who  had 
eloped  from  the  convent,  and  performs 
her  duties  ten  years,  till,  tired  of  a  liber- 
tine life,  she  returns  unsuspected.  This 
was  in  consideration  of  her  having  never 
omitted  to  say  an  Ave  as  she  passed  the 
Virgin's  image.  In  another,  a  gentle- 
man, in  love  with  a  handsome  widow, 
consents,  at  the  instigation  of  a  sorcerer, 
to  renounce  God  and  the  saints,  but 
cannot  be  persuaded  to  give  up  the 
Virgin,  well  knowing  that  if  he  kept 
her  his  friend  he  should  obtain  pardon 
through  her  means.  Accordingly  she  in- 
spired his  mistress  with  so  much  passion 
that  he  married  her  within  a  few  days. 

These  tales,  it  may  be  said,  were  the 
production  of  ignorant  men,  and  circu- 
lated among  the  populace.  Certainly 
they  would  have  excited  contempt  and 
indignation  in  the  more  enlightened 
clergy.  But  I  am  concerned  with  the 
general  character  of  religious  notions 
among  the  people :  and  for  this  it  is  bet- 


ter to  take  such  popular  compositions, 
adapted  to  what  the  laity  already  be- 
lieved, than  the  writings  of  comparatively 
learned  and  reflecting  men.  However, 
stories  of  the  same  cast  are  frequent  in 
the  monkish  historians.  Matthew  Paris, 
one  of  the  most  respectable  of  that  class, 
and  no  friend  to  the  covetousness  or  re- 
laxed lives  of  the  priesthood,  tells  us  of  a 
knight  who  was  on  the  point  of  being 
damned  for  frequenting  tournaments,  but 
saved  by  a  donation  he  had  formerly 
made  to  the  Virgin,     p.  290. 

1  This  hesitation  about  so  important  a 
question  is  what  I  would  by  no  means 
repeat.  Beyond  every  doubt,  the  evils 
of  superstition  in  the  middle  ages,  though 
separately  considered  very  serious,  are 
not  to  bo  weighed  against  the  benefits 
of  the  religion  with  which  they  were  so 
mingled.  The  fashion  of  the  eighteenth 
century,  among  protestants  especially, 
was  to  exaggerate  the  crimes  and  follies 
of  mediaeval  ages  —  perhaps  I  have  fallen 
into  it  a  little  too  much  ;  in  the  present, 
we  Sbcm  more  in  danger  of  extenuating 
them.  We  still  want  an  inflexible  impar- 
tiality in  all  that  borders  on  ecclesiastical 
history,  which,  I  believe,  has  never  been 
displayed  on  an  extensive  scale.  A  more 
captivating  book  can  hardly  be  named 
than  the  Mores  Catholici  of  Mr.  Digby ; 
and  it  contains  certainly  a  great  deal  of 
truth  ;  but  the  general  effect  is  that  of  a 
mirage,  which  confuses  and  deludes  the 
sight.  If  those  ''  ages  of  faith  "  were  as 
noble,  as  pure,  as  full  of  human  kind- 
ness, as  he  has  delineated  them,  we  have 
had  a  bad  exchange  in  the  centuries 
since  the  Reformation.  And  those  who 
gaze  at  Mr.  Digby's  enchantments  will 
do  well  to  consider  how  they  can  better 
escape  this  consequence  than  he  has 
done.  Dr.  Maitland's  Letters  on  the 
Dark  Ages,  and  a  great  deal  more  that 
comes  from  the  pseudo-Anglican  or  An- 
glo-catholic press,  converge  to  the  same 
end ;  a  strong  sympathy  with  the  med- 
iaeval church,  a  great  indulgence  to  its 
errors,  and  indeed  a  reluctance  to  admit 
them,  with  a  corresponding  estrange- 
ment from  all  that  has  passed  in  the  last 
three  centuries.    [1848.] 


II! 


286 


EFFECTS  OF  SUPERSTITION.     Chap.  IX.  Part  I. 


i|MI 


often  displayed  itself  among  the  corruptions  of  a  degenerate 
superstition.  In  the  original  principles  of  monastic  orders, 
and  the  rules  by  which  they  ought  at  least  to  have  been 
governed,  there  was  a  character  of  meekness,  self-denial,  and 
charity  that  could  not  wholly  be  effaced.  These  virtues, 
rather  than  justice  and  veracity,  were  inculcated  by  the  re- 
ligious ethics  of  the  middle  ages ;  and  in  the  relief  of  indi- 
gence it  may,  upon  the  whole,  be  asserted  that  the  monks  did 
not  fall  short  of  their  profession.^  This  eleemosynary  spirit 
indeed  remarkably  distinguishes  both  Christianity  and  Mo- 
hammedanism from  the  moral  systems  of  Greece  and  Rome, 
which  were  very  deficient  in  general  humanity  and  sympathy 
with  suffering.  Nor  do  we  find  in  any  single  instance  during 
ancient  times,  if  I  mistake  not,  those  public  institutions  for 
the  alleviation  of  human  miseries  which  have  long  been 
scattered  over  every  part  of  Europe.  The  virtues  of  the 
monks  assumed  a  still  higher  character  when  they  stood  for- 
ward as  protectors  of  the  oppressed.  By  an  established 
law,  founded  on  very  ancient  superstition,  the  precincts  of  a 
church  afforded  sanctuary  to  accused  persons.  Under  a  due 
administration  of  justice  this  privilege  would  have  been 
simply  and  constantly  mischievous,  as  we  properly  consider 
it  to  be  in  those  countries  where  it  still  subsists.  But  in  the 
rapine  and  tumult  of  the  middle  ages  the  right  of  sanctuary 
might  as  often  be  a  shield  to  innocence  as  an  immunity  to 
crime.  We  can  hardly  regret,  in  reflecting  on  the  desolating 
violence  which  prevailed,  that  there  should  have  been  some 
green  spots  in  the  wilderness  where  the  feeble  and  the 
persecuted  could  find  refuge.  How  must  this  right  have 
enhanced  the  veneration  for  religious  institutions!  How 
gladly  must  the  victims  of  internal  warfare  have  turned  their 
eyes  from  the  baronial  castle,  the  dread  and  scourge  of  the 
neiirhborhood,  to  those  venerable  walls  within  which  not  even 


1 1  am  inclined  to  acquiesce  in  this 
general  opinion ;  yet  an  account  of  ex- 
penses at  Bolton  Abbey,  about  the  reign 
of  Edward  II.,  published  in  Whitaker's 
History  of  Craven,  p.  51,  maltes  a  very 
scanty  show  of  almsgiving  in  this  opu- 
lent monastery.  Much,  howeverj  was 
no  doubt  given  in  victuals.  But  it  is  a 
strange  error  to  conceive  that  English 
monasteries  before  the  dissolution  fed  the 
indigent  part  of  the  nation,  and  gave  that 
general  relief  which  the  poor-laws  are 
fantended  to  afford. 


Piers  Plowman  is  indeed  a  satirist; 
but  he  plainly  charges  the  monks  with 
want  of  charity. 

Little  had  lordes  to  do  to  give  landes 

from  their  heires 
To  religious  that  have  no  ruthe  though 

it  mine  on  their  aultres ; 
In  many  places    there   the    parsons  b* 

thcmself  at  ease, 
Of  the  poor  they  have  no  pitie  and  thai 

is  their  poor  charitie. 


State  of  Society.     VICES  OF  MONKS  AND  CLERGY.        287 

the  clamor  of  arms  could  be  heard  to  disturb  the  chant  of 
holy  men  and  the  sacred  service  of  the  altar !  The  pro- 
tection of  the  sanctuary  was  never  withheld.  A  son  of 
Chilperic  king  of  France  having  fled  to  that  of  Tours,  his 
father  threatened  to  ravage  all  the  lands  of  the  church  unless 
they  gave  him  up.  Gregory  the  historian,  bishop  of  the 
city,  replied  in  the  name  of  his  clergy  that  Christian.*  could 
not  be  guilty  of  an  act  unheard  of  among  pagans.  The 
king  was  as  good  as  his  word,  and  did  not  spare  the  estate 
of  the  church,  but  dared  not  infringe  its  privileges.  He  had 
indeed  previously  addressed  a  letter  to  St.  Martin,  which 
was  laid  on  his  tomb  in  the  church,  requesting  permission 
to  take  away  his  son  by  force ;  but  the  honest  saint  returned 
no  answer.^ 

The  virtues  indeed,  or  supposed  virtues,  which  had  induced 
a  credulous  generation  to  enrich  so  many  of  the  yj^^g  ^^  ^^^ 
monastic  orders,  were  not  long  preserved.  "We  monks  and 
must  reject,  in  the  excess  of  our  candor,  all  testi-  ^^^^^y- 
monies  that  the  middle  ages  present,  from  the  solemn  decla- 
ration of  councils  and  reports  of  judicial  inquiry  to  the  casual 
evidence  of  common  fame  in  the  ballad  or  romance,  if  we 
would  extenuate  the  general  corruption  of  those  institutions. 
In  vain  new  rules  of  discipline  were  devised,  or  the  old  cor- 
rected by  reforms.  Many  of  their  worst  vices  grew  so 
naturally  out  of  their  mode  of  life,  that  a  stricter  discipline 
could  have  no  tendency  to  extirpate  them.  Such  were  the 
frauds  I  have  already  noticed,  and  the  whole  scheme  of  hypo- 
critical austerities.  Their  extreme  licentiousness  was  some- 
times hardly  concealed  by  the  cowl  of  sanctity.  I  know 
not  by  what  right  we  should  disbelieve  the  reports  of  the 
visitation  under  Henry  VIH.,  entering  as  they  do  into  a 
multitude  of  specific  charges  both  probable  in  their  nature 
and  consonant  to  the  unanimous  opinion  of  the  world.* 
Doubtless,  there  were  many  communities,  as  well  as  indi- 


1  Schmidt,  Hist,  des  Allemands,  t.  I. 
p.  874. 

2  See  Fosbrooke's  British  Monachism 
(vol.  i.  p.  127,  and  vol.  ii.  p.  8)  for  a 
farrago  of  evidence  against  the  monks. 
Clemanf^is,  a  French  theologian  of  con- 
Bidenble  eminence  at  the  beginning  of 
the  fifteenth  century,  speaks  of  nunner- 
ies in  the  following  terms  : —  Quid  aliud 
sunt  hoc  tempore  pucUarum  monasteria, 
Bisi  qusedam  noo  dico  Dei  sanctuaria, 


sed  Veneris  execranda  prostibula,  sed 
lascivorura  et  impudicorum  juvenum  ad 
libidinesexplendiis  receptacula?  ut  idem 
sit  hodie  puellam  velare,  quod  et  public^ 
ad  scortandum  exponere.  William  ]^n- 
ne,  from  whose  records  (vol.  ii.  p.  229)  I 
have  taken  this  passage,  quotes  it  on 
occasion  of  a  charter  of  king  John,  ban- 
ishing thirty  nuns  of  Ambresbury  into 
different  convents,  propter  vitae  suae  tur- 
pitudincm. 


288 


VICES  OF  THE 


Chap.  IX.  Part  I. 


viduals,  to  whom  none  of  these  reproaches  would  apply.  In 
the  very  best  view,  however,  that  can  be  taken  of  monas- 
teries, their  existence  is  deeply  injurious  to  the  general 
morals  of  a  nation.  They  withdraw  men  of  pure  conduct 
and  conscientious  principles  from  the  exercise  of  social 
duties,  and  leave  the  common  mass  of  human  vice  more 
unmixed.  Such  men  are  always  inclined  to  form  schemes 
of  ascetic  perfection,  which  can  only  be  fulfilled  in  retire- 
ment ;  but  in  the  strict  rules  of  monastic  life,  and  under  the 
influence  of  a  grovelling  superstition,  their  virtue  lost  all  its 
usefulness.  They  fell  implicitly  into  the  snares  of  crafty 
priests,  who  made  submission  to  the  church  not  only  the 
condition  but  the  measure  of  all  praise.  "  He  is  a  good 
Christian,"  says  Eligius,  a  saint  of  the  seventh  century, 
"  who  comes  frequently  to  church ;  who  presents  an  oblation 
that  it  may  be  offered  to  God  on  the  altar ;  who  does  not 
taste  the  fruits  of  his  land  till  he  has  consecrated  a  part  of 
them  to  God;  who  can  repeat  the  Creed  or  the  Lord's 
Prayer.  Redeem  your  souls  from  punishment  while  it  is  in 
your  power;  offer  presents  and  tithes  to  churches,  light 
candles  in  holy  places,  as  much  as  you  can  afford,  come  more 
frequently  to  church,  implore  the  protection  of  the  saints ; 
for,  if  you  observe  these  things,  you  may  come  with  security 
at  the  day  of  judgment  to  say,  Give  unto  us,  Lord,  for  we 
have  given  unto  thee."  ^ 


1  Mosheim,  cent.  vil.  c.  3.  Robertson 
has  quoted  this  passage,  to  whom  per- 
haps I  am  immediately  indebted  for  it. 
Hist.  Charles  V.,  vol.  i.  note  11. 

I  leave  this  passage  as  it  stood  in 
former  editions.  But  it  is  due  to  justice 
that  this  extract  from  Eligius  should 
never  be  quoted  in  future,  as  the  trans- 
lator of  Mosheim  has  induced  Robertson 
and  many  others,  as  well  as  myself,  to  do. 
Dr.  Lingard  has  pointed  out  that  it  is  a 
very  imperfect  representation  of  what 
Eligius  has  written;  for  though  he  has 
dwelled  on  these  devotional  practices  as 
parts  of  the  definition  of  a  good  Chris- 
tian, he  certainly  adds  a  great  deal  moro 
to  which  no  one  could  object.  Yet  no 
One  Is,  in  fact,  to  blame  for  this  misrep- 
resentation, which,  being  contained  in 
popular  books,  has  gone  forth  so  widely. 
Mosheim,  as  will  appear  on  referring  to 
him,  did  not  quote  the  passage  as  con- 
taining a  complete  definition  of  the 
Christian  character.  His  translator, 
UacLune,  mbtook  thiB,  and  wrote,  in 


consequence,  the  severe  note  which  Rob- 
ertson has  copied.  I  have  seen  the 
whole  passage  in  d'Achery's  Spiciiegium 
(vol.  V.  p  213,  4to.  edit.),  andean  testify 
that  Dr.  Lingard  is  perfectly  correct 
Upon  the  whole,  this  is  a  striking  proof 
how  dangerous  it  is  to  take  any  author- 
iMes  at  second-hand.  —  Note  to  Fourth 
Edition.  Much  clamor  has  been  made 
about  the  mistake  of  Maolaine,  which  was 
innocent  and  not  unnatural.  It  has 
been  commented  upon,  particularly  by 
Dr.  Arnold,  as  a  proof  of  the  risk  we  run 
of  misrepresenting  authors  by  quoting 
them  at  second-hand.  And  this  is  per- 
fectly true,  and  ought  to  be  constantly 
remembered.  But,  so  long  as  we  ac- 
knowledge the  immediate  source  of  our 
quotation,  no  censure  is  due,  since  in 
works  of  considerable  extent  this  use  of 
secondary  authorities  is  absolutely  indis- 
pensable, not  to  mention  the  frequent 
difficulty  of  procuring  access  to  original 
authors.  [l&iS.] 


STATE  OP  Society.      MONKS  AND  CLERGY. 


289 


With  such  a  definition  of  the  Christian  character,  it  is  not 
surprising  that  any  fraud  and  injustice  became  honorable 
when  it  contributed  to  the  riches  of  the  clergy  and  glory  of 
their  order.  Their  frauds,  however,  were  less  atrocious  than 
the  savage  bigotry  with  which  they  maintained  their  own 
system  and  infected  the  laity.  In  Saxony,  Poland,  Lithuania, 
and  the  countries  on  the  Baltic  Sea,  a  sanguinary  persecu- 
tion extirpated  the  original  idolatry.  The  Jews  were  every- 
where the  objects  of  popular  insult  and  0})pression,  frequently 
of  a  general  massacre,  though  protected,  it  must  be  confessed 
by  the  laws  of  the  church,  as  well  as  in  general  by  temporal 
princes.*  Of  the  crusades  it  is  only  necessary  to  repeat 
that  they  began  in  a  tremendous  eruption  of  fanaticism, 
and  ceased  only  because  that  spirit  could  not  be  constantly 
kept  alive.  A  similar  influence  produced  the  devastation  of 
Languedoc,  the  stakes  and  scaffolds  of  the  Inquisition,  and 
rooted  in  the  religious  theory  of  Europe  those  maxims  of 
intolerance  which  it  has  so  slowly,  and  still  perhaps  so  im- 
perfectly, renounced. 

From  no  other  cause  are  the  dictates  of  sound  reason  and 
the  moral  sense  of  mankind  more  confused  than  by  this 
narrow  theological  bigotry.  For  as  it  must  often  happen 
that  men  to  whom  the  arrogance  of  a  prevailing  faction  im- 
putes religious  error  are  exemplary  for  their  performance  of 
moral  duties,  these  virtues  gradually  cease  to  make  their 
proper  impression,  and  are  depreciated  by  the  rigidly  ortho- 
dox as  of  little  value  in  comparison  with  just  opinions  in 
speculative  points.  On  the  other  hand,  vices  are  forgiven  to 
those  who  are  zealous  in  the  faith.  I  speak  too  gently,  and 
with  a  view  to  later  times ;  in  treating  of  the  dark  ages  it 
would  be  more  correct  to  say  that  crimes  were  commended. 
Thus  Gregory  of  Tours,  a  saint  of  the  church,  after  relating 
a  most  atrocious  story  of  Clovis  —  the  murder  of  a  prince 


•  Mr.  Turner  has  collected  many  cu- 
rious facts  relative  to  the  condition  of 
the  Jews,  especially  in  England.  Hist, 
of  England,  vol.  ii.  p.  95.  Others  may 
te  found  dispersed  in  Velly's  History  of 
France;  and  many  in  the  Spanish 
\vriter8.  Mariana  and  Zurita,  The  fol- 
lowing are  from  Vaissette's  History  of 
lAQguedoc.  It  was  the  custom  at  Tou- 
louse to  give  a  blow  on  the  face  to  a  Jew 
every  Easter ;  this  was  commuted  in  the 
twelfth  century  for  a  tribute,    t.  ii.  p. 

VOL.  III.  19 


151.  At  Beziers  another  usage  prevail- 
ed, that  of  attacking  the  Jews'  houses 
with  stones  from  Palm  Sunday  to  Easter. 
No  other  weapon  was  to  be  used  ;  but  it 
generally  produced  bloodshed.  The  pop- 
ulace were  regularly  instigated  to  the 
assault  by  a  sermon  from  the  bishop. 
At  length  a  prelate  wiser  than  the  rest 
abolished  this  ancient  practice,  but  not 
without  receiving  a  good  6um  from  th« 
Jews.    p.  485. 


'  'I 


290 


COMMUTATION  OF  PENANCES.     Chap.  IX.  Pabt  I. 


State  of  Society. 


WANT  OF  LAW. 


291 


whom  he  had  previously  instigated  to  parricide —  continues 
the  senten(!e :  ''  For   God  daily  subdued    his  enemies  to  his 
hand,  and  increased  his  kingdom ;  because  he  walked  before 
him  in  uprightness,  and  did  what  was  pleasing  in  his  eyes." 
It  is  a  frequent  complaint  of  ecclesiastical  writers  that  the 
rigorous  penances  imposed  by  the  primitive  canons 
commuta-      ^  o^^  delinquents  were  commuted  in  a  laxer  state 
penances.       ^^  discipline  for  less  severe  atonements,  and  ulti- 
mately indeed  for  money.*    We  must  not,  however,  regret 
that  the  clergy  should  have  lost  the  power   of  compelling 
men  to  abstain  fifteen  years  from  eating  meat,  or  to  stand 
exposed  to  public  derision  at  the  gates  of  a  church.     Such 
implicit  submissiveness  could  only  have  produced  superstition 
and  hypocrisy  among  the  laity,  and  prepared  the  road  for  a 
tyranny  not  less  oppressive  than  that  of  India  or  ancient 
Egypt.     Indeed  the  two  earliest  instances   of  ecclesiastical 
interference   with   the    rights   of  sovereigns  —  namely,   the 
deposition  of  Wamba  in  Spain  and  that  of  Louis  the  Debo- 
nair—  were  founded  upon  this  austere  system  of  penitence. 
But  it  is  true  that  a  repentance  redeemed  by  money  or  per- 
formed by  a  substitute  could  have  no  salutary  effect  on  the 
sinner ;    and  some   of  the   modes   of  atonement  which   the 
church   most   approved  were   particularly  hostile  to   public 
morals.     None  was  so  usual  as  pilgrimage,  whether  to  Jeru- 
salem or  Rome,  which  were  the  great  objects  of  devotion ; 
or  to  the  shrine  of  some  national  saint  —  a  James  of  Com- 
postella,  a  David,  or  a  Thomas   a   Becket     This  licensed 
vagrancy  was  naturally  productive  of  dissoluteness,  especially 
among  the  women.     Our  English   ladies,  in   their   zeal   to 
obtain  the  spiritual  treasures  of  Rome,  are  said    to  have  re- 
laxed the  necessary  caution  about  one  that  was  in  their  own 


1  Greg.  Tur.  1.  ii.  c.  40.  Of  Thcode- 
bert,  grandson  of  Cloyis,  the  same  his- 
torian says,  Magnum  se  et  in  omni  bon- 
itate  prfTcipuum  reddidit.  In  the  next 
paragraph  we  find  a  story  of  his  having 
two  wives,  and  looking  so  tenderly  on 
the  daughter  of  one  of  them,  that  her 
mother  tossed  her  over  a  bridge  into  the 
river.  1.  iii.  c.  25.  This  indeed  is  a 
trifle  to  the  passage  in  the  text.  There 
axe  continual  proofs  of  immorality  in  the 
monkish  historians.  In  the  history  of 
Ramsey  Abbey,  one  of  our  best  docu- 
ments for  Anglo-Saxon  times,  we  have 
an  anecdote  of  a  bishop  who  made  a 
Danish  nobleman  drunk,  that  he  might 


cheat  him  of  an  estate,  which  is  told 
with  much  approbation.  Gule,  Script 
Anglic,  t.  i.  p.  441.  Walter  do  Ileming. 
ford  recounts  with  excessive  delight  the 
well-known  story  of  the  Jews  who  were 
persuaded  by  the  captain  of  their  vessel 
to  walk  on  the  sands  at  low  water,  till 
the  rising  tide  drowned  them  ;  and  adds 
that  the  captain  was  both  pardoned  and 
rewarded  for  it  by  the  king,  gratiam 
promcruit  et  proemium.  This  is  a  mis- 
take, inasmuch  as  he  was  hanged ;  but 
it  exhibits  the  character  of  the  historian 
lleniingford.  p.  21. 

2  Fleury,  Troisi^me  Discours  sur  rHi** 
toire  £ccl«siasti(iue. 


custody.^  There  is  a  capitulary  of  Charlemagne  directed 
against  itinerant  penitents,  who  probably  conudered  the  iron 
chain  around  their  necks  an  expiation  of  future  as  well  as 
past  offences.* 

The  crusades  may  be  considered  as  martial  pilgrimages 
on  an  enormous  scale,  and  their  influence  upon  general  mo- 
rality seems  to  have  been  altogether  pernicious.  Those  who 
served  under  the  cross  would  not  indeed  have  lived  very 
virtuously  at  home ;  but  the  confidence  in  their  own  merits, 
which  the  principle  of  such  expeditions  inspired,  must  have 
aggravated  the  ferocity  and  dissoluteness  of  their  ancient 
habits.  Several  historians  attest  the  depravation  of  morals 
which  existed  both  among  the  crusaders  and  in  the  states 
formed  out  of  their  conquests.' 

While  religion  had  thus. lost  almost  every  quality  that 
renders  it  conducive  to  the  good  order  of  society,  want  of 
the  control  of  human  law  was  still  less  efficacious.  ^*''- 
But  this  part  of  my  subject  has  been  anticipated  in  other 
passages  of  the  present  work ;  and  I  shall  only  glance  at 
the  want  of  regular  subordination,  which  rendered  legis- 
lative and  judicial  edicts  a  dead  letter,  and  at  the  incessant 
private  warfare,  rendered  legitimate  by  the  usages  of  most 
continental  nations.  Such  hostilities,  conducted  as  they  must 
usually  have  been  with  injustice  and  cruelty,  could  not  fail 
to  produce  a  degree  of  rapacious  ferocity  in  the  general  dis- 
position of  a  people.  And  this  certainly  was  among  the 
characteristics  of  every  nation  for  many  centuries. 

It  is  easy  to  infer  the  degradation  of  society  during  (he 
dark  ages  from  the  state  of  religion  and  police.  Degradation 
Certainly  there  are  a  few  great  landmarks  of  moral  °f  ™o^^»'«- 
distinctions  so  deeply  fixed  in  human  nature,  that  no  degree 
of  rudeness  can  destroy,  nor  even  any  superstition  remove 
them.  Wherever  an  extreme  corruption  has  in  any  pai-- 
ticular  society  defaced  these  sacred  archetypes  that  are  given 
to  guide  and  correct  the  sentiments  of  mankind,  it  is  in  the 
course  of  Providence  that  the  society  itself  should  perish  by 
internal  discord  or  the  sword  of  a  conqueror.     In  the  worst 


J  Henry,  Hist,  of  England,  vol.  ii.  c.  7. 

'  Du  Cange,  v.  Peregrinatio.  Non 
Mnantur  vagari  isti  nudi  cum  ferro,  qui 
aicunt  Hc  data  poenltentil  ire  vagantes. 
Melius  videtur,  ut  si  aliquod  inconsue- 
Mim  et  capitale  crimen  commiserint,  in 


uno  loco  permaneant  laborantes  et  ser- 
vientes  et  poenitentiam  agentes,  secun- 
dum quod  canonic^  iis  impositum  sit. 

3  I.    de  Vitriaco,    in  Gesta   Dei   pet 
Francos,  t.  i. ;  Villani,  1.  yii.  c.  144. 


29L 


DEGRADATION  OF  MORALS.      Chap.  IX.  Pabt  L 


ages  of  Europe  there  must  have  existed  the  seeds  of  social 
virtues,  of  fidelity,  gratitude,  and  disinterestedness,  sufficiert: 
at  least  to  preserve  the  public  approbation  of  more  elevated 
principles  than  the  public  conduct  displayed.     Without  these 
imperishable  elements  there  could  have  been  no  restoration 
of  the  moral  energies ;  nothing  upon  which  reformed  faith, 
revived  knowledge,  renewed  law,  could  exercise  their  nour- 
ishing influences.     But  history,  which  reflects  only  the  more 
prominent  features  of  society,  cannot  exhibit  the  virtues  that 
were  scarcely  able  to  struggle  through  the  general  deprava- 
tion.     I  am  aware  that  a  tone  of  exaggerated  declamation  is 
at  all  times  usual  with  those  who  lament  the  vices  of  their 
own  time  ;  and  writers  of  the  middle  ages  are  in  abundant 
need  of  allowance  on  this  score.     Nor  is  it  reasonable  to 
found  any  inferences  as  to  the  general  condition  of  society  on 
single  instances  of  crimes,  however  atrocious,  especially  when 
committed  under   the   influence   of  violent   passion.      Such 
enormities   are  the   fruit  of  every  age,  and  none  is  to  be 
measured  by  them.     They  make,  however,  a  strong  impres- 
sion at  the  moment,  and  thus  find  a  place  in  contemporary 
annals,  from  which  modem  writers  are  commonly  glad  to 
extract  whatever  may  seem  to  throw  light  upon  manners. 
I  shall,  therefore,  abstain  from  producing  any  particular  cases 
of  dissoluteness  or  cruelty  from  the  records  of  the  middle 
ages,  lest  I  should  weaken  a  general  proposition  by  offering 
an  imperfect  induction  to  support  it,  and  shall  content  myself 
with  observing  that  times  to  which  men  sometimes  appeal, 
as  to  a  golden  period,  were  far  inferior  in  every  moral  com- 
parison to  those  in  which  we  are  thrown.*     One  crime,  as 
more  universal  and  characteristic  than  others,  may  be  par- 
ticularly noticed.     All  writers  agree  in  the  prevalence  of  ju- 
dicial perjury.    It  seems  to  have  almost  invariably  escaped 


t  Henry  has  taken  pains  in  drawing  a 
picture,  not  very  favorable,  of  Anglo- 
Saxon  manners.  Book  II.  chap.  7. 
This  perhaps  is  the  best  chapter,  as  the 
volume  is  the  best  volume,  of  his  un- 
equal work.  His  account  of  the  Anglo- 
Saxons  is  derived  in  a  great  degree  from 
William  of  Malnisburv,  who  does  not 
spare  them.  Their  civil  history,  indeed. 
And  their  laws,  speak  sufficiently  against 
the  character  of  that  people.  But  the 
Normans  had  little  more  to  boast  of  in 
respect  of  moral  correctness.  Their  lux- 
urious and  dissolute  habits  are  as  much 


noticed  as  their  insolence.  Via.  Order- 
icus  Vitalis,  p.  602  ;  Johann.  Sarisbu- 
riensis  Policraticus,  p.  194  ;  Velly,  Hist, 
de  France,  t.  iii.  p.  59.  The  state  of 
manners  in  France  under  the  first  two 
races  of  kings,  and  in  Italy  both  un- 
der the  Lombards  and  the  subsequent 
dynasties,  may  be  collected  from  their 
histories,  their  laws,  and  those  nii.«cel- 
laneous  facts  which  books  of  every  de- 
scription contain.  Neither  Velly,  nor 
Muratori,  Dissert.  23,  are  so  satisfactory 
08  we  might  desire. 


State  of  Society.     LOVE  OF  FIE^J)  SPORTS.  293 

human  punishment ;  and  the  barriers  of  superstition  were  in 
this,  as  in  every  other  instance,  too  feeble  to  prevent  the  com- 
mission of  crimes.  Many  of  the  proofs  by  ordeal  were  ap- 
plied to  witnesses  as  well  as  those  whom  they  accused  •  and 
undoubtedly  trial  by  combat  was  preserved  in  a  considerable 
degree  on  account  of  the  difficulty  experienced  in  securing  a 
.lust  cause  against  the  perjury  of  witnesses.  Robert  king  of 
trance,  perceiving  how  frequently  men  forswore  themselves 
upon  (he  relics  of  saints,  and  less  shocked  apparently  at  the 
crime  than  at  the  sacrilege,  caused  an  empty  reliquary  of 
crystal  to  be  used,  that  those  who  touched  it  micrht  incur 
less  guilt  m  fact,  though  not  in  intention.  Such  an  anecdote 
characterizes  both  the  man  and  the  times.^ 

Tiie  favorite  diversions  of  the  middle  ages,  in  the  intervals 
of  war,  were  those  of  hunting  and  hawking.     The  Love  of 
former  must  in  all  countries  be  a  source  of  pleas-  ^^^^  sports, 
ure  ;  but  it  seems  to  have  been  enjoyed  in  moderation  by  the 
Greeks  and  the  Romans.     With  the  northern  invaders,  how- 
ever. It  was  rather  a  predominant  appetite  than  an  amuse- 
ment ;  it  was  their  pride  and  their  ornament,  the  theme  of 
their  songs,  the  object  of  their  laws,  and  the  business  of  their 
lives.     Falconry,  unknown  as  a  diversion  to  the   ancients, 
became  from  the  fourth  century  an  equally  delightful  occu- 
pation,     h  rom  the  Salic  and  other  barbarous  codes  of  the 
filth  century  to  the  close  of  the  period  under  our   review 
every  age  would  furnish  testimony  to  the  ruling  passion  for 
these  two  species  of  chase,  or,  as  they  were  sometimes  called, 
the  mysteries  of  woods  and  rivers.     A  knight  seldom  stirred 
from  his  house  without  a  falcon  on  his  wrist  or  a  greyhound 
that  followed  him.     Thus  are  Harold  and  his  attendants  rep- 
resented, m  the  famous  tapestry  of   Bayeux.     And  in  the 
monuments  of  those  who  died  anywhere  but  on  the  field  of 
battle.  It  is  usual  to  find  the  greyhound  lying  at  their  feet  or 
the  bird  upon  their  wrists.     Nor  are  the  tombs  of  ladies 
without  their  falcon  ;  for  this  diversion,  being  of  less  danger 
and  fatigue  than  the  chase,  was  shared  by  the  delicate  sex.« 


T*  1.  *"/'  ""'•  <*«  France,  t.  U.  p.  335. 
U  bas  been  observed,  that  Quid  mores 
Mne  legibus  ?  is  as  just  a  question  as 
inat  of  Horace  ;  and  that  bad  laws  must 
produce  bad  morals.  The  strange  prac- 
tice of  requiring  numerous  compurga- 
wrs  to  prove  the  innocence  of  an  ac- 


cused person  had  a  most  obvious  tenden- 
cy' to  increase  perjury. 

8  Muratori,  Dissert.  23,  t.  i.  p.  800 
(Italian);  Beckman's  Hist,  of  Inven- 
tions, vol.  i.  p.  319  ;  Vie  privee  des  Fran- 
cis, t.  ii.  p.  1. 

3  Vie  privee  des  Franqais,  t.  i.  p.  820; 
t.  ii.  p.  11. 


294 


LOVE  OF  FIELD  SPORTS.       Chap.  IX.  Pabt  I. 


It  was  impossible  to  repress  the  eagerness  with  which  the 
clergy,  especially  after  the  barbarians  were  tempted  by  rich 
bishoprics  to  take  upon  them  the  sacred  functions,  rushed 
into  these  secular  amusements.      Prohibitions  of  councils, 
however  frequently  repeated,  produced  little  effect.     In  some 
instances    a  particular    monastery  obtained  a  dispensation. 
Thus  that  of  St.  Denis,  in  774,  represented  to  Charlemagne 
that  the  flesh  of  hunted  animals  was  salutary  for  sick  monks, 
and  that  their  skins  would  serve  to  bind  the  books  in  the  li- 
brary.^    Reasons  equally  cogent,  we  may  presume,  could  not 
be  wanting  in  every  other  case.     As  the  bishops  and  abbots 
were  perfectly  feudal  lords,  and  often  did  not  scruple  to  lead 
their  vassals  into  the  field,  it  was  not  to  be  expected  that 
they  should  debar  themselves  of  an  innocent  pastime.     It 
was  hardly  such   indeed,  when  practised  at  the  expense  of 
othei-s.     Alexander   III.,  by  a  letter  to  the  clergy  of  Berk- 
shire, dispenses  with  their  keeping  the  archdeacon  in  dogs 
and  hawks  during  his  visitation.^     This  season  gave  jovial 
ecclesiastics  an  opportunity  of  trying  different  countries.    An 
archbishop  of  York,  in  1321,  seems  to  have  carried  a  train  of 
two  hundred  persons,  who  were  maintained  at  the  expense  of 
the  abbeys  on  his  road,  and  to  have  hunted  with  a  pack  of 
hounds  from  parish  to  parish.'     The  third  council  of  Lateran, 
in  1180,  had  prohibited  this  amusement  on  such  journeys, 
and  restricted  bishops  to  a  train  of  forty  or  fifty  horses.* 

Though  hunting  had  ceased  to  be  a  necessary  means  of 
procuring  food,  it  was  a  very  convenient  resource,  on  which 
the  wholesomeness  and  comfort,  as  well  as  the  luxury,  of 
the  table  depended.  Before  the  natural  pastures  were  im- 
proved, and  new  kinds  of  fodder  for  cattle  discovered,  it  was 
impossible  to  maintain  the  summer  stock  during  the  cold  sea- 
son. Hence  a  portion  of  it  was  regularly  slaughtered  and 
salted  for  winter  provision.  We  may  suppose  that,  when  no 
alternative  was  offered  but  these  salted  meats,  even  the  lean- 
est venison  was  devoured  with  relish.  There  was  somewhat 
more  excuse  therefore  for  the  severity  with  which  the  lords 
of  forests  and  manors  preserved  the  beasts  of  chase  than  if 
they  had  been  considered  as  merely  objects  of  sport.  The 
laws  relating  to  preservation  of  game  were  in  every  country 


1  Ibid.  t.  i.  p.  324. 
I  Eymer,  t.  i.  p.  61. 


*  Whitaker^s  Hist,  of  Craren,  p.  840, 
and  of  Whalley,  p.  171. 
«  YeUy,  Hist,  de  France,  t.  Ui.  p.  239. 


State  of  Society.     BAD  STATE  OF  AGRlCULrURE.  295 

uncommonly  rigorous.  They  formed  in  England  that  odious 
system  of  forest  laws  which  distinguished  the  tyranny  of 
our  Norman  kings.  Capital  punishment  for  killing  a  sta-  or 
wild  boar  was  frequent,  and  perhaps  warranted  by  law,  untU 
the  charter  of  John.^  The  French  code  was  less  severe, 
but  even  Henry  IV.  enacted  the  pain  of  death  against  the  re- 
peated offence  of  chasing  deer  in  the  royal  forests.  The 
privilege  of  hunting  was  reserved  to  the  nobility  till  the 
reign  of  Louis  IX.,  who  extended  it  in  some  degree  to 
persons  of  lower  birth.^  ® 

This  excessive  passion  for  the  sports  of  the  field  produced 
those  evils  which  are  apt  to  result  from  it  — a  strenuous  idle- 
ness which  disdained  all  useful  occupations,  and  an  opprea- 
sive  spirit  towards  the  peasantry.  The  devastation  commit- 
ted under  the  pretence  of  destroying  wild  animals,  which 
had  been  already  protected  in  their  depredations,  is  noticed 
msenous  authors,  and  has  also  been  the  topic  of  popular  bal- 
lads.«  ^^  hat  effect  this  must  have  had  on  agriculture  it  is 
easy  to  conjecture.  The  levelling  of  forests,  the  draining  of 
morasses  and  the  extirpation  of  mischievous  animals  which 
inhabit  them  are  the  first  objects  of  man's  labor  in  reclaim- 
mg  the  earth  to  his  use;  and  these  were  forbidden  by  a 
landed  aristocracy,  whose  control  over  the  progress  of  aori- 
cultural  improvement  was  unlimited,  and  who  had  not  yet 
learned  to  sacrifice  their  pleasures  to  their  avarice. 

These  habits  of  the  rich,  and  the  miserable  servitude  of 
those  who  cultivated  the  land,  rendered  its  fer- Bad  state  of 
tility   unavailing.     Predial   servitude   indeed,   in  agriculture; 
some  of  its  modifications,  has  always  been  the  great  bar  to 
improvement.     In  the  agricultural  economy  of  Rome  the  la- 
boring husbandman,  a  menial  slave  of  some  wealthy  senator, 

181.  This  continued  to  be  felt  in  France 
down  to  the  revolution,  to  which  it  did 
not  perhaps  a  little  contribute.  (See 
Young's  Travels  in  France.)  The  mon- 
strous privilege  of  free-warren  (mon- 
strous, I  mean,  when  not  originally 
founded  upon  the  property  of  the  soil) 
is  recognized  by  our  own  laws  ;  though, 
in  this  age,  it  is  not  often  that  a  court 
and  jury  will  sustain  its  exercise.  Sir 
Walter  Scott's  ballad  of  the  Wild  Hunts- 
man, from  a  German  original,  is  weU 
known ;  and,  I  believe,  there  are  several 
others  in  that  country  not  dissimilar  in 
sufcyect. 


^  John  of  Salisbury  inveighs  against 
the  game-laws  of  his  age,  ^vith  an  odd 
transition  from  the  Gospel  to  the  Pan- 
dects. Nee  veriti  sunt  hominem  pro  una 
bestioli  perdere,  quem  unigenitus  Dei 
fihus  sanguine  rodeuiit  suo.  Qua;  ferre 
naturip  sunt,  et  de  jure  occupantium 
nunt,  sibi  audet  humana  temeritaa  vin- 
Oicare,  &c.    Polycraticon,  p.  18. 

I      ^9^°^'  ^^®  Privee  des  Francais,  t. 
1.  p.  o2o. 

'  For  the  injuries  which  this  people 
lustjiined  from  the  seigniorial  rights  of 
the  chase,  in  the  eleventh  century,  see 
the  RecueU  des  Historiens,  in  the  valu- 
W>le  prefiBU»  to  the  eleventh  volume,  p. 


m 


294  LOVE  OF  FIELD  SPORTS.       Chap.  IX.  Part  I. 

It  was  impossible  to  repress  the  eagerness  with  which  the 
clerffY,  especially  after  the  barbarians  were  tempted  by  ncli 
bishoprics  to  take  upon  them  the  sacred  functions,  rushed 
into  these  secular  amusements.      Prohibitions  of   councils, 
however  frequently  repeated,  produced  little  effect.     In  some 
instances    a  particular   monastery  obtained  a  dispensation. 
Thus  that  of  St.  Denis,  in  774,  represented  to  Charlemagne 
that  the  flesh  of  hunted  animals  was  salutary  for  sick  monks, 
and  that  their  skins  would  serve  to  bind  the  books  in  the  li- 
brary.^    Reasons  equally  cogent,  we  may  presume,  could  not 
be  wanting  in  every  other  case.     As  the  bishops  and  abbots 
were  perfectly  feudal  lords,  and  often  did  not  scruple  to  lead 
their  vassals  into  the  field,  it  was  not  to  be  expected  that 
they  should  debar  themselves  of  an  innocent  pastime.     It 
was  hardly  such   indeed,  when  practised  at  the  expense  ot 
others.     Alexander   III.,  by  a  letter  to  the  clergy  of  Berk- 
shire, dispenses  with  their  keeping  the  archdeacon  in  dogs 
and  hawks  during  his  visitation.^     This  season  gave  jovial 
ecclesiastics  an  opportunity  of  trying  different  countries.    An 
archbishop  of  York,  in  1321,  seems  to  have  carried  a  tram  ot 
two  hundred  persons,  who  were  maintained  at  the  expense  ot 
the  abbeys  on  his  road,  and  to  have  hunted  with  a  pack  ot 
hounds  from  parish  to  parish.'    The  third  council  of  Lateran, 
in  1180,  had  prohibited  this  amusement  on  such  journeys, 
and  restricted  bishops  to  a  train  of  forty  or  fifty  horses. 

Though  hunting  had  ceased  to  be  a  necessary  means  ot 
procuring  food,  it  was  a  very  convenient  resource,  on  which 
the  wholesomeness  and  comfort,  as  well  as  the  luxury,  of 
the  table  depended.      Before  the  natural  pastures  were  im- 
proved, and  new  kinds  of  fodder  for  cattle  discovered,  it  was 
impossible  to  maintain  the  summer  stock  during  the  cold  sea- 
son.    Hence  a  portion  of  it  was  regularly  slaughtered  and 
salted  for  winter  provision.     We  may  suppose  that,  when  no 
alternative  was  offered  but  these  salted  meats,  even  the  lean- 
est venison  was  devoured  with  relish.     There  was  somewhat 
more  excuse  therefore  for  the  severity  with  which  the  lords 
of  forests  and  manors  preserved  the  beasts  of  chase  than  if 
they  had  been  considered  as  merely  objects  of  sport.     The 
laws  relating  to  preservation  of  game  were  in  every  country 


1  Ibid.  t.  i.  p.  S24. 
*  Bymer,  t.  i.  p.  61. 


9  Whitaker'8  Hist,  of  CraTen,  p.  840, 
and  of  Whalley,  p.  171. 
«  Veil  J,  Hist,  de  France,  t.  iii.  p.  289. 


State  of  Society.     BAD  STATE  OF  AGRlCULrURE.  295 

uncommonly  rigorous.  They  formed  in  England  that  odious 
system  of  forest  laws  which  distinguished  the  tyranny  of 
our  Norman  kings.  Capital  punishment  for  killing  a  sta-  or 
wild  boar  was  frequent,  and  perhaps  warranted  by  law,  until 
the  charter  of  John.^  The  French  code  wa.  less  lUere 
but  even  Henry  IV.  enacted  the  pain  of  death  against  the  re' 
peatod  offence  of  chasing  deer  in  the  royal  forests.  The 
privilege  of  hunting  was  reserved  to  the  nobility  till  the 
reign  of  Louis  IX.,  who  extended  it  in  some  degree  to 
persons  of  lower  birth.*  ° 

This  excessive  passion  for  the  sports  of  the  field  produced 
those  evils  which  are  apt  to  result  from  it -a  strenuous  idle- 
ness which  disdained  all  useful  occupations,  and  an  oppress 
8ive  spirit  towards  the  peasantry.     The  devastation  commit- 
ted  under  the  pretence  of  destroying  wild  animals,  which 
had  been  already  protected  in  their  depredations,  is  noticed 
m  serious  authors,  and  has  also  been  the  topic  of  popular  bal- 
lads.     What  effect  this  must  have  had  on  agriculture  it  is 
easy  to  conjecture.     The  levelling  of  forests,  the  draining  of 
morasses  and  the  extirpation  of  mischievous  animals  which 
inhabit  them  are  the  first  objects  of  man's  labor  in  reclaim- 
mg  the  earth  to   his  use;  and  these  were  forbidden  by  a 
landed  aristocracy,  whose  control  over  the  progress  of  a^i- 
cultural  improvement  was  unlimited,  and  who  had  not  yet 
learned  to  sacrifice  their  pleasures  to  their  avarice 

These  habits  of  the  rich,  and  the  miserable  servitude  of 
those  who  cultivated   the  land,  rendered  its  fer- Bad  state  of 
tUity   unavailing.     Predial    servitude   indeed,   in  agriculture; 
some  of  its  modifications,  has  always  been  the  great  bar  to 
improvement.     In  the  agricultural  economy  of  Rome  the  la- 
bormg  husbandman,  a  menial  slave  of  some  wealthy  senator, 

181.  This  continued  to  be  felt  in  France 
down  to  the  revolution,  to  which  it  did 
not  perhaps  a  little  contribute.  (See 
Young's  Travels  in  France.)  The  mon- 
strous privilege  of  free-warren  (mon- 
strous, I  mean,  when  not  originally 
founded  upon  the  property  of  the  soil) 
is  recognized  by  our  own  laws  ;  though, 
in  this  age,  it  is  not  often  that  a  court 
and  jury  will  sustain  its  exercise.  Sir 
Walter  Scott's  ballad  of  the  Wild  Hunts- 
man, from  a  German  original,  is  well 
known;  and,  I  believe,  there  are  several 
others  in  that  country  not  dissimilar  in 
subject. 


^  John  of  Salisbury  inveighs  against 
the  game-laws  of  his  age,  with  an  odd 
transition  from  the  Gospel  to  the  Pan- 
dects. Nee  veriti  sunt  hominem  pro  una 
bestioli  perdere,  quem  unigenitus  Dei 
Filius  sanguine  rcdemit  suo.  Quse  ferae 
naturae  sunt,  et  de  jure  occupantium 
nunt,  sibi  audet  humana  temeritas  vin- 
oicare,  &c.  Polj-craticon,  p.  18. 
«  I^Grand,  Vie  priv^  des  Francais,  t. 
I-  p-  325.  ^ 

3  For  the  injuries  which  this  people 
lustained  from  the  seigniorial  rights  of 
the  chase,  in  the  eleventh  century,  see 
the  Recueil  des  Historiens,  in  the  valu- 
•ole  preface  to  the  eleventh  volume,  p. 


296  BAD  STATE  OF  AGRICULTURE,    Chap.  IX.  Part  I. 

iiad  not  even  that  qualified  interest  in  the  soil  which   the 
tenure  of  villenage  afforded  to  the  peasant  of  feudal   ages 
Italy,  therefore,  a  country  presenting  many  natural  impedi- 
ments,  was  but  imperfectly  reduced  into  cultivation  before  the 
irruption  of  the  barbarians.^     That  revolution  destroyed  aff- 
nculture  with  every  other  art,  and  succeeding  calamities  dut 
mg  five  or  six  centuries  left  the  finest  regions  of  Europe  un- 
fruitful and  desolate.     There  are  but  two  possible  modes  in 
which  the  produce  of  the  earth  can  be  increased;  one  by  ren- 
dering fresh  land  serviceable,  the  other  by  improving  the 
fertility  of  that  which  is  already  cultivated.     The  last  is  only 
attainable  by  the  application  of  capital  and  of  skill  to  airri. 
culture,  neither  of  which  could  be  expected  in  the  ruder  a-es 
of  society      The  former  is,  to  a  certain  extent,  always  prac- 
ticable while  waste  lands  remain;  but  it  was  checked  by  laws 
hostile  to    improvement,    such  as  the   manorial  and   com- 
monable  rights  in  England,  and  by  the  general  tone  of  man- 
ners. 

Till  the  reign  of  Charlemagne  there  were  no  towns  in 
Germany  except  a  few  that  had  been  erected  on  the  Rhine 
and  Danube  by  the  Romans.  A  house  with  its  stables  and 
fann-buildmgs,  suiTounded  by  a  hedge  or  enclosure,  was 
called  a  court,  or,  as  we  find  it  in  our  law-books,  a  curtila-e; 

On.  f  .r  ^rf^'^^f^  ^^^  °^o^e  genuine  English  dialect. 
Une  of  these,  with  the  adjacent  domain  of  arable  fields  and 
woods,  had  the  name  of  a  villa  or  manse.  Several  manses 
composed  a  march;  and  several  marches  formed  a  pagus  or 
district.^  From  these  elements  in  the  progress  of  population 
arose  villages  and  towns.  In  France  undoubtedly  there  were 
always  cities  of  some  importance.  Country  parishes  con- 
tamed  several  manses  or  farms  of  arable  lands,  around  a  com- 
mon pasture,  where  every  one  was  bound  by  custom  to  feed 


»  Muratori,  Dissert.  21.  Thb  disser- 
tation contains  ample  evidence  of  the 
wretched  state  of  culture  in  Italy,  at 
least  in  the  northern  parts,  both  before 
the  irruption  of  the  barbarians,  and,  in 
a  much  greater  degree,  under  the  Lom- 
bard kings. 

2  Schmidt,  Hist,  des  Allem.  t.  i.  p.  408. 
The  following  passage  seems  to  illustrate 
hchmidt's  account  of  German  villages  in 
the  ninth  century,  though  relating  to  a 
diuerent  age  and  country.  "  A  toft  " 
Bays  Dr.  Whitaker,  "is  a  homestead  in 


a  village,  so  called  from  the  small  tufts 
of  maple,  em,  ash,  and  other  wood,  with 
which  dwelling-houses  were  anciently 
overhung.  Even  now  it  is  impossible  to 
enter  Craven  without  being  struck  with 
the  insulated  homesteads,  surrounded 
by  their  httle  garths,  and  overhung  with 
tufts  of  trees.  These  are  the  genuine 
tofts  and  crofts  of  our  ancestors,  with 
the  substitution  only  of  stone  for  the 
wooden  crocks  and  thatched  roofs  of  an- 

i"i!^,-  ,  >h^-  ""^  ^'"'«o.  P-  380. 

»  It  is  laid  down  in  the  Speculum  Sax- 


Statu  of  Society.    AND  OF  INTERNAL  TRADE. 


297 


The  condition  even  of  internal  trade  was  hardly  prefera- 
ble to  that  of  agriculture.  There  is  not  a  vestige  of  internal 
perhaps  to  be  discovered  for  several  centuries  of  *™^®  5 
any  considerable  manufacture  ;  I  mean,  of  working  up  arti- 
cles of  common  utility  to  an  extent  beyond  what  the  necessi- 
ties of  an  adjacent  district  required.^  Rich  men  kept  domestic 
artisans  among  their  servants  ;  even  kings,  in  the  ninth  cen- 
tury, had  their  clothes  made  by  the  women  upon  their  farms ;  * 
but  the  peasantry  must  have  been  supplied  with  garments 
and  implements  of  labor  by  purchase ;  and  every  town,  it 
cannot  be  doubted,  had  its  weaver,  its  smith,  and  its  currier. 
But  there  were  almost  insuperable  impediments  to  any  ex- 
tended traffic —  the  insecurity  of  movable  wealth,  and  diffi- 
culty of  accumulating  it ;  the  ignorance  of  mutual  wants ; 
the  peril  of  robbery  in  conveying  merchandise,  and  the  cer- 
tainty of  extortion.  In  the  domains  of  every  lord  a  toll  was 
to  be  paid  in  passing  his  bridge,  or  along  his  highway,  or  at 
his  market.''  These  customs,  equitable  and  necessary  in  their 
principle,  became  in  practice  oppressive,  because  they  were 
arbitrary,  and  renewed  in  every  petty  territory  which  the 
road  might  intersect.  Several  of  Charlemagne's  capitularies 
repeat  complaints  of  these  exactions,  and  endeavor  to  abol- 
ish such  tolls  as  were  not  founded  on  prescription."*  One  of 
them  rather  amusingly  illustrates  the  modesty  and  modera- 
tion of  the  landholders.  It  is  enacted  that  no  one  shall  be 
compelled  to  go  out  of  his  way  in  order  to  pay  toll  at  a  partic- 
ular bridge,  when  he  can  cross  the  river  more  conveniently  at 
another  place.^  These  provisions,  like  most  others  of  that 
age,  were  unlikely  to  produce  much  amendment.  It  was 
only  the  milder  species,  however,  of  feudal  lords  who  were 
content  with  the  tribute  of  merchants.  The  more  ravenous 
descended  from  their  fortresses  to  pillage  the  wealthy  travel- 
ler, or  shared  in  the  spoil  of  inferior  plunderers,  whom  they 


cnicum,  a  collection  of  feudal  customs 
which  prevailed  over  most  of  Germany, 
that  no  one  might  have  a  separate  pas- 
ture for  his  cattle  unless  he  possessed 
three  mansi.  Du  Cange,  v.  Mansus. 
There  seems  to  have  been  a  price  paid,  I 
suppose  to  the  lord,  for  agistment  in  the 
common  pasture. 

I  The  only  mention  of  a  manufacture, 
as  early  as  the  ninth  or  tenth  centuries, 
that  I  remember  to  have  met  with,  is  in 
Schmidt,  t.  ii.  p.  146,  who  says  that 
sloths  were  exported  from  Friesland  to 


England  and  other  parts.  He  quotes  no 
authority,  but  I  am  satisfied  that  ho  has 
not  advanced  the  fact  gratuitously. 

2  Schmidt,  t.  i.  p.  411 ;  t.  ii.  p.  146. 

3  Du  Cange,  Pedagium.  Pontaticum, 
Teloneum,  Mercatum,  Stallagium,  Las- 
tagium,  &c. 

4  Baluz.  Capit.  p.  621  et  alibi. 

B  Ut  nuUus  cogatur  ad  pontem  ire  ad 
fluvium  transeundum  propter  telonei 
causas  quando  ille  in  alio  loco  compen- 
diosius  illud  flumen  transire  potest,  p. 
764  et  aUbi. 


t 


i 


298 


STATE  OF  INTERNAL  TRADE,     Chap.  IX.  Part  I. 


both  protected  and  instigated.      Proofs  occur,  even  in  the 
later  periods  of  the  middle  ages,  when  government  had  re- 
gamed  its  energy,  and  civilization  had  made  considerable  prog- 
ress, of  public  robberies  systematically  perpetrated  by  men 
of  noble  rank.     In  the  more  savage  times,  before  the  twelfth 
century,  they  were  probably  too  frequent  to  excite  much  at- 
tention.    It  was  a  custom  in  some  places  to  waylay  travel- 
lers, and  not  only  to  plunder,  but  to  sell  them  as  slaves,  or 
compel  them  to  pay  a  ransom.     Harold  son  of  Godwin,  hav- 
ing been  wrecked  on  the  coast  of  Ponthieu,  was  imprisoned 
by  the  lord,  says  an  historian,  according  to  the  custom  of 
that  territory.!      Germany  appears  to  have  been,  upon  the 
whole,  the  country  where  downriglit  robbery  was  most  un- 
scrupulously  practised  by  the  great.     Their  castles,  erected 
on  almost  inaccessible  heights  among  the  woods,  became  the 
secure  receptacles  of  predatory  bands,  who  spread  terror  over 
the  country.     From  these  barbarian  lords  of  the  dark  an^es, 
as  from  a  living  model,  the  romances  are  said  to  have  drawn 
their  giants  and  other  disloyal  enemies  of  true  chivalry.     Rob- 
bery, indeed,  is  the  constant  theme  both  of  the  Capitularies 
and  of  the  Anglo-Saxon  laws  ;  one  has  more  reason  to  wonder 
at  the  intrepid  thirst  of  lucre,  which  induced  a  very  few  mer- 
chants to  exchange  the  products  of  different  regions,  than  to 
ask  why  no  general  spirit  of  commercial  activity  prevailed. 
Under  all  these  circumstances  it  is  obvious  that  very  little 
oriental  commerce  could  have  existed  in  these  west- 
ern countries  of  Europe.     Destitute  as  they  have 
been  created,  speaking  comparatively,  of  natural 
productions  fit  for  exportation,  their  invention  and  industry  are 
the  great  resources  from  which  they  can  supply  the  demands 
of  the  East.     Before  any  manufactures  were  established  in 
Europe,  her  commercial  intercourse  with  Egypt  and  Asia 
must  of  necessity  have  been  very  trifling ;  because,  whatever 
inclination  she  might  feel  to  enjoy  the  luxuries  of  those  "-e- 
nial  regions,  she  wanted  the  means  of  obtaining  them,     if  is 
not  therefore  necessary  to  rest  the  miserable  condition  of  ori- 
ental commerce  upon  the   Saracen  conquests,  because  the 
poverty  of  Europe  is  an  adequate  cause  ;  and,  in  fact,  what 
little  traffic  remained  was  carried  on  with  no  material  incon- 
venience through  the  channel  of   Constantinople.     Venice 

1  Eadmer  apud  Recueil  des  Historiens    ritu  ilUus  loci,  a  domino  ten-ia  cantivit*. 
des  Qaules,  t.  xi.  preface,  p.  192.    Pro    tiaddicitur.   '*  »°°"°°  ««"» <»?*»▼»*«►• 


and  of 
foreign 
commerce 


State  of  Societt.     AND  OF  FOREIGN  COMMERCE. 


299 


took  the  lead  in  trading  with  Greece  and  more  eastern  coun- 
tries.* Amalfi  had  the  second  place  in  the  commerce  of 
those  dark  ages.  These  cities  imported,  besides  natural  pro- 
ductions, the  fine  clothes  of  Constantinople  ;  yet  as  this  traffic 
seems  to  have  been  illicit,  it  was  not  probably  extensive.^ 
Their  exports  were  gold  and  silver,  by  which,  as  none  was 
likely  to  return,  the  circulating  money  of  Europe  was  proba- 
bly less  in  the  eleventh  century  than  at  the  subversion  of  the 
Roman  empire  ;  furs,  which  were  obtained  from  the  Sclavo- 
nian  countries;  and  arms,  the  sale  of  which  to  pagans  or  Sar- 
acens was  vainly  prohibited  by  Charlemagne  and  by  the 
Holy  See.*  A  more  scandalous  traffic,  and  one  that  still 
more  fitly  called  for  prohibitory  laws,  was  carried  on  in 
slaves.  It  is  an  humiliating  proof  of  the  degradation  of 
Christendom,  that  the  Venetians  were  reduced  to  purchase 
the  luxuries  of  Asia  by  supplying  the  slave-market  of  the 
Saracens.*  Their  apology  would  perhaps  have  been,  that 
these  were  purchased  from  their  heathen  neighbors ;  but  a 
slave-dealer  was  probably  not  very  inquisitive  as  to  the  faith 
or  origin  of  his  victim.  This  trade  was  not  peculiar  to  Ven- 
ice. In  England  it  was  very  common,  even  after  the  Con- 
quest, to  export  slaves  to  Ireland,  till,  in  the  reign  of  Henry 
II.,  the  Irish  came  to  a  non-importation  agreement,  which 
put  a  stop  to  the  practice.^ 


1  Heeren  has  frequently  referred  to  a 
work  published  in  1789,  by  Marini.  en- 
titled, Storia  civile  e  politica  del  Com- 
merzio  de'  Veneziani,  which  casts  a  new 
light  upon  the  early  relations  of  Venice 
with  the  East.  Of  this  book  I  know 
nothing  ;  but  a  memoir  by  de  Guignes, 
in  the  thirty-seventh  volume  of  the 
Academy  of  Inscriptions,  on  the  com- 
merce of  France  with  the  East  before  the 
crusades,  is  singularly  unproductive  ;  the 
Ciult  of  the  subject,  not  of  the  author. 

2  There  is  an  odd  passage  in  Liut- 
prand's  relation  of  his  embassy  from  the 
Emperor  Otho  to  Nicephorus  Phocas. 
The  Greeks  making  a  display  of  their 
dress,  he  told  them  that  in  Lombardy 
the  common  people  wore  as  good  clothes 
M  they.  How,  they  said,  can  you  pro- 
cure them  ?  Through  the  Venetian  and 
Amalfitan  dealers,  he  replied,  who  gain 
their  subsistence  by  selling  them  to  us. 
The  foolish  Greeks  were  very  angry,  and 
declared  that  any  dealer  presuming  to 
export  their  fine  clothes  should  be 
Hogged.  Liutprandi  Opera,  p  155,  edit, 
Antwerp,  1640. 


»  Baluz.  Capitul.  p.  775.  One  of  the 
main  advantages  which  the  Christian 
nations  possessed  ovlt  the  Saracens  was 
the  coat  of  mail,  and  other  defensive 
armor;  so  that  this  prohibition  was 
founded  upon  very  good  political  reasons. 

*  Schmidt,  Hist,  des  Allem.  t.  ii.  p. 
146;  Heeren,  8ur  I'lufluence  des  Crois- 
ades,  p.  316.  In  Baluze  we  find  a  law 
of  Carloman,  brother  to  Charlemagne : 
Ut  mancipia  Christiana  paganis  non  ven- 
dantur.  Capitularia,  t.  i.  p.  150,  vide 
quoque,  p.  361. 

5  William  of  Malmsbury  accuses  the 
Anglo-Saxon  nobility  of  selling  their  fe- 
male servants,  even  when  pregnant  by 
them,  as  slaves  to  foreigners,  p.  102.  I 
hope  there  were  not  many  of  these  Yari- 
coes  ;  and  should  not  perhaps  have  given 
credit  to  an  historian  rather  prejudiced 
against  the  English,  if  I  had  not  found 
too  much  authority  for  the  general  prac- 
tice. In  the  canons  of  a  council  at  Lon- 
don in  1102  we  read,  Let  no  one  from 
henceforth  presume  to  carry  on  that 
wicked  traffic  by  which  men  of  Eng- 
land have  hitherto  been  sold  like  brut* 


800 


GENERAL  IMPROVEMENT.     Chap.  IX    Part  I. 


From  this  state  of  degradation  and  poverty  all  the  coun- 
tries of  Europe  have  recovered,  with  a  progression  in 
some  respects  tolerably  uniform,  in  others  more  unequal; 
and  the  course  of  their  improvement,  more  gradual  and  less 
dependent  upon  conspicuous  civil  revolutions  than  their  de- 
cline, affords  one  of  the  most  interesting  subjects  into  which  a 
philosophical  mind  can  inquire.  The  commencement  of  this 
restoration  has  usually  been  dated  from  about  the  close  of  the 
eleventh  century ;  though  it  is  unnecessary  to  observe  that 
the  subject  does  not  admit  of  anything  approximating  to 
chronological  accuracy.  It  may,  therefore,  be  sometimes  not 
improper  to  distinguish  the  first  six  of  the  ten  centuries  which 
the  present  work  embraces  under  the  appellation  of  the  dark 
ages ;  an  epithet  which  I  do  not  extend  to  the  twelfth  and 
three  following.  In  tracing  the  decline  of  society  from  the 
subversion  of  the  Roman  empire,  we  have  been  led,  not 
without  connection,  from  ignorance  to  superstition,  from  super- 
stition to  vice  and  lawlessness,  and  from  thence  to  general 
rudeness  and  poverty.  I  shall  pursue  an  inverted  order  in 
passing  along  the  ascending  scale,  and  class  the  various 
improvements  which  took  place  between  the  twelfth  and 
fifteenth  centuries  under  three  principal  heads,  as  they  relate 
to  the  wealth,  the  manners,  or  the  taste  and  learning  of  Eu- 
rope. Different  arrangements  might  probably  be  suggested, 
equally  natural  and  convenient ;  but  in  the  disposition  of 
topics  that  have  not  always  an  unbroken  connection  with 
each  other,  no  method  can  be  prescribed  as  absolutely  more 
scientific  than  the  rest.  That  which  I  have  adopted  appears 
to  me  as  philosophical  and  as  little  liable  to  transitions  as  any 
other. 


animals.  Wilkins's  Concilia,  t  1.  p.  383. 
And  Giraldus  Cambrensis  says  that  the 
English  before  the  Conquest  were  gen- 
erally in  the  habit  of  selling  their  chil- 
dren and  other  relations  to  be  slaves  in 
Ireland,  without  having  even  the  pre- 
text of  distress  or  famine,  till  the  Ixiah, 


in  a  national  synod,  agreed  to  emanci- 
pate all  the  English  slaves  in  the  king- 
dom. Id.  p.  471.  This  seems  to  have 
been  designed  to  tike  away  all  pretext 
for  the  threatcied  invasion  of  Ueury  JI. 
Lyttelton,  vol.  iii.  p.  70. 


Statk  op  Societt.    WOOLLEN  MANUFACTURE. 


301 


PART  n. 


Progress  of  Commercial  Improvement  in  Germany,  Flanders,  and  England  — in  the 
North  of  Europe  — in  the  Countries  upon  the  Mediterranean  Sea  — Maritime 
Laws  —  Usury  —  Banking  Companies  — i>rogress  of  Refinement  in  Manners  — 
Domestic  Architecture  — Ecclesiastical  Architecture  — State  of  Agriculture  in 
England  — Value  of  Money  — Improvement  of  the  Moral  Character  of  Society  — 
its  Causes—  Police —Changes  in  Religious  Opinion  —  Various  Sects  —  Chivalry — 
its  Progress,  Character,  and  Influence—  Causes  of  the  Intellectual  Improvement 
of  European  Society  — 1.  The  Study  of  Civil  Law— 2.  Institution  of  Universities 

—  their  Celebrity  —  Scholastic  Philosophy  —  3.  Cultivation  of  Modern  Languages 

—  Provencal  Poets  — Norman  Poets  — French  Prose  Writers  —  Italian  —  early 
Poets  in  that  lianguage  — Dante  — Petrarch  — English  Language  — its  Progress 

—  Chaucer— 4.  Revival  of  Classical  Learning  —  Latin  Writers  of  the  Twelfth 
Century  —  Literature  of  the  Fourteenth  Century  —  Greek  Literature  —  its  Res- 
toration in  Italy  —  Invention  of  Printing. 

The  geographical  position  of  Europe  naturally  divides  its 
maritime  commerce  into  two  principal  regions  —  European 
one  comprehending  those  countries  which  border  commerce. 
on  the  Baltic,  the  German  and  the  Atlantic  Oceans  ;  another, 
those  situated  around  the  Mediterranean  Sea.  During  the 
four  centuries  which  preceded  the  discovery  of  America,  and 
especially  the  two  former  of  them,  this  separation  was  more 
remarkable  than  at  present,  inasmuch  as  their  intercourse, 
either  by  land  or  sea,  was  extremely  limited.  To  the  first 
region  belonged  the  Netherlands,  the  coasts  of  France,  Ger- 
many, and  Scandinavia,  and  the  maritime  districts  of  Eng- 
land. In  the  second  we  may  class  the  provinces  of  Valencia 
and  Catalonia,  those  of  Provence  and  Languedoc,  and  the 
whole  of  Italy. 

1.  The  former,  or  northern  division,  was  first  animated  by 
the  woollen  manufacture  of  Flanders.     It  is  not 
easy  either  to  discover   the  early  beginnings  of  ^wm- 
this,  or  to  account  for  its  rapid  advancement.     The  J,"™  ?^ 
fertility  of  that  province  and   its  facilities  of  in- 
terior navigation  were  doubtless  necessary  causes ;  but  there 
must  have  been  some  temporary  encouragement  from  the 
personal  character  of  its  sovereigns,  or  other  accidental  cir- 
cumstances.    Several  testimonies  to  the  flourishing  condition 
of  Flemish  manufactures  occur  in  the  twelfth  century,  and 


802 


WOOLLEN  OF  FLANDERS.    Chat.  IX.  Part  IL 


some  might  perhaps  be  found  even  earlier.'  A  writer  of  the 
thirteenth  asserts  that  all  the  world  was  clothed  from  English 
wool  wrought  in  Flanders.^  This,  indeed,  is  an  exaggerated 
vaunt ;  but  the  Flemish  stuffs  were  probably  sold  wherever 
the  sea  or  a  navigable  river  permitted  them  to  be  carried. 
Cologne  was  the  chief  trading  city  upon  the  Rhine  ;  and  its 
merchants,  who  had  been  considerable  even  under  the  em- 
peror Henry  IV.,  established  a  factory  at  London  in  1220. 
The  woollen  manufacture,  notwithstanding  frequent  wars  and 
the  impolitic  regulations  of  magistrates,*  continued  to  flourish 
in  the  Netherlands  (for  Brabant  and  Hainault  shared  it  in 
some  degree  with  Flanders),  until  England  became  not  only 
capable  of  supplying  her  own  demand,  but  a  rival  in  all  the 
marts  of  Europe.  "  All  Christian  kingdoms,  and  even  the 
Turks  themselves,"  says  an  historian  of  the  sixteenth  century, 
"  lamented  the  desperate  war  between  the  Flemish  cities  and 
their  count  Louis,  that  broke  out  in  1380.  For  at  that  time 
Flanders  was  a  market  for  the  traders  of  all  the  world.  Mer- 
chants from  seventeen  kingdoms  had  their  settled  domiciles 
at  Bruges,  besides  strangers  from  almost  unknown  countries 
who  repaired  thither."*  During  this  war,  and  on  all  other 
occasions,  the  weavers  both  of  Ghent  and  Bruges  distin- 
guished themselves  by  a  democratical  spirit,  the  consequence, 
no  doubt,  of  their  numbers  and  prosperity .^  Ghent  was  one 
of  the  largest  cities  in  Europe,  and,  in  the  opinion  of  many, 
the  best  situated.®     But  Bruges,  though  in  circuit  but  half 


1  Macpherson's  Annals  of  Commerce, 
▼ol.  i.  p.  270.  Meyer  ascribes  the  origin 
of  Flemish  trade  to  Baldwin  count  of 
Flanders  in  958,  who  established  markets 
at  Bruges  and  other  cities.  Exchanges 
were  in  that  age,  he  says,  chiefly  effected 
by  barter,  little  money  circulating  in 
Flanders.  Annales  Fiandrici,  fol.  18 
(edit.  1561). 

2  Matthew  Westmonast.  apud  Mac- 
pherson's Annals  of  Commerce,  toL  i. 
p.  415.  ' 

3  Such  regulations  scared  away  those 
Flemish  weavers  who  brought  their  art 
into  England  under  Edward  III.  Mac- 
pherson,  p.  467,  494,  646.  Several  years 
later  the  magistrates  of  Ghent  are  said 
by  Meyer  (Annales  Fiandrici,  fol.  156)  to 
have  imposed  a  tax  on  every  loom. 
Though  the  seditious  spirit  of  the  Weav- 
ers' Company  had  perhaps  justly  provok- 
ed them,  such  a  tax  on  their  staple  man- 
Ofiuiture  was  a  piece  of  madness,  when 


English  goods  were  just    coming   into 
competition. 

*  Terra  niarique  mercatura,  rerumque 
commercia  et  quoestus  peribant.  Non 
solum  totius  Europie  mercatores,  verum 
etiam  ipsi  Turcae  aliaequo  sepositae  na- 
tiones  ob  bellum  istud  Flandrifc  magno 
afliciebantur  dolore.  Erat  ncmpe  Flan- 
dria  totius  prope  orbis  stjibile  mercatori- 
bus  emporium.  Septemdecim  regnorum 
negotiatores  turn  Brugis  sua  certa  hab- 
uere  domicilia  ac  sedes,  prieter  complures 
incognitas  paene  gentes  qufo  undique 
confluebant.  Meyer,  fol.  205,  ad  ann. 
1385. 

6  Meyer;  Froissart;  Comines. 

'  It  contained,  according  to  Ludovico 
Gnicciardini,  35,000  houses,  and  the  ciiw 
cuit  of  its  walls  was  45,640  Roman  feet 
Description  des  Pais  Bas,  p.  350,  &c. 
(edit.  1609).  Part  of  this  enclosure  was 
not  built  upon.  The  population  of 
Qhent  is  reckoned  by   Quicciardini   at 


State  of  Society.   WOOL  TRADE  OF  ENGLAND. 


303 


the  former,  was  more  splendid  in  its  buildings,  and  the  seat 
of  far  more  trade ;  being  the  great  staple  both  for  Mediter- 
ranean and  northern  merchandise.^  Antwerp,  which  early 
in  the  sixteenth  century  drew  away  a  large  part  of  this  com- 
merce from  Bruges,  was  not  considerable  in  the  preceding 
ages ;  nor  were  the  towns  of  Zealand  and  Holland  much 
noted  except  for  their  fisheries,  though  those  provinces  ac- 
quired in  the  fifteenth  century  some  share  of  the  woollen 
manufacture. 

For  the  first  two  centuries  after  the  Conquest  our  Eng- 
lish towns,  as  has  been  observed  in  a  different  j,^  ^^^  ^^ 
place,  made  some  forward  steps  towards  improve-  wool  from 
ment,  though  still  very  inferior  to  those  of  the  ^°siand. 
continent.  Their  commerce  was  almost  confined  to  the  ex- 
portation of  wool,  the  great  staple  commodity  of  England, 
upon  which,  more  than  any  other,  in  its  raw  or  manufactured 
state,  our  wealth  has  been  founded.  A  woollen  manufacture, 
however,  indisputably  existed  under  Henry  II. ;  *^  it  is  noticed 
in  regulations  of  Richard  I. ;  and  by  the  importation  of  woad 
under  John  it  may  be  inferred  to  have  still  flourished.  The 
disturbances  of  the  next  reign,  perhaps,  or  the  rapid  eleva- 
tion of  the  Flemish  towns,  retarded  its  growth,  though  a  re- 
markable law  was  passed  by  the  Oxford  parliament  in  1261, 
prohibiting  the  export  of  wool  and  the  importation  of  doth. 
This,  while  it  shows  the  deference  paid  by  the  discontented 
barons,  who  predominated  in  that  parliament,  to  their  con- 
federates the  burghers,  was  evidently  too  premature  to  be 
enforced.  We  may  infer  from  it,  however,  that  cloths  were 
made  at  home,  though  not  sufiiciently  for  the  people's  con- 
sumption.' 


70,000,  but  in  his  time  it  had  greatly 
declined.  It  is  certainly,  however,  much 
exaggerated  by  earlier  historians.  And 
I  entertain  some  doubts  as  to  Quicciar- 
dini's  estimate  of  the  number  of  houses. 
If  at  least  he  was  accurate,  more  than 
half  of  the  city  must  since  have  been 
demolished  or  become  uninhabited, 
which  its  present  appearance  does  not 
Indicate ;  for  Qhent,  though  not  very 
flourishing,  by  no  means  presents  the 
decay  and  dilapidation  of  several  Italian 
towns. 

}  Quicciardini,  p.  362  ;  Mem.  de  Co- 
mines,  1.  V.  c.  17  ;  Meyer,  fol.  354 ;  Mac- 
pherson's Annals  of  Commerce,  vol.  i. 
p.  647, 651. 


2  Blomefield,  the  historian  of  Norfolk, 
thinks  that  a  colony  of  Flemings  settled 
as  early  as  this  reign  at  Worsted,  a  vil- 
lage in  that  county,  and  immortalized 
its  name  by  their  manufacture.  It  soon 
reached  Norwich,  though  not  conspic- 
uous till  the  reign  of  Edward  I.  Ilist 
of  Norfolk,  vol.  ii.  Macphersou  speaks 
of  it  for  the  first  time  in  1327.  There 
were  several  guilds  of  weavers  in  the 
time  of  Henry  II.  Lyttelton,  vol.  ii. 
p.  174. 

3  Macpherson's  Annals  of  Commerce, 
vol.  i.  p.  412.  from  Walter  Hemingford. 
I  am  considerably  indebted  to  this  labo- 
rious and  useful  pubMcat'.on,  which  has 
superseded  that  of  >jiderson. 


304 


ITS  WOOLLEN  MANUFACTURE.     Chap.  IX.  Part  IL 


Prohibitions  of  the  same  nature,  thouj^h  with  a  different 
object,  were  frequently  imposed  on  the  trade  between  England 
and  Flanders  by  Edward  I.  and  his  son.  As  their  political 
connections  fluctuated,  these  princes  gave  full  liberty  and  set- 
tlement to  the  Flemish  merchants,  or  banished  them  at  once 
from  the  country.^  Nothing  could  be  more  injurious  to  Eng- 
land than  this  arbitrary  vacillation.  The  Flemings  were  in 
every  respect  our  natural  allies ;  but  besides  those  connections 
with  France,  the  constant  enemy  of  Flanders,  into  whicli 
both  tlie  Edwards  occasionally  fell,  a  mutual  alienation  had 
been  produced  by  the  trade  of  the  former  people  with 
Scotland,  a  trade  too  lucrative  to  be  resigned  at  the  king  of 
England's  request.^  An  early  instance  of  that  conflicting 
selfishness  of  belligerents  and  neutrals,  which  was  destined  to 
aggravate  the  animosities  and  misfortunes  of  our  own  time.' 

A  more  prosperous  era  began  with  Edward  III.,  the  father, 
as  he  may  almost  be  called,  of  English  commerce, 
SSfiieS  a  title  not  indeed  more  glorious,  but  by  which  he 

manufac-  may  perhaps  claim  more  of  our  gratitude  than  as 
*™'*  the  hero  of  Crecy.     In  1331  he  took  advantage  of 

discontents  among  the  manufacturers  of  Flanders  to  invite 
them  as  settlers  into  his  dominions.*  They  brought  the  finer 
manufacture  of  woollen  cloths,  which  had  been  unknown  in 
England.  The  discontents  alluded  to  resulted  from  the  mo- 
nopolizing spirit  of  their  corporations,  who  oppressed  all  arti- 
sans without  the  pale  of  their  community.  The  history  of 
corporations  brings  home  to  our  minds  one  cardinal  truth,  that 
political  institutions  have  very  frequently  but  a  relative  and 
temporary  usefulness,  and  that  what  forwarded  improvement 
during  one  part  of  its  course  may  prove  to  it  in  time  a  most  per- 
nicious obstacle.  Corporations  in  England,  we  may  be  sure, 
wanted  nothing  of  their  usual  character ;  and  it  cost  Edward 
no  little  trouble  to  protect  his  colonists  from  the  selfishness  and 


I 


1  Rymer,  t.  ii.  p.  32,  50,  737,  949, 965 ; 
t.  iU.  p.  533, 1106,  et  alibi. 

2  Rymer,  t.  iii.  p.  759.  A  Flemish 
fiictory  was  established  at  Berwick  about 
1286.    Macpherson. 

3  In  1295  Edward  I.  made  masters  of 
neutral  ships  in  English  ports  find  secu- 
rity not  to  trade  with  France.  Rymer, 
t.  ii.  p.  679. 

4  Rymer,  t.  iv,  p.  491,  &c.  Fuller 
draws  a  notable  picture  of  the  induce- 
ments held  out  to  the  Flemings.    ''Here 


they  should  feed  on  fat  beef  and  mutton, 
till  nothing  but  their  fulness  should 
stint  their  stomachs  ;  their  beds  should 
be  good,  and  their  bedfellows  better,  see- 
ing the  richest  yeomen  in  England  would 
not  disdain  to  marry  their  daughters 
unto  them,  and  such  the  English  beau- 
ties that  the  most  envious  foreigners 
could  not  but  commend  them."  Ful- 
lers Church  History,  quoted  in  Blome 
field's  Hist,  of  Norfolk. 


State  op  Society.     ENGLISH  COMMERCE. 


305 


from  the  blind  nationality  of  the  vulgar.^  The  emigration  of 
Flemish  weavers  into  England  continued  during  this  reign, 
and  we  find  it  mentioned,  at  intervals,  for  more  than  a  century. 
Commerce  now  became,  next  to  liberty,  the  leading  object 
of  parliament.  For  the  greater  part  of  our  statutes  increase  of 
from  the  accession  of  Edward  III.  bear  relation  to  English  ° 
this  subject ;  not  always  well  devised,  or  liberal,  ^°°^°^«^*^- 
or  consistent,  but  by  no  means  worse  in  those  respects  than 
such  as  have  been  enacted  in  subsequent  ages.  The  occu- 
pation of  a  merchant  became  honorable ;  and,  notwithstanding 
the  natural  jealousy  of  the  two  classes,  he  was  placed,  in 
some  measure,  on  a  footing  with  landed  proprietors.  By  the 
statute  of  apparel,  in  37  Edw.  III.,  merchants  and  artificers 
who  had  five  hundred  pounds  value  in  goods  and  chattels 
might  use  the  same  dress  as  squires  of  one  hundred  pounds  a 
year.  And  those  who  were  worth  more  than  this  might 
dress  like  men  of  double  that  estate.  Wool  was  still  the 
principal  article  of  export  and  source  of  revenue.  Subsidies 
granted  by  every  parliament  upon  this  article  were,  on  ac- 
count of  the  scarcity  of  money,  commonly  taken  in  kind.  To 
prevent  evasion  of  this  duty  seems  to  have  been  the  principle 
of  those  multifarious  regulations  which  fix  the  staple,  or  mar- 
ket for  wool,  in  certain  towns,  either  in  England,  or,  more 
commonly,  on  the  continent.  To  these  all  wool  was  to  be 
carried,  and  the  tax  was  there  collected.  It  is  not  easy, 
however,  to  comprehend  the  drift  of  all  the  provisions  re- 
lating to  the  staple,  many  of  which  tend  to  benefit  foreign  at 
the  expense  of  English  merchants.  By  degrees  the  exporta- 
tion of  woollen  cloths  increased  so  as  to  diminish  that  of  the 
raw  material,  but  the  latter  was  not  absolutely  prohibited 
during  the  period  under  review  ;  ^  although  some  restrictions 
were  imposed  upon  it  by  Edward  IV.  For  a  much  earlier 
statute,  in  the  11th  of  Edward  III.,  making  the  exportation 
of  wool  a  capital  felony,  was  in  its  terms  provisional,  until  it 
should  be  otherwise  ordered  by  the  council ;  and  the  king 
almost  immediately  set  it  aside.* 


1  Rymer,  t.  t.  p.  137,  430,  540. 

*  In  1409  woollen  cloths  formed  great 
part  of  our  exports,  and  were  extensive- 
ly used  over  Spain  and  Italy.  And  in 
1449,  English  cloths  having  been  prohib- 
ited by  the  duke  of  Burgundy,  it  was 
enacted  that,  until  he  should  repeal  this 
ordinance,  no  merchandise  of  his  domin- 

voL.  III.  20 


ions  should  be  admitted  into  England 
27  H.  VI.  c.  1.    The  system  of  prohibit- 
ing the  import  of  foreign  wrought  goods 
was  acted  upon  very  extensively  in  Ed- 
ward IV. 's  reign. 

3  Stat.  11  E.  III.  c.  1.  Blackston© 
says  that  transporting  wool  out  of  the 
kingdom,  to  the  detriment  of  our  staplt 


i^l 


306 


CONTINENTAL  MANUFACTURES.     Chap.  IX.  Part  U 


A  manufacturing  district,  as  we  see  in  our  own  country, 
sends  out,  as  it  were,  suckers  into  all  its  neigh- 
Manufec  borhood.  Accordingly,  the  woollen  manufacture 
France  and  spread  from  Flanders  along  the  banks  of  the  Rhine 
Germany.  ^^^  .^^^^  ^^le  northern  provinces  of  France.^  I  am 
not,  however,  prepared  to  trace  its  history  in  these  regions. 
In  Germany  the  privileges  conceded  by  Henry  V.  to  the 
free  cities,  and  especially  to  their  artisans,  gave  a  soul  to 
industry;  though  the  central  parts  of  the  empire  were,  for 
many  reasons,  very  ill-calculated  for  commercial  enterprise 
during  the  middle  ages.^  But  the  French  towns  were  never 
60  much  emancipated  from  arbitrary  power  as  those  of  Ger- 
many or  Flanders ;  and  the  evils  of  exorbitant  taxation,  with 
those  produced  by  the  English  wars,  conspired  to  retard  the 
advance  of  manufactures  in  France.  That  of  linen  made 
Bome  little  progress ;  but  this  work  was  still,  perhaps,  chiefly 
confined  to  the  labor  of  female  servants.® 

The  manufactures  of  Flanders  and  England  found  a  mar- 
Baltic  ket,  not  only  in  these  adjacent  countries,  but  in  a 
trade.           part  of  Europc  which  for  many  ages   had  only 

Ibid.  p.  539.  But  the  superiority  of 
English  MTOol,  even  as  late  as  14.38,  ia 
proved  by  the  Laws  of  Barcelona  forbid- 
ding its  adulteration,  p.  654.  Another 
exportation  of  Enj^lish  sheep  to  Spain 
took  place  about  1465,  in  consequence 
of  a  commercial  treaty.  Rymer,  t,  xi. 
p.  534  et  alibi.  In  return,  Spain  sup- 
plied England  with  horses,  her  breed  of 
which  was  reckoned  the  best  in  Europe  ; 
so  that  the  exchange  was  tolerably  fair. 
Macpherson,  p.  596.  The  best  horaes 
had  been  very  dear  in  England,  being 
imported  from  Spain  and  Italy.    Ibid. 

1  Schmidt,  t.  iv.  p.  18. 

3  Considerable  woollen  manufactures 
appear  to  have  existed  in  Picardy  about 
1315.     Macpherson    ad    annum.     Cap- 


manufacture,  was  forbidden  at  common 
law  (vol.  iv.  c.  19),  not  recollecting  that 
we  had  no  staple  manufactures  in  the 
ages  when  the  common  law  was  formed, 
and  that  the  export  of  wool  was  almost 
the  only  means  by  which  this  country 
procured  silver,  or  any  other  article  of 
which  it  stood  in  need,  from  the  conti- 
nent.   In  fact,  the  landholders  were  so 
far  from  neglecting  this  source  of  their 
wealth,  that  a  minimum  was  fixed  upon 
it,  by  a  statute  of  1343  (repealed  indeed 
the  next  year,  18  E.  III.  c.  3),  below 
which  price  it  was  not  to  be  sold ;  from 
a  laudable  apprehension,   as  it  seems, 
that  foreigners  were  getting  it  too  cheap. 
And  this  was  revived  in  the  32d  of  11. 
VI.,  though  the  act  is  not  printed  among 
the  statutes.    Rot.  Pari.  t.  v.  p.  275. 
The  exportation  of  sheep  was  prohibited 
In  1338  —  llymer,  t.  v.  p.  36 ;  and  by  act 
of  Parliament  in  1425  —  3  H.  VI.  c.  2. 
But  this  did  not  prevent  our  importing 
the  wool  of  a  foreign  country,  to  our 
own  loss.    It  is  worthy  of  notice  that 
English  wool  was  superior  to  any  other 
for  fineness  during  these  ages.    Henry 
II.,  in  his  parent  to  the  AVeavers'  Com- 
pany, directs  that,  if  any  weaver  min- 
gled Spanish  wool  with  English,  it  should 
be  burned  by  the  lord  mayor.    Macpher- 
son, p.  382.    An  English  flock  transport- 
ed into  Spain  about  1318  is  said  to  have 
been  the  source  of  the  &ne  Spani^  wool 


many,  t.  ill.  part  2,  p.  151. 

a  The  PherifTs  of  Wiltshire  and  Sussex 
arc  directed  in  1253  to  purcha.'^o  for  the 
king  1000  ells  of  fine  linen,  Hnca;  teloj 
pulchras  et  delicate.  This  Macpherson 
supposes  to  be  of  domestic  manufacture, 
which,  however,  is  not  demonstrable. 
Linen  was  made  at  that  tim'e  in  Flan- 
ders ;  and  as  late  as  1417  the  fine  linen 
used  in  England  was  imported  from 
France  and  the  Low  Countries.  Mac- 
pherson, from  Rymer,  t.  ix.  p.  334. 
Velly's  history  is  defective  in  giving  no 
account  of  the  French  commerce  and 
manufactures,  or  at  least  none  that  i» 
at  all  satisfiictory. 


State  of  Society. 


BALTIC  TRADE. 


307 


been  known  enough  to  be  dreaded.     In  the  middle  of  the 
eleventh  century  a  native  of  Bremen,  and  a  writer  much  su- 
perior to  most  others  of  his  time,  was  almost  entirely  ignorant 
of  the  geography  of  the  Baltic ;  doubting  whether  Ly  one 
had  reached  Russia  by  that  sea,  and  reckoning  Esthonia  and 
Courland  among  its  islands.^      But  in  one  hundred  years 
?Tu.l^  maritime  regions  of  Mecklenburg  and  Pomerania, 
inhabited  by  a  tribe  of  heathen  Sclavonians,  were  subdued 
by  some  German  princes  ;  and  the  Teutonic  order  some  time 
afterwards,  having  conquered  Prussia,  extended  a  line  of  at 
least  comparative  civilization  as  far  as  the  gulf  of  Finland. 
The  fii-st  town  erected  on  the  coasts  of  the  Baltic  was  Lubec, 
which  owes  Its  foundation  to  Adolphus  count  of  Holstein,  in 
1140.     After  several  vicissitudes  it  became  independent  of 
^y  sovereign  but  the  emperor  in  the  thirteenth  century. 
Hamburg  and  Bremen,  upon  the  other  side  of  the  Cimbnc 
peninsula,  emulated  the  prosperity  of  Lubec;  the  former  city 
purchased  independence  of  its  bishop  in  1225.     A  colony 
from  Bremen  founded  Riga  in  Livonia  about  1162.     The 
city  of  Dantzic  grew  into  importance  about  the  end  of  the 
following  century.     Konigsberg  was  founded  by  Ottocar  kini? 
ot  Uoheraia  m  the  same  age. 

But  the  real  importance  of  these  cities  is  to  be  dated  from 
their  famous  union  into  the  Hanseatic  confederacy.     The 
origin  of  this  is  rather  obscure,  but  it  may  certainly  be  nearly 
referred  in  point  of  time  to  the  middle  of  the  thirteenth  cen- 
tury   and  accounted  for  by  the  necessity  of  mutual  defence, 
which  piracy  by  sea  and  pillage  by  land  had  taught  the  mer- 
chants of  Germany.     The  nobles  endeavored  to  obstruct  the 
formation  of  this  league,  which  indeed  was  in  great  measure 
designed  to  withstand  their  exactions.     It  powerfully  main- 
tained the  influence  which  the  free  imperial  cities  were  at  this 
time  acquiring.     Eighty  of  the  most  considerable  places  con- 
stituted  the  Hanseatic  confederacy,  divided  into  four  coUeffes, 
whereof  Lubec,  Cologne,  Brunswick,  and  Dantzic  were  the 
leading  towns.     Lubec  held  the  chief  rank,  and  became,  as  it 
were,  the  patriarchal  see  of  the  league ;  whose  province  it 
was  to  preside  in  all  general  discussions  for  mercantile,  po- 
hUcal,  or  military  purposes,  and  to  carry  them  into  execution. 

is!  1jSv?r''eS'tf '•  ***  ^""  ^"^^  P-    P-  ^2.  ^  The  latter  writer  thinlr,  they 


308 


PROGRESS  OF  ENGLISH  TRADE.    Chap  IX.  Part  II. 


The  league  had  four  principal  factories  in  foreign  parts,  at 
London,  Bruges,  Bergen,  and  Novogorod ;  endowed  by  the 
sovereigns  of  those  cities  with  considerable  privileges,  to 
which  every  merchant  belonging  to  a  Hanseatic  town  was 
entitled.^  Li  England  the  German  guildhall  or  factory  was 
established  by  concession  of  Henry  III. ;  and  in  later  periods 
the  Hanse  traders  were  favored  above  many  others  in  the 
capricious  vacillations  of  our  mercantile  policy.*  The  Eng- 
lish had  also  their  factories  on  the  Baltic  coast  as  far  as 
Prussia  and  in  the  dominions  of  Denmark.* 

This  opening  of  a  northern  market  powerfully  accelerated 
the  growth  of  our  own  commercial  opulence,  es- 
progress  of  pccially  after  the  woollen  manufacture  had  begun 
^^^  to  thrive.  From  about  the  middle  of  the  four- 
teenth century  we  find  continual  evidences  of  a 
rapid  increase  in  wealth.  Thus,  in  1363,  Picard,  who  had 
been  lord  mayor  some  years  before,  entertained  Edward  HI. 
and  the  Black  Prince,  the  kings  of  France,  Scotland,  and 
Cyprus,  with  many  of  the  nobility,  at  his  own  house  in  the 
Vintry,  and  presented  them  with  handsome  gifts.*  Philpot, 
another  eminent  citizen  in  Richard  II.'s  time,  when  the  trade 
of  England  was  considerably  annoyed  by  privateers,  hired 
1000  armed  men,  and  despatched  them  to  sea,  where  they 
took  fifteen  Spanish  vessels  with  their  prizes.*  We  find 
Richard  obtaining  a  great  deal  from  private  merchants  and 
trading  towns.  In  1379  he  got  5000/.  from  London,  1000 
marks  from  Bristol,  and  in  proportion  from  smaller  places. 
In  1386  London  gave  4000/.  more,  and  10,000  marks  in 
1397.®  The  latter  sum  was  obtained  also  for  the  coronation 
of  Henry  VI."^  Nor  were  the  contributions  of  individuals 
contemptible,  considering  the  high  value  of  money.  Hinde, 
a  citizen  of  London,  lent  to  Henry  IV.  2000/.  in  1407,  and 
Whittington  one  half  of  that  sum.  The  merchants  of  the 
staple  advanced  4000/.  at  the  same  time.®  Our  commerce 
continued  to  be  regularly  and  rapidly  progressive  during  the 
fifteenth  century.  The  famous  Canynges  of  Bristol,  under 
Henry  VI.  and  Edward  IV.,  had  ships  of  900  tons  burden.' 

I  Pfeffel,  t.  i.  p.  443 ;  Schmidt,  t.  iv.  &  Walsingham,  p.  211. 

p.  18;  t.  V.  p.  512;  Macpherson^s  An-  «  Rymer,  t.  Tii.  p.  210,  341;    t.  rlii 

nals,  vol.  i.  p.  693.  p.  9. 

*  Blacpherson,  vol.  i.  passim.  7  Rjmer,  t.  x.  p.  461. 

»  Rymer,  t.  viii.  p.  360.  »  Rymer,  t.  viii.  p.  488. 

^  Macpherson  (who  quotes  Stow),  p.  *  Macpherson,  p.  667. 
do. 


State  of  Society.     COMMERCIAL  INTERCOURSE.  309 

The  trade  and  even  the  internal  wealth  of  England  reached 
so  much  higher  a  pitch  in  the  reign  of  the  last-mentioned 
king  than  at  any  former  period,  that  we  may  perceive  the 
wars  of  York  and  Lancaster  to  have  produced  no  very 
senous  effect  on  national  prosperity.  Some  battles  were 
doubtless  sangumary ;  but  the  loss  of  lives  in  battle  is  soon 
repaired  by  a  flourishing  nation ;  and  the  devastation  occa- 
fiioned  by  armies  was  both  partial  and  transitory. 

A  commercial   intercourse   between   these  northern   and 
southern  regions  of  Europe  began  about  the  early 
part  of  the  fourteenth  century,  or,  at  most,  a  little  J^thTJ?^ 
sooner.     Until,  indeed,  the  use  of  the  magnet  was  ^^"'^  ^^ 
thoroughly  understood,  and  a  competent" skill  in  ^"~^** 
marine   architecture,  as    well   as   navigation,  acquired,  the 
Italian  merchants  were  scarce  likely  to  attempt  a  voyage 
perilous  m  Itself  and  rendered  more  formidable  by  the  iS- 
aginary  difficulties  which  had  been  supposed  to  attend  an  ex- 
pedition  beyond  the  straits  of  Hercules.     But  the  En^^lish, 
accustomed  to  their  own  rough  seas,  were  always  more  in- 
trepid,  and  probably  more  skilful  navigators.     Thoucrh  it  was 
extremely  rare,  even  in  the  fifteenth  century,  for  an°En-lish 
tradmg  vessel  to  appear  in  the  Mediterranean,^  yet  a  famous 
military  armament,  that  destined  for  the  crusade  of  Richard 
I.,  displayed  at  a  very  early  time  the  seamanship  of  our 
^untrymen      In  the  reign  of  Edward  II.  we  find  mention  in 
Kymer  s  collection  of  Genoese  ships  trading  to  Flanders  and 
^ngiand.    His  son  was  very  solicitous  to  preserve  the  friend- 
ship  of  that  opulent  republic ;  and  it  is  by  his  letters  to  his 


»  Richard  III.,  in  1485.  appointed  a 
Florentine  merchant  to  be  Euglish  con- 
sul at  Pisa,  on  the  ground  that  some  of 
his  subjects  intended  to  trade  to  Italy. 
Macpherson,  p.  705,  from  Kymer.  Per- 
haps we  cannot  positively  prove  the  exist- 
ence of  a  Mediterranean  trade  at  an 
earlier  time :  and  even  this  instrument 
18  not  conclusive.  But  a  considerable 
presumption  arises  from  two  documents 
In  Kymer,  of  the  year  1412,  which  in- 
form us  of  a  great  shipment  of  wool  and 
other  goods  made  by  some  merchants  of 
London  for  the  Mediterranean,  under 
Bupercjirgoes,  whom,  it  being  a  new  un- 
dertaking, the  king  expressly  recom- 
mended to  the  Genoese  republic.  But 
that  people,  impelled  probably  by  com- 
mercial jealousy,  seized  the  vessels  and 
jneir  cargoes ;  which  induced  the  king 
to  grant  the  owners  letters  of  reprisal 


against  all  Genoese  property.    Rymer, 
t.  viii.  p.    717,  773.    Though  it  is  not 
perhaps  evident  that  the  vessels  were 
English,    the    circumstances    render  it 
highly  probable.    The  bad  success,  how- 
ever, of  this  attempt,  might  prevent  its 
imitation.     A  Greek   author  about  the 
beginning  of  the  fifteenth  century  reck- 
ons the  lyyhfvoi  among  the  nations  who 
traded   to  a  port  in    the    Archipelago. 
Gibbon,  vol.  xii.  p.  62.    But  these  enu- 
merations are  generally  swelled  by  vanity 
or  the  love  of  exaggeration  ;  and  a  few 
English  sailors  on  board  a  foreign  ressel 
would  justify  the  assertion.    Benjamin 
of  Tudela,  a  Jewish  traveller,  pretendi 
that  the  port  of  Alexandria,  about  1160, 
contained  vessels  not  only  from  England! 
but   from    Kussia,  and   even    Cracoun. 
Harris's  Voyages,  vol.  i.  p.  554. 


310 


COMMERCE  OF  THE        CuAP.  IX.  Pabt  H 


senate,  or  by  royal  orders  restoring  ships  unjustly  seized,  that 
we  come  by  a  knowledge  of  those  facU  which  historians  neg- 
fect  tore  Je.     Pisa  shared  a  little  in  this  traffic  and  Venice 
more  considerably  ;  but  Genoa  was  beyond  all  competition  at 
the  head  of  Italian  commerce  in  these  sei^  dunng  the  four- 
teenth century.     In  the  next  her  general  decline  left  it  more 
open  to  her  rival;  but  I  doubt  ^''^ther  Venice  ever  ma.n- 
t^ned  so  strong  a  connection  with  Eng  and.   Through  London 
and  Bruges,  their  chief  station  in  Flanders,  the  meichants 
of  Italy  and  of  Spain  transported  oriental  produce  to    he 
farthest  parts  of  the  north.     The  inhabitants  of  tl.e  Baltic 
coast  were  stimulated  by  the  desire  of  precious  luxuries  which 
they  had  never  known  ;  and  these  wants,  though  selfish  and 
frivolous,  are  the  means  by  which  nations  acquire  civi hzation, 
and  the  earth  is  rendered  fruitful  of  its  produce.    As  the  car- 
riers of  this  trade  the  Hanseatic  merchants  resident  in  Eng- 
land  and  Flanders  derived  profits  through  which  eventually 
of  course  those  countries  were  enriched.    It  seems  that  the 
Italian  vessels  unloaded  at  the  marts  of  London  or  Bruges, 
and  that  such  parts  of  their  cargoes  as  were  >ntended  for  a 
more  northern  trade  came  there  into  the  hands  of  the  Ger- 
man merchants.     In  the  reign  of  Henry  VI.  England  car- 
ried on  a  pretty  extensive  traffic  with  the  countries  around 
the  Mediterranean,  for  whose  commodities  her  wool  and  wool- 
len cloths  enabled  her  to  pay. 

The  commerce  of  the  southei-n  division,  though  it  did  not, 
-^^erce  I  think,  produce  more  extensively  beneficial  effects 
^^  upon  the  progress  of  society,  wa^    both    earlier 

^tr  a^d  more  splendid  than  that  of  England  and  the 
»»ntrie».  neighboring  countries.  Besides  Venice,  which  has 
been  mentioned  already,  Amalfl  kept  up  the  commercial  in- 
tercourse of  Christendom  with  the  Saracen  coun- 
tries before  the  first  crusade.'    It  was  the  singular 


Amalfl. 


I  The  Amalfitans  are  thus  described 
by  William  of  Apulia,  apud  Muratori, 
Dissert.  30. 
Urbs  h»5  dives  opum,  populoque  re- 

ferta  videtur, 
Nulla  magis  locuples  argcnto,  yestibus, 

auro.  . 

Partibus  innumeris  ac  plunmus  urbe 

moratur 
Nauta,  maris  coelique  Tias  apenre  pe- 

ritus. 
Hoc  et  Alexaadri  diversa  feruntur  ao 
urbe, 


Regis  et  Antlochi.    Hacc  [etiam?]  freta 

plurima  transit. 
Hie  Arabes,  Indi,  SicuU  noscuntur,  et 

H«c  gens  est  totum    propo  nobUitata 

per  orbem,  

Et  mercanda  ferena,  et  amans  mercata 

referre. 
[There  must  be,  I  suspect,  some  exag- 
eeration  about  the  commerce  and  opu- 
tence  of  Amalfl,  in  the  only  ape  when 
iheWessed  any  at  all.  The  city  could 
neyer  hate  been  considerable,  as  we  may 


State  of  Society.    MEDITERRANEAN  COUNTRIES. 


311 


fate  of  this  city  to  liave  filled  up  the  interval  between  two 
periods  of  civilization,  in  neither  of  which  she  wa.s  destined 
to  be  distinguished.  Scarcely  known  before  the  end  of  the 
sixth  century,  Amalfi  ran  a  brilHant  career,  as  a  free  and 
trading  republic,  which  was  checked  by  the  arms  of  a  con- 
queror in  the  middle  of  the  twelfth.  Since  her  subjugation 
by  Roger  king  of  Sicily,  the  name  of  a  people  who  for  a 
while  connected  Europe  with  Asia  has  hardly  been  repeated, 
except  for  two  discoveries  falsely  imputed  to  them,  those  of 
the  Pandects  and  of  the  compass. 

But  the  decline  of  Amalfi  was  amply  compensated  to  the 
rest  of  Italy  by- the  constant  elevation  of  Pisa,  pj^^ 
Genoa,  and  Venice  in  the  twelfth  and  ensuing  G^oa, 
ages.  The  crusades  led  immediately  to  this  grow-  ^®°'*^' 
ing  prosperity  of  the  commercial  cities.  Besides  the  profit 
accruing  from  so  many  naval  armaments  which  they  supplied, 
and  the  continual  passage  of  private  adventurers  in  their 
vessels,  they  were  enabled  to  open  a  more  extensive  channel 
of  oriental  traffic  than  had  hitherto  been  known.  These 
three  Italian  republics  enjoyed  immunities  in  the  Christian 
principalities  of  Syria ;  possessing  separate  quarters  in  Acre, 
Tripoli,  and  other  cities,  where  they  were  governed  by  their 
own  laws  and  magistrates.  Though  the  progress  of  com- 
merce must,  from  the  condition  of  European  industry,  have 
been  slow,  it  was  uninterrupted  ;  and  the  settlements  in  Pal- 
estine were  becoming  important  as  factories,  an  use  of  which 
Godfrey  and  Urban  little  dreamed,  when  they  were  lost 
through  the  guilt  and  imprudence  of  their  inhabitants.^  Vil- 
lani  laments  the  injury  sustained  by  commerce  in  consequence 
of  the  capture  of  Acre,  "  situated,  as  it  was,  on  the  coast  of 
the  Mediterranean,  in  the  centre  of  Syria,  and,  as  we  might 
say,  of  the  habitable  world,  a  haven  for  all  merchandise, 
both  from  the  East  and  the  West,  which  all  the  nations  of 
the  earth  frequented  for  this  trade."  ^     But  the  loss  was  soon 

beliere,  no  foreign 


Judge  from  its  position  immediately 
under  a  steep  mountain  ;  and  what  is 
still  m)re  material,  has  a  very  small 
port.  According  to  our  notions  of  trade, 
she  could  never  have  enjoyed  much  ;  the 
lines  quoted  from  William  of  Apulia  are 
to  be  taken  as  a  poet's  panegyric.  It  is 
of  course  a  question  of  degree  ;  Amalfl 
was  no  doubt  a  commercial  republic  to 
the  extent  of  her  capacity;  but  those 
Who  have  ever  been  oc  the  coast  must 
be  aware   how   limited    that  was.    At 


present  she  has,  I 
trade  at  all.    1848.] 

1  The  inhabitants  of  Acre  were  noted, 
in  an  age  not  very  pure,  for  the  excess 
of  their  vices.  In  1291  they  plundered 
some  of  the  subjects  of  a  neighboring 
Mohammedan  prince,  and,  refusing  rep- 
aration, the  city  was  besieged  and  taken 
by  storm.  Muratori,  ad  ann.  Qibbon, 
c.  69. 

a  ViUani,  1.  vii.  c.  144 


312 


COMMERCE  OF  THE 


Chap.  IX.  Part  IL 


State  of  Society.    MEDITERRANEAN  COUNTRIES. 


313 


It 


retrieved,  not  perhaps  by  Pisa  and  Genoa,  but  by  Venice, 
who  formed  connections  with  the  Saracen  governments, 
and  maintained  her  commercial  intercourse  with  Syria  and 
Egypt  by  their  Kcense,  though  subject  probably  to  heavy  ex- 
actions. Sanuto,  a  Venetian  author  at  the  beginning  of  the 
fourteenth  century,  has  left  a  curious  account  of  the  Levant 
trade  which  his  countrymen  carried  on  at  that  time.  Their 
imports  it  is  easy  to  guess,  and  it  appears  that  timber,  brass, 
tin,  and  lead,  as  well  as  the  precious  metals,  were  exported 
to  Alexandria,  besides  oil,  saffron,  and  some  of  the  productions 
of  Italy,  and  even  wool  and  woollen  cloths.*  The  European 
side  of  the  account  had  therefore  become  respectable. 

The  commercial  cities  enjoyed  as  great  privileges  at  Con- 
stantinople as  in  Syria,  and  they  bore  an  eminent  part  in  the 
vicissitudes  of  the  Eastern  empire.  After  the  capture  of 
Constantinople  by  the  Latin  crusaders,  the  Venetians,  having 
been  concerned  in  that  conquest,  became,  of  course,  the  fa- 
vored traders  under  the  new  dynasty ;  possessing  their  own 
district  in  the  city,  with  their  magistrate  or  podesta,  ap- 
pointed at  Venice,  and  subject  to  the  parent  republic.  When 
the  Greeks  recovered  the  seat  of  their  empire,  the  Geno- 
ese, who,  from  jealousy  of  their  rivals,  had  contributed  to 
that  revolution,  obtained  similar  immunities.  This  powerful 
and  enterprising  state,  in  the  fourteenth  century,  sometimes 
the  ally,  sometimes  the  enemy,  of  the  Byzantine  court,  main- 
tained its  independent  settlement  at  Pera.  From  thence  she 
spread  her  sails  into  the  Euxine,  and,  planting  a  colony  at 
Caffa  in  the  Crimea,  extended  a  line  of  commerce  with  the 
interior  regions  of  Asia,  which  even  the  skill  and  spirit  of 
our  own  times  has  not  yet  been  able  to  revive.^ 


1  Macpherson,  p.  490. 

'  Capmany,  Memorias  Hlstoricas,  t. 
iii.  preface,  p.  11 ;  and  part  2,  p.  131. 
His  authority  is  Balducci  Pegalotti,  a 
Florentine  writer  upon  commerce  about 
1310,  whose  work  I  have  never  seen.  It 
appears  from  Balducci  that  the  route  to 
China  was  from  Asoph  to  Astrakan,  and 
thence,  by  a  variety  of  places  which  can- 
not be  found  in  modern  maps,  to  Cam- 
balu,  probably  Pekin,  the  capital  city 
of  China,  which  he  describes  as  being 
one  hundred  miles  in  circumference. 
The  journey  was  of  rather  more  than 
eight  months,  going  and  returning  ;  and 
he  assures  us  it  was  perfectly  secure,  not 
only  for  caravans,  but  for  a  single  trav- 


eller with  a  couple  of  interpreters  and  a 
servant.  The  Venetians  had  also  a  set- 
tlement in  the  Crimea,  and  appear,  by 
a  passage  in  Petrarch's  letters,  to  have 
possessed  some  of  the  trade  through 
Tartary.  In  a  letter  written  from  Ven- 
ice, after  extolling  in  too  rhetorical  a 
manner  the  commerce  of  that  republic, 
he  mentions  a  particular  ship  that  had 
just  sailed  for  the  '^lack  Sea.  Et  Ipsa 
quidem  Tanaim  it  Wsura,  nostri  enim 
maris  navigatio  non  ultra  tenditur ; 
eorum  vero  aliqui,  quos  hsec  fert,  ilUo 
iter  [instituent]  earn  egressuri,  nee  antea 
substituri,  quim  Gango  et  Caucaso  su- 
perato,  ad  Indos  atque  extremos  Seres  et 
Orientalem  perveniatur  Oceanum.    En 


The  French  provinces  which  border  on  the  Mediterranean 
Sea  partook  in  the  advantages  which  it  offered.  Not  only 
Marseilles,  whose  trade  had  continued  in  a  certain  degree 
throughout  the  worst  ages,  but  Narbonne,  Nismes,  and  espe- 
cially  Montpelier,  were  distinguished  for  commercial  pros- 
perity.* A  still  greater  activity  prevailed  in  Catalonia. 
From  the  middle  of  the  thirteenth  century  (for  we  need  not 
trace  the  rudiments  of  its  history)  Barcelona  began  to  emu- 
late the  Italian  cities  in  both  the  branches  of  naval  energy, 
war  and  commerce.  Engaged  in  frequent  and  severe  hos- 
tihties  with  Genoa,  and  sometimes  with  Constantinople,  while 
their  vessels  traded  to  every  part  of  the  Mediterranean,  and 
even  of  the  English  Channel,  the  Catalans  might  justly  be 
reckoned  among  the  first  of  maritime  nations.  The  com- 
merce of  Barcelona  has  never  since  attained  so  great  a  height 
as  in  the  fifteenth  century .^ 

The  introduction  of  a  silk  manufacture  at  Palermo,  by 
Roger  Guiscard  in  1148,  gave  perhaps  the  ear-  ^j^^j^ 
liest  impulse  to  the  industry  of  Italy.      Nearly  manufac- 
about  the  same  time  the  Genoese  plundered  two  '"'^^' 
Moorish  cities  of  Spain,  from  which  they  derived  the  same 
art.     In  the  next  age  this  became  a  staple  manufacture  of 
the  Lombard  and  Tuscan  republics,  and  the  cultivation  of 
mulberries  was  enforced  by  their  laws.'     Woollen  stuffs, 
though  the  trade  was  perhaps  less  conspicuous  than  that  of 
Flanders,  and  though  many  of  the  coarser  kinds  were  im- 
ported from  thence,  employed  a  multitude  of  workmen  in 
Italy,  Catalonia,  and  the  south  of  France.*     Among  the  trad- 
ing companies  into  which  the  middling  ranks  were  distrib- 
uted, those  concerned  in  silk  and  woollens  were  most  numer- 
ous and  honorable.'^ 


quo  aniens  et  inexplebilis  habendi  sitis 
homiaum  mentes  rapitl  Petrarcie 
Opera,  Senil.  1.  ii.  ep.  3,  p.  760  edit.  1581. 

1  Hist,  de  Languedoc,  t.  iii.  p.  631;  t. 
It.  p.  517.  Mem.  de  I'Acad.  des  Inscrip- 
tions, t.  xxxvii. 

^  Capmany,  Memorias  Historicaa  do 
Barcelona,  t.  i.  part  2.  See  particularly 
p.  36. 

'  Muratori,  dissert.  30.  Denina,  Rivo- 
luzione  d'ltalli,  1.  xiv.  c.  11.  The  latter 
writer  is  of  opiniou  that  mulberries  were 
not  cultivated  as  an  important  object 
till  after  1300,  nor  even  to  any  great  ex- 
tent till  after  1500  ;  the  Italian  manufac- 
turers buying  most  of  their  silk  from 
Spain  or  the  Levant 


*  The  history  of  Italian  states,  and 
especially  Florence,  will  speak  for  the 
first  country  ;  Capmany  attests  the  wool- 
len manufacture  of  the  second  —  Mem. 
Hist,  de  Barcel.  t.  i.  part  3,  p.  7.,  &c.; 
and  Vaissettc  that  of  Carcasscnne  and 
its  vicinity  —  Hist,  de  Lang.  t.  iv.  p.  517. 

6  None  were  admitted  to  the  rank  of 
burgesses  in  the  town  of  Aragon  who 
used  any  manual  trade,  with  the  excep- 
tion of  dealers  in  fine  cloths.  The  wool» 
len  manufacture  of  Spain  did  not  at  any 
time  become  a  considerable  article  of  ex- 
port, nor  even  supply  the  internal  con- 
8Uuiptiou,  as  Capmany  has  well  shown. 
Memorias  Historicas,  t.  iii.  p.  325  ek 
seq.,  and  Edinburgh  Review,  vol.  x. 


3U 


THE  MARINER'S  COMPASS.     Cii^vp.  IX.  Pabt  H. 


A  property  of  a  natural  substance,  long  overlooked  even 
though  it  attracted  observation  by  a  different  peculiarity,  has 

influenced  by  its  accidental  discovery  the  fortunes 
ofThe  '**"  of  mankind  more  than  all  the  deductions  of  phi- 
coSiass.*       losophy.     It  is,  perhaps,  impossible  to  ascertain 

the  epoch  when  the  polarity  of  the  magnet  was 
first  known  in  Europe.  The  common  opinion,  which  ascribes 
its  discovery  to  a  citizen  of  Amalfi  in  the  fourteenth  century, 
is  undoubtedly  erroneous.  Guiot  de  Provins,  a  French  poet, 
who  lived  about  the  year  1200,  or,  at  the  latest  under  St. 
Louis,  describes  it  in  the  most  unequivocal  language.  James 
de  Vitry,  a  bishop  in  Palestine,  before  the  middle  of  the  thir- 
teenth century,  and  Guido  Guinizzelli,  an  Italian  poet  of  the 
same  time,  are  equally  explicit.  The  French,  as  well  as  Ital- 
ians, claim  the  discovery  as  their  own  ;  but  whether  it  were 
due  to  either  of  these  nations,  or  rather  learned  from  their 
intercourse  with  the  Saracens,  is  not  easily  to  be  ascertained.* 
For  some  time,  perhaps,  even  this  wonderful  improvement  in 
the  art  of  navigation  might  not  be  universally  adopted  by 
vessels  sailing  within  the  Mediterranean,  and  accustomed  to 
their  old  system  of  observations.  But  when  it  became  more 
established,  it  naturally  inspired  a  more  fearless  spirit  of  ad- 


1  Boucher,  the  French  translator  of 
H  Consolato  del  Mare,  says  that  Edrissi, 
a  Saracen  geographer  who  lived  about 
1100,  gives  an  account,  though  in  a  con- 
fused manner,  of  the  polarity  of  the 
magnet,  t.  ii.  p.  280.  However,  the  lines 
of  Ouiot  de  Provins  are  decisive.  These 
are  quoted  in  Ilist.  Litteraire  de  la 
France,  t.  ix.  p.  199;  Mem.  de  I'Acad. 
des  Inscript.  t.  xxi.  p.  192 ;  and  several 
other  works.  Guinizzelli  has  the  follow- 
ing passage,  in  a  canzone  quoted  by  Gin- 
fuen6.  Hist.  Litteraire  de  I'ltalie,  1. 1.  p. 
13:- 

In  quelle  parti  sotto  tramontana, 

Sono  11  monti  della  calamita, 

Che  dan  virtute  all'  acre 

Di  trarre  il  ferro;  ma  perchi  lontana, 

Vole  di  simil  pietra  aver  aita, 

A  far  la  adoperare, 

E  tlirizzar  lo  ago  in  ver  la  Stella. 

We  cannot  be  diverted,  by  the  nonsensi- 
cal theory  these  lines  contain,  from  per- 
ceiving the  positive  testimony  of  the  last 
▼crse  to  the  poet's  knowledge  of  the 
polarity  of  the  magnet.  But  if  any 
doubt  could  remain,  Tiraboschi  (t.  iv.  p. 
171)  has  fully  established,  from  a  series 
of  passages,  that  this  phenomenon  was 


well  known  in  the  thirteenth  century  j 
and  puts  an  end  altogether  to  the  pre- 
tensions of  Flavio  Gioja,  if  such  a  person 
ever  existed.  See  also  Macpherson's  An- 
nals, p.  364  and  418.  It  is  provoking  to 
find  an  historian  like  Robertson  assert- 
ing, without  hesitation,  that  this  citizen 
of  Amalfl  was  the  inventor  of  the  com- 
pass, and  thus  accrediting  an  error  which 
had  already  been  detected. 

It  is  a  singular  circumstance,  and  only 
to  bo  explained  by  the  obstinacy  with 
which  men  are  apt  to  reject  improve- 
ment, that  the  magnetic  needle  was  not 
generally  adopted  in  navigation  till  very 
long  after  the  discovery  of  its  properties, 
and  even  after  their  peculiar  importance 
had  been  perceived.  The  writers  of  the 
thirteenth  century,  who  mention  the 
polarity  of  the  needle,  mention  also  its 
use  in  navigation  ;  yet  Capmany  has 
found  no  distinct  proof  of  its  employ- 
ment till  1403,  and  does  not  believe  that 
it  was  frequently  on  board  Mediterra- 
nean ships  at  the  latter  part  of  the  pre- 
ceding age.  Meniorias  Historicjis,  t.  iii. 
p.  70.  Perhaps  however  he  has  inferred 
too  much  from  his  negative  proof;  and 
this  subject  seems  open  to  further  in* 
quiry. 


Statk  of  Societt.         maritime  LAWS. 


315 


venture.  It  was  not,  as  has  been  mentioned,  till  the  begin- 
mng  of  the  fourteenth  century  that  the  Genoese  and  otlier 
nations  around  that  inland  sea  steered  into  the  Atlantic  Ocean 
towards  England  and  Flanders.  This  intercourse  with  the 
northern  countries  enlivened  their  trade  with  the  Levant  by 
the  exchange  of  productions  which  Spain  and  Italy  do  not 
supply,  and  enriched  the  merchants  by  means  of  whose  capi- 
tal the  exports  of  London  and  of  Alexandria  were  conveyed 
into  each  other's  harbors. 

The  usual  risks  of  navigation,  and  those  incident  to  commer- 
cial adventure,  produce  a  variety  of  questions  in  ev-  Maritime 
cry  system  of  jurisprudence,  which,  though  always  ^^'^«- 
to  be  determined,  as  far  as  possible,  by  principles  of  natural 
justice,  must  in  many  cases  depend   upon  established   cus- 
toms.    These  customs  of  maritime  law  were  anciently  reduced 
mto  a  code  by  the  Rhodians,  and  the  Roman  emperors  pre- 
served or  reformed  the  constitutions  of  that  republic.    It  would 
be  hard  to  say  how  far  the  tradition  of  this  early  jurisprudence 
survived  the  decline  of  commerce  in  the  darker  a^es ;  but 
after  it  began  to  recover  itself,  necessity  suggested,  or  recol- 
lection prompted,  a  scheme  of  regulations  resemblinfr  in  some 
degree,  but  much  more  enlarged  than  those  of  antiquity. 
This  was  formed  into  a  written  code,  II  Consolato  del  Mare, 
not  much  earlier,  probably,  than  the  middle  of  the  thirteenth 
century ;  and    its  promulgation  seems  rather  to  have  pro- 
ceeded from   the  citizens  of  Barcelona  than  from  those  of 
Fisa  or  Venice,  who  have  also  claimed  to  be  tlie  first  leo^isla- 
tors  of  the  sea.i      Besides  regulations  simply  mercantile^  this 
system  has  defined  the  mutual  rights  of  neutral  and  bellicrer- 
ent  vessels,  and  thus  laid  the  basis  of  the  positive  law  of  °na- 
tions  in  Its  most  important  and  disputed  cases.     The  king  of 


»  Boucher  supposes  it  to  have  been 
compiled  at  Barcelona  about  900;  but 
his  rea.sonings  are  inconclusive,  t.  i.  p. 
72;  and  indeed  Barcelona  at  that  time 
was  little,  if  at  all,  better  than  a  fishing- 
town.  Some  arguments  might  be  drawn 
in  favor  of  Pisa  from  the  expressions 
of  Henry  IV.'s  charter  granted  to  that 
city  in  1081.  Consuetudines,  quas  ha- 
oent  de  mari,  sic  lis  observabimus  sicut 
illorum  est  con.suetudo.  Munitori,  Dis- 
•ert.  45.  Giannone  seems  to  think  the 
collection  was  compiled  about  the  reign 
Of  Louis  IX.  1.  xi.  c.  6.  Capmany,  the 
iMt   Spanish   editor,    whose   authority 


ought  perhaps  to  outweigh  every  other, 
asserts  and  seems  to  prove  them  to  have 
been  enacted  by  the  mercantile  magis 
trates  of  Barcelona,  under  the  reign  of 
James  the  conqueror  which  is  much  the 
same  period.  Codigo  de  las  Costumbres 
Maritimas  de  Barcelona,  Madrid,  1791. 
But,  by  whatever  nation  they  were  re- 
duced into  their  present  form,  these  laws 
were  certainly  the  ancient  and  establish- 
ed usages  of  the  Mediterranean  states: 
and  Pisa  may  very  probably  have  taken 
a  great  share  in  first  practising  what  a 
century  or  two  afterwards  was  rendered 
more  precise  at  Barcelona. 


816 


PIRACY. 


Chap.  IX.  Part  XL 


State  of  Society       LAW  OF  REPRISALS. 


S17 


France  and  count  of  Provence  solemnly  acceded  to  this 
maritime  code,  which  hence  acquired  a  binding  force  within 
the  Mediterranean  Sea ;  and  in  most  respects  the  law  mer- 
chant of  Europe  is  at  present  conformable  to  its  provisions. 
A  set  of  regulations,  chiefly  borrowed  from  the  Consolato, 
was  compiled  in  France  under  the  reign  of  Louis  IX.,  and 
prevailed  in  their  own  country.  These  have  been  denomi- 
nated the  laws  of  Oleron,  from  an  idle  story  that  they  were 
enacted  by  Richard  I.,  while  his  expedition  to  the  Holy  Land 
lay  at  anchor  in  that  island.^  Nor  was  the  north  without  its 
peculiar  code  of  maritime  jurisprudence ;  namely,  the  Ordi- 
nances of  Wisbuy,  a  town  in  the  isle  of  Gothland,  princi- 
pally compiled  from  those  of  Oleron,  before  the  year  1400, 
by  which  the  Baltic  traders  were  governed  '^ 

There  was  abundant  reason  for  establishing  among  mari- 
Frequency     time  nations  some  theory  of  mutual  rights,  and  for 
of  piracy.       securing  the  redress  of  injuries,  as  far  as  possible, 
by  means  of  acknowledged  tribunals.     In  that  state  of  bar- 
barous anarchy  which  so  long  resisted  the  coercive  authority 
of  civil  magistrates,  the  sea  held  out  even  more  temptation 
and  more  impunity  than  the  land ;  and  when  the  laws  had 
regained  their  sovereignty,  and  neither  robbery  nor  private 
warfare  was  any  longer  tolerated,  there  remained  that  great 
common  of  mankind,  unclaimed  by  any  king,  and  the  liberty 
of  the  sea  was  another  name  for  the  security  of  plunderers. 
A  pirate,  in  a  well-armed  quick-sailing  vessel,  must  feel,  I 
suppose,  the  enjoyments  of  his  exemption  from  control  more 
exquisitely  than  any  other  freebooter ;  and  darting  along  the 
bosom  of  the  ocean,  under  the  impartial  radiance  of   the 
heavens,  may  deride   the  dark  concealments  and  hun-ied 
flights  of  the  forest  robber.     His  occupation  is,  indeed,  ex- 
tinguished by  the  civihzation  of  later  ages,  or  confined  to  dis- 
tant climates.     But  in  the  thirteenth  and  fourteenth  centu- 
ries, a  rich  vessel  was  never  secure  from  attack ;  and  neither 
restitution  nor  punishment  of  the  criminals  was  to  be  ob- 
tained from  governments  who  sometimes  feared  the  plunderer 


»  MacphcTSon,  p.  858.  Boucher  sup- 
poses them  to  be  registers  of  actual 
decisions. 

2  I  have  only  the  authority  of  Bou- 
cher for  referring  the  Ordinances  of  Wis- 
buy to  the  year  1400.  Beckman  imag- 
ines them  to  be  older  than  those  of 
Oleron.    But  Wisbuy  was  not  enclosed 


by  a  wall  till  1288,  a  proof  that  it  could 
not  have  been  previously  a  town  of  much 
importance.  It  flourished  chiefly  in  the 
first  part  of  the  fourteenth  century,  and 
was  at  that  time  an  independent  repub- 
lic, but  fell  under  the  yoke  of  DenmariK 
before  the  end  of  the  same  age. 


and  sometimes  connived  at  the  offence.^  Mere  piracy,  how- 
ever, was  not  the  only  danger.  The  maritime  towns  of  Flan- 
ders, France,  and  England,  like  the  free  republics  of  Italy, 
prosecuted  their  own  quarrels  by  arms,  without  asking  the 
leave  of  their  respective  sovereigns.  This  prac-  Law  o° 
tice,  exactly  analogous  to  that  of  private  war  reprisal- 
m  the  feudal  system,  more  than  once  involved  the  kings  of 
France  and  England  in  hostility.^  But  where  the  quarrel 
did  not  proceed  to  such  a  length  as  absolutely  to  engage  two 
opposite  towns,  a  modification  of  this  ancient  right  of  re- 
venge formed  part  of  the  regular  law  of  nations,  under  the 
name  of  reprisals.  Whoever  was  plundered  or  injured  by 
the  inhabitant  of  another  town  obtained  authority  from  his 
own  magistrates  to  seize  the  property  of  any  other  person 
belonging  to  it,  until  his  loss  should  be  compensated.  This 
law  of  reprisal  was  not  confined  to  maritime  places  ;  it  pre- 
vailed in  Lombardy,  and  probably  in  the  German  cities. 
Thus,  if  a  citizen  of  Modena  was  robbed  by  a  Bolognese,  he 
complained  to  the  magistrates  of  the  former  city,  who  rep- 
resented the  case  to  those  of  Bologna,  demanding  redress. 
If  this  were  not  immediately  granted,  letters  of  °  reprisals 
were  issued  to  plunder  the  territory  of  Bologna  till  the  in- 
jured party  should  be  reimbursed  by  sale  of  the  spoil.^  In 
the  laws  of  Marseilles  it  is  declared,  "  If  a  foreigner  take 
anything  from  a  citizen  of  Marseilles,  and  he  who  has  juris- 
diction over  the  said  debtor  or  unjust  taker  does  not  cause 
right  to  be  done  in  the  same,  the  rector  or  consuls,  at  the  pe- 
tition of  the  said  citizen,  shall  grant  him  reprisals  upon  all  the 
goods  of  the  said  debtor  or  unjust  taker,  and  also  upon  the 
goods  of  others  who  are  under  the  jurisdiction  of  him  who 
ought  to  do  justice,  and  would  not,  to  the  said  citizen  of 
Marseilles."  4  Edward  IIL,  remonstrates,  in  an  instrument 
published  by  Rymer,  against  letters  of  marque  granted  by 
the  king  of  Aragon  to  one  Berenger  de  la  Tone,  who  had 
been  robbed  by  an  English  pirate  of  2000/.,  alleging  that,  in 


1  Hugh  Dcspcnser  seized  a  Genoese 
vessel  valued  at  14,300  marks,  for  which 
no  restitution  was  ever  made.  Uym.  t. 
It.  p.  701.    Macpherson,  a.  d.  1336. 

'  The  Cinque  Porta  aud  other  trading 
towns  of  England  were  in  a  constant 
State  of  hostility  with  their  opposite 
neighbors  during  the  reigns  of  Edward  I. 
and  II.  One  might  quote  almost  half 
the  iufitruments  in  Rymer  in  proof  of 


the.se  conflicts,  and  of  those  with  the 
mariners  of  Norway  and  Denmark. 
Sometimes  mutual  envy  produced  frays 
between  different  English  towns.  Thus, 
in  1254  the  Winchelsea  mariners  at- 
tacked a  Yarmouth  galley,  and  killed 
some  of  her  men.  Matt.  Paris,  apud 
Macpherson. 

3  Muratori,  Dissert.  53. 

*  Du  Cange,  voc.  Laudum. 


Ill 


Ili^ 


818 


LIABILITY  OF  ALIENS.     Chap.  IX.  Part  IL 


I 


of  aliens 
for  each 
other^s 
debts. 


asmuch  as  he  had  always  been  ready  to  give  redress  to  the 
party,  it  seemed  to  his  counsellors  that  there  was  no  just 
cause  for  reprisals  upon  the  king's  or  his  subjects'  property.* 
This  passage  is  so  far  curious  as  it  asserts  the  existence  of 
a  customary  law  of  nations,  the  knowledge  of  which  was  al- 
ready a  sort  of  learning.  Sir  E.  Coke  speaks  of  this  right 
of  private  reprisals  as  if  it  still  existed ;  ^  and,  in  fact,  there 
are  instances  of  granting  such  letters  as  late  as  the  reign  of 

Charles  I. 

A  practice,  founded  on  the  same  principles  as  reprisal,  though 
Liability        rather  less  violent,  was  that  of  attaching  the  goods 
or  persons  of  resident  foreigners  for  the  debts  of 
their  countrymen.     This  indeed,  in  England,  was 
not  confined  to  foreigners  until   the  statute  of 
Westminster  I.  c.  23,  which  enacts  that  "  no  stranger  who 
is  of  this  realm  shall  be  distrained  in  any  town  or  market 
for  a  debt   wherein   he   is   neither  principal  nor  surety." 
Henry  III.  had  previously  granted  a  charter  to  the  burgesses 
of  Lubec,  that  they  should  "  not  be  arrested  for  the  debt  of 
any  of  their  countrymen,  unless   the  magistrates  of  Lubec 
neglected    to   compel    payment."^     But  by   a  variety  of 
grants  from  Edward  II.  the  privileges  of  English  subjects 
under  the  statute  of  Westminster  were  extended   to  most 
foreign  nations.*     This   unjust  responsibility  had  not  been 
confined  to  civil  cases.     One  of  a  company  of  Italian  mer- 
chants, the  Spini,  having  killed  a  man,  the  officers  of  justice 
seized  the  bodies  and  efifects  of  all  the  rest.* 

If  under  all  these  obstacles,  whether  created  by  barbarous 
manners,  by  national  prejudice,  or  by  the  fraudu- 
lent and  arbitrary  measures  of  princes,  the  mer- 
chants of  different  countries  became  so  opulent  as 
almost  to  rival  the  ancient  nobility,  it  must  be  ascribed  to  the 
greatness  of  their  commercial  profits.     The  trading   com- 
panies possessed  either  a  positive  or  a  virtual  monopoly,  and 
held  the  keys  of  those  eastern  regions,  for  the  luxuries  of 


Great 
profits  ol 
tnuie, 


1  Rymer,  t.  iv.  p.  576.  Videtur  sa- 
plantibus  et  peritis.  quod  causa,  de  jure, 
non  Bubfuit  marcham  seu  reprisaliam  in 
nostris,  seu  subditorum  nostrorum,  bo- 
nis concedendi.  See  too  a  case  of  neu- 
tral goods  on  board  an  enemy's  vessel 
claimed  by  the  owners,  and  a  legal  dis- 
tinction taken  in  favor  of  the  captors, 
t.  vi.  p.  14. 

2  27  E.  ni.  Stat.  II.  c.  17,  2  Inst.  p. 
205. 


3  Rymer,  1. 1.  p.  839. 

4  Idem,  t.  iii.  p.  458,  647,  678.  ct  infra. 
See  too  the  ordinances  of  the  staple,  in 
27  Edw.  III.,  which  confirm  this  among 
other  privileges,  and  contain  manifold 
evidence  of  the  regard  paid  to  commerce 
in  that  reign. 

6  Rymer.  t.  ii.  p.  891.  Madox,  Iliat. 
Exchequer,  c.  xxii.  s.  7. 


State  op  Society.    HIGH  RATE  OF  INTEREST. 


319 


which  the  progressive  refinement  of  manners   produced  an 
increasing  demand.     It  is  not  easy  to  determine  the  average 
rate  of  profit;*  but  we  know  that  the  interest  of  j^^^^i-h  ° 
money  was  exceedingly  high  throughout  the  mid-  ?ate  of° 
die  ages.    At  Verona,  in  1228,  it  was  fixed  by  law  '''^''^'^• 
at  twelve  and  a  half  per  cent.;  at  Modena,  in  1270,  it  seems 
to  have  ^  been  as  high  as  twenty.^     The  republic  of  Genoa, 
towards  the  end  of  the  fourteenth  century,  when  Italy  had 
grown  wealthy,  paid  only  from  seven  to  ten  per  cent,  to  her 
creditoi-.s.*     But  in  France  and   England   the  rate  was  far 
more  oppressive.     An  ordinance  of  Philip  the  Fair,  in  1311, 
allows  twenty  per  cent,  after  the  first  year  of  the  loan.*    Un- 
der Henry  III.,  according  to  Matthew  Paris,  the  debtor  paid 
ten  per  cent,  every  two  months ;  ^  but  this  is  absolutely  in- 
credible as  a  general  practice.     This  was  not  merely  owing 
to  scarcity  of  money,  but  to  the  discouragement  which  a 
stmnge  prejudice  opposed  to  one  of  the  most  useful  and  le- 
gitimate branches  of  commerce.     Usury,  or  lending  money 
for  profit,  was  treated  as  a  crime  by  the  theologians  of  the 
middle  ages ;  and  though  the  superstition  has  been  eradica- 
ted, some  part  of  the  prejudice  remains   in  our  legislation. 
This  trade  in  money,  and  indeed  a  great  part  of  inland  trade 
in  general,  had  originally  fallen  to  the  Jews,  who  ^^^ 
were  noted  for  their  usury  so  early  as  the  sixth  deaiinirs  of 
century.^     For  several  subsequent  ages  they  con-  '^®  '^®"'^* 
tinned  to  employ  their  capital  and  industry  to  the  same  ad- 
vantage, with  little  molestation  from  the  clergy,  who  always 
tolerated  their  avowed  and  national  infidelity,  and  often  with 
some  encouragement  from  princes.     In  the  twelfth  century 
we  find  them  not  only  possessed  of  landed  property  in  Lan- 
guedoc,  and  cultivating  the  studies  of  medicine  and  Rabbinical 
literature  in  their  own  academy  at  Montpclier,  under  the  pro- 
tection of   the  count  of  Toulouse,  but  invested  with  civil 
oflices.''     Raymond  Roger,  viscount  of  Carcasonne,  directs  a 
writ  "  to  his  bailiff's.  Christian  and  Jewish."  ^    It  was  one  of 


*  In  the  remarkable  speech  of  the 
Doge  Mocenigo.  quoted  in  another  place, 
▼ol.  i.  p.  465,  the  annual  profits  made  by 
Venice  on  her  mercantile  capital  is  reck- 
oned at  forty  per  cent. 

*  Muratori.  Dissert.  16. 

»  Bizarri,  Ilist.  Genuens.  p.  797.  The 
»te  of  discount  on  bills,  which  may  not 
have  exactly  corresponded  to  the  average 


annual  interest  of  money,  was  ten  per 
cent,  at  Barcelona  in  1435.    Capmany, 
t.  i.  p.  209. 
<  Du  Canpe,  t.  Usura. 

6  Muratori,  Diss.  16. 
8  Greg.  Turon.  1.  iv. 

7  Hist,  de  Languedoc,  t.  ii.  p   617;  i. 
Ui.  p.  631. 

8  Id.  t.  iU.  p.  12L 


— ■•' 


320 


MONEY  DEALINGS 


Chap.  IX.  Part  II. 


State  of  SociErr. 


OF  THE  JEWS. 


III! 


the  conditions  imposed  by  the  church  on  the  count  of  Tou- 
louse, that  he  should  allow  no  Jews  to  possess  magistracy  in 
his  dominions.^     But  in  Spain  they  were  placed  by  some  of 
the  municipal  laws  on  the  footing  of  Christians,  with  respect 
to  the  composition  for  their  lives,  and  seem  in  no  other  Eu- 
ropean country  to  have  been  so  numerous  or  considerable.* 
The  diligence  and  expertness  of  this  people  in  all  pecuniary 
dealings  recommended  them  to  princes  who  were  solicitous 
about  the  improvement  of  their  revenue.    We  find  an  article 
in  the  general  charter  of  privileges  granted  by  Peter  III.  of 
Aragon,  in  1283,  that  no  Jew  should  hold  the  office  of  a 
bayle  or  judge.     And  two  kings  of  Castile,  Alonzo  XI.  and 
Peter  the  Cruel,  incurred  much  odium  by  employing  Jewish 
ministers  in  their  treasury.     But,  in  other  parts  of  Europe, 
their  condition  had,  before  that  time,  begun  to  change  for  the 
worse  —  partly   from   the   fanatical  spirit   of  the   crusades, 
which  prompted  the  populace  to  massacre,  and  partly  from 
the  jealousy  which  their  opulence  excited.     Kings,  in  order 
to  gain  money  and  popularity  at  once,  abolished  the  debts 
due  to  the  children  of  Israel,  except  a  part  which  they  re- 
tained as  the  price  of  their  bounty.     One  is  at  a  loss  to  con- 
ceive the  process  of  reasoning  in  an  ordinance  of  St.  Louis, 
where,  "  for  the  salvation  of  his  own  soul  and  those  of  his 
ancestors,  he  releases  to  all  Christians  a  third  part  of  what 
was  owing  by  them  to  Jews."  '    Not  content  with  such  edicts, 
the  kings  of  France  sometimes   banished  the  whole  nation 
from  their  dominions,  seizing  their  effects  at  the  same  time  ; 
and  a  season  of  alternative  severity  and  toleration  continued 
till,   under  Charles   VI.,   they   were   finally    expelled  from 
the   kingdom,  where  they  never  afterwards   possessed  any 
legal  settlement.*    They  were  expelled  from  England  under 
Edward  I.,  and  never  obtained  any  legal  permission  to  reside 
till  the  time  of  Cromwell.     This  decline  of  the  Jews  was 
owing  to  the  transference  of  their  trade  in  money  to  other 
hands.     In  the  early  part  of  the  thirteenth  century  the  mer- 
chants of  Lombardy  and  of  the  south  of  France  *  took  up  the 


321 


1  Hist,  do  Lansucdoc,  t.  iU.  p.  163. 
*  Marina,  £nsaYO  Ilistorico-Critico,  p. 
143. 

3  Martenne  Thesaurus  Anecdotorum, 
t.  i.  p  984. 

4  Velly,  t.  iv.  p.  136. 


modem  department  of  the  Lot,  produced 
a  tribe  of  money-dealers.  The  Caursinl 
are  almost  as  often  noticed  as  the  Lom- 
bards. See  the  article  in  Du  Can^.  In 
Lombardy,  Astl,  a  city  of  no  great  note 
in  other  respects,  was  fiimous  for  the 


business  of  remittmg   money  by  bills  of  exchange »  and  of 
makmg  profit  upon  loans.     The  utility  of  this  w^s  found  so 
great,  especially  by  the  Italian  clergy,  who  thus  in  an  easy 
manner  drew  the  income  of  their  transalpine  benefices,  that 
in  spite  of  much  obloquy,  the  Lombard  usurers  established 
themselves  m  every  country,  and  the  general  progress  of 
commerce  wore  off  the  bigotry  that  had  obstructed  Sieir  re- 
ception.     A  distinction  was  made  between  moderate  and  ex- 
orbiUm    interest ;  and  though  the  casuists  did  not  acquiesce 
in  this  legal  regulation,  yet  it  satisfied,  even  in  superstitious 
times,  the  consciences  of  provident   traders.^      The  Italian 
bankers  were  frequently  allowed  to  farm  the  customs  in  Enff- 
land,  as  a  security  perhaps  for  loans  which  were  not  very 
punctually  repaid.3      In  1345  the  Bardi  at  Florence,  the 
greatest  company  m  Italy,  became  bankrupt,  Edward  III 
owing  them,  m  principal  and  interest,  900,000  ffold  florins* 
Another,  the  Peruzzi,  failed  at  the  same  time,  beinc.  credkors' 

100,000  florins  to  each  of  these  bankers.  Their  failure  in- 
volved, of  course,  a  multitude  of  Florentine  citizens,  and  was 
a  heavy  misfortune  to  the  state.* 


*  The  city  of  Cahors,  in  Quercjr,  the    same  department  of  commerce. 


^??f  *.r®'f  ^^'^  ^P^'^'es  of  paper 
CTedit  n  the  dealings  of  merchants  :  1. 
General  letters  of  credit,  not  directed  to 
any  one,  which  are  not  uncommon  in 
the  Levant:  2.  Orders  to  pay  money  to 
a  particular  person  :  3.  Bills  of  exchantre 
regularly  negotiable.    Boucher,  t.  ii.  p. 

Zn-^  l^-'lf "''''■!  °^  ^^"^  fi"t  '^re  men. 
aoned  by  Macpherson  about  1200,  p.  367. 
The  second  sijecies  was  introduced  by 
the  Jews  about  1183  (Capmany,  t.  i.  p. 
^0,  but  it  may  be  doubtful  whether 
the  last  stage  of  the  progress  was  reached 
nearly  so  soon.  An  instrument  in  Rv- 
mer,  however,  of  the  year  13G4  (t.  vi.  p. 
WO),  mentions  literae  cambitoria;,  which 

J^f^K  ^i.S''!u '''^^"  negotiable  bills; 
and  by  1400  they  were  drawn  in  sets 
and  worded  exactly  as  at  present.  Mac^ 
pherson,  p.  614,  and  Beckman,  History 
of  Inventions,  vol.  iii.  p.  430,  give  from 
SKS  iSnoS.  ^*"*^  ^'''^^ont  of  a  bill 
»  Usury  was  looked  upon  with  horror 
gour  English  divines  long  after  the 
Reformation  Flcury,  in  his  Institu- 
tton,  au  Droit  Eeclesiastique,  t.  ii.  p.  129, 
has  shown  the  subterfuges  to  which  men 
jad  recourse  in  order  to  evade  this  pro- 

r^it°;«..^'r'r  "^^'^PPy  truth,  that 
great  part  of  the  attention  devoted  to 
iQe  best  of  sciences,  ethics  and  jurispru- 
VOL.   III.  oj 


dence,  has  been  employed  to  weaken 
principles  that  ought  never  to  have  been 
acknowledged. 

One  species  of  usury,  and  that  of  the 
highest   importance  to   commerce,  was 
always  permitted,  on  account  of  the  risk 
that  attended  it.    This  was  marine  in- 
surance, which  could  not  have  existed, 
until  money  was  considered,  in  itself,  as 
a  source  of  profit.     The  earliest  regila- 
tions  on   the  subject  of  insurance  an 
those  of   Barcelona  in  1433 ;    but  the 
practice  was,  of  course,    earlier    than 
these,   though   not  of  great  antiquity. 
It  IS  not  mentioned  in  the  Consolato  del 
Mare,  nor  in  any  of  the  Ilanseatic  laws  of 
the  fourteenth  century.     Beckman,  vol. 
iV^u     «    ^^.'^  author,  not  being  aware 
«Lr  I  ^^rt^PJoneso  laws  on  this  subject 
published  by  Capmany,  supposes  the  first 
provisions  regukting  marine  assurance 
to  have  been  made  at  Florence  in  1523 
3  Macpherson,  p.  487,  et  aUbi.    They 
had  probably  excellent  bargains:  in  1329 
the  Bardi  farmed  all  the  customs  in  Ene- 
land  for  20/.  a  day .     B u t  i a  1282  the  cut 
toms  had  produced  8411/.,  and  half  acen- 
'"'[X.P.f  ffreat  improvement  had  elapsed. 
«  Villani,  1.  xii.  0.  55,  87.    He  calls 
these  two   banking-houses    the    pillars 
which  sustained  great  part  of  the  com- 
merce of  Christendom. 


in 
IIP 


m 


iiiiii 


322        BAKKS  OF  GENOA  AND  OTHERS.    Chap.  E.  Pabt  IL 

TI.e  earliest  bank  of  deposit,  instituted  for  the  "ccommoda- 
tion  of  private  merchants,  is  said   to  have  been 
^^  a'od     that  of  Barcelona,  in  1 401.»   The  banks  of  Venice 
othere.  and  Genoa  were  of  a  different  description.    Al- 

thniKTh  the  former  of  these  two  has  the  advantage  of  greater 
tZu  tv  havin-  been  formed,  as  we  are  told,  in  the  twelfth 
'e«  yet  its  early  history  is  not  so  clear  as  that  of  Gcnoa^ 
nor     s  political  importance  so  remarkable,  however  similar 
mW  ibH  s  ori<rin.'    During  the  wars  of  Genoa  in  the  four- 
S  cen  ury,  she  had  borrowed  large  surns  of  private  citi- 
zens  to  whom  the  revenues  were  pledged  for  repayment. 
The  republic  of  Florence  had  set  a  recent,  though  not  a  very 
Encouraging  example  of  a  public  loan,  to  def^y  the  expose 
of  her  war  against  Mastino  della  Scala,  m  1336.     Ihe  tiuet 
me  cantile  flms,  as  well  as  individual  "Uzens,  funiished 
money  on  an  assignment  of  the  taxes,  receivmg  fifteen  per 
S  Interest,  which  appears  to  have  been  above  the  rate  of 
oriva te  u  ury.'     The  state  was  not  unreasonably  considered 
Horse  debTor  than  some  of  her  citizens,  for  in  a  few  years 
Sire  loans  were  consolidated  into  a  general  fund,  or  monte, 
^th  some  deduction  from  the  capital  and  a  great  dinjinut.on 
^Tnt:™st.,  so  that  an  original  debt  "f  <>-  hundred  florins 
Rold  only  for  twenty-five.«    But  I  have  not  found  that  these 
Sitot  formed  atVlorence  a  corporate  Wy,  or  t-^^  any 
nart  as  such,  in  the  affairs  of  the  repubhc.    The  case  waa 
Sre^t  at  Genoa,     ^s  a  security, at  leas^for  Jhc.r  .« 
the  subscribers  to  public  loans  were  permitted  to  receive  the 
Wuce  of  the  taxes  by  their  own  collectors,  paying  the  ex- 
Snto  the  treasury.    The  number  and  distinct  classes  of 
these  "ubscribers  becoming  at  length  inconvenient,  they  were 
fomed  about  the  year  1407,  into  a  single  corporation  called 
Sfblk  of  St.  oLge,  which  was  from  that  t.nie  the  sde 
national  creditor  and  mortgagee.    The  govemmen    of  this 
was  intrusted  to  eight  protectors.    It  soon  became  ata?st  in- 
dependent of  the  state.      Every  senator,  on  his  admission, 
swore  to  maintain  the  privileges  of  the  bank,  wluch  «^re 
confirmed  by  the  pope,  and  even  by  the  emperor.   The  bank 
interposed  its  advice  in  every  measure  ot  government,  and 
JneLuy,  as  is    admitted,  to    the  pubhc   advantage.      It 

Ihe  bank  of  Veaice  il  referrea  to  111  1.       Script.  Ber.  It»l.  t.  ut.j. 


State  op  Socibtv.     DOMESTIC  EXPENDITCEE.  323 

equipped  armaments  at  its  own  expense,  one  of  which  sub- 
dued  the  island  of  Corsica;  and  this  acquisition,  like  those 
of  our  great  Indian  corporation,  was  long  subject  to  a  com- 
pany of  merchants,  without  any  interference  of  the  mother 
country.' 

The  increasing  wealth  of  Europe,  whether  derived  from 
internal   improvement  or  foreign  commerce,  dis- , 
played  itself  in  more  expensive  consumption,  and  SSSeS"' 
greater  refinements  of  domestic  life.   But  these  ef  "P"""'""- 
fects  were  for  a  long  Ume  very  gradual,  each  generation 
making  a  few  steps  m  the  progress,  which  are  hardh'  discern- 
ible except  by  an  attentive  inquirer.    It  is  not  till  the  latter 
half  of  the  thirteenth  century  that  an  accelerated  impulse  ap- 
pears to  be  given   to  society.     The  just  government  and 
suppression  ot  disoi-der  under  St.  Louis,  and   tlie  peaceful 
temperof  his  brother  Alfonso,  count  of  Toulouse  and  Poitou 
gave  France  leisure  to  avail  herself  of  her  admirable  fertil- 
ity,   ii-ngland,  that  to  a  soil  not  gi-eatly  inferior  to  that  of 
France  united  the  inestimable  advantage  of  an  insular  posi- 
tion, and  was  invigorated,  above  all,  by  her  free  constitution 
and  the  steady  mdustriousness  of  her  people,  rose  with  a 
pretty  uniform  motion  from  the  time  of  Edward  I.    Italy 
though  the  better  days  of  freedom  had  passed  away  in  m(it 
ol  her  republics,  made  a  rapid  transition  from  simplicity  to 
refinement.    « In  those  times,"  says  a  writer  about  the  year 
1300  speaking  of  the  age  of  Frederic  II.,  « the  raanne/s  of 
the  Italians  were  mde.  A  man  and  his  wife  ate  off  the  same 
plate.     There  was  no  wooden-handled  knives,  nor  more  than 
one  or  two  drinking  cups  in  a  house.     Candles  of  wax  or 
teUow  were  unknown ;  a  servant  held  a  torch  during  supper. 
The  clothes  of  men  were  of  leather  unlined :  scarcely  any 
gold  or  Silver  was  seen  on  their  dress.     The  common  people 
ate  flesh  but  three  times  a  week,  and  kept  their  cold  meat  for 
supper.  Many  did  not  drink  wme  in  summer.   A  small  stock 
ot  corn  seemed  riches.    The  portions  of  women  were  small ; 
tHeir  dress,  even  after  marriage,  was  simple.     The  pride  of 
men  was  to  be  well  provided  with  arms  and  horses ;  that 
ot  tlie  nobihty  to  have  lofty  towers,  of  which  aU  the  cities 
in  Italy  were  full.      But  now  frugality  has  been  changed 
tor  sumptuousness ;  everything  exquisite  is  sought  after  in 

I.  'm"''^  °'"'  """«""•  P-  W (Antwerp,  1679) ;  MachtaTelll,  Storia  Florenttn., 


324  DOMESTIC  EXPENDITURE.     Chat.  IX.  Pabt  n 

and  rich  meats  ^re  reqmr  ^^^^  ^y  other  testimo- 

iTn^'^rlfof  ZL^e^^e.     Th'e'conqueit  of  Naples  bj 
CrarJX!.jou  in  1266  seems  to  have  be-  J^^^^^^^^ 

isjed  a  long  ^-^^f  ^^^^^^^^^^^^ 

Td  neaceful  than  had  been  her  lot  for  several  ages.     Dante 
^ei   of  t^c^^^  -ann- at  forence  fj.m  s^p^^^^^^ 

a^d  virtue  to  refinement  and  dissoluteness,  m  terms  very 

"^Sottut  VZ^^:^^ry  there  continued  to  be  a 

Jd  but^^^^^^^^^^^^^  -  E-^r '  ''  "andlf  thi7wl; 

Wninate  ele-ance,  improvement,  or  luxury;  and  if  this  ^^a.s 

r^tfme  suspended  in  Franee,  it  must  be  ascribed  to  the 
unusual  calamities  which  befell  that  country  ^^d^^  Ph»^^^^^^^^ 
Valorand  his  son.  Just  before  the  breaking  out  of  the  Kng- 
Isf  warfan  e^^^^^^  fondness  for  dress  is  said  to  have  dis- 
tif  J^hXot  only  the  higher  ranks,  but  the  burghers  whose 
SltmuUtionlt  least  indicates  tbeir  easy  circ^ms^^^^^^^^^^^^^ 

Modes  of  dress  hardly  perhaps  d^^^^^^^^^^;^^^^^^^^^ 
own  account ;  yet  so  far  as  their  universal  prevalence  was 


State  of  Society.       SUMPTUARY  LAWS. 


325 


I  Ricobaldus  rerrarensig,  apud  Mu- 
ral.   Dissert.    23;    Francisc.   Pippmus, 
ibidem.    Muratori  endeavors  to  extea- 
iiate  the  authority  of  this  passage  on 
'iwunt  of  some  more  ancient  writers 
who  complain  of  the  luxury  of  their 
Tiincs,  and  of  some  particular  instonces 
of  magnificence  and  expense.    But  K  - 
cobaldi  alludes,  as  Muratori  h>msdf  ad- 
mits,  to  the  mode  of  living  in  the  middle 
Ss,  and  not  to  that  of  courts,  ^hch 
[S  aU  ages  might  occasionally  display 
coMWer^ble    splendor.     I  see  nothing 
S^veaken  so  explicit  a  testimony  of  a 
wntemporary,  which  in  fact  is  confirmed 
by  man^y  writers  of  the  next  age,  who 
Scolding    to    the  practice   of    Italian 
JSclers,  have  copied  it  as  their  own. 
«  Murat.  Dissert.  23. 
»  Bellincion  Berti  vid'  lo  andar  cinto 
Di  cuojo  e  d'  osf  o,  e  vemr  dallo  spec- 
duo 


La  donna  sua  senza  'I  riso  dipinto, 
E  Tidl  quel  dl  Nerli,  e  quel  del  Veo 

Ohio 
Esser  contcnti  alia  pelle  scoverta, 
E  sue  donne  al  fuse  ed  al  pcnnechio. 
Paradis.  canto  xr. 

See  too  the  wst  of  this  canto.  But 
this  is  put  in  the  mouth  of  Cacciaguida, 
the  poet's  ancestor,  who  lived  in  the  for- 
mer  half  of  the  twelfth  century.  The 
change,  however,  was  probably  subsc- 
quent  to  1250,  when  the  times  of  wealth 
and  turbulence  began  at  Florence. 

4  Vclly,  t.  xiii.  p.  352.  The  second 
continuator  of  Nangis  vehemently  in- 
veighs against  the  long  beard-s  and  short 
briche'of  hisage;  after  the  lutrouuc. 
tion  of  which  novelties,  he  jud  ciousiy 
observes,  the  French  were  much  more 
disposed  to  run  away  from  their  enem^ 
than  before.    Spicilegium,  t.  hi.  p.  1«>. 


symptom  of  diffused  wealth,  we  should  not  overlook  either 
the  invectives  bestowed  by  the  clergy  on  the  fantastic  ex- 
travagances of  fashion,  or  the  sumptuary  laws  by  which  it 
was  endeavored  to  restrain  them. 

The  principle  of  sumptuary  laws  was  partly  derived  from 
the  small  republics  of  antiquity,  which  might  per-  sumptuary 
haps  require  that  security  for  public  spirit  and  ^^• 
equal  rights  —  partly  from  the  austere  and  injudicious  theory 
of  religion  disseminated   by  the  clergy.     These   prejudice's 
united  to  render  all  increase  of  general  comforts  odious  un- 
der the  name  of  luxury  ;  and  a  third  motive  more  powerful 
than  cither,  the  jealousy  with  which  the  great  regard  any- 
thing like  imitation  in  those  beneath  them,  cooperated  to  pro- 
duce a  sort  of  restrictive  code  in  the  laws  of  Europe.    Some 
of  these  regulations  are  more  ancient ;  but   the  chief  part 
were  enacted,  both  in  France  and  England,  during  the  four- 
teenth century,  extending  to  expenses  of  the  table  as  well  as 
apparel.     The  first  statute  of  this  description   in  our  own 
country  was,  however,  repealed  the  next  year;*  and  subse- 
quent provisions  were  entirely  disregarded  by  a  nation  which 
valued  liberty  and  commerce  too  much  to  obey  laws  con- 
ceived in  a  spirit  hostile  to  both.     Laws  indeed  designed  by 
those  governments  to  restrain  the  extravagance  of  their  sub- 
jects may  well  justify  the  severe  indignation  which  Adam 
Smith  has  poured  upon  all  such  interference  with  private  ex- 
penditure.     The   kings   of  France  and  England  were  un- 
doubtedly more  egregious   spendthrifts   than  any  others   in 
their  dominions ;  and  contributed  far  more  by  their  love  of 
pageantry  to  excite  a  taste  for  dissipation  in  their  people  than 
by  their  ordinances  to  repress  it. 

Mussus,  an  historian  of  Placentia,  has  left  a  pretty  copi- 
ous account  of  the  prevailing  manners  amonff  his  ,. 

1        ,    ^  nr^n.  t  .  °  Domestic 

cx)untrymen  about  1388,  and  expressly  contrasts  manners  of 
their  more  luxurious  Uving  with  the  style  of  their  ^^^^' 
ancestors  seventy  years  before,  when,  as  we  have  seen,  they 
had  already  made   considerable   steps   towards   refinement 
This  passage  is  highly  interesting,  because  it  shows  the  regu- 

*  87  E.  m.  Rep.  38  E.  III.    Several  tensive  regulation  was  under  Philip  the 

other  statutes  of  a  similar  nature  were  Fair.    Velly,  t.  vii.  p.  64  ;  t.  xi.  p.  190. 

passed  in  this  and  the  ensuing  reign.  These  attempts  to  restrain  what  cannot 

In  France,  there  were  sumptuary  laws  be  restrained  continued  even  down  to 

M  old  as  Charlemagne,  prohibiting  or  1700.    De  la  Mare,  Trait6  de  la  Police,  t. 

taxing  the  vise  of  furs ;  but  the  first  ex-  i.  1.  iii 


llr 


826  DOMESTIC  MANNERS  OF  ITALY.    Chap.  DC.  Part  H. 

lar  tenor  of  domestic  economy,  in  an  Italian  city  rather  than 
a  mere  display  of  individual  magnificence,  as  in  most  of  the 
facts  collected  by  our  own  and  the  French  antiquaries.     But 
it  is  much  too  long  for  insertion  in  this  place.^    No  other 
country,  perhaps,  could  exhibit  so  fair  a  picture  of  middle 
life  •  in  France  the  burghers,  and  even  the  inferior  gentry, 
were  for  the  most  part  in  a  state  of  poverty  at  this  period, 
which  they  concealed  by  an  affectation  of  ornament ;  wliile 
our  English  yeomanrv  and  tradesmen  were  more  anxious  to 
invio-orate  their  bodies  by  a  generous  diet  than  to  dwell  in 
welf  furnished  houses,  or  to  find  comfort  in  cleanliness  and 
elecrance.2    The  German  cities,  however,  had  acquired  with 
Uberty  the  spirit  of  improvement  and  industry.     From  the 
time  that  Henry  V.  admitted  their  artisans  to  the  privileges 
of  free  burghers  they  became  more  and  more  prosperous ; 
while  the  steadiness  and  frugality  of  the  German  character 
compensated  for  some  disadvantages  arising  out  of  their  m- 
land  situation.      Spire,  Nuremberg,  Ratisbon,  and  Augsburg 
were  not  indeed  like  the  rich  markets  of  London  and  Bruges, 
nor  could  their  burghers  rival  the  princely  merchants  of 
Italy ;  but  they  enjoyed  the  blessings  of  competence  diffused 
over  a  large  class  of  industrious  freemen,  and  in  the  fifteenth 
century  one  of  the  politest  lUilians  could  extol  their  splen- 
did and  well  furnished  dwellings,  their  rich  apparel,  their 
easy  and  affluent  mode  of  living,  the  security  of  their  rights 
and  just  equality  of  their  laws.* 


State  of  Society.    CIVIL  ARCHITECTURE. 


327 


m 


I  Muratori,  AntichitA  Italiane,  Dia- 
gert.  23,  t.  i.  p.  825. 

*  "  These  English,"  said  the  Spaniards 
■who  came  over  with  Philip  II.,  "  have 
their  houses  made  of  sticks  and  dirt, 
but  they  fare  commonly  so  well  as  the 
king."  Harrison's  Description  of  Brit- 
ain, prefixed  to  Uolingshed,  vol.  I.  p.  315 
(edit.  1807). 

3  Pfeffel,  t.  i.  p.  293. 

4  .£neas  Sylvius,  de  Moribus  Germa- 
norum.     This   treatise  is  an  amplified 
panegjric  upon  Germany,  and  contains 
several  curious  passages:  they  must  be 
taken  perhaps  with  some  allowance  ;  for 
the  drift  of  the  whole  is  to  persuade  the 
Germans,  that  so  rich  and  noble  a  coun- 
try could  afford  a  little  money  for  the 
poor  pope.    Civitates  quas  vocant  libe- 
ras,  cum  Imperatori  solum  subjicluntur, 
eigus  jugum  est  instar  libertatis ;  nee 
profecto  usquam  gentium  tanta  libertaa 
Mt,  quanti  fruuntur  hujuscomodi  civi- 
tates.   Nam  populi  quos   Itali  vocaut 


liberos,  hi  potisslmum  scrviunt,  sive 
Venetias  inspectes,  sive  Floren tiara  aut 
Csenas.  in  quibus  cives,  praeter  paucos 
qui  reliquos  ducunt,  loco  mancipiorum 
habentur.  Cum  nee  rebus  suis  uti,  ut 
libet,  vel  fari  quae  velint,  et  gravissimis 
opprimuntur  pecuniarum  exactionibus. 
Apud  Oermanos  omnia  laeta  sunt,  omnia 
jncunda;  nemo  suis  privatur  bonis. 
Salvo  cuique  sua  haereditas  est,  uulli 
nisi  nocenti  magistratus  nocent.  Nee 
apud  eos  fiictiones  sicut  apud  Italaii 
urbes  grassantur.  Sunt  autcm  supra 
centum  civitates  hlc  libertate  frucntes 

In  another  part  of  his  work  (p.  719) 
he  gives  a  specious  account  of-  Vienna. 
The  houses,  he  says,  had  glass  windows 
and  iron  doors.  Fencstrse  undique 
vitreaj  perlucent,  ct  ostia  plerumque 
ferrea.  In  domibus  multa  et  munda 
supellex.  Altai  domus  magnificaeque 
visuntur.  Unum  id  dedecori  est,  quod 
tecta  plerumque  tiguo  contegunt,  sauca 


No  chapter  in  the  history  of  national  manners  would  illus- 
trate so  well,  if  duly  executed,  the  progress  of  social  life  as 
that  dedicated  to  domestic  architecture.  The  fashions  of 
dress  and  of  amusements  are  generally  capricious  civiurchi- 
and  irreducible  to  rule ;  but  every  change  in  the  *«cture. 
dwellings  of  mankind,  from  the  rudest  wooden  cabin  to  the 
rtately  mansion,  has  been  dictated  by  some  principle  of  con- 
venience, neatness,  comfort,  or  magnificence.  Yet  this  most 
interesting  field  of  research  has  been  less  beaten  by  our  anti- 
(luaries  than  others  comparatively  barren.  I  do  not  pretend 
to  a  complete  knowledge  of  what  has  been  written  by  these 
learned  inquirers ;  but  I  can  only  name  one  book  in  which 
the  civil  architecture  of  our  ancestors  has  been  sketched, 
loosely  indeed,  but  with  a  superior  hand,  and  another  in 
which  it  is  partially  noticed.  I  mean  by  the  first  a  chapter  in 
the  Appendix  to  Dr.  Whitaker's  History  of  Whalley ;  and 
by  the  second  Mr.  King's  Essays  on  Ancient  Castles  in  the 
Archa3ologia.^  Of  these  I  shall  make  free  use  in  the  follow- 
ing paragraphs. 

The  most  ancient  buildings  which  we  can  trace  in  thi.s 
island,  after  the  departure  of  the  Romans,  were  circular 
towers  of  no  great  size,  whereof  many  remain  in  Scotland, 
erected  either  on  a  natural  eminence  or  on  an  artificial  mound 
of  earth.  Such  arc  Conisborough  Castle  in  Yorkshire  and 
Castleton  in  Derbyshire,  built,  perhaps,  according  to  Mr. 
King,  before  the  Conquest.^     To  the  lower  chambers  of  those 


latere.  Csctera  sedificia  muro  lapideo 
consistunt.  Pictae  domus  et  exterius  et 
interius  splendent.  Civitatia  populus 
50,000  commtinicantium  creditur.  I 
suppose  this  gives  at  least  double  for  the 
total  population.  lie  proceeds  to  rep- 
resent the  manners  of  the  city  in  a  less 
favorable  point  of  view,  charging  the 
citiz..'ns  with  gluttony  and  libertinism, 
the  nobility  with  oppression,  tho  judges 
with  corruption,  &c.  Vienna  probably 
had  the  vices  of  a  flourishing  city ;  but 
the  love  of  amplification  in  so  rhetorical 
a  writer  as  iEneas  Sylvius  weakens  the 
value  of  his  testimony,  on  whichever 
side  it  is  given. 

'  Vols.  iv.  and  vi. 

2  Mr.  Lysons  refers  Castleton  to  the  age 
of  William  the  Conqueror,  but  without 
filing  any  reasons.  Lysons's  Derby- 
■hire,  p.  ccxxxvi.  Mr.  King  had  sat- 
isfied himself  that  it  was  built  during 
the  Heptarchy,  and  even  before  the  con- 


version of  the  Saxons  to  Christianity; 
but  in  this  he  gave  the  reins,  as  usual, 
to  his  imagination,  which  as  much  ex- 
ceeded his  learning,  as  the  latter  did  his 
judgment.  Conisborough  should  seem, 
by  the  name,  to  have  been  a  royal  resi- 
dence, which  it  certainly  never  was  after 
the  Conquest.  But  if  the  engravings 
of  the  decorative  parts  in  the  Arch;r- 
ologia,  vol.  vi.  p.  244.  are  not  remark- 
ably inaccurate,  the  architecture  is  too 
elegant  for  the  Danes,  much  more  for 
the  unconverted  Saxons.  Both  these 
castles  are  enclosed  by  a  court  or  bal 
lium,  with  a  fortified  entrance,  liku 
those  erected  by  the  Normans. 

[No  doubt  is  now  entertained  but  that 
Conisborough  was  built  late  in  the  Nor- 
man period.  Mr.  King's  authority, 
which  I  followed  for  want  of  a  better,  ia 
by  no  means  to  be  depended  upon. 
1848.]  *^ 


328 


PROGRESS  OF 


Chap.  IX.  Part  II, 


gloomy  keeps  there  was  no  admission  of  light  or  air  except 
through  long  narrow  loop-holes  and  an  aperture  in  the  roof. 
Regular  windows  were  made  in  the  upper  apartments.   Were 
it  not  for  the  vast  thickness  of  the  walls,  and  some  marks  of 
attention  both  to  convenience  and  decoration  in  these  struc- 
tures, we  might  be  induced  to  consider  them  as  rather  in- 
tended for  security  during  the  transient  inroad  of  an  enemy 
than  for  a  chieftain's  usual  residence.     They  bear  a  close  re- 
semblance, except  by  their  circular  form  and  more  insulated 
situation,  to  the  peels,  or  square  towers  of  three  or  four  sto- 
ries, which  are  still  found  contiguous  to  ancient  mansion- 
houses,  themselves  far  more  ancient,  in  the  northern  coun- 
ties,^ and  seem  to  have  been  designed  for  places  of  refuge. 
In   course  of  time,  the  barons  who  owied  these  castles 
began  to  covet  a  more  comfortable  dwelling.     The  keep  was 
either  much  enlarged,  or  altogether  relinquished  as  a  place 
of  residence  except  in  time  of  siege ;  while  more  convenient 
apartments  were  sometimes  erected  in  the  tower  of  entrance, 
over  the  great  gateway,  which  led  to  the  inner  ballium  or 
court-yard.     Thus  at  Tunbridge  Castle,  this  part  of  which  is 
referred  by  Mr.  King  to  the  beginning  of  the  thirteenth  cen- 
tury, there  was  a  room,  twenty-eight  feet  by  sixteen,  on  each 
side  of  the  gateway ;  another  above  of  the  same  dimensions, 
with  an  intermediate  room  over  the  entrance  ;  and  one  large 
apartment  on  the  second  floor  occupying  the  whole   space, 
and  intended  for  state.     The  windows  in  this  class  of  castles 
were  still  little  better  than  loop-holes  on  the  basement  story, 
but  in  the  upper  rooms  often  large  and  beautifully  orna- 
mented, though  always  looking  inwards  to  the  court.     Ed- 
ward I.  introduced  a  more  splendid  and  convenient  style  of 
castles,  containing  many  habitable  towers,  with  communi- 
cating apartments.     Conway  and  Carnarvon  will  be  familiar 
examples.     The  next  innovation  was  the  castle-palace  —  of 
which  Windsor,  if  not  quite  the  earliest,  is  the  most  magnifi- 
cent instance.      Alnwick,    Naworth,  Harewood,    Spofforth, 
Kenilworth,  and  Warwick,  were  all  built  upon   this  scheme 
during  the  fourteenth  century,  but  subsequent  enlargements 
have  rendered  caution  necessary  to  distinguish  their  original 
remains.     "  The  odd  mixture,"  says  Mr.  King,  "  of  conven- 
ience and  magnificence  with  cautious  designs  for  protection 

1  Whitaker's  Hist,  of  Whalley ;  Lysons's  Cumberland,  p.  ccvi. 


State  of  Societty.    CIVIL  ARCHITECTURE. 


329 


and  defence,  and  with  the  inconveniences  of  the  former  con- 
fined plan  of  a  close  fortress,  is  very  striking."  The  provi- 
sions for  defence  became  now,  however,  little  more  than 
nugatory ;  large  arched  windows,  like  those  of  cathedrals, 
were  introduced  into  halls,  and  this  change  in  architecture 
manifestly  bears  witness  to  the  cessation  of  baronial  wars 
and  the  increasing  love  of  splendor  in  the  reign  of  Edward 
III. 

To  these  succeeded  the  castellated  houses  of  the  fifteenth 
century,  such  as  Herstmonceux  in  Sussex,  Haddon  Hall  in 
Derbyshire,  and  the  older  part  of  Knowle  in  Kent.^  They 
resembled  fortified  castles  in  their  strong  gateways,  their  tur- 
rets and  battlements,  to  erect  which  a  royal  license  was  ne- 
cessary ;  but  their  defensive  strength  could  only  have  availed 
against  a  sudden  affray  or  attempt  at  forcible  dispossession. 
They  were  always  built  round  one  or  two  court-yards,  the 
circumference  of  the  first,  when  they  were  two,  being  occu- 
pied by  the  offices  and  servants'  rooms,  that  of  the  second 
by  the  state-apartments.  Regular  quadrangular  houses,  not 
castellated,  were  sometimes  built  during  the  same  age,  and 
under  Henry  VII.  became  universal  in  the  superior  style  of 
domestic  architecture.^  The  quadrangular  form,  as  well 
from  security  and  convenience  as  from  imitation  of  conven- 
tual houses,  which  were  always  constructed  upon  that  model, 
was  generally  preferred  —  even  where  the  dwelling-house, 
as  indeed  was  usual,  only  took  up  one  side  of  the  enclosure, 
and  the  remaining  three  contained  the  offices,  stables,  and 
farm-buildings,  with  walls  of  communication.  Several  very 
old  parsonages  appear  to  have  been  built  in  this  manner.^  It 
is,  however,  not  very  easy  to  discover  any  large  fragments 
of  houses  inhabited  by  the  gentry  before  the  reign,  at  soon- 
est, of  Edward  III.,  or  even  to  trace  them  by  engravings  in 
the  older  topographical  works,  not  only  from  the  dilapidations 
of  time,  but  because  very  few  considerable  mansions  had 
been  erected  by  that  class.  A  great  part  of  England  af- 
fords no  stone  fit  for  building,  and  the  vast  though  unfortu- 
nately not  inexhaustible  resources  of  her  oak  forests  were 
easily  applied  to  less  durable  and  magnificent  structures.     A 

>  The  ruins  of  Herstmonceux  are,  I    Haddon    Hall  is   of  the  fifteenth   cen- 
believe,  tolerably  authentic  remains  of     tury. 
Henry  VI. 'a  age,  but  only  a  part  of        2  Archapologia,  vol.  vi. 

3  Blomcfield  s  Norfolk,  vol.  iii.  p.  242. 


330 


PROGRESS  OF 


Chap.  TX.  Part  IL 


frame  of  massive  timber,  independent  of  walls  and  resem- 
bling the  inverted  hull  of  a  large  ship,  formed  the  skeleton, 
as  it  were,  of  an  ancient  hall  —  the  principal  beams  spring- 
ing from  the  ground  naturally  curved,  and  forming  a  Gothic 
arch  overhead.     The  intervals  of  these  were  filled  up  with 
horizontal  planks ;  but  in  the  earlier  buildings,  at  least  m 
some  districts,  no  part  of  the  walls  was  of  stone.^     Stone 
houses  are,  however,  mentioned  as  belonging  to  citizens  ot 
London,  even  in  the  reign  of  Henry  II. ;  ^  and,  though  not 
often  perhaps  regularly  hewn  stones,  yet  those  scattered  over 
the  soil  or  dug  from  flint  quarries,  bound  together  with  a 
very  strong  and  durable  cement,  were  employed  in  the  con- 
struction of  manorial  houses,  especially  in  the  western  coun- 
ties and  other  parts  where  that  material  is  easily  procured. 
Gradually  even  in  timber  buildings  the  intervals  of  the  mam 
beams,  which  now  became  perpendicular,  not  throwing  off 
their  curved  springers  till  they  reached  a  considerable  height, 
were  occupied  by  stone  walls,  or  where  stone  was  expensive, 
by  mortar  or  plaster,  intersected  by  horizontal  or  diagon^ 
beams,  grooved  into  the  principal  piers."*      This  mode  of 
building  continued  for  a  long  time,  and  is  still  ftimiliar  to  our 
eyes  in  the  older  streets  of  the  metropolis  and  other  towns, 
and  in  many  parts  of  the  country.^     Early  in  the  fourteenth 
century  the  art  of  building  with  brick,  which  had  been  lost 
since  the  Roman  dominion,  was  introduced  probably  from 
Flanders.      Though  several  edifices  of  that  age  are  con- 
structed with  this  material,  it  did  not  come  into  general  use 
till  the  reign  of  Henry  YV    Many  considerable  houses  as 
well  as  public  buildings  were  erected  with  bricks  during  his 
reign  and  that  of  Edward  IV.,  chiefly  in  the  eastern  counties, 
where  the  deficiency  of  stone  was  most  experienced.     Few, 
if  any,  brick  mansion-houses  of  the  fifteenth  century  exist, 
except  in  a  dilapidated  state ;  but  Queen*s  College  and  Clare 
Hall  at  Cambridge,  and  part  of  Eton  College,  are  subsisting 


1  Whitaker's  Hist,  of  Whalley. 

2  Lyttelton,  t.  iv.  p.  130. 

3  Uarrison  says,  that  few  of  the  houses 
of  the  commonalty,  except  here  and 
there  in  the  west  country  towns,  were 
made  of  stone,  p.  314,  Thb  was  about 
1570. 

4  Hist,  of  Whalley. 

*  "  The  ancient  manors  and  houses  of 
our  gentlemen,"    says  Harrison,   "are 


yet,  and  for  the  most  part,  of  strong 
timber,  in  framing  whereof  our  car- 
penters have  been  and  are  worthily  pre- 
ferred before  these  of  like  soienco  among 

all  other  nations.    Uowbeit  such  as  are 

lately  builded  are  either  of  brick  or  hard 

stone,  or  both."    p.  816. 
«  Archaeologia,  vol.  i.  p.  143 ;  vol.  Iv 

p.  91. 


State  of  Societt.    CIVIL  ARCHITECTURE. 


331 


witnesses  to  the  durability  of  the  material  as  it  was  then  em- 
ployed. 

It  is  an  error  to  suppose  that  the  English  gentry  were 
lodged   in   stately  or  even   in  well-sized  houses. 
Generally  speaking,  their  dwellings  were  almost  as  ^TdTnary 
inferior  to  those  of  their  descendants  in  capacity  mansion- 
as  they  were  in  convenience.     The  usual  arrange- 
ment  consisted  of  an  entrance-passage  running  through  the 
house,  with  a  hall  on  one  side,  a  parlor  beyond,  and  one  or 
two   chambers  above,  and  on  the  opposite  side,  a  kitchen, 
pantry,   and  other  oflices.^     Such  was  the  ordinary  manor- 
house  of  the  fifteenth  and  sixteenth  centuries,  as  appears  not 
only  from  the  documents  and  engravings,  but  as  to  the  latter 
period,  from  the  buildings  themselves,  sometimes,  though  not 
very  frequently,  occupied  by  families  of  consideration,  more 
often   converted    into    farm-houses   or    distinct  tenements. 
Larger  structures  were  erected  by  men  of  great  estates  dur- 
ing the  reigns  of  Henry  IV.  and   Edward  IV. ;  but  very 
few  can  be  traced  higher ;  and  such  has  been  the  effect  of 
tmie,  still  more  through  the  advance  or  decline  of  families 
and  the  progress  of  architectural  improvement,  than  the  nat- 
ural decay  of  these  buildings,  that  I  should  conceive  it  diffi- 
cult to  name  a  house  in  England,  still  inhabited  by  a  gentle- 
man and  not  belonging  to  the  order  of  castles,  the  principal 
apartments  of  which  are  older  than  the  reign  of  Henry  VIL 
The  instances  at  least  must  be  extremely  few.^ 

France  by  no  means  appears  to  have  made  a  greater  prog- 
ress than  our  own  country  in  domestic  architecture.  Ex- 
cept fortified  castles,  I  do  not  find  in  the  work  of  a  very 
miscellaneous  but  apparently  diligent  writer,*  any  considera- 
ble dwellings  mentioned  before  the  reign  of  Charles  VII., 
and  very  few  of  so  early  a  date.*    Jacques  Coeur,  a  famous 


1  Hist,  of  Whalley.  In  Strutt's  View 
of  Blanners  we  have  an  inventory  of 
furniture  in  the  house  of  Mr.  Richard 
Fermor,  ancestor  of  the  earl  of  Pomfret, 
at  Easton  in  Northamptonshire,  and  an- 
other in  that  of  Sir  Adrian  Foskewe. 
Both  these  houses  appear  to  have  been 
of  the  dimensions  and  arrangement 
mentioned. 

•  Single  rooms,  windows,  door-ways, 
&c.,  of  an  earlier  date  may  perhaps  not 
nnfrcquently  be  found;  but  such  in- 
Btances  are  always  to  be  verified  by  their 
intrinsic  evidence,  not  by  the  tradition 
Of  the  place.    [Notb  II.] 


5  Melanges  tires  d'une  grande  bibli- 
othfcque,  par  M.  de  Paulmy,  t.  iii.  et 
xxxi.  It  is  to  be  regretted  that  Le 
Grand  d'Aussy  never  completed  that 
part  of  his  Vie  privee  des  Fran^ais  which 
was  to  have  comprehended  the  history 
of  civil  architecture.  Villaret  has  slight- 
ly noticed  its  state  about  1380.  t.  ii.  p 
141. 

*  Chcnonceaux  in  Touraine  was  built 
by  a  nephew  of  Chancellor  Duprat ;  Qail- 
lon  in  the  department  of  Eure  by  Car- 
dinal Amboise  ;  both  at  the  beginning  of 
the  sixteenth  century.  These  are  now 
considered,  in  their  ruins,  as  among  th« 


332  INVENTION  OF  CHIMNEYS   Chap.  IX.  Pam  H. 

merchant  unjustly  persecuted  by  that  prince,  had  a  hand- 
some  house  at  Paris,  as  well  as  another  at  Bourges.  It  is 
obvious  that  the  long  calamities  which  France  endured  be- 
fore the  expulsion  of  the  English  must  have  retarded  this 
eminent  branch  of  national  improvement.  ^ 

Even  in  Italy,  where  from  the  size  of  her  cities  and  so- 
cial  refinements  of  her  inhabitants,  greater    elegance   and 
splendor  in  building  were  justly  to  be  expected,  the  domes- 
tic architecture  of  the  middle  ages   did  not  attain  any  per- 
fection.    In  several  towns  the  houses  were   covered  with 
thatch,   and   suffered   consequently   from   destructive    fires. 
Costanzo,  a  Neapolitan   historian  near  the  end  of  the  six- 
teenth century,  remarks  the  change  of  manners  that  had  oc- 
curred since  the  reign  of  Joanna  II.  one  hundred  and  fitty 
years  before.     The  great  fiimilies  under  the  queen  expended 
all   their   wealth  on  their  retainers,  and  placed  their  chiet 
pride  in  bringing  them  into  the  field.     They  were  ill  lodged, 
not  sumptuously  clothed,  nor  luxurious  in  their  tables.     The 
house  of  Caracciolo,  high  steward  of  that  princess,  one  of  the 
most  powerful  subjects  that  ever  existed,  having  fallen  into 
the  hands  of  persons   incomparably  below  his   station,  had 
been  enlarged  by  them,  as  insufficient  for  their  accommoda- 
tion.2     If  such  were  the  case  in  the  city  of  Naples  so  late 
as  the  beginning  of  the  fifteenth  century,  we  may  guess  how 
mean  were  the  habitations  in  less  poUshed  parts  ot  Europe. 
The  two  most  essential  improvements  in  architecture  dur- 
in<»  this  period,  one  of  which  had  been  missed  by 
Jrchimneys    the  sagacity  of  Greece  and  Rome,  were  chimneys 
and  glass       and  glass  wiudows.     Nothing  apparently  can  be 
windows.        ^^^^  g.^p^^  ^^^^  ^^g  fQj.jnei. .  yet  the  wisdom  of 

ancient  times  had  been  content  to  let  the  smoke  escape  by 
an  aperture  in  the  centre  of  the  roof;  and  a  discovery,  ot 
which  Vitruvius  had  not  a  glimpse,  was  made,  perhaps  in 


most  ancient  houses  in  France.  A  work 
by  Ducerceau  (Ijcs  plus  excellens  Bati- 
mens  de  France,  1607)  gives  accurate 
engravings  of  thirty  houses ;  but  with 
one  or  two  exceptions,  they  seem  all  to 
have  been  built  in  the  sixteenth  century. 
Even  in  that  age,  defence  was  naturally 
an  object  in  constructing  a  French  man- 
sion-house ;  and  where  defence  is  to  be 
regarded,  splendor  and  convenience 
must  give  way.  The  name  of  chtteau 
was  not  retained  without  meaning. 
1  Melanges  tir6s,  &c.  t.  iii.    For  the 


prosperity  and  downfall  of  Jacques 
Coeur,  see  Villaret,  t.  xvi.  p.  11 ;  but 
more  especially  Mem.  de  I'Acad.  des  In- 
script.  t.  XX.  p.  609.  His  mansion  at 
Bourges  still  exists,  and  is  well  known 
to  the  curious  iu  architectural  an- 
tiquity. In  former  editions  I  have  men- 
tioned a  house  of  Jacques  Coeur  at  Beau- 
mont-sur-Oise ;  but  this  was  probably 
by  mistake,  as  I  do  not  recollect,  nor 
can  find,  any  authority  for  it. 

a  Giannone,  1st.  dl  Napoll,  t.  iii.  p 
280. 


Staie  of  Society.    AND  GLASS  WINDOWS. 


333 


this  country,  by  some  forgotten  semibarbarian.  About  the 
middle  of  the  fourteenth  century  the  use  of  chimneys  is  dis- 
tinctly mentioned  in  England  and  in  Italy  ;  but  they  are 
found  in  several  of  our  castles  which  bear  a  much  older 
date.^  This  country  seems  to  have  lost  very  early  the  art 
of  making  glass,  which  was  preserved  in  France,  whence 
artificers  were  brought  into  England  to  furnish  the  windows 
in  some  new  churches  in  the  seventh  century.^  It  is  said 
that  in  the  reign  of  Henry  III.  a  few  ecclesiastical  buildings 
had  glazed  windows.^  Suger,  however,  a  century  before, 
had  adorned  his  great  work,  the  abbey  of  St.  Denis,  with 
windows,  not  only  glazed  but  painted;*  and  I  presume  that 
other  churches  of  the  same  class,  both  in  France  and  Eng- 
land, especially  after  the  lancet-shaped  window  had  yielded 
to  one  of  ampler  dimensions,  were  generally  decorated  in  a 
similar  manner.  Yet  glass  is  said  not  to  have  been  em- 
ployed in  the  domestic  architecture  of  France  before  the  four- 


1  Muratori,  Antich.  Ital.  Dissert.  25, 
p.  390.  Beckman,  in  his  History  of  In- 
ventions, vol.  i.,  a  work  of  very  great 
research,  cannot  trace  any  explicit  men- 
tion of  chimneys  beyond  the  writings 
of  John  Villani,  wherein  however  they 
are  not  noticed  as  a  new  invention. 
Piers  Plowman,  a  few  years  later  than 
Villani,  speaks  of  a  "  chambrc  with  a 
chimney  '•  in  which  rich  men  usually 
dined.  But  in  the  account-book  of  Bol- 
ton Abbey,  under  the  year  1311,  there  is 
a  charge  pro  faciendo  camino  in  the  rec- 
tory-house of  Gargrave.  Whitaker's 
Hist,  of  Craven,  p.  331.  This  may,  I 
think,  have  been  only  an  iron  stove  or 
fire-pan ;  though  Dr.  W.  without  hes- 
itation translates  it  a  chimney.  How- 
ever, Mr.  King,  in  his  observations  on 
ancient  castles.  Archasol,  vol.  vi.,  and 
Mr.  Strutt,  in  his  View  of  Manners,  vol. 
i.,  describe  chimneys  in  castles  of  a  very 
old  construction.  That  at  Conisbor- 
ough  in  Yorkshire  is  peculiarly  worthy 
of  attention,  and  carries  back  this  im- 
portant invention  to  a  remote  antiquity. 

In  a  recent  work  of  some  reputation, 
it  is  said:  —  "There  does  not  appear  to 
be  any  evidence  of  the  use  of  chimney- 
shafts  in  England  prior  to  the  twelfth 
century.  In  llochester  Castle,  which  is 
in  all  probability  the  work  of  William 
Corbyl,  about  1130,  there  are  complete 
fireplaces  with  semicircular  backs,  and 
a  shaft  in  each  jamb,  supporting  a  semi- 
circular arch  over  the  opening,  and  that 
Is  enriched  with  the  zigzag  moulding ; 
■ome  of  these  project  slightly  from  the 


wall ;  the  flues,  however,  go  only  a  few 
feet  up  in  the  thickness  of  the  wall,  and 
are  then  turned  out  at  the  back,  the 
apertures  being  small  oblong  holes.  At 
the  castle,  Hedingham,  Essex,  which  is 
of  about  the  same  date,  there  are  fire- 
places and  chimneys  of  a  similar  kind. 
A  few  years  later,  the  improvement  of 
carrying  the  flue  up  the  whole  height  of 
the  wall  appears ;  as  at  Christ  Church, 
Hants ;  the  keep  at  Newcastle  ;  Sher- 
borne Castle.  &c.  The  early  chimney- 
shafts  are  of  considerable  height,  and 
similar ;  afterwards  they  assumed  a  great 
variety  of  forms,  and  during  the  four- 
teenth century  they  are  frequently  very 
short."  Glossary  of  Ancient  Architec- 
ture, p.  100,  edit.  1845.  It  is  said,  too, 
here  that  chimneys  were  seldom  used  in 
halls  till  near  the  end  of  the  fifteenth 
century ;  the  smoke  took  its  course,  if 
it  pleased,  through  a  hole  in  the  roof. 

Chimneys  are  still  more  modern  in 
France  ;  and  seem,  according  to  Paulmy, 
to  have  come  into  common  use  since  the 
middle  of  the  seventeenth  century. 
Jadis  nos  peres  n'avoient  qu'un  unique 
chauGToir,  qui  etoit  commun  k  toute 
une  famille,  et  quelquefois  ik  plusieurs. 
t.  iii.  p.  133.  In  another  place,  how- 
ever, he  says :  II  parait  que  les  tuyaux 
de  cheminces  ctaient  deji  tres  en  usage 
en  France,  t.  xxxi.  p.  25fcJ. 

-  Du  Cange,  v.  Vitrea8;  Bentham's 
History  of  Ely,  p.  22. 

3  Matt.  Paris  ;  Vitte  Abbatum  St.  Alb. 
122. 

4  RecueU  des  Hist.  t.  xii.  p.  101. 


334 


FURNITURE  OF  HOUSES.    Chap.  IX.  Part  H. 


teenth  century  ;^  and  its  introduction  into  England  was  prob- 
ably by  no  means  earlier.     Nor  indeed  did  it  come  into  gen- 
eral use  during  the  period  of  the  middle  ages.     Glazed  win- 
dows  were  considered  as  movable  furniture,  and  probably 
bore  a  high  price.     When  the  earls  of  Northumberland,  as 
late  as  the  reign  of  Elizabeth,  left  Alnwick  Castle,  the  wm- 
dows  were  taken  out  of  their  frames,  and  carefully  laid  by. 
But   if  the   domestic  buildings  of  the  fifteenth  century 
Furniture      would  not  sccm  vcry  spacious  or  convenient  at 
of  houses.      present,  far  less  would  this  luxurious  generation 
be  content  with  their  internal  accommodations.      A  gentle- 
man's house  containing  three  or  four  beds  was  extraordma- 
rily  well  provided;  few  probably  had  more  than  two.     The 
walls  were  commonly  bare,  without  wainscot  or  even  plaster  ; 
except  that  some  great  houses  were  furnished  with  hangmgs, 
and  that  perhaps  hardly  so  soon  as  the  reign  of  Edward  IV. 
It  is  unnecessary  to  add,  that  neither  libraries  of  books  nor 
pictures  could  have  found  a  place  among  furniture.     Silver 
plate  was  very  rare,  and  hardly  used  for  the  table.     A  few 
inventories  of  furniture  that  still  remain  exhibit  a  miserable 
deficiency.'     And  this  was  incomparably  greater  in   private 
gentlemen's  houses  than  among  citizens,  and  especially  for- 
e\<m  merchants.     We  have  an  inventory  of  the  goods  be- 
loSoincr  to  Contarini,  a  rich  Venetian  trader,  at  his  house  m 
St.°Bololph's  Lane,  a.d.  U81.     There  appear  to  have  been 
no  less  than  ten  beds,  and  glass  windows  are  especially  no- 
ticed as  movable  furniture.     No  mention  however  is  made 
of  chairs  or  looking-glasses.*     If  we  compare  this  account, 


1  Paulmy,  t.  iii.  p.  132._Villaret,  t.  3d. 
p.  141.    Macpherson,  p.  679. 

3  Northumberland  Household  Book, 
preface,  p.  16.  Bishop  Percy  says,  on  the 
(luthority  of  llarrison,  that  glass  was  not 
commonly  used  in  the  reiga  of  Henry 

viii- 

3  See  some  curious  valuations  of  fur- 
niture and  stock  in  trade  at  Colchester 
in  1295  and  1301.  Eden's  Introduct.  to 
Biate  of  the  Poor.  p.  20  and  25,  from  the 
Rolls  of  Parliament.  A  carpenter's  stock 
was  valued  at  a  shilling,  and  consisted  of 
five  tools,  other  tradesmen  were  almost 
as  poor;  but  a  tanner's  stock,  if  there  is 
no  mistake,  was  worth  9/.  75.  lOd.,  more 
than  ten  times  any  other.  Tanners  were 
principal  tradesmen,  the  chief  part  of 
dress  being  made  of  leather.  A  few  sil- 
ver cups  and  spoons  are  the  only  articles 
Of  plate ;  and  as  the  former  are  valued 


but  at  one  or  two  shillings,  they  had,  I 
suppose,  but  a  little  silver  on  the  rim. 
4  Nicholl  8  Illustrations,  p.  119.     In 
this  work,  among  several  interesting  facts 
of  the  same  cla.<?s,  we  have  another  in- 
ventory of  the  goods  of  "  John  Port,  late 
the  king's    servant,"  who  died  about 
1524 :  he  seems  to  have  been  a  man  of 
some  consideration  and  probably  a  mer- 
chant.    The  house  consisted  of  a  hall, 
parlor,  buttery,  and  kitchen,  with  two 
chambers,  and  one  smaller,  on  the  tloor 
above;   a  napery,  or  linen  room,  and 
three  garrets,  besides  a  shop,  which  waa 
probably  detached.    There  were  five  bed- 
steads la  the  house,  and  on  the  whole  a 
great  deal  of  furniture  for  those  times ; 
much  more  than  I  have  seen  in  any  oth- 
er inventory.  His  plate  is  valued  at  94/. ; 
his  jewels  at  23/. ;  his  funeral  expenset 
como  to  73/.  65.  8rf.  p.  119. 


lu 


State  of  Society.     FARM-HOUSES  AND  COTTAGES. 


335 


however  trifling  in  our  estimation,  with  a  similar  inventory 
of  furniture  in  Skipton  Castle,  the  great  honor  of  the  earls 
of  Cumberland,  and  among  the  most  splendid  mansions  of 
the  north,  not  at  the  same  period,  for  I  have  not  found  any 
inventory  of  a  nobleman's  furniture  so  ancient,  but  in  1572, 
after  almost  a  century  of  continual  improvement,  we  sliall 
be  astonished  at  the  inferior  provision  of  the  baronial  resi- 
dence. There  were  not  more  than  seven  or  eight  beds  in 
this  gi-eat  castle  ;  nor  had  any  of  the  chambers  either  chairs, 
glasses,  or  carpets.*  J  t  is  in  this  sense,  probably,  that  we 
must  understand  ^neas  Sylvius,  if  he  meant  anything  more 
than  to  express  a  traveller's  discontent,  when  he  declares 
that  the  kings  of  Scotland  would  rejoice  to  be  as  well  lodo-ed 
as  the  second  class  of  citizens  at  Nuremberg.^  Few  burgh- 
ers of  that  town  had  mansions,  I  presume,  equal  to  the  pal- 
aces of  Dumferlin  or  Stirling,  but  it  is  not  unlikely  that 
they  were  better  furnished. 

In  the  construction  of  farm-houses  and  cottages,  especially 
the  latter,  there  have  probably  been  fewer  changes;  Farm-houses 
and  those  it  would  be  more  difficult  to  follow.  No  ^^'^  cottages. 
building  of  this  class  can  be  supposed  to  exist  of  the  antiq- 
uity to  which  the  present  work  is  confined ;  and  I  do  not 
know  that  we  have  any  document  as  to  the  inferior  architec- 
ture of  England,  so  valuable  as  one  which  M.  do  Paulmy  has 
quoted  for  that  of  France,  though  perhaps  more  strictly  appli- 
cable  to  Italy,  an  illuminated  manuscript  of  the  fourteenth 
century,  being  a  translation  of  Crescentio's  work  on  agricul- 
ture, illustrating  the  customs,  and,  among  other  things,  the 
habitations  of  the  agricultural  class.  According  to  Paulmy, 
there  is  no  other  difference  between  an  ancient  and  a  mod- 


1  Whitakcr's  Hist,  of  Craven,  p.  289. 
A  better  notion  of  the  accommodations 
usual  in  the  rank  immediately  below 
may  be  collected  from  two  inventories 
published  by  Strutt,  one  of  Mr.  Formor's 
house  at  Kiston,  the  other  Sir  Adrian 
Foskewe's.  I  have  mentioned  the  size  of 
these  gentlemen's  houses  already.  In 
the  former,  the  parlor  had  wainscot,  a 
table  and  a  few  chairs;  the  chambers 
above  had  two  best  beds,  and  there  was 
one  servant's  bed  ;  but  the  inferior  ser- 
vants had  only  mattresses  on  the  floor. 
The  best  chambers  had  window  shutters 
and  curtains.  Mr.  Fermor,  being  a  mer- 
chant, was  probably  better  supplied  than 
the  neighboring  gentry.  His  plate  how- 
•▼er  consisted  only  of  sixteen  spoons, 


and  a  few  goblets  and  ale  pots.  Sir 
Adrian  Foskewe's  opulence  appears  to 
have  been  greater  ;  he  had  a  service  of 
silver  plate,  and  his  parlor  was  furnished 
with  hangings.  This  was  in  1539;  it  is 
not  to  be  imagined  that  a  knight  of  the 
shire  a  hundred  years  before  would  have 
rivalled  even  this  scanty  provision  of 
movables.  Strutt's  View  of  Manners, 
vol.  iii.  p.  G3.  These  details,  trifling  as 
they  may  appear,  are  absolutely  neces- 
sary in  order  to  give  an  idea  with  some 
precision  of  a  state  of  national  wealth  so 
totally  different  from  the  present. 

-'  CuperenttamegregieScotorumreges 
qu^m  mcdiocres  Nurembergaeciveshabi- 
tare.  ^n.  Sylv,  apud  Schmidt,  Hist,  des 
AUem.  t.  T.  p.  510. 


I 


336        ECCLESIASTICAL  ARCHITECTURE.     Chap.  IX.  Part  IL 

ern  farm-house  than  arises  from  the  introduction  of  tiled 
roofs.^  In  the  original  work  of  Crescentio,  a  native  of  Bo- 
logna, who  composed  this  treatise  on  rural  affairs  about  the 
year  1300,  an  Italian  farm-house,  when  built  at  least  accord- 
ing to  his  plan,  appears  to  have  been  commodious  both  in  size 
and  arrangement.*  Cottages  in  England  seem  to  have  gen- 
erally consisted  of  a  single  room  without  division  of  stories. 
Chimneys  were  unknown  in  such  dwellings  till  the  early  part 
of  Elizabeth's  reign,  when  a  very  rapid  and  sensible  im- 
provement took  place  in  the  comforts  of  our  yeomanry  and 
cottagers.^ 

It  must  be  remembered  that  I  have  introduced  this  disad- 
Ecciesiasticai  vautagcous  representation  of  civil  architecture,  as 
architecture.  ^  proof  of  general  poverty  and  backwardness  in 
the  refinements  of  life.  Considered  in  its  higher  depart- 
ments, that  art  is  the  principal  boast  of  the  middle  ages. 
The  common  buildings,  especially  those  of  a  public  kind, 
were  constructed  with  skill  and  attention  to  durability.  The 
castellated  style  displays  these  qualities  in  great  perfection  ; 
the  means  are  well  adapted  to  their  objects,  and  its  imposing 
grandeur,  though  chiefly  resulting  no  doubt  from  massiveness 
and  historical  association,  sometimes  indicates  a  degree  of 
architectural  genius  in  the  conception.  But  the  most  re- 
markable works  of  this  art  are  the  religious  edifices  erected 
in  the  twelfth  and  three  following  centuries.  These  struc- 
tures, uniting  sublimity  in  general  composition  with  the  beau- 
ties of  variety  and  form,  intricacy  of  parts,  skilful  or  at  least 
fortunate  effects  of  shadow  and  light,  and  in  some  instances 
with  extraordinary  mechanical  science,  are  naturally  apt  to 
lead  those  antiquaries  who  are  most  conversant  with  them 
into  too  partial  estimates  of  the  times  wlierein  they  were 
founded.  They  certainly  are  accustomed  to  behold  the  fair- 
est side  of  the  picture.  It  was  the  favorite  and  most  hon- 
orable employment  of  ecclesiastical  wealth,  to  erect,  to  en- 
large, to  repair,  to  decorate  cathedral  and  conventual  churches. 
An  immense  capital  must  have  been  expended  upon  these 


1 1.  iii.  p.  127. 

2  Crescentius  In  Commodum  Ruralium. 
(Loranioe,  absque  anno.)  This  old  cdi* 
tion  contains  many  coarse  wooden  cuts, 
possibly  taken  from  the  illuminations 
which  Paulmy  found  in  his  manuscript. 

3  Harrison's  account  of  England,  pre- 
fixed to  Ilollingshed's  Chronicles.  Chim- 


neys were  not  used  in  the  farm-houses 
of  Cheshire  till  within  forty  years  of  the 
publication  of  King's  Vale-royal  (IG06); 
the  fire  was  in  the  midst  of  the  house, 
against  a  hob  of  clay,  and  the  oxen  lived 
under  the  same  roof.  Whitaker'H  Craven, 
p.  834. 


State  of  Societt.     ECCLESIASTICAL  ARCHITECTURE.       337 

buildings  in  England  between  the  Conquest  and  the  Refor- 
mation.    And  it  is  pleasing  to  observe  how  the  seeds  of  gen- 
ius, hidden  as  it  were  under  the  frost  of  that  dreary  winter 
began  to  bud  in  the  first  sunshine  of  encouragement.     In  the 
darkest  period  of  the  middle  ages,  especially  after  the  Scan- 
dinavian incursions  into  France  and  England,  ecclesiastical 
architecture,  though  always  far  more  advanced  than  any  other 
art,  bespoke  the  rudeness  and  poverty  of  the  times.     It  be- 
gan towards  the  latter  part  of  the  eleventh  century,  when 
tranquillity,  at  least  as  to  former  enemies,  was  restored,  and 
some  degree  of  learning  reappeared,  to  assume  a  more  noble 
appearance.     The  Anglo-Norman  cathedrals  were  perhaps  as 
much  distinguished  above  other  works  of  man  in  their  own  a^-e 
as  the  more  splendid  edifices  of  a  later  period.     The  science 
manifested  in  them  is  not,  however,  very  great ;  and  their 
style,  though  by  no  means  destitute  of  lesser  beauties,  is 
upon  the  whole  an  awkward  imitation  of  Roman  architec- 
ture, or  perhaps  more  immediately  of  the  Saracenic  buildings 
m  Spain  and  those  of  the  lower  Greek  empire.^     But  about 
the  middle  of  the  twelfth  century,  this  manner  began  to  give 
place  to  what  is  improperly  denominated  the  Gothic  archi- 
tecture ;  2  of  which  the  pointed  arch,  formed  by  the  segments 


1  The  Saracenic  architecture  was  once 
conceived  to  have  been  the  parent  of  the 
Gothic.  But  the  pointed  arch  does  not 
occur,  I  believe,  in  any  Moorish  build- 
ings ;  while  the  great  mosque  of  Cordo- 
Ta,  built  in  the  eighth  century,  resem- 
bles, except  by  its  superior  beauty  and 
magnificence,  one  of  our  oldest  cathe- 
drals; the  nave  of  Gloucester,  for  ex- 
ample, or  Durham.  Even  the  vaulting 
Is  similar,  and  seems  to  indicate  some 
imitation,  though  perhaps  of  a  common 
model.  Compare  Archaeologia,  vol.  xvii. 
plate  1  and  2,  with  Murphy's  Arabian 
Antiquities,  plate  6.  The  pillars  indeed 
at  Cordova  are  of  the  Corinthian  order, 
perfectly  executed,  if  we  may  trust  the 
engraving,  and  the  work,  I  presume,  of 
Christian  architects ;  while  those  of  our 
Anglo-Norman  cathedrals  are  generally 
an  imitation  of  the  Tuscan  shaft,  the 
builders  not  venturing  to  trust  their 
roofs  to  a  more  slender  support,  though 
Corinthian  foliage  is  common  in  the  cap- 
itals, especially  those  of  smaller  orna- 
menUl  columns.  In  fact,  the  Roman 
•rehltecture  is  universally  acknowledged 
to  have  produced  what  we  call  the«axon 
or  Norman ;  but  it  is  remarkable  that  it 
ahould  have  been  adopted,  with  no  varia- 
VOL.  lu.  22 


tlon  but  that  of  the  singular  horseshoe 
areh,  by  the  Moors  of  Spain. 

The  Gothic,  or  pointed  areh,  though 
very  uncommon  in  the  genuine  Saracen- 
ic of  Spain  and  the  Levant,  may  b« 
found  in  some  prints  from  Eastern  build- 
ings; and  is  particularly  striking  in  the 
facade  of  the  great  mosque  at  Lucknow, 
in  Salt's  designs  for  Lord  Valentia's  Trav- 
els. The  pointed  arch  buildings  in  the 
Holy  Land  have  all  been  traced  to  the 
age  of  the  Crusades.  Some  arches,  if 
they  deserve  the  name,  that  have  lieen 
referred  to  this  class,  are  not  pointed  by 
their  construction,  but  rendered  such  by 
cutting  off  and  hollowing  the  projections 
of  horizontal  stones. 

2  Gibbon  has  asserted,  what  might  jus- 
tify this  appellation,  that  "  the  imago 
of  Theodoric's  palace  at  Verona,  still  ex- 
tant on  a  coin,  represents  the  oldest  and 
most  authentic  model  of  Gothic  archi 
tecture,"  vol.  vii.  p.  33.  For  this  he  re 
fers  to  Maffei,  Verona  Illustrata,  p.  31, 
where  we  find  an  engraving,  not  indeed 
of  a  coin,  but  of  a  seal ;  the  building 
represented  on  which  is  in  a  totally  dis- 
similar style.  The  following  passages  in 
Cassiodorus,  for  which  I  am  indebted  to 
M.  Qinguene,  Hist.  Litter,  de  I'ltalie,  t.  i. 


f 
4 


336        ECCLESIASTICAL  AUCHITECTUUE.     Chap.  IX.  Pabt  11. 

ern  farm-house  than  arises  from  the  introduction  of  tiled 
roofs.*  In  the  original  work  of  Crescentio,  a  native  of  Bo- 
logna, who  composed  this  treatise  on  rural  affairs  about  the 
year  1300,  an  Italian  farm-house,  when  built  at  least  accord- 
ing to  his  plan,  appears  to  have  been  commodious  both  in  size 
and  arrangement.*  Cottages  in  England  seem  to  have  gen- 
erally consisted  of  a  single  room  without  division  of  stories. 
Chimneys  were  unknown  in  such  dwellings  till  the  early  part 
of  Elizabeth's  reign,  when  a  very  rapid  and  sensible  im- 
provement took  place  in  the  comforts  of  our  yeomanry  and 
cottagers.^ 

It  must  be  remembered  that  I  have  introduced  this  disad- 
Ecciesiasticai  vantagcous  representation  of  civil  architecture,  as 
architecture,  a  proof  of  general  poverty  and  backwardness  in 
the  refinements  of  life.      Considered  in  its  higher  depart- 
ments, that  art  is  the  principal  boast  of  the  middle  ages. 
The  common  buildings,  especially  those  of  a  public   kind, 
were  constructed  with  skill  and  attention  to  durability.     The 
castellated  style  displays  these  qualities  in  great  perfection  ; 
the  means  are  well  adapted  to  their  objects,  and  its  imposing 
grandeur,  though  chiefly  resulting  no  doubt  from  massiveness 
and  historical  association,  sometimes  indicates  a  degree  of 
architectural  genius  in  the  conception.     But  the  most  re- 
markable works  of  this  art  are  the  religious  edifices  erected 
in  the  twelfth  and  three  following  centuries.     These  struc- 
tures, uniting  sublimity  in  general  composition  with  the  beau- 
ties of  variety  and  form,  intricacy  of  parts,  skilful  or  at  least 
fortunate  effects  of  shadow  and  light,  and  in  some  instances 
with  extraordinary  mechanical  science,  are  naturally  apt  to 
lead  those  antiquaries  who  are  most  conversant  with  them 
into  too  partial  estimates  of  the   times  wherein   they  were 
founded.     They  certainly  are  accustomed  to  behold  the  fair- 
est side  of  the  picture.     It  was  the  favorite  and  most  hon- 
orable employment  of  ecclesiastical  wealth,  to  erect,  to  en- 
large, to  repair,  to  decorate  cathedral  and  conventual  churches. 
An  immense  capital  must  have  been  expended  upon  these 


1  t.  iii.  p.  127. 

3  Crescentius  in  Commodum  Ruralium. 
(Lovanioe,  absque  anno.)  This  old  edi- 
tion contains  many  coarse  wooden  cuts, 
possibly  taken  from  the  illuminations 
•which  Paulmy  found  in  his  manuscript. 

3  Harrison's  account  of  England,  pre- 
fixed to  Ilollingshcd's  Chronicles.  Chim- 


neys were  not  used  in  the  farm-houses 
of  Cheshire  till  within  forty  years  of  the 
publication  of  King's  Vale-royal  (1656) ; 
the  fire  was  in  the  midst  of  the  house, 
against  a  hob  of  clay,  and  the  oxen  lived 
under  the  same  roof.  Whitaker's  Craven, 
p.  831. 


State  of  Society.     ECCLESIASTICAL  ARCHTTECTUEE.       337 

buildings  in  England  between  the  Conquest  and  the  Refor- 
mation.     And  it  is  pleasing  to  observe  how  the  seeds  of  gen- 
ius, hidden  as  it  were  under  the  frost  of  that  dreary  winter 
began  to  bud  in  the  first  sunshine  of  encouragement.     In  the 
darkest  period  of  the  middle  ages,  especially  after  the  Scan- 
dinavian incursions  into  France  and  England,  ecclesiastical 
architecture,  though  always  far  more  advanced  than  any  other 
art,  bespoke  the  rudeness  and  poverty  of  the  times.     It  be- 
gan towards  the  latter  part  of  the  eleventh  century,  when 
tranquillity,  at  least  as  to  former  enemies,  was  restored,  and 
some  degree  of  learning  reappeared,  to  assume  a  more  noble 
appearance.     The  Anglo-Norman  cathedrals  were  perhaps  as 
much  distinguished  above  other  works  of  man  in  their  own  a^^e, 
as  the  more  splendid  edifices  of  a  later  period.     The  science 
manifested  in  them  is  not,  however,  very  great ;  and  their 
style,  though  by  no  means  destitute  of  lesser  beauties,  is 
upon  the  whole  an  awkward  imitation  of  Roman  architec- 
ture, or  perhaps  more  immediately  of  the  Saracenic  buildings 
in  Spain  and  those  of  the  lower  Greek  empire.^     But  about 
the  middle  of  the  twelfth  century,  this  manner  began  to  give 
place  to  what  is  improperly  denominated  the   Gothic  archi- 
tecture ;  2  of  which  the  pointed  arch,  formed  by  the  segments 


*  The  Saracenic  architecture  was  once 
conceived  to  have  been  the  parent  of  the 
Qothic.  But  the  pointed  arch  does  not 
occur,  I  believe,  in  any  Moorish  build- 
ings ;  while  the  great  mosque  of  Cordo- 
va, built  in  the  eighth  century,  resem- 
bles, except  by  its  superior  beauty  and 
magnificence,  one  of  our  oldest  cathe- 
drals; the  nave  of  Gloucester,  for  ex- 
ample, or  Durham.  Even  the  vaulting 
is  similar,  and  seems  to  indicate  some 
imitation,  though  perhaps  of  a  common 
model.  Compare  Archseologia,  vol.  xvii. 
plate  1  and  2,  with  Murphy's  Arabian 
Antiquities,  plate  5.  The  pillars  indeed 
at  Cordova  are  of  the  Corinthian  order, 
perfectly  executed,  if  we  may  trust  the 
engraving,  and  the  work,  I  presume,  of 
Christian  architects  ;  while  those  of  our 
Anglo-Norman  cathedrals  are  generally 
an  imitation  of  the  Tuscan  shaft,  the 
builders  not  venturing  to  trust  their 
roofs  to  a  more  slender  support,  though 
Corinthian  foliage  is  common  in  the  cap- 
itals, especially  those  of  smaller  orna- 
mental columns.  In  fact,  the  Roman 
architecture  is  universally  acknowledged 
to  have  produced  what  we  call  the  Saxon 
or  Norman ;  but  it  is  remarkable  that  it 
should  have  been  adopted,  with  no  varia- 
VOL.  lU.  28 


tion  but  that  of  the  singular  horseshoe 
arch,  by  the  Moors  of  Spain. 

The  Qothic,  or  pointed  arch,  though 
very  uncommon  in  the  genuine  Saracen- 
ic  of  Spain  and  the  Levant,  may  be 
found  in  some  prints  from  Eastern  build- 
ings;  and  is  particularly  striking  in  the 
fii^ade  of  the  great  mosque  at  Lucknow, 
in  Salt's  designs  for  Lord  Valentia's  Trav- 
els. The  pointed  arch  buildings  in  the 
Holy  Land  have  all  been  traced  to  the 
age  of  the  Crusades.  Some  arches,  if 
they  deserve  the  name,  that  have  been 
referred  to  this  class,  are  not  pointed  by 
their  construction,  but  rendered  such  by 
cutting  off  and  hollowing  the  projections 
of  horizontal  stones. 

2  Gibbon  has  asserted,  what  might  jus- 
tify this  appellation,  that  "  the  image 
of  Thoodoric's  palace  at  Verona,  still  ex- 
tant on  a  coin,  represents  the  oldest  and 
most  authentic  model  of  Gothic  ;irchi 
tecture,"  vol.  vii.  p.  33.  For  this  he  re 
fers  to  Maffei,  Verona  lUustrata,  p.  31, 
where  we  find  an  engraving,  not  indeed 
of  a  coin,  but  of  a  seal ;  the  building 
represented  on  which  is  in  a  totally  dis- 
similar style.  The  following  passages  in 
Cassiodorus,  for  wliich  I  am  indebted  to 
M.  Qinguen^,  Hist.  Litter,  de  I'ltalie,  t.  i. 


,  i 


i 


338         ECCLESIASTICAL  AKCHTTECTUKE.    Chap.  IX.  Pabt  II. 

of  two  intersecting  semicircles  of  equal  radius  and  described 
about  a  common  diameter,  has  generally  been  deemed  the 
essential  characteristic.  We  are  not  concerned  at  present  to 
inquire  whether  this  style  originated  in  France  or  Germany, 
Italy  or  p:ncTland,  since  it  was  certainly  almost  simultaneous 
in  all  these  countries  ;^  nor  from  what  source  it  was  derived 
-a  question  of  no  small  difficulty.  I  would  only  venture 
to  remark,  that  whatever  may  be  thought  of  the  origin  of 
the  pointed  aich,  for  which  there  is  more  than  one  mode  of 
accounting,  we  must  perceive  a  very  oriental  character  m 


State  op  Socibty.     PKOGRESS  OF  AGRICULTURE. 


339 


p.  65,  would  be  more  to  the  purpose : 
Quid  dicamus  columnarum  junceam 
proceritatem?  moles  illas  sublimiasimaa 
fiibricarum  quasi  quibusiam  erectis  has- 
tilibus  contineri.  Thege  columns  of 
reedy  slendemess,  so  well  described  by 
Jnncea  proceritas,  arc  said  to  be  found 
in  the  cathedral  of  Montreal  in  Sicily, 
built  in  the  ei(?hth  century.  Knight  s 
Principles  of  Taste,  p.  162.  They  are 
not  however  sufficient  to  justify  the  de- 
nomination of  Gothic,  which  is  uauaUy 
confined  to  the  pointed  arch  style. 

1  The  famous  abbot  Suger,  minister 
of  Louis  VI..   rebuilt  St.  Denis  about 
1140.    The  cathedral  of  Laon  is  said  to 
have  been  dedicated  in  IIU.    Hjst.Lit- 
t^raire  de  la  France,  t.  ix.  p.  220.    I  do 
not  know  in  what  style  the  latter  of 
these  churches  is  built,  but  the  former 
is,  or  rather  was,  Gothic.    Notre  Dame 
at  Paris  was  begun  soon  after  the  mid- 
dle of  the  twelfth  century,  and  com- 
pleted under  St.  Louis.  Melanges  tires 
d'une  grande  bibliotheque,  t.  xxxi.  p. 
108.    In  England,  the  earliest  specimen 
I  have  seen  of  pointed  arches  is  in  a 
print  of  St.  Botolphe'3  Priory  at  Colches- 
ter, said  by  Strutt  to  have  been  built  in 
1110.    View  of  Manners,  vol.  i.  plate  30. 
These  are  apertures  formed  by  excavat- 
ing the  space  contained  by  the  intersec- 
tion of  semicircular,  or  Saxon  arches; 
which  are  perpetually  disposed,  by  way 
of  ornament,  on  the  outer  as  well  as  in- 
ner surface  of  old  churches,  so  as  to  cut 
each  other,  and  consequently  to  pro- 
duce the  figure  of  a  Gothic  arch ;  and  if 
there  is  uo  mistake  in  the  date,  they  are 
probably  among  the  most  ancient  of  that 
ntyle  in  Europe.     Those  of  the  church 
of  St.  Cross  near  Winchester  are  of  the 
reign  of  Stephen;  and  generally  speak- 
ing, the  pointed  style,  especially  in  vault- 
ing, the  most  important  object  in  the 
construction  of  a  building,  is  not  con- 
sidered as  older  than  Henry  II.     The 
nave  of  Canterbury  cathedral,  of  the 
erection  of  which  by  a  French  architect 
•bout  1176  we  have  a  full  account  la 


Gervase  (Twysden,  Decern  Scriptores,  col. 
1289).  and  the  Temple  church,  dedicated 
in  1183,  are  the  most  ancient  LngUsh 
buildings  altogether  in  the  Gothic  man- 

The  subject  of  ecclesiastical  architec- 
ture in  the  middle  ages  has  been  so  fully 
discussed  by  intelUtjent  and  observant 
writers  since  these  pages  were  first  pub- 
lished, that  they  require  some  correction. 
The  oriental  theory  for  the  origin  of  the 
pointed  architecture,  though  not  given 
up,  has  not  generally  stood  its  ground ; 
there  seems  more  reason  to  believe  that 
it  was  first  adopted  in  Germany,  as  Mr. 
Hope  has  Rho>vn ;  but  at  first  in  single 
arches,  not  in  the  construction  of  the 
entire  building. 

The  circular  and  pointed  forms,  in- 
stead of  one  having  at  once  supplanted 
the  other,  were  concurrent  in  the  same 
building,  through  Germany,  Italy,  and 
Switzerland,  for  some  centuries.     I  wiU 
just  add  to  the  instances  mentioned  by 
Mr.  Hope  and  others,  and  which  every 
traveller  may  corroborate,  one  not  very 
well  known,  perhaps  as  eariy  ai»  any,— 
the  crypt  of  the  cathedral  at  Basle,  built 
under  the  reign  of  the  emperor  Henry 
TI.,  near    the    commencement    of  the 
eleventh  century,   where    two    pointed 
with  three  circular  arches  stand  togeth- 
er, evidently  from  want  of  space  enough 
to  preserve  the  same  breadth  with  the 
necessary  height.     The    same  circum- 
stance will  be  found,  I  think,  in  the 
crypt  of  St.  Denis,   near   Paris,   which, 
however,  is  not  bo  old.    The  writings  of 
Hope,  Rlckman,  Whowell,  and  Willis  are 
prominent  among  many  that  have  thrown 
light  on  this  subject.    The  beauty  and 
magnificence  of  the  pointed  style  is  ac- 
knowledged on  all  sides;   perhaps  the 
imitation  of  it  ha.4  been  too  servile,  and 
with  too  much  forgetfulness  of  some 
very  important  changes  in  our  religious 
aspect  rendering  that  simply  ornamental 
which  was  once  directed  to  a  great  ob- 
ject.   11848.] 


the  vast  profusion  of  ornament,  especially  on  the  exterior 
surface,  which  is  as  distinguishing  a  mark  of  Gothic  build- 
ings as  their  arches,  and  contributes  in  an  eminent  degree 
both  to  their  beauties  and  to  their  defects.     This  indeed  is 
rather  applicable  to  the  later  than  the  earlier  stage  of  archi- 
tecture, and  rather  to  continental  than  English   churches. 
Amiens  is  in  a  far  more  florid  style  than  Salisbury,  thou<^h 
a  contemporary  structure.     The  Gothic  species  of  architec- 
ture is  thought  by  most  to  have  reached  its  perfection,  consid- 
ered as  an  object  of  taste,  by  the  middle  or  perhaps  the  close 
of  the  fourteenth   century,  or  at  least,  to  have   lost  some- 
thing of  its  excellence    by  the  corresponding  part  of  the 
next  age  ;  an  effect  of  its  early  and  rapid  cultivation,  since 
arts  appear  to  have,  like  individuals,  their  natural  progress 
and  decay.     The  mechanical  execution,  however,  continued 
to  improve,  and  is  so  far  beyond  the  apparent  intellectual 
powers  of  those  times,  that  some  have  ascribed  the  principal 
ecclesiastical  structures  to  the  fraternity  of  freemasons,  de- 
positaries of  a  concealed  and  traditionary  science.     There  is 
probably  some  ground    for  this    opinion ;  and   the   earlier 
archives  of  that  mysterious  association,  if  they  existed,  mi<yht 
illustrate  the  progress  of  Gothic  architecture,  and  perhaps 
reveal  its  origin.    The  remarkable  change  into  this  new  style, 
that  was  almost  contemporaneous  in  every  part  of  Europe^ 
cannot  be  explained  by  any  local  circumstances,  or  the  ca- 
pricious taste  of  a  single  nation.^ 

It  would  be  a  pleasing  task  to  trace  with  satisfactory  ex- 
actness  the  slow,  and   almost   perhaps   insensible 
progress  of  agriculture  and  internal  improvement  t^ome^ 
during  the  latter  period  of  the  middle  ages.     But  «f^  pro- 
no  diligence  could  recover  the  unrecorded  history  ^'"^®- 
of  a  single  village  ;  though  considerable  attention  has  of  late 
been  paid  to  this  interesting  subject  by  those  antiquaries, 
who,  though   sometimes  affecting  to  despise   the  lights  of 


»  The  curious  subject  of  freemasonry 
has  unfortunately  been  treated  only  by 
panegyrists  or  calumniators,  both  equal- 
ly  mendacious.  I  do  not  wish  to  pry 
Into  tbe  mysteries  of  the  craft ;  but  it 
would  be  interesting  to  know  more  of 
their  history  during  the  period  when 
they  were  literally  architects.  They  are 
Charged  by  an  act  of  pariiament,  8  H. 
i-ul*^'.  '  **'^  fixing  the  price  of  their 
laoor  in  their  annual  chapters,  contrary 


to  the  statute  of  laborers,  and  such 
chapters  are  consequently  prohibited. 
This  is  their  first  persecution ;  they  have 
since  undergone  others,  and  are  perhaps 
reserved  for  still  more.  It  is  remark- 
able, that  masons  were  never  legally  in- 
corporated, like  other  traders ;  their 
bond  of  union  being  stronger  than  any 
charter.  The  article  Masonry  in  the 
Encyclopaedia  Britannica  ia  worth  read 
ing. 


II 


II 


i 


,40  PROGRESS  OF  AGMCDLTUBE.    Chap.  IX.  Paw  a 

wpll  as  before  their  general  establishment^    Yet  even  in  tne 

sir?™' sx^rzET?»S"!r»M 

«ro™Wy  have  been  reclaimed  by  no  other  means.  We  owe 
Se  aSural  restoration  of  great  part  of  Europe  to  the 
monks  They  chose,  for  the  sake  of  retirement  secluded  re- 
Sons  which  they  cultivated  with  the  labor  of  thetr  hands. 


1  I  cannot  resist  the  pleasure  of  tran- 
Bcribing  a  lively  and  eloquent  passage 
Km  Dr.  Whitaker.    "  Could  a  cunpus 
obHerver  of  the  present  day  carry  him- 
■elf  nine  or   ten  centuries   back,  ana 
ranging  the  summit  of  Pendle  survey 
the  forked  vale  of  Calder  on  one  sitie, 
and  the  bolder  margins  of  Ribble  and 
Hadder  on  the  other,  instead  of  popu- 
lous towns  and  viUages,  the  castle,  the 
old  tower-built  house,  the  elegant  mod- 
em mansion,  the  artificial    plantation, 
the  Inclosed  park  and  pleasure  gfund . 
instead     of    uninterrupted     inclosures 
which  have  driven  sterility  almost  to 
the  summit  of  the  fells,  how  great  must 
then  have  been  the  contrast,  when  rang- 
ing either  at  a  distance,  or  immediately 
bwieath.  his  eye  must  have  caught  vast 
tracts  of  forest  ground  stagnating  with 
bog  or  darkened  by  native  woods,  v?here 
the  wild  ox,  the  roe,  the  stag,  and  the 
wolf,  had  scarcely  learned  the  supremacy 
of  man,  when,  directing  his  view  to  the 
intermediate  spaces,  to  the  winding  of 
the  valleys,  or  the  expanse  of  plains  be- 
neath, he  could  only  have  distinguished 
a  few  Insulated  patches  of  culture,  each 
encircling  a  village  of  wretched  cab  ns, 
^ing  wWch  would  stiU  be  remarked 
we   rude    mansion   of  wood,  scarcely 
equal  in  comfort  to  a  modern  cottage, 
St  then  rising  proudly  eminent  above 
the  rest,  where  the    Saxon    prd,  sur- 
rounded  by  his  faithful  cotani,  enjoyed 
arude  and  solitary  independence,  own- 
ing   no  superior   but    his    sovereign. 
m^t.  of  Whalley,  p.  133.    About  a  four- 
teenth  partof  this  parish  of  Whalley  was 
OttltiYated  at  the    time  of  Domesday 


This  proportion,  however,  would  by  no 
me^ns  hJld  in  the   counties  south  of 

'^Ti'or  the  Anglo-Saxon  husbandry  we 
may  remark,"  says  Mr.  Turner,  -  that 
Somesday  Survey  gives  «9/o°^«i?f,"L^ 
Son  that  the  cultivation  of  the  church 
lands  w"  much  superior  to  that  of  any 
othe?  orfer  of  society.  They  have  much 
fessw^  upon  them,  and  less  common 
of  pXre?and  what  they  had  appears 
Sft?n  in  smaller  and  more  irregular 
nieces  while  their  meadow  was  more 
Kdant,  and  in  more  numerous  distn- 
iutSns  "    Uist.  of  Anglo-Saxons,  vol. 

*''u  wS'the  glory  of  St.  Benedict's  re- 
formrS  have^  substituted  bodily  labor 
for  the  supine  indolence  of  oriental  aj- 
ceticlsm.    In  the  East  it  was  more  diffl- 
cult  t^  succeed  in  such  an  endeavor, 
?Sough  it  had  been  made.    -'The  Bene- 
dictiSes  have  been,"  says  Quizot,  -  the 
great  clearers  of  land  in  Europe.    A  col- 
ony, a  little  swarm  of  monks,  settled  in 
places  nearly  uncultivated,  often  in  the 
midst  of  a  pagan  population,  »n  ««- 
many,  for  example,  or  i"  B"^°y  '  *^,f,"'; 
at  once  missionaries  and  labored,  they 
accomplish  their  double  service  through 
J^ril  and  fatigue."    Civilis.  en  France 
Lecon  14.    The  northeastern  parts   of 
Frknce,  as  far  as  the  Lower  Seine,  were 
reduced  into  cultivation  by  the  disciples 
of  St.  Columban,  in  the  Mxth  and  seventh 
Slnturies.    The  proofs  of  this  arc  in  Ma- 
billon's    Acta    Santorum    Ord.    Bened. 
See  Mfem.  de  I' Acad,  des  Sciences  Morales 
et  Politiques,  iii.  708.  _ 

Quiaot  has  apprecUted  the  rule  of  St 


State  of-  Sociktt.     PROGRESS  OF  AGRICULTURE. 


341 


Several  charters  are  extant,  granted  to  convents,  and  some- 
times to  laymen,  of  lands  which  they  had  recovered  from  a 
desert  condition,  after  the  ravages  of  the  Saracens.^  Some 
districts  were  allotted  to  a  body  of  Spanish  colonists,  who 
emigrated,  in  the  reign  of  Louis  the  Debonair,  to  live  under 
a  Christian  sovereign.*  Nor  is  this  the  only  instance  of  agri- 
cultural colonies.  Charlemagne  transplanted  part  of  his  con- 
quered Saxons  into  Flanders,  a  country  at  that  time  almost 
unpeopled  ;  and  at  a  much  later  period,  there  was  a  remark- 
able reflux  from  the  same  country,  or  rather  from  Holland  to 
the  coasts  of  the  Baltic  Sea.  In  the  twelfth  century,  great 
numbers  of  Dutch  colonists  settled  along  the  whole  hne  be- 
tween the  Ems  and  the  Vistula.  They  obtained  grants  of 
uncultivated  land  on  condition  of  fixed  rents,  and  were  gov- 
erned by  their  own  laws  under  magistrates  of  their  own  elec- 
tion.' 

There  cannot  be  a  more  striking  proof  of  the  low  condi- 
tion of  English  agriculture  in  the  eleventh  century,  than  is 
exhibited  by  Domesday  Book.  Though  almost  all  England 
had  been  partially  cultivated,  and  we  find  nearly  the  same 


Benedict  with  that  candid  and  favorable 
spirit  which  he  always  has  brought  to 
the  history  of  the  church ;  anxious,  as 
it  seems,  not  only  to  escape  the  imputa- 
tion of  Protestant  prejudices  by  others, 
but  to  combat  them  in  his  own  mind  ; 
and  aware,  also,  that  the  partial  misrep- 
resentations of  Voltaire  had  sunk  into 
the  minds  of  many  who  were  listening 
to  his  lectures.  Compared  with  the 
writers  of  the  eighteenth  century,  who 
were  too  much  alienated  by  the  faults  of 
the  clergy  to  acknowledge  any  redeem- 
ing virtues,  or  even  wif  h  Sismondi,  who, 
toniing  in  a  moment  of  reaction,  feared 
the  returning  influence  of  mediaeval 
prejudices,  Guiz>Dt  stands  forward  as  an 
equitable  and  indulgent  arbitrator.  In 
this  spirit  he  says  of  the  rule  of  St.  Ben- 
edict—  La  pensee  morale  et  la  discipline 
g6n6rale  en  sont  sev^res;  mais  dans  le 
detail  de  la  vie  elle  est  humaine  et  mod- 
6r6e  ;  plus  humaine,  plus  moderee  que 
les  lois  barbares,  que  les  moeurs  gener- 
ales  du  temps ;  et  je  ne  doute  pas  que 
les  fr^res,  renferm^s  dans  I'interieur 
d'un  monast^re,  n'y  fussent  gouvernes 
par  une  autorite,  k  tout  prendre,  et  plus 
raisonnable,  et  d'une  mani^re  moins 
dur«  qu'ils  ne  Teussent  ^t^  dans  la  so- 
cl6t6  civile. 

1  Thus,  in  Marca  Hispanica,  Appendix, 
^  770,  we  have  a  grant  ftom  Lothaire  I. 


in  834,  to  a  person  and  his  brother,  of 
lands  which  their  father,  ab  eremo  in 
Septimania  trahens,  had  possessed  by  a 
charter  of  Charlemagne.  See  too  p.  778, 
and  other  places.  Du  Cange,  v.  Eremus, 
gives  also  a  few  instances. 

a  Du  Cange,  v.  Aprisio.  Baluze,  Ca- 
pitularia,  t.  i.  p.  649.  They  were  per- 
mitted to  decide  petty  suits  among 
themselves,  but  for  more  important 
matters  were  to  repair  to  the  county- 
court.  A  liberal  policy  runs  through 
the  whole  charter.  See  more  on  the 
same  subject,  id.  p.  569. 

3  I  owe  this  fact  to  M.  Heeren,  Eseai 
sur  I'Influence  des  Croisades,  p.  226- 
An  inundation  in  their  own  country  is 
supposed  to  have  immediately  produced 
this  emigration ;  but  it  was  probably 
successive,  and  connected  with  political 
as  well  as  physical  causes  of  greater  per- 
manence. The  first  instrument  in  which 
they  are  mentioned  is  a  grant  from  the 
bishop  of  Hamburgh  in  1106.  This  col- 
ony has  aflfected  the  local  usages,  as  well 
as  the  denominations  of  things  and 
places  along  the  northern  coast  of  Ger- 
many. It  must  be  presumed  that  a 
large  proportion  of  the  emigrants  were 
diverted  from  agriculture  to  people  the 
commercial  cities  which  grew  up  in  the 
twelfth  century  upon  that  coast. 


I't 

I 

J 


:it 


342 


LOW  CONDITION  OF       Cuaf.  IX.  Pakt  11 


manors,  except  in  the  north,  which  exist  at  present,  yet  the 
value   and  extent  of  cultivated   ground  are   inconceivably 
gmall.     With  every  allowance  for  the  inaccuracies  and  par- 
tialities of  those  by  whom  that  famous  survey  was  completed,* 
we  are  lost  in  amazement  at  the  constant  recurrence  of  two 
or  three  carucates  in  demesne,  with  other  lands  occupied  by 
ten  or  a  dozen  villeins,  valued  altogether  at  forty  shillings,  as 
^e  return  of  a  manor,  which  now  would  yield  a  competent 
income  to  a  gentleman.     If  Domesday  Book  can  be  consid- 
ered as  even  approaching   to  accuracy  in   respect  of  these 
estimates,  agriculture  must  certainly  have  made  a  very  mate 
rial  progress  in  the  four  succeeding  centuries.    This  however 
is  rendered  probable  by  other  documents.     Ingulfus,  abbot  of 
Croyland  under  the  Conqueror,  supplies  an  early  and  inter- 
esting evidence  of  improvement.^  Richard  de  Rules,  lord  of 
Deeping,  he  tells  us,  being  fond  of  agriculture,  obtained  per- 
mission from  the  abbey  to  mclose  a  large  portion  of  marsh 
for  the  purpose  of  separate  pasture,  excluding  the  Wclland 
by  a  strong  dike,  upon  which  he  erected  a  town,  and  render- 
ing those  stagnant  fens  a  garden  of  Eden."     In  imitation  of 
this  spirited  cultivator,  the  inhabitants  of  Spalding  and  some 
neighboring  villages  by  a  common   resolution  divided  their 
marshes  amongst  them ;  when  some  converting  them  to  til- 
lage, some  reserving  them  for  meadow,  others  leaving  them 
in  pasture,  they  found  a  rich  soil  for  every  purpose.     The 
abbey  of  Croyland  and  viUages  in  that  neighborhood  followed 
this  example.*     This  early  instance  of  parochial  inclosure  is 
not  to  be  overlooked  in  the  history  of  social  progress.     By 
the  statute  of  Merton,  in  the  20th  of  Henry  III.,  the  lord  is 
permitted  to  approve,  that  is,  to  inclose  the  waste  lands  of 
his  manor,  provided  he  leave  sufficient  common  of  pasture 
for  the  freeholders.     Higden,  a  writer  who  lived  about  the 
time  of  Richard  11.,  says,  in  reference  to  the  number  of  hydes 


1  Ingulfus  tells  us  that  the  commis- 
sioners were  pioua  enough  to  favor  Croy- 
land, returning  its  possessions  inaccu- 
rately, both  as  to  measurement  and 
▼alue ;  non  ad  verum  pretium,  nee  ad 
▼erum  spatium  nostrum  monasterium 
librabant  misericorditer,  prcccaventes  in 
faturum  n^gis  exactionibus.  p.  79.  I 
may  just  observe  by  the  way,  that  In- 
gulfus gives  the  plain  meaning  of  the 
word  Domesday,  which  has  been  dis- 
puted. The  book  was  so  called,  he  says, 
pxo  bu3l  generalitate  omnia  tenementa 


totius  terrsB  integri  continente ;  that  i», 
it  was  as  general  and  conclusive  as  the 
last  judgment  will  be. 

2  This  of  course  is  subject  to  the  doubt 
as  to  the  authenticity  of  Ingulfus. 

3  1  Gale,  XV.  Script,  p.  77. 

4  Communi  plebiscito  viritim  inter  se 
diviserunt,  et  quidam  suas  portioq^s 
agricolantes,  quidam  ad  foenum  conser- 
vantes,  quidam  ut  prius  ad  pasturam 
suorum  animalium,  separaliter  jacer 
permittentes,  terram  pinguem  et  uberam 
repererunt.  p.  94. 


State  of  Society.    AGRICULTURE  IN  ENGLAND. 


343 


and  vills  of  England  at  the  Conquest,  that  by  clearing  of 
woods,  and  ploughing  up  wastes,  there  were  many  more  of 
each  in  his  age  than  formerly.^  And  it  might  be  easily  pre- 
sumed, independently  of  proof,  that  woods  were  cleared, 
marshes  drained,  and  wastes  brought  into  tillage,  during  the 
long  period  that  the  house  of  Plantagenet  sat  on  the  throne. 
From  manorial  surveys  indeed  and  similar  instruments,  it 
appears  that  in  some  places  there  was  nearly  as  much  ground 
cultivated  in  the  reign  of  Edward  III.  as  at  the  present  day. 
The  condition  of  different  counties  however  was  very  far 
from  being  alike,  and  in  general  the  northern  and  western 
parts  of  England  were  the  most  backward.* 

The  culture  of  arable  land  was  very  imperfect.  Fleta 
remarks,  in  the  reign  of  Edward  I.  or  II.,  that  unless  an 
acre  yielded  more  than  six  bushels  of  corn,  the  farmer  would 
be  a  loser,  and  the  land  yield  no  rent.*  And  Sir  John  Cul- 
lum,  from  very  minute  accounts,  has  calculated  that  nine  or 
ten  bushels  were  a  full  average  crop  on  an  acre  of  wheat. 
An  amazing  excess  of  tillage  accompanied,  and  partly,  I 
suppose,  produced  this  imperfect  cultivation.  In  Hawsted, 
for  example,  under  Edward  I.,  there  were  thirteen  or  four- 
teen hundred  acres  of  arable,  and  only  forty-five  of  meadow 
ground.  A  similar  disproportion  occurs  almost  invariably  in 
every  account  we  possess.*  This  seems  inconsistent  with  the 
low  price  of  cattle.  But  we  must  recollect  that  the  common 
pasture,  often  the  most  extensive  part  of  a  manor,  is  not  in- 
cluded, at  least  by  any  specific  measurement,  in  these  surveys. 
The  rent  of  land  differed  of  course  materially ;  sixpence  an  acre 
seems  to  have  been  about  the  average  for  arable  land  in  the 
thirteenth  century,^  though  meadow  was  at  double  or  treble 
that  sum.  But  the  landlords  were  naturally  solicitous  to 
augment  a  revenue  that  became  more  and  more  inadequate 
to  their  luxuries.  They  grew  attentive  to  agricultural  con- 
cerns, and  perceived  that  a  high  rate  of  produce,  against 
which   their   less   enlightened   ancestors  had   been  used  to 


»  1  Gale,  XV.  Script,  p.  201. 

s  A  good  deal  of  information  upon  the 
former  state  of  agriculture  will  be  found 
inCullum's  History  of  Hawsted.  Blome- 
fleld's  Norfolk  is  in  this  respect  among 
the  mrst  valuable  of  our  local  histories. 
Sir  Frederic  Bden.  in  the  first  part  of  his 
excellent  work  on  the  poor,  has  collected 
several  interesting  facts 

*  1.  U.  c.  8. 


*  Cullum,  p.  100, 220.  Eden's  State  of 
Poor,  &c.  p.  48.  Whitaker's  Craven,  p. 
45,  336. 

5  I  infer  this  from  a  number  of  passa- 
ges in  Blomefield,  Cullum,  and  other 
writers.  Hearne  says,  that  an  acre  was 
often  called  Soli  data  terrse  ;  because  the 
yearly  rent  of  one  on  the  best  land  was  a 
shilling.    Lib.  Nig.  Scacc.  p.  81. 


f} 


844 


AGRICULTURE  IN        Chap.  IX.  Part  XL 


III 


clamor,  would  bring  much  more  into  their  coffers  than  it 
took  away.  The  exportation  of  corn  had  been  absolutely 
prohibited.  But  the  statute  of  the  15th  Henry  VI.  c.  2,  re- 
citing that  "on  this  account,  farmers  and  others  who  use 
husbandry,  cannot  sell  their  corn  but  at  a  low  price,  to  the 
great  damage  of  the  realm,"  permits  it  to  be  sent  anywhere 
but  to  the  king's  enemies,  so  long  as  the  quarter  of  wheat 
shall  not  exceed  6«.  Sd,  in  value,  or  that  of  barley  3«. 

The  price  of  wool  was  fixed  in  the  thirty-second  year  of 
the  same  reign  at  a  minimum,  below  which  no  person  was 
suffered  to  buy  it,  though  he  might  give  more  ;  *  a  provision 
neither  wise  nor  equitable,  but  obviously  suggested  by  the 
same  motive.  Whether  the  rents  of  land  were  augmented 
in  any  degree  through  these  measures,  I  have  not  perceived  ; 
their  great  rise  took  place  in  the  reign  of  Henry  VIII.,  or 
rather  afterwards.*  The  usual  price  of  land  under  Edward 
IV.  seems  to  have  been  ten  years'  purchase.' 

It  may  easily  be  presumed  that  an  English  writer  can 
Its  condition  ^umish  vcry  little  information  as  to  the  state  of 
in  France  agriculture  in  foreign  countries.  In  such  works 
and  Italy,  j-giating  to  France  as  have  fallen  within  my 
reach,  I  have  found  nothing  satisfactory,  and  cannot  pre- 
tend to  determine,  whether  the  natural  tendency  of  mankind 
to  ameliorate  their  condition  had  a  greater  influence  in  pro- 
moting agriculture,  or  the  vices  inherent  in  the  actual  order 
of  society,  and  those  public  misfortunes  to  which  that  king- 
dom was  exposed,  in  retarding  it.*  The  state  of  Italy  was 
far  different ;  the  rich  Lombard  plains,  still  more  fertilized 
by  irrigation,  became  a  garden,  and  agriculture  seems  to  have 
reached  the  excellence  which  it  still  retains.  The  constant 
warfare  indeed  of  neighboring  cities  is  not  very  favorable  to 
industry ;  and  upon  this  account  we  might  incline  to  place 
the  greatest  territorial  improvement  of  LombarJy  at  an  era 
rather  posterior  to  that  of  her  republican  government ;  but 
from  this  it  primarily  sprung ;  and  without  the  subjugation 
of  the  feudal  aristocracy,  and  that  perpetual  demand  upon 


1  Rot.  Pari.  vol.  t.  p.  275. 

*  A  passage  in  Bishop  Latimer^t  0er> 
mons,  too  often  quoted  to  require  repeti- 
tion, shows  that  land  was  much  underlet 
about  the  end  of  the  fifteenth  century. 
His  &ther,  he  says,  kept  half  a  dozen 
husbandmen,  and  milked  thirty  cows, 
on  a  £&nn  of  three  or  four  pounds  a 


year.  It  is  not  surprising  that  he  lired 
as  plentifully  as  his  son  describes. 

3  Rymer,  t.  xii.  p,  204. 

*  Velly  and  Villaret  scarcely  mention 
this  subject;  and  Le  Grand  merely  tells 
us  that  it  was  entirely  neglected;  but 
the  details  of  such  an  art,  eren  in  itf 
state  of  neglect,  might  be  interesting. 


State  op  Societt.     FRANCE  AND  ITALY. 


345 


the  fertility  of  the  earth  which  an  increasing  population  of 
citizens  produced,  the  valley  of  the  Po  would  not  have  yielded 
more  to  human  labor  than  it  had  done  for  several  preceding 
centuries.^  Though  Lombardy  was  extremely  populous  in 
the  thirteenth  and  fourteenth  centuries,  she  exported  large 
quantities  of  com.^  The  very  curious  treatise  of  Crescentius 
exhibits  the  full  details  of  Italian  husbandry  about  1300,  and 
might  afford  an  interesting  comparison  to  those  who  are 
acquainted  with  its  present  state.  That  state  indeed  in  many 
parts  of  Italy  displays  no  symptoms  of  decline.  But  what- 
ever mysterious  influence  of  soil  or  climate  has  scattered  the 
seeds  of  death  on  the  western  regions  of  Tuscany,  had  not 
manifested  itself  in  the  middle  ages.  Among  uninhabitable 
plains,  the  traveller  is  struck  by  the  ruins  of  innumerable 
castles  and  villages,  monuments  of  a  time  when  pestilence 
was  either  unfelt,  or  had  at  least  not  forbade  the  residence  of 
mankind.  Volterra,  whose  deserted  walls  look  down  upon 
that  tainted  solitude,  was  once  a  small  but  free  repubhc; 
Siena,  round  whom,  though  less  depopulated,  the  malignant 
influence  hovers,  was  once  almost  the  rival  of  Florence.  So 
melancholy  and  apparently  irresistible  a  decline  of  culture 
and  population  through  physical  causes,  as  seems  to  have 
gradually  overspread  tliat  portion  of  Italy,  has  not  perhaps 
been  experienced  in  any  other  part  of  Europe,  unless  we 
except  Iceland. 

The  Italians  of  the  fourteenth  century  seem  to  have  paid 
some  attention  to  an  art,  of  which,  both  as  related  ^,.^„ 

,  .        .  -.  1  •  /»  Gardening. 

to  cultivation  and  to  architecture,  our  own  tore- 
fathers  were  almost  entirely  ignorant.  Crescentius  dilates 
upon  horticulture,  and  gives  a  pretty  long  list  of  herbs  both 
esculent  and  medicinal.*  His  notions  about  the  ornamental 
department  are  rather  beyond  what  we  should  expect,  and  I 
do  not  know  that  his  scheme  of  a  flower-garden  could  be 
much  amended.  His  general  arrangements,  which  are 
minutely  detailed  with  evident  fondness  for  the  subject,  would 
of  course  appear  too  formal  at  present ;  yet  less  so  than 
those  of  subsequent  times;  and  though  acquainted  with 
what  is  called  the  topiary  art,  that  of  training  or  cutting 
trees  into  regular  figures,  he  does  not  seem  to  run  into  its 
extravagance.     Regular  gardens,  according  to  Paulmy,  were 


?  if 


1  Muratorl,  Dissert.  21.  *  Denina.  1.  xi.  c.  7. 

<  Denina,  L  vi. 


346 


CHANGES  IN  THE      Chap.  IX.  Part  IL 


M  i 


m 


not  made  in  France  till  the  sixteenth  or  even  seventeenth 
century ;  ^  yet  one  is  said  to  have  existed  at  the  Louvre,  of 
much  older  construction.*  England,  I  believe,  had  notliing 
of  the  ornamental  kind,  unless  it  were  some  trees  regularly 
disposed  in  the  orchard  of  a  monastery.  Even  the  common 
horticultural  art  for  culinary  purposes,  though  not  entirely 
neglected,  since  the  produce  of  gardens  is  sometimes  men- 
tioned in  ancient  deeds,  had  not  been  cultivated  with  much 
attention.'  The  esculent  vegetables  now  most  in  use  were 
introduced  in  the  reign  of  Ehzabeth,  and  some  sorts  a  great 
deal  later. 

I  should  leave  this  slight  survey  of  economical  history 
Changes  In  ^^^^^  ™^^'®  imperfect,  were  I  to  make  no  obser- 
yaiue  of  vation  on  the  relative  values  of  money.  Without 
*"°°^^*  something  like  precision  in  our  notions  upon  this 

subject,  every  statistical  inquiry  becomes  a  source  of  con- 
fusion and  error.  But  considerable  difficulties  attend  the 
discussion.  These  arise  principally  from  two  causes;  the 
inaccuracy  or  partial  representations  of  historical  writers,  on 
whom  we  are  accustomed  too  implicitly  to  rely,  and  the 
change  of  manners,  which  renders  a  certain  command  over 
articles  of  purchase  less  adequate  to  our  wants  than  it  was 
in  former  ages. 

The  first  of  these  difficulties  is  capable  of  being  removed  by 
a  circumspect  use  of  authorities.  When  this  part  of  statistical 
history  began  to  excite  attention,  which  was  hardly  perhaps 
before  the  publication  of  Bishop  Fleetwood's  Chronicon  Pre- 
ciosum,  so  few  authentic  documents  had  been  published  with 
respect  to  prices,  that  inquirers  were  glad  to  have  recourse 
to  historians,  even  when  not  contemporary,  for  such  facts  as 
they  had  thought  fit  to  record.  But  these  historians  were 
sometimes  too  distant  from  the  times  concerning  which  they 
wrote,  and  too  careless  in  their  general  character,  to  merit 
much  regard ;  and  even  when  contemporary,  were  often  cred- 
ulous, remote  from  the  concerns  of  the  world,  and,  at  the  best, 
more  apt  to  register  some  extraordinary  phenomenon  of 
scarcity  or  cheapness,  than  the  average  rate  of  pecuniary 
dealings.  The  one  ought,  in  my  opinion,  to  be  absolutely 
rejected  as  testimonies,  the  other  to  be  sparingly  and  diffi- 
dently admitted.*     For  it  is  no  longer  necessary  to  lean  upon 

I  t.  ili.  p.  145;  t.  xxxi.  p.  258.  *  Eden's  State  of  Poor,  vol.  i.  p.  51. 

*  De  la  Mare,  Trait6  de  la  Police,  t.  iii.        ♦Sir  F.  Eden,  whose  table  of  prices, 
p.  380.  thouicli  capable  of  some  improTement,  ia 


Statx  of  SociiCTT.       VALUE  OF  MONEY. 


347 


such  uncertain  witnesses.  During  the  last  century  a  v^ry 
laudable  industry  has  been  shown  by  antiquaries  in  the  pub- 
lication of  account-books  belonging  to  private  persons,  regis- 
ters of  expenses  in  convents,  returns  of  markets,  valuations 
o£  goods,  tavern-bills,  and  in  short  every  document,  however 
trifling  in  itself,  by  which  this  important  subject  can  be  il- 
lustrated. A  sufficient  number  of  cuch  authorities,  proving 
the  ordinary  tenor  of  prices  rather  than  any  remarkable  de- 
viations  from  it,  are  the  true  basis  of  a  table,  by  which  all 
changes  in  the  value  of  money  should  be  measured.  I  have 
little  doubt  but  that  such  a  table  might  be  constructed  from 
the  data  we  possess  with  tolerable  exactness,  sufficient  at 
least  to  supersede  one  often  quoted  by  political  economists, 
but  which  appears  to  be  founded  upon  very  superficial  and 
erroneous  inquiries.^ 

It  is  by  no  means  required  that  I  should  here  offer  such 
a  table  of  values,  which,  as  to  every  country  except  Eng- 
land, I  have  no  means  of  constructing,  and  which,  even  as  To 
England,  would  be  subject  to  many  difficulties.^    But  a  reader 


perhaps  the  best    that    has  appeared, 
would,  I   think,  have  acted  better,  by 
omitting  all  refei-ences  to  mere  histo- 
rians, and  relying  entirely  on  regular 
documents.     I  do  not  however  include 
local  histories,  such  as  the  Annals  of 
Dunstaple,  when  they  record  the  market- 
prices  of  their  neighborhood,  in  respect 
of  which  the  book  last  mentioned  is  al- 
most in  the  nature  of  a  register.    Dr. 
Whitaker  remarks    the  inexactness  of 
Stowe,  who  says  that  wheat  sold  in  Lon- 
don, A.D.  1514,  at  20s.  a  quarter:  where- 
as it  appears  to  have  been  at  9s.  in  Lan- 
cashire, where  it  was  always  dearer  than 
in  the  metropolis.     Hist,  of  Whalley,  p. 
97.    It  is  an  odd  mistake,  into  which  Sir 
F.  Eden   has  fallen,  when  he  asserts  and 
argues  on  the  supposition,  that  the  price 
of  wheat  fluctuated  in   the   thirteenth 
f«°tury,from  Is.  to  6?.  8.?.  a  quarter,  vol. 
1.  p.  18.    Certainly,  if  any  chronicler  had 
mentioned  such  a  price  as  the  latter, 
equivalent  to  150/.  at  present,  we  should 
cither  suppose  that  his  text  was  corrupt, 
or  reject  it  as  an  absurd  exaggeration. 
But,  in   fact,  the   author   has,   through 
haste,  mistaken  6s.  Sd.  for  6/.  8s.,  as  will 
appear  by  referring  to  his  own  table  of 

Ences,  where  it  is  set  down  rightly.  It 
1  observed  by  Mr.  Macpherson,  a  very 
competent  judge,  that  the  arithmetical 
statements  of  the  best  historians  of  the 
middle  ages  are  seldom  correct,  owing 
partly  to  their  neglect  of  examination, 


and  partly  to  blunders  of  transcribers. 
Annals  of  Commerce,  vol.  i.  p.  423. 

1  The  table  of  comparative  values  by 
Sir  George  Shuckbur<rh  (I'hilosoph.  Tran- 
sact, for  1798,  p.  190)  is  strangely  incom- 
patible with  every  result  to  which  my 
own  reading  has  led  me.  It  is  the  hasty 
attempt  of  a  man  accustomed  to  different 
studies  ;  and  one  ca'i  neither  pardon  the 
presumption  of  obtruding  such  a  sloven- 
ly performance  on  a  subject  where  the 
utmost  diligence  was  required,  nor  the 
affectation  with  which  he  apologizes  for 
"  descending  from  the  dignity  of  philos- 
ophy." 

2  M.  Guerard,  editor  of  «  Paris  sous 
Philippe    le    Bel,"    in    the    Documens 
Inedits  (1841,  p.  365),  after  a  compari- 
son of  the  prices  of  corn,  concludes  that 
the  value   of  silver  has  declined   since 
that  reign,  in  the   ratio  of  five  to  one. 
This  is  much  less  than  we  allow  in  Eng- 
land.   M,  Leber  (Mem.  de  I'Acad.   des 
Inscript.   Nouvelle  Serie,  xiv.  230)  calcu- 
lates the  power  of  silver  under  Charle- 
magne, compared  with   the  present  day, 
to  have  been  as  nearly  eleven  to  one.    It 
fell  afterwards  to  eight,  and  continued  to 
sink  during  the  middle  ages;  the  average 
of  prices  during  the  fourteenth  and  fif- 
teenth centuries,   taking    corn  as    the 
standard,  was  six  to  one;  the  comparison 
is  of  course  only  for  France.     This  is  an 
interesting    paper,  and  contains  tablet 
worthy  of  being  consulted. 


) 


!!l 


848 


CHANGES  m  THE 


Chap.  IX.  Pabt  IL 


N  ::ii 


unaccustomed  to  these  investigations  ought  to  have  some  as- 
sistance in  comparing  the  prices  of  ancient  times  with  those 
of  his  own.     I  wiU  therefore,  without  attempting  to  ascend 
very  high,  for  we  have  really  no  sufficient  data  as  to  the  pe- 
riod immediately  subsequent  to  the  Conquest,  much  less  that 
which  preceded,  endeavor  at  a  sort  of  approximation  for  the 
thirteenth  and  fifteenth  centuries.   In  the  reigns  of  Henry  111 
and  Edward  I.,  previously  to  the  first  debasement  of  the  com 
by  the  latter  m  1301,  the  ordinary  price  of  a  quarter  of  wheat 
appears  to  have  been  about  four  shillings,  and  that  of  barley 
and  oats  in  proportion.    A  sheep  was  rather  sold  high  at  a 
shillincr,  an  ox  might  be  reckoned  at  ten  or  twelve.*     Ihe 
value  of  cattle  is,  of  coarse,  dependent  upon  their  breed  and 
condition,  and  we  have  unluckily  no  early  account  of  butch- 
er's meat ;  but  we  can  hardly  take  a  less  multiple  than  about 
thirty  for  animal  food  and  eighteen  or  twenty  for  corn,  m  or- 
der  to  bring  the  prices  of  the  thirteenth  century  to  a  level 
with  those  of  the  present  day.*     Combining  the  two,  and  set- 
tincr  the  comparative  dearness  of  cloth  against  the  cheapness 
of  fuel  and  many  other  articles,  we  may  perhaps  consider 
any  given  sum  under  Henry  HI.  and  Edward  I.  as  equiva- 
lent in  general  command  over  commodities  to  about  twenty- 
four  or  twenty-five  times  their  nominal  value  at  present. 
Under  Henry  VI,  the  coin  had  lost  one  third  of  its  weight 
in  silver,  which  caused  a  proportional  increase  of  money 
prices ; »  but,  so  far  as  I  can  perceive,  there  had  been  no 


1  Blomefleld'8  History  of  Norfolk,  and 
Sir  J.  Cullum'8  of  Hawsted,  furnish 
BeTcral  pieces  eTen  at  this  early  period. 
Most  of  them  are  collected  by  Sir  F. 
Eden.  Fleta  reckons  45.  the  average 
price  of  a  quarter  of  wheat  in  his  time. 
1.  ii.  c.  84.  This  writer  has  a  digression 
on  agriculture,  whence  however  less  is 
to  be  collected  than  we  should  expect. 

s  The  fluctuations  of  price  have  un- 
fortunately been  so  great  of  late  years, 
that  it  is  almost  as  difficult  to  determine 
one  side  of  our  equation  as  the  other. 
Any  reader,  however,  has  it  in  his  power 
to  correct  my  proportions,  and  adopt  a 
greater  or  less  multiple,  according  to  his 
own  estimate  of  current  prices,  or  the 
changes  that  may  take  place  from  the 
time  when  this  is  written  [1816]. 

»  I  have  sometimes  been  surprised  at 
the  facility  with  which  prices  adjusted 
themselves  to  the  quantity  of  silver  con- 
tained in  the  current  coin,  in  ages  which 
appear  too  ignorant  and  too  little  com- 


mercial for  the  application  of  thla  mer- 
cantile  principle.      But    the   extensive 
dealings  of   the  Jewish     and  Lombard 
usurers,  who  had  many  debtors  in  al- 
most all  parts  of  the  country,  would  of 
itself  introduce  a  knowledge,  that  silver, 
not  its  stamp,  was  the  measure  of  value. 
I  have  mentioned  in  another  place  (vol.  i. 
p.  211)  the  heavy  discontents  excited  by 
this  debasement  of  the  coin  in  France  ; 
but  the  more  gradual  enhancement  of 
nominal  prices  in  England  seems  to  have 
prevented  any  strong  manifestations  of 
a  pimilar  spirit  at  the  successive  reduc- 
tions in  value  which  the  coin  experienced 
from  the  year   1300.      The  connection 
however  between  commodities  and  silver 
was  well  understood.    Wykes,  an  annal- 
ist of  Edward  !.'«  age,  tells  us,  that  the 
Jews  clipped  our  coin,  till  it  retained 
hardly  half  its  due  weight,  the  effect  of 
which  was  a  general  enhancement  of 
prices,  and  decline    of  foreign    trade: 
Mercatores  transmarini  cum  mercimoniii 


State  op  Societt.        VALUE  OF  MONEY. 


849 


i1 

,■.1 
f  I 


diminution  in  the  value  of  that  metal.  We  have  not  much 
information  as  to  the  fertility  of  the  mines  which  supplied 
Europe  during  the  middle  ages ;  but  it  is  probable  that  the 
drain  of  silver  towards  the  East,  joined  to  the  ostentatious 
splendor  of  courts,  might  fully  absorb  the  usual  produce. 
By  the  statute  15  H.  VI.,  c.  2,  the  price  up  to  which  wheat 
might  be  exported  is  fixed  at  6*.  Sd.,  a  point  no  doubt 
above  the  average ;  and  the  private  documents  of  that  period, 
which  are  sufficiently  numerous,  lead  to  a  similar  result.* 
Sixteen  will  be  a  proper  multiple  when  we  would  bring  the 
general  value  of  money  in  this  reign  to  our  present  standard.* 
[1816.] 

But  after  ascertaining  the  proportional  values  of  money  at 
different  periods  by  a  comparison  of  the  prices  in  several  of 
the  chief  articles  of  expenditure,  which  is  the  only  fair  pro- 
cess, we  shall  sometimes  be  surprised  at  incidental  facts  of 
this  class  which  seem  irreducible  to  any  rule.  These  diffi- 
culties arise  not  so  much  from  the  relative  scarcity  of  partic- 
ular commodities,  which  it  is  for  the  most  part  easy  to  ex- 
plain, as  from  the  change  in  manners  and  in  the  usual  mode 


suis  regnnm  Angliae  minus  solito  fre- 
quentabant;  neunon  quod  omnimoda 
Tenalium  genera  incomparabiliter  solito 
fuerunt  cariora.  2  Gale,  XV.  Script,  p. 
107.  Another  chronicler  of  the  same 
■ge  complains  of  bad  foreign  money,  al- 
loyed with  copper ;  nee  erat  in  quatuor 
aut  quinque  ex  lis  pondus  unius  denarii 

ugentii Eratque    pessimum 

MBCuIum  pro  tali  moncta,  et  fiebant 
commutationes  plurimae  in  emptione  ct 
Tenditioue  rerum.  Edward,  as  the  his- 
torian informs  us,  bought  In  this  bad 
money  at  a  rate  below  its  value,  in  or- 
der to  make  a  profit :  and  fined  some  per- 
sons who  interfered  with  his  traffic.  W. 
Hemingford,  ad  ann.  1299. 

1  These  will  chiefly  be  found  in  Sir  P. 
Eden's  table  of  prices  ,  the  following  may 
be  added  from  the  account-book  of  a 
convent  between  1415  and  1425.  Wheat 
varied  from  4*.  to  65.  —  barley  from  35. 
2d.  to  4j.  lOrf.  —  oats  from  I5.  Sd.  to  25. 
4rf.  —  oxen  from  125.  to  I65.  —  sheep 
from  I5.  2d.  to  I5.  4rf.  —  butter  ^d.  per 
lb.  —  eggs  twenty -five  for  Id. — cheese 
Jd.  per  lb.  I^nsdowne  MS3.,  vol.  i. 
No.  28  and  29.  These  prices  do  not 
always  agree  with  those  given  in  other 
documents  of  equal  authority  in  the 
nme  period ;  but  the  value  of  provisions 
▼uied  in  different  counties,  and  still 
more  so  in  different  seasons  of  the  year. 


*  I  insert  the  following  comparative 
table  of  English  money  from  Sir  Fred- 
erick Eden.  The  unit,  or  present  value 
refers  of  course  to  that  of  the  shilling 
before  the  last  coinage,  which  reduced  it. 


Value  of 

pound 

Propor- 

sterling, 

tion. 

present 

money. 

£    s.    d. 

Conquest, 

1066 

2   18   Vj 

2.906 

28  E.I. 

1300 

2   17   5 

2.871 

18  E. Ill 

1344 

2    12   6i 

2.622 

20  E.  III. 

1346 

2   11    8 

2.583 

27  E.  III. 

1363 

2     6   6 

2325 

13  H.  IV. 

1412 

1    18   9 

1.937 

4  E.  IV. 

1464 

1    11   0 

1.55 

18  H.  vin 

.1527 

1      7    6i 

1.378 

34  H.  VIII 

.1543 

1     3   3V 
0   13  Hi 

1.163 

36  H.  VIII 

.1545 

0.698 

37  H.  VIII.  1546 

0     9    3| 

0.466 

5  E.  VI. 

1551 

0     4    7} 

0.232 

6  E.  VI. 

1552 

1     0    6] 

1.028 

1  Mary 

1553 

1     0    65 

1.0^4 

2  Eliz. 

1560 

10    8 

1.033 

43£liz. 

1601 

10    0 

1.000 

850 


VALUE  OF  MONEY.       Chap.  IX.  Part  II. 


of  living.     We  have  reached  in  this  age  so  high  a  pitch  of 
luxury  that  we  can  hardly  believe  or  comprehend  the  frugal- 
ity of  ancient  times  ;  and  have  in  general  formed  mistaken 
notions  as  to  the  habits  of  expenditure  which  then  prevailed. 
Accustomed  to  judge  of  feudal  and  chivalrous  ages  by  works 
of  fiction,  or  by  historians  who  embellished  their  writings  with 
accounts  of  occasional  festivals  and  tournaments,  and  some- 
times inattentive  enough  to  transfer  the  manners  of  the  sev- 
enteenth to  the  fourteenth  century,  we  are  not  at  all  aware  of 
the  usual  simplicity  with  which  the  gentry  lived  under  Ed- 
ward I.  or  even  Henry  VI.    They  drank  little  wine ;  they  had 
no  foreign  luxuries ;  they  rarely  or  never  kept  male  servants 
except  for  husbandry ;  their  horses,  as  we  may  guess  by  the 
price,  were  indifferent ;  they  seldom  travelled  beyond  their 
county.     And  even  their  hospitality  must  have  been  greatly 
limited,  if  the  value  of  manors  were  really  no  greater  than 
we  find  it  in  many  surveys.     Twenty-four  seems  a  sufficient 
multiple  when  we  would  raise  a  sum  mentioned  by  a  writer 
under  Edward  I.  to  the  same  real  value  expressed  in  our 
present  money,  but  an  income  of  10/.  or  20/.  was  reckoned  a 
competent  estate  for  a  gentleman ;  at  least  the  lord  of  a  sin- 
gle manor  would   seldom  have   enjoyed  more.     A  knight 
who  possessed  150/.  per  annum  passed  for  extremely  rich.* 
Yet  this  was  not  equal  in  command  over  commodities  to  4000/. 
at  present.     But  this  income  was  comparatively  free  from 
taxation,  and  its  expenditure  lightened  by  the  services  of  his 
villeins.     Such  a  person,  however,  must  have  been  among 
the  most  opulent  of  country  gentlemen.     Sir  John  Fortes- 
cue  speaks  of  five  pounds  a  year  as  "  a  fair  living  for  a  yeo- 
man," a  class  of  whom  he  is  not  at  all  inclined  to  diminish 
the  importance.^     So,  when  Sir  William  Drury,  one  of  the 
richest  men  in  Suffolk,  bequeaths  in  1493  fifty  marks  to  each 
of  his  daughtei-s,  we  must  not  imagine  that  this  was  of  greater 
value  than  four  or  five  hundred  pounds  at  this  day,  but  re- 
mark the  family  pride  and  want  of  ready  money  which  in- 
duced country  gentlemen  to  leave  their  younger  children  in 
poverty.*     Or,  if  we  read  that  the  expense  of  a  scholar  at  the 
university  in  1514  was  but  five  pounds  annually,  we  should 
err  in  supposing  that  he  had  the  liberal  accommodation  which 


1  Macpherson'8  Annals,  p.  421,  from 
Uatt.  Paris. 


<  Difference  of  Limited  and  Absolute 
Monarchy,  p.  133. 

3  Hist,  of  UawBted,  p.  141. 


State  of  Societt.       PAY  OF  LABORERS. 


351 


the  present  age  deems  indispensable,  but  consider  how  much 
could  be  afforded  for  about  sixty  pounds,  which  will  be  not 
far  from  the  proportion.  And  what  would  a  modern  lawyer 
say  to  the  following  entry  in  the  churchwarden's  accounts  of 
St.  Margaret,  Westminster,  for  1476:  "Also  paid  to  Roger 
Fylpott,  learned  in  the  law,  for  his  counsel  giving,  3^.  8rf., 
with  fourpence  for  his  dinner  "  ?  ^  Though  fifteen  times  the 
fee  might  not  seem  altogether  inadequate  at  present,  five 
shillings  would  hardly  furnish  the  table  of  a  barrister,  even  if 
the  fastidiousness  of  our  manners  would  admit  of  his  accept- 
ing such  a  dole.  But  this  fastidiousness,  which  considers 
certain  kinds  of  remuneration  degrading  to  a  man  of  liberal 
condition,  did  not  prevail  in  those  simple  ages.  It  would 
seem  rather  strange  that  a  young  lady  should  learn  needle- 
work and  good  breeding  in  a  family  of  superior  rank,  paying 
for  her  board ;  yet  such  was  the  laudable  custom  of  the 
fifteenth  and  even  sixteenth  centuries,  as  we  perceive  by  the 
Paston  Letters,  and  even  later  authorities.^ 

There  is  one  very  unpleasing  •  remark  which  every  one 
who  attends  to  the  subject  of  prices  will  be  in- 
duced  to  make,  that  the  laboring  classes,  espe-  Se?raid 
cially  those  engaged  in   agriculture,  were  better  *^*°  *' 
provided  with   the   means  of  subsistence   in   the  ^^^^^ 
reign  of  Edward  III.  or  of  Henry  VI.  than  they  are  at  pres- 
ent.    In  the  fourteenth  century  Sir  John  Cullum  observes  a 
harvest  man  had  fourpence  a  day,  which  enabled  him  in  a 
week  to  buy  a  comb  of  wheat ;  but  to  buy  a  comb  of  wheat 
a  man  must  now  (1784)  work  ten  or  twelve  days.^     So,  un- 
der Henry  VI.,  if  meat  was  at  a  farthing  and  a  half  the 
pound,  which  I  suppose  was  about  the  truth,  a  laborer  earn- 
ing threepence  a  day,  or  eighteen-pence  in  the  week,  could 
buy  a  bushel  of  wheat  at  six  shillings  the  quarter,  and  twen- 
ty-four pounds  of  meat  for  his  family.     A  laborer  at  present, 
earning  twelve  shillings  a  week,  can  only  buy  half  a  bushel 
of  wheat  at  eighty  shillings  the  quarter,  and  twelve  pounds 


1  Nicholls's  Illustrations,  p.  2.  One 
flict  of  this  class  did,  I  own,  stagger  me. 
The  great  earl  of  Warwick  writes  to  a  pri- 
vate gentleman,  Sir  Thomas  Tudenham, 
begging  the  loan  of  ten  or  twenty  pounds 
to  make  up  a  sum  he  had  to  pay.  Pas- 
ton  Letters,  vol.  i.  p.  84.  What  way 
shall  we  make  this  commensurate  to  the 
present  value  of  money?  But  an  in- 
genious friend  suggested,  what  I  do  not 


question  is  the  case,  that  this  was  one  of 
many  letters  addressed  to  the  adherents 
of  Warwick,  in  order  to  raise  by  their 
contributions  a  considerable  sum.  It  \a 
curious,  in  this  light,  as  an  illustration 
of  manners 

2  Paston  Letters,  vol.  i.  p.  224;  Cul- 
lum's  Uawsted,  p.  182. 

»  Hist,  of  Uawsted,  p.  228. 


I 

V 


352 


PAY  OF  LABORERS.       Chap.  IX.  Pakt  II. 


State  or  Society.    IMPROVEBIENT  IN  CHARACTER. 


353 


I 


of  meat  at  seven-pence.*     Several  acts  of  parliament  regu- 
late  the  wages  that  might  be  paid  to  laborers  of  different 
kinds.     Thus  the  statute  of  laborers  in  1350  fixed  the  wages 
of  reapers  during  harvest  at  threepence  a  day  without  diet, 
equal  to  five  shillings  at  present;  that  of  23  H.  VI.,  c.  12, 
in  1444,  fixed  the  reapers'  wages  at  five-pence  and  those  of 
common  workmen  in  building  at  3M-»  equal  to  6s.  8c?.  and 
4s.  Sd. ;  that  of  11  H.  VII.,  c.  22,  in  1496,  leaves  the  wage=^ 
of  laborers  in  harvest  as  before,  but  rather  increases  those  of 
ordinary  workmen.     The  yearly  wages  of  a  chief  hind  or 
shepherd  by  the  act  of  1444  were  1/.  4s.,  equivalent  to  about 
20/.,  those  of  a  common  servant  in  husbandry  18s.  4c?.,  with 
meat  and  drink ;  they  were  somewhat  augmented  by  the  stat- 
ute of  1496.^*     Yet,  although  these  wages  ai-e  regulated  as  a 
maximum  by  acts  of  parliament,  which  may  naturally  be  sup- 
posed to  have  had  a  view  rather  towards  diminishing  than 
enhancing  the  current  rate,  I  am   not  fully  convinced  that 
they  were  not  rather  beyond  it ;  private  accounts  at  least  do 
not  always  correspond  with  these  statutable  prices.®     And  it 
is   necessary  to  remember  that  the  uncertainty  of  employ- 
ment, natural  to  so  imperfect  a  state  of  husbandly,  must  have 
diminished   the    laborers'  means   of  subsistence.      Extreme 


1  Mr.  Malthus  observes  on  this,  that  I 
"have  overlooked  the  distinction    be- 
tween the  reigns  of  Edward  III.  and 
Henry  VIII.  (perhaps  a  misprint  for  VI.), 
with  regard  to  the  state  of  the  laboring 
classes.     The  two  periods  appear  to  have 
been  essentially  different  in  this  respect." 
Principles  of  Political  Economy,  p.  293, 
Ist  edit.     He  conceives  that  the  earnings 
of  the  laborer  in  com  were  unusually 
low  in  the  latter  years  of  Edward  III., 
which  appears  to  have  been  effected  by 
the  statute  of  laborers  (25  E.  III.),  im- 
mediately after  the  great  pestilence  of 
1350,  though  that  mortality  ought,  in 
the  natural  course  of  things,  to  have 
considerably  raised   the    real  wages    of 
labor.    The  result  of  his  researches  is 
that,  in  the  reign  of  Edward  III.,  the 
laborer  could  not  purchase  half  a  peck 
of  wheat  with  a  day's  labor;  from  that 
of  Richard  II.  to  the  middle  of  that  of 
Henry  VI.,  he  could  purchase  nearly  a 
peck  ;  and  from  thence  to  the  end  of  the 
century,  nearly  two  pecks.     At  the  time 
when  the  passage  in  the  text  was  written 
[1816],  the  laborer  could  rarely  have  pur- 
chased more  than  a  peck  with  a  day's 
labor,  and  frequently  a  good  deal  less. 
In  some  parts  of  England  this  is  the  case 
ftt  present  [1846] ;  but  in  many  counties 


the  real  wages  of  agricultural  laborers 
are  considerably   higher    than  at  that 
time,  though  not  by  any  means  so  high 
as,  according  to  Malthus  himself,  they 
were  in  the  latter  half  of  the  fifteenth 
century.    The  excessive  fluctuations   in 
the  price  of  corn,  even  taking  averages 
of  a  long  term  of  years,  which  we  find 
through    the  middle  ages,  and  indeed 
much  later,  account  more  than  any  oth- 
er assignable  cause  for  those    in    real 
wages  of  labor,  which   do  not  regulate 
themselves  very  promptly  by  that  stand- 
ard, especially  when  coercive  measures 
are  adopted  to  restrain  them. 

3  See  these  rates  more  at  length  in 
State  of  the  Poor.  vol.  i.  p.  82, 


Eden's 
&c. 

3  In 
281,  we 


the  Archajologia,  vol.  xviii.  p. 
,^  .._  have  a  bailiff's  account  of  ex- 
penses in  1387,  where  it  appears  that  a 
ploughman  hadsixpencea  week,  and  five 
shillings  a  year,  with  an  allowance  of 
diet;  which  seems  to  have  been  only 
pottage.  These  wages  are  certainly  not 
more  than  fifteen  shillings  a  week  in 
present  value  [1816] ;  which,  though 
materially  above  the  average  rate  of  agri- 
cultural labor,  is  less  so  than  some  of  the 
statutes  would  lead  us  to  expect.  Other 
&cta  may  be  found  of  a  sioiilar  nattm. 


dearth,  not  more  owing  to  adverse  seasons  than  to  improvi- 
dent consumption,  was  frequently  endured.^     But  after  every 
allowance  of  this  kind  I  should  find  it  difficult  to  resist  the 
conclusion  that,  however  the  laborer  has  derived  benefit  from 
the  cheapness  of  manufactured  commodities  and  from  many 
mventions  of  common  utility,  he  is  much  inferior  in  ability 
to  support  a  family  to  his  ancestors  three  or  four  centuries 
ago.     I  know  not  why  some  have  supposed  that  meat  was  a 
luxury  seldom  obtained  by  the  laborer.     Doubtless  he  could 
not  have  procured  as  much  as  he  pleased.      But,  from  the 
greater  cheapness  of  cattle,  as  compared  with  corn,  it  seems 
to  follow  that  a  more  considerable  portion  of  his  ordinary 
diet  consisted  of  animal  food  than  at  present.     It  was  re- 
marked by  Sir  John  Fortescue  that  the  English  lived  far 
more  upon  animal  diet  than  their  rivals  the  French ;  and  it 
was  natural  to  ascribe  their  superior  strength  and  courage  to 
this  ^use.2    I  should  feel  much  satisfaction  in  being  con- 
vinced that  no  deterioration  in  the  state  of  the  laboring  class- 
es  has  really  taken  place ;  yet  it  cannot,  I  think,  appear  ex- 
traordinary to  those  who  reflect,  that  the  whole  population 
of  England  m  the  year  1377  did  not  much  exceed  2,300,000 
souls,  about  one  fifth  of  the  results  upon  the  last  enumeration, 
an  increase  with  which  that  of  the  fruits  of  the  earth  cannot 
be  supposed  to  have  kept  an  even  pace.* 

The  second  head  to  which  I  referred,  the  improvements  of 
European  society  in  the  latter  period  of  the  mid-  i^p^ove- 
aie  ages,  comprehends  several  changes,  not  always  ™e«ti°  «io 
connected  with  each  other,  which  contributed  to  SVf^' 
inspire  a  more  elevated  tone  of  moral  sentiment  ^"'^^p^- 
or  at   east  to  restrain  the  commission  of  crimes.      But  the 
general  effect  of  these  upon  the  human  character  is  neither 

Mt.nt  In  /^  ?  ^^  f^"'^'  °^.'  '^"  '^  ^^  «^^^"g^d  with  so  much 
attention  to  chronology,  as  the  progress  of  commercial  wealth 

mi^S^^J^S^^JS^^y^^    ^Z'  *^^'  '^^y  --  '^  -'  Of  beggariy 

TnVafli'f^Jvest'^Th'rnJ;:'"^  ^'^T  '  «'^«i^««  *»^«  books  to  which  I  have 

founSTS  ElEspec?men?To?^1  T^^^  occasionally    referred.  Mr.  Ellis's  Speci 

i  Fortescue's  IMfS^n^f '  ll'  *'  ^'  ll^'  "^°^  ^^  English  Poetry,  vol.  i.  chapHs 

and  LiL   Sarchf  T  19    Thrr^"  ^^'^  '?'^'''.  *  '^°''  di^ressiJn,  but  from  well 

in  Fortescue    vShb-arnnM.'T^r  selected  materials,  on  the  private  Ufe  of 

theme,  tKb^rtv  and  /oSLn^     ^t^T^  the  English  in  the  middling  and  lower 

pin^'of  the  ESh    a,S  v^pr^f  ^^P"  r"^^'  u"''^"'  *^«  fif^^'«°'»»   century,    [i 

tant,  and    liumphant?y  rifjte  'Jh^"  'f^« '^f>':^goi'»g  P^^  with  little altet- 

•uperficiai  writew  who  wou?d  if.vl  ^  *^'°°'  ^"^   ^^^^  ""'J^  probably  contain 

1-      «•  wniers  wno  would  make  us  expressions    which   I  would    not   now 

VOL.  ui.  23        '^^''    ^^'^ 


354        MORAL  CHARACTER  OF  EUROPE.     Chap.  IX.  Part  IL 

or  of  the  arts  that  depend  upon  it.  We  cannot  from  any  past 
experience  indulge  the  pleasing  vision  of  a  constant  and  par- 
allel relation  between  the  moral  and  intellectual  energies,  the 
virtues  and  the  civilization  of  mankind.    Nor  is  any  problem 
connected  with  philosophical  history  more  difficult  than  to 
compare  the  relative  characters  of  different  generations,  es- 
pecially if  we  include  a  large  geogi-aphical  surface  in  our 
estimate.    Refinement  has  its  evils  as  well  as  barbarism ;  the 
virtues  that  elevate  a  nation  in  one  century  pass  in  the  next 
to  a  different  region  ;  vice  changes  its  form  without  losing  its 
essence ;  the  marked  features  of  individual  character  stand 
out  in  relief  from  the  surface  of  history,  and  mislead  our 
judgment  as  to  the  general  course  of  manners;  while  political 
revolutions  and  a  bad  constitution  of  government  may  always 
undermine  or  subvert  the  improvements  to  which  more  favor- 
able circumstances  have  contributed.     In  comparing,  there- 
fore, the  fifleenth  with  the  twelflh  century,  no  one  would 
deny  the  vast  increase  of  navigation  and  manufactures,  the 
superior  refinement  of  manners,  the  greater  diffusion  of  liter- 
ature.    But  should  I  assert  that  man  had  raised  himself  in 
the  latter  period  above  the  moral  degradation  of  a  more  bar- 
barous age,  I  might  be  met  by  the  question  whether  history 
bears  witness  to  any  greater  excesses  of  rapine  and  inhuman- 
ity than  in  the  wars  of  France  and  England  under  Charles 
VII.,  or  whether  the  rough  patriotism  and  fervid  passions  of 
the  Lombards  in  the  twelflh  century  were  not  better  than  the 
systematic  treachery  of  their  servile  descendants  three  hun- 
dred years  afterwards.     The  proposition  must  therefore  be 
greatly  limited  ;  yet  we  can  scarcely  hesitate  to  admit,  upon 
a  comprehensive  view,  that  there  were  several  changes  dur- 
ing the  last  four  of  the  middle  ages,  which  must  naturally 
h^e  tended  to  produce,  and  some  of  which  did  unequivocal- 
ly produce,  a  meliorating  effect,  within  the  sphere  of  their 
operation,  upon  the  moral  character  of  society. 

The  first  and  perhaps  the  most  important  of  these,  was  the 
J    gradual  elevation  of  those  whom  unjust  systems  of 
theTowor       polity  had  long  depressed ;  of  the  people  itself,  as 
**°^*  opposed  to  the  small  number  of  rich  and  noble,  by 

the  abolition  or  desuetude  of  domestic  and  predial  servitude, 
and  by  the  privileges  extended  to  corporate  towns.  The  con- 
dition of  slavery  is  indeed  perfectly  consistent  with  the  ob- 
servance of  moral  obligations;  yet  reason   and  experience 


li 


'  I, 


Statb  of  Society. 


POLICE. 


355 


will  justify  the  sentence  of  Homer,  that  he  who  loses  his  lib- 
erty loses  half  his  virtue.  Those  who  have  acquired,  or  may 
hope  to  acquire,  property  of  their  own,  are  most  likely  to  re- 
spect that  of  others ;  those  whom  law  protects  as  a  parent 
are  most  willing  to  yield  her  a  filial  obedience ;  those  who 
have  much  to  gain  by  the  good-will  of  their  fellow-citizens 
are  most  interested  in  the  preservation  of  an  honorable  char- 
acter. I  have  been  led,  in  different  parts  of  the  present  work 
to  consider  these  great  revolutions  in  the  order  of  society  un- 
der other  relations  than  that  of  their  moral  efficacy ;  and  it  will 
therefore  be  unnecessary  to  dwell  upon  them ;  especially  as 
this  efficacy  is  indeterminate,  though  I  think  unquestionable, 
and  rather  to  be  inferred  from  general  reflections  than  capa- 
ble of  mucli  illustration  by  specific  facts. 

We  may  reckon  in  the  next  place  among  the  causes  of 
moral  improvement,  a  more  regular  administration 
of  justice  according  to  fixed  laws,  and  a  more  effec-  ^''"''*" 
tual  police.  Whether  the  courts  of  judicature  were  guided 
by  the  feudal  customs  or  the  Roman  law,  it  was  necessary  for 
them  to  resolve  litigated  questions  with  precision  and  unifbrm- 
ity.  Hence  a  more  distinct  theory  of  justice  and  good  faith 
wa5  gradually  apprehended ;  and  the  moral  sentiments  of 
mankind  were  corrected,  as  on  such  subjects  they  often  re- 
quire to  be,  by  clearer  and  better  grounded  inferences  of 
reasoning.  Again,  though  it  cannot  be  said  that  lawless 
rapine  was  perfectly  restrained  even  at  the  end  of  the  fif- 
teenth century,  a  sensible  amendment  had  been  everywhere 
experienced.  Private  warfare,  the  licensed  robbery  of  feu- 
dal manners,  had  been  subjected  to  so  many  mortifications  by 
tiie  kings  of  France,  and  especially  by  St.  Louis,  that  it  can 
hardly  be  traced  beyond  the  fourteenth  century.  In  Germany 
and  J^pam  it  lasted  longer ;  but  the  various  associations  for 
maintaining  tninquillity  in  the  former  country  had  considera- 
bly  diminished  its  violence  before  the  great  national  measure 
ot  public  peace  adopted  under  Maximilian.^   Acts  of  outrage 


1  Besides  the  German  hlstoriang,  see 
Du  Cantre,  v.  Ganerbium,  for  the  con- 
fedenicies  m  the  empire,  and  Hermanda- 
tum  for  those  in  Castile.  These  appear 
to  have  been  merely  Toluntary  assida- 
oons  and  perhaps  directed  as  much 
S?*"^  ^}'-'  P"^^*'n«on  of  robbery,  as  of 
^t  is  strictly  called  private  war.  But 
•o  man  can  easUy  distinguish  offensive 


war  from  robbery  except  by  its  scale : 
and  where  this  was  so  considerably  re- 
duced, the  two  modes  of  injury  almost 
coincide.  In  Aragon,  there  was  a  dis- 
tinct institution  for  the  maintenance  of 
peace,  the  kingdom  being  divided  into 
unions  or  juntas,  with  a  chief  officer 
called  Suprajunctarius,  at  their  head. 
Du  Cauge,  t.  Juncta. 


356 


RELIGIOUS  SECTS.        Chap.  IX.  Part  II 


State  of  Society.        RELIGIOUS  SECTS. 


357 


committed  by  powerful  men  became  less  frequent  as  the  ex- 
ecutive  government  acquired  more  strength  to  chastise  them 
We  read  that  St.  Louis,  the  best  of  French  kings,  imposed  a 
fine  upon  the  lord  of  Vernon  for  permitting  a  merchant  to 
be  robbed  in  his  territory  between  sunrise  and  sunset,     h  or 
by  the  customary  law,  though  in  general  ill  observed,  the  lord 
was  bound  to  keep  the  roads  free  from  depredators  in  the 
daytime,  in  consideration  of  the  toll  he  received  from  pas- 
^en^rers.^   The  same  prince  was  with  difficulty  prevented  from 
nassinor  a  capital  sentence  on  Enguerrand  de  Coucy,  a  baron 
of  France,  for  a  murder.*     Charles  the  Fair  actually  put  to 
death  a  nobleman  of  Languedoc  for   a  series  of  robberies, 
notwithstanding  the  intercession  of  the  provincial  nobility. 
The  towns  established  a  police  of  their  own  for  internal  se- 
curity, and  rendered  themselves  formidable  to  neighboring 
plunderers.     Finally,  though  not  before  the  reign  of  Louis 
XL,  an  armed  force  was  established  for  the  preservation  ot 
police.*     Various  means  were  adopted  in  England  to  prevent 
robberies,  which  indeed  were  not  so  frequently  perpetrated 
as  they  were  on  the  continent,  by  men  of  high  condition. 
None  of  these  perhaps  had  so  much  efficacy  as  the  frequent 
sessions  of  judges  under  commissions  of  gaol  delivery.     But 
the  spirit  of  this  country  has  never  brooked  that  coercive 
police  which  cannot  exist  without  breaking  in  upon  personal 
liberty  by  irksome  regulations,  and  discretionary  exercise  ot 
power;  the  sure  instrument  of  tyranny,  which  renders  civil 
privileges  at  once  nugatory  and  insecure,  and  by  which  we 
should  dearly  purchase  some  real  benefits  connected  with  its 

slavish  discipline. 

I  have  some  difficulty  in  adverting  to  another  source  ot 
ReUrious       moral  improvement  during  this  period,  the  growth 
•ecti.  of  religious  opinions  adverse  to  those  of  the  estab- 

lished church,  both  on  account  of  its  great  obscurity,  and 
because  many  of  these  heresies  were  mixed  up  with  an 
excessive  fanaticism.     But  they  fixed  themselves  so  deeply 


1  Henault,  Abreg6  Chronol.  ^  I'an. 
1256.  The  institutions  of  Louis  IX.  and 
hia  successors  relating  to  police  form  a 
part,  though  rather  a  smaller  part  than 
we  should  expect  from  the  title,  of  an 
Immense  work,  replete  with  miscellane- 
ous information,  by  Delamare,  Traite  de 
la  Police,  4  vols,  in  folio.  A  sketch  of 
them  may  be  found  In  VcUy,  t.  v.  p.  849, 
t.  xriii.  p.  437. 


«  Velly,  t.  T.  p.  162,  where  this  inci- 
dent is  told  in  an  interesting  manner 
from  William  de  Nangis.  Boulainvilliers 
has  taken  an  extraordinary  view  of  the 
king's  behavior.  Hist,  de  I'Ancien  Gou- 
vernement,  t.  ii.  p.  26.  In  his  eycf 
princes  and  plebeians  were  made  to  b« 
the  slaves  of  a  feudal  aristocracy. 

3  Velly,  t.  viii.  p.  132. 

«  Id.  XTiU.  p.  437. 


in  the  hearts  of  the  inferior  and  more  numerous  classes,  they 
bore,  generally  speaking,  so  immediate  a  relation  to  the  state 
of  manners,  and  they  illustrate  so  much  that  more  visible 
and  eminent  revolution  which  ultimately  rose  out  of  them  in 
the  sixteenth  century,  that  I  must  reckon  these  among  the 
most  interesting  phenomena  m  the  progress  of  European 
society. 

Many  ages  elapsed,  during  which  no  remarkable  instance 
occurs  of  a  popular  deviation  from    the  prescribed  line  of 
belief;  and  pious  Catholics  consoled  themselves  by  reflecting 
that  their  forefathers,  in    those  times  of  ignorance,  slept  at 
least  the  sleep  of  orthodoxy,  and  that  their  darkness  was  in- 
terrupted by  no  false  lights  of  human  reasoning.^    But  from 
the  twelfth  century  this  can  no  longer  be  their  boast.     An  in- 
undation of  heresy  broke  in  that  age  upon  the  church,  which 
no  persecution  was  able  thoroughly  to  repress,  till  it  finally 
overspread  half  the  surface  of  Europe.     Of  this  religious  in- 
novation  we  must  seek  the  commencement  in  a  different  part 
of  the  globe.     The  Manicheans  afford  an  eminent  example 
of  that  durable  attachment  to  a  traditional  creed,  which  so 
many  ancient  sects,  especially  in  the  East,  have  cherished 
through  the  vicissitudes  of  ages,  in  spite  of  persecution  and 
contempt.     Their  plausible  and  widely  extended  system  had 
been  in  early  times  connected  with  the  name  of  Christianity, 
however  incompatible  with  its  doctrines  and  its  history.     Af- 
ter a  pretty  long  obscurity,  the  Manichean  theory  revived 
with  some  modification  in  the  western  parts  of  Armenia,  and 
was  propagated  in  the  eight  and  ninth  centuries  by  a  sect 
denominated    Paulicians.     Their  tenets  are  not  to    be  col- 
lected with    absolute   certainty   from   the   mouths   of  their 
adversaries,  and  no  apology  of  their  own  survives.     There 
seems  however  to  be  sufficient  evidence  that  the  Paulicians, 
though  professing  to  acknowledge    and  even  to  study  the 
apostolicid  writings,  ascribed  the  creation  of  the  world  to  an 
evil  deity,  whom  they  supposed  also  to  be  the  author  of  the 
Jewish  law,  and  consequently  rejected  all  the  Old  Testament. 
Believing,  with  the  ancient  Gnostics,  that  our  Saviour  was 
clothed  on  earth  with  an  impassive  celestial  body,  they  denied 
the  reality  of  his  death  and  resurrection.^     These  errors  ex- 

»  Fleury,  3m«  Discours  sur  I'Hist.  Ec-    Paulicians  is  found  in  a  little  treatise  of 

1  Th«  t„«of  -„*!,     *i  Petrus  Siculus,  who  lived  about  870,  un- 

The  most  authenUc  account  of  the    der  Basil  the  Macedonian.    He  had  been 


m 


358 


EELIGIOUS 


SECTS.         Chap.  IX.  Part  n 


State  or  Socijctt. 


EELIGIOUS  SECTS. 


359 


posed  them  to  a  long  and  cruel  persecution,  during  ^hich  a 
Lony  of  exiles  was  planted  by  one  of  the  Greek  emperors 
in  Bulgaria."  From  this  settlement  they  silently  promulgat- 
ed their  Manichean  creed  over  the  western  regions  of  Chris- 
tendom.  A  large  part  of  the  commerce  of  those  countries 
with  Constantinople  was  carried  on  for  several  centuries  by 
the  channel  of  the  Danube.  This  opened  an  ^mmed^a.lc^n. 
tercourse  with  the  Paulicians,  who  may  be  traced  up  that 
river  through  Hungary  and  Bavaria,  or  sometimes  taking 
the  route  of  Lombardy  into  Switzerland  and  France.*    In  the 


employed  on  un  embassy  to  Tephrica, 
the  principal  town  of  these  heretics,  so 
that  he  might  easily  be  well  informed ; 
and,  though  he  i.^  sufficiently  bigoted,  I 
do  not  see  any  reason  to  question  the 
general  truth  of  hi.s  testimony,  especial- 
ly as  it  tallies  so  well  with  what  we  learn 
of  the  predecessors  and  successors  of  the 
Paulicians.      They  had  rejected  seTcral 
of  the  Manichean  doctrines,  those,  I  be- 
lieve, which   were   borrowed   from     the 
Oriental,  Gnostic,  and  Cabbalistic  phi- 
losophy  of   emanation ;    and   therefore 
readily    condemned    Manea,  npodvfio)^ 
avadefiaril^ovai  MuvrjTa.      But  they 
retained  his  capital  errors,  so  far  as  re- 
garded the  principle  of  dualism,  which 
he  had  taken  from  Zerdusht's  religion, 
and  the   consequences    he  had  derived 
from  it.     Petrus  Siculus  enumerates  six 
Paulician  heresies.     1.  They  maiutiiined 
the  existence  of  two  deities,  the  one  evil, 
and  the  creator  of  this  world ;  the  other 
good,  called  naT^p  knovpdvLogy  the  au- 
thor  of  that  which  is  to  come.    2.  They 
refused  to  worship  the  Virgin,  and  as- 
serted that  Christ  brought  his  body  from 
heaven.  3.  They  r^cted  the  Lord's  Sup- 
per.   4.  And  the  adoration  of  the  cross. 
6.  They    denied    the  authority   of   the 
Old  Testament,  but  admitted  the  New, 
except  the  epistles  of  St.   Peter,  and. 
perhaps,  the  Apocalypse.    6.  They  did 
not  acknowledge  the  order  of  priests. 

There  seems  every  reason  to  suppose 
that  the    Paulicians,    notwithsUnding 
their  mistakes,  were  endowed  with  sin- 
cere and  zealous  piety,  and  studious  of 
the    Scriptures.      A    Paulician   woman 
asked  a  young  man  if  he  had  read  the 
Gospels:  he  replied  that    laymen  were 
not  permitted  to  do  so,  but  only  the 
clergy:  ovK  k^eoTtv  rjfjlv  Toi^  KOOfU- 
KOig  oval  Tavra  uvayivuaKeiv,  el  i^ 
TOii  UpevaL  fiovoiQ  p  67.     Acurioua 
proof  that  the  Scriptures  were  already  for- 
bidden in  the  Greek  church,  which  I  am 
Inclined  to  beUeve,  notwithstandmg  the 


leniency  with  which  Protestant  writer* 
have  treated  it,  was  always  more  corrupt 
and  more  intolerant  than  the  Latin. 

1  Gibbon,  c.  M.  This  chapter  of  the 
historian  of  the  Decline  and  hall  upon 
the  Paulicians  appears  to  be  accurate,  as 
well  as  luminous,  and  is  at  least  far  su- 
perior to  any  modern  work  on  the  suD- 

^*a  it  is  generally  agreed,  that  the  Man- 
icheans  from  Bulgaria  did  not  penetrate 
into  the  west  of  Europe  before  the  year 
1000 ;  and  they  seem   to  have  been  m 
small  numbers  till  about  1140.     We  find 
them,   however,  early   iu  th«  <?levcnth 
century.     Under  the  reign  of  Ro^^t  in 
1007  several  heretics  were  burned  at  Or- 
leans for  teneUs  which  are  reprrsented  as 
Manichean.     Velly,  t.  ii.  p.  30<.    These 
are  said  to  have  been  imported  from 
Italy:    and  the  heresy  began  to  strike 
root  in  that  country  about  the  .^ine  time. 
Muratori,  Dissert.  60  { Antichit:^  Ita  lane, 
t  iii  P  304).     The  Italian  Maimheans 
were  generally  called  Paterini,  the  mean- 
ing of  which  word  has  never  been  ex- 
plained.    We  find  few  traces  '>f /hem  in 
France  at  this  time ;  but  about  the  be- 
ginning of  the  twelfth  century,  Ouibert, 
bishop  of  Soissons,  describes  the  heretics 
of  that  city,  who  denied  the  reality  of 
the  death    and    resurrection  of   Jesus 
Christ,   and    rejected    the    sacraments 
Hist.  Litteraire  de  la  France,  t.  x.  p.  4&i 
before    the    middle  of     that    age,   the 
Cathari,  Henricians,  Pctrobussiana,  and 
others  appear,  and  the  new  opinions  at- 
tracted universjil  notice.     Some  of  these 
sectaries,  however,  were  not  Mamcheans. 
Mosheim,  vol.  iil.  p.  116.         ,„     ,     _ 
The  acts  of  the  inquit^ition  of  Toulouse, 
publi.shed  by  Limborch,  from  an  ancient 
manuscript,    couUin     many  aaditioniU 
proofs  that  the  Albigenses  held  the  Man  - 
chean  doctrine.      Umborch  him.self  wUl 
guide  the  reader  to  the  principal  pa8.>«ge9, 
p.  30.    In  fact,  the  proof  of  Manuhcusm 
among  the  heretics  of  the  twelfth  cen- 
tury  is  so  strong  (for  1  have  confinett 


last  country,  and  especially  in  its  southern  and  eastern  prov- 
inces, they  became  conspicuous  under  a  variety  of  names; 
such  as  Catharists,  Picards,  Paterins,  but  above  all,  Albigen- 
ses. It  is  beyond  a  doubt  that  many  of  these  sectaries  owed 
their  origin  to  the  Paulicians  ;  the  appellation  of  Bulgarians 
was  distinctively  bestowed  upon  them ;  and,  according  to 
some  writers,  they  acknowledged  a  primate  or  patriarch  resi- 
dent in  that  country.^  The  tenets  ascribed  to  them  by  all 
contemporary  authorities  coincide  so  remarkably  with  those 
held  by  the  Paulicians,  and  in  earlier  times  by  the  Maniche- 
ans,  that  I  do  not  see  how  we  can  reasonably  deny  what  is 
confirmed  by  separate  and  uncontradicted  testimonies,  and 
contains  no  intrinsic  want  of  probability.* 


myself  to  those  of  Languedoc,  and  could 
easily  have  brought  other  testimony  as 
to  the  Cathari),  that  I  should  never  have 
thought  of  arguing  the  point,  but  for 
the  confidence  of  some  modern  ecclesi- 
astical writers. — What  can  we  think  of 
one  who  says,  *^  It  was  not  unusual  to 
Btigmatize  new  sects  with  the  odious 
name  of  Manichccs,  though  I  knoio  no 
evifience  that  there  were  any  real  remains 
of  that  ancient  sect  in  the  twelfth  cen- 
tury "  ?  Milner's  History  of  the  Church, 
vol.  iii.  p.  380.  Though  this  writer  was 
by  no  means  learned  enough  for  the  task 
he  undertook,  he  could  not  be  ignorant 
of  facts  related  by  Mosheim  and  other 
common  historians. 

I  will  only  add,  in  order  to  obviate 
cavilling,  that  I  use  the  word  Albigenses 
for  the  Manichean  sects,  without  pre- 
tending to  assert  that  their  doctrines 
prevailed  more  in  the  neighborhood  of 
Albi  than  elsewhere.  The  main  position 
is,  that  a  large  part  of  the  Langucdocian 
heretics  against  whom  the  crusade  was 
directed  had  imbibed  the  Paulician  opin- 
ions. If  any  one  chooses  rather  to  call 
them  Catharists,  it  will  not  be  material. 

1  M.  Paris,  p.  267.  (a.d.  1223.)  Circa 
dies  istos,  hseretici  Albigenses  constitu- 
erunt  sibi  Antipapam  in  finibus  Bulga- 
rorum,  Croatiae et  Dalmatioe,  nomine  Bar- 
tholouifpum,  &c.  We  are  assured  by 
good  authorities  that  Bosnia  was  full  of 
Manicheans  and  Arians  as  late  as  the 
middle  of  the  fifteenth  century.  .£neas 
Sylvius,  p.  407 ;  Spondanus,  ad  an. 
1460;  Mo.>»heim. 

*  There  has  been  so  prevalent  a  dis- 
position among  English  divines  to  vindi- 
cate not  only  the  morals  and  sincerity, 
but  the  orthodoxy  of  these  Albigenses, 
that  I  deem  it  necessary  to  confirm  what 
[  have  said  in  the  text  by  some  author- 
ties,  especially  as  few   readers  have  it 


in  their  power  to  examine  this  very  ob- 
scure subject.  Petrus  Monachus,  a  Cis- 
tercian monk,  who  wrote  a  history  of 
the  crusades  against  the  Albigenses, 
gives  an  account  of  the  tenets  main- 
tained by  the  different  heretical  sects. 
Many  of  them  asserted  two  principles  or 
creative  beings:  a  good  one  for  things 
invisible,  an  evil  one  for  things  visible ; 
the  former  author  of  the  New  Testa- 
ment, the  latter  of  the  Old.  Novum 
Testamentum  benigno  deo,  yetus  vero 
maligno  attribucbant ;  et  illud  omnino 
repudiabant,  praetcr  qua.sdam  auctori- 
tates,  quaj  de  Veteri  Testamento  Novo 
sunt  insertae,  quas  oh  Novi  reveren- 
tiam  Testamenti  recipere  dignum  sesti- 
mabant.  A  vast  number  of  strange  er- 
rors are  imputed  to  them,  most  of  which 
are  not  mentioned  by  Alanus,  a  more 
dispassionate  writer.  Du  Chesne,  Scrip- 
tores  Francorum,  t.  v.  p.  656.  This 
Alanus  de  Insulis,  whose  treatise  against 
heretics,  written  about  1200,  was  pub- 
lished by  Masson  at  Lyons,  in  1612,  has' 
left,  I  think,  conclusive  evidence  of  the 
Manicheism  of  the  Albigenses.  He  states 
their  argument  upon  every  disputed 
point  as  fairly  as  possible,  though  his 
refutation  is  of  course  more  at  length. 
It  appears  that  great  discrepancies  of 
opinion  existed  among  these  heretics, 
but  the  general  tenor  of  their  doctrines 
is  evidently  Manichean.  Aiunt  hjeretici 
temporis  nostri  quod  duo  sunt  principia 
rerum,  principium  lucis  et  principium 
tenebrarum,  &c.  This  opinion,  strange 
as  we  may  think  it,  was  supported  by 
Scriptural  texts  ;  so  insufficient  is  a  mere 
acquaintance  with  the  sacred  writings  to 
secure  unlearned  and  prejudiced  minds 
from  the  wildest  perversions  of  their 
meaning?  Some  denied  the  reality  of 
Christ's  body  ;  others  his  being  the  Son 
of  God ;  many  the  resurrection  of  the 


m 


360 


WALDENSES. 


Chap.  K.  Pabt  n. 


Stats  of  Society. 


WALDENSES. 


361 


llif^ 


I 


But  though  the  derivation  of  these  heretics  called  Albi- 
genses  from  Bulgaria  is  sufficiently  proved,  it  is  by  no  means 
to  be  concluded  that  all  who  incurred  the  same  imputation 
either  derived  their  faith  from  the  same  country,  or  had 
adopted  the  Manichean  theory  of  the  Paulicians.  From  the 
very  invectives  of  their  enemies,  and  the  acts  of  the  Inquisi- 
tion, it  is  manifest  that  almost  every  shade  of  heterodoxy  was 
found  among  these  dissidents,  till  it  vanished  in  a  simple 
protestation  against  the  wealth  and  tyranny  of  the  clergy. 
Those  who  were  absolutely  free  from  any  taint  of  Maniche- 
ism  are  properly  called  Waldenses ;  a  name  per- 
waWensM.  pg^ually  confouudcd  in  later  times  with  that  of 
Albigenses,  but  distinguishing  a  sect  probably  of  separate 
origin,  and  at  least  of  different  tenets.  These,  according  to 
the  majority  of  writers,  took  their  appellation  from  Peter 
Waldo,  a  merchant  of  Lyons,  the  parent,  about  the  year  1160, 
of  a  congregation  of  seceders  from  the  church,  who  spread 
very  rapidly  over   France   and  Germany.*     According  to 


body  ;  some  even  of  a  future  state. 
They  asserted  in  general  the  Mosaic  law 
to  have  proceeded  from  the  devil,  prov- 
ing this  by  the  crimes  committed  during 
its  dispensation,  and  by  the  words  of  St. 
Paul,  "  the  law  entered  that  sin  might 
abound."  They  rejected  infant  baptism, 
but  were  divided  as  to  the  reason ;  some 
•laying  that  infants  could  not  sin,  and 
did  not  need  baptism ;  others,  that  they 
could  not  be  saved  without  faith,  and 
consequently  that  it  was  useless.  They 
held  sin  after  baptism  to  be  irremissible. 
It  does  not  appear  that  they  rejected 
either  of  the  sacraments.  They  laid 
^reat  stress  upon  the  imposition  of 
hands,  which  seems  to  have  been  their 
distinctive  rite. 

One  circumstance,  which  both  Alanus 
and  Uobertus  Monachus  mention,  and 
which  other  authorities  confirm,  is  their 
division  into  two  classes;  the  Perfect 
ivud  the  Credentes,  or  Consolati,  both  of 
which  appellations  are  used.  The  former 
;-.bstaincd  from  animal  food,  and  from 
marriage,  and  led  in  every  respect  an 
Hustere  life.  The  latter  were  a  kind  of 
lay  brethren,  living  in  a  secular  manner. 
This  distinction  is  thoroughly  Mani- 
I'hean,  and  leaves  no  doubt  as  to  the 
origin  of  the  Albigenses.  See  Beau- 
.sobre.  Hist,  du  Manich^isme.  t.  ii.  p.  762 
and  777.  This  candid  writer  represents 
the  early  Manichcans  as  a  harmless  and 
austere  set  of  enthusiasts,  exactly  what 
the  Paulicians  and  Albigenses  appear  to 
have  been  in  succeeding  ages.    As  many 


calumnies  were   vented  against  one  M 
the  other. 

The  long  battle  as  to  the  Manicheism 
of  the  Albigensian  sectaries  has  been 
renewed  since  the  publication  of  this 
work,  by  Dr.  Maitland  on  one  side,  and 
Mr.  Faber  and  Dr.  Oilly  on  the  other ; 
and  it  is  not  likely  to  reach  a  termina- 
tion ;  being  conducted  by  one  party  with 
far  less  regard  to  the  weight  of  evidence 
than  to  the  bearing  it  may  have  on  the 
theological  hypotheses  of  the  writers.  I 
have  seen  no  reason  for  altering  what  is 
said  in  the  text. 

The  chief  strength  of  the  argument 
seems  to  me  to  lie  in  the  independent 
testimonies  as  to  the  Manicheism  of  the 
Paulicians,  in  Petrus  Siculus  and  Pho- 
tius,  on  the  one  hand,  and  as  to  that  of 
the  Languedocian  heretics  in  the  Latin 
writers  of  the  twelfth  and  thirteenth 
centuries  on  the  other :  the  connection 
of  the  two  sects  through  Bulgaria  being 
establishe<l  by  history,  but  the  latter 
class  of  writers  being  unacquainted  with 
the  former.  It  is  certain  that  the  prob- 
ability of  general  truth  in  these  concur- 
rent testimonies  is  greatly  enhanced  by 
their  independence.  And  it  will  be  found 
that  those  who  deny  any  tinge  of  Mani- 
cheism in  the  Albigenses,  are  equally 
confident  as  to  the  orthodoxy  of  the 
Paulicians.   [1848.] 

1  The  contemporary  writers  seem  uni- 
formly vo  represent  Waldo  as  the  founder 
of  the  Waldenses ;  and  I  am  not  aware 
that  they  refer  the  locality  oi  that  sect  to 


Others,  the  original  Waldenses  were  a  race  of  uncorrupted 
shepherds,  who  in  the  valleys  of  the  Alps  had  shaken  off,  or 
perhaps  never  learned,  the  system  of  superstition  on  which 
the  Catholic  church  depended  for  its  ascendency.  I  am  not 
certain  whether  their  existence  can  be  distinctly  traced  beyond 
the  preaching  of  Waldo,  but  it  is  well  known  that  the  proper 
seat  of  the  Waldenses  or  Vaudois  has  long  continued  to  be  in 
certain  valleys  of  Piedmont.  These  pious  and  innocent  sec- 
taries, of  whom  the  very  monkish  historians  speak  well, 
appear  to  have  nearly  resembled  the  modern  Moravians. 
They  had  ministers  of  their  own  appointment,  and  denied 
the  lawfulness  of  oaths  and  of  capital  punishment.  In  other 
respects  their  opinions  probably  were  not  far  removed  from 
those  usually  called  Protestant.     A  simplicity  of  dress,  and 


the  valleys  of  Piedmont,  between  Exiles 
and  Pignerol  (see  Leger's  map),  which 
have  80  long  been  distinguished  as  the 
native  country  of  the  Vaudois.    In  the 
acts  of  the  Inquisition,  we  find  Walden- 
ses, sive  pauperes  de  Lugduno,  used  as 
equivalent  terms ;  and  it  can  hardly  be 
doubted   that  the   poor  men  of  Lyons 
were  the  disciples  of  Waldo.    Alanus, 
the  second  book  of  whose  treatise  against 
heretics  is  an  attack  upon  the  ^Valdenses, 
expressly    derives    them    from    Waldo. 
Petrus  Monachus  does  the  same.     These 
seem  strong  authorities,  as  it  is  not  easy 
to  perceive  what  advantage   they  could 
derive  from  misrepresentation.      It  has 
been  however  a  position  zealously  main- 
tained by  some  modern  writers  of  respect- 
able name,  that  the  people  of  the  valleys 
had  preserved  a  pure   faith  for  several 
ages  before  the  appearance  of  Waldo.    I 
have  read  what  is  advanced  on  this  head 
by  Leger  (Histoire  des  Eglises  Vaudoises) 
and  by  Allix  (Remarks   on  the  Eccle- 
siastical History  of  the  Churches   of 
Piedmont),  but  without  finding  any  suf- 
ficient proof  for  this  supposition,  which 
nevertheless  is  not  to  be  rejected  as  abso- 
lutely improbable.    Their  best  argument 
is  deduced  from  an  ancient  poem  called 
La  Noble  Ix)i9on.  an  original  manuscript 
of  which  is  in  the  public  library  of  Cam- 
bridge, and  another  in  that  of  Geneva. 
This  poem  is  alleged  to  bear  date  in  1100, 
more  than  half  a  century  before   the 
appearance  of  Waldo.     But  the  lines  that 
contain  the  date  are  loosely  expressed, 
and  may  very  well  suit  with  any  epoch 
before  the  termination  of  the  twelfth 
Mntury. 

Ben  ha  mil  et  cent  ans  compli  entier- 
ament, 


Che  fu  scritta  lore  que  sen  al  derier 

temp. 
Eleven  hundred  years  are  now  gone 

and  past, 
Since  thus  it  was  written ;  These  times 
are  the  last. 

See  Literature  of  Europe  in 
15th,  16th,  and  17th  Centuries, 
chap.  1,  $  83. 

I  have  found  however  a  passage  in  a  late 
work,  which  remarkably  illustrates  the 
antiquity  of  Alpine  protestantism,  if  we 
may  depend  on  the  date  it  assigns  to  the 
quotation.  Mr.  Planta's  History  of  Swit- 
zerland, p.  93,  4to.  edit.,  contains  the  fol- 
lowing note :  —  "A  curious  passage,  sin- 
gularly descriptive  of  the  character  of 
the  Swiss,  has  lately  been  discovered  in  a 
MS.  chronicle  of  the  Abbey  of  Corvey, 
which  appears  to  have  been  written 
about  the  beginning  of  the  twelfth 
century.  Religionem  nostram,  et  om- 
nium Latinae  ecclesiae  Christianorum 
fidem.  laici  ex  Suavii,  Suicii,  et  Bavarii 
humiliarevoluerunt;  homines  seductiab 
antiqui  progenie  simplicium  hominum, 
qui  Alpes  et  viciniam  habitant,  et  semper 
amant  antiqua.  In  Suaviam,  Bavariam 
etitaliam  borealem  saepe  intrant  illorum 
(ex  Suicia)  mercatores,  qui  biblia  edis- 
cunt  memoriter.  et  ritus  ecclesiae  aver- 
santur,  quos  credunt  esse  novos.  Nolunt 
imagines  venerari,  reliquias  sanctorum 
aversantur.  olera  comedunt,  raro  masti- 
cantes  carnem,  alii  nunquam.  Appel- 
lamus  eos  idcirco  Manichaeos.  Horum 
quidam  ab  Hungaria  ad  eos  convenerunt, 
&c."  It  is  a  pity  that  the  quotation 
has  been  broken  off,  as  it  might  have 
illustrated  the  connection  of  the  Bui 
gariaus  with  these  sectaries. 


362 


WIDE  DIFFUSION 


CHAf  IX.  Part  IL 


State  of  Society.     OF  THE  NEW  SECTS. 


363 


H 

^ 


especially  the  use  of  wooden  sandals,  was  affected  by  this 
people.^ 

I  have  already  had  occasion  to  relate  the  severe  persecu- 
tion which  nearly  exterminated  the  Albigenses  of  Languedoc 
at  the  close  of  the  twelfth  century,  and  involved  the  counts 
of  Toulouse  in  their  ruin.  The  Catharists,  a  fraternity  of 
the  same  Paulician  origin,  more  dispersed  than  the  Albi- 
genses, had  previously  sustained  a  similar  trial.  Their 
belief  was  certainly  a  compound  of  strange  errors  with 
truth;  but  it  was  attended  by  qualities  of  a  far  superior 
lustre  to  orthodoxy,  by  a  sincerity,  a  piety,  and  a  self-devotion 
that  almost  purified  the  age  in  which  they  lived.*     It  is  al- 


1  The  Walden8C8  were  always  consid- 
ered  as   much  less  erroneous  in   their 
tenets    than   the    Albigenses,   or  Mani- 
chcans.     Erant  pneterca  alii  hscretici, 
Bays   Robert  Monachus  in  the   passage 
above  quoted,  qui  AV'aldenses  dicebantur, 
a  quodam  Waldio  nomine  LugJuncnsi, 
Hi  quidem  mali  erant,  sed  couiparatioue 
aliorum  hcercticorum  longe  minus  pcr- 
versi  ;  in  multis  enim  nobiscum  conve- 
niebant,inquibusdam  dis.scntiebant.  The 
only  ftiults  he  seems  to  impute  to  them 
are  the  denial  of  the  lawfulness  of  oaths 
and  capital  punishment,  and  the  wearing 
wooden  shoes.    By    this  peculiarity  of 
wooden  sandals  (siibots)   they  got  the 
name  of  Sabbatati  or  Insabbatati.    (Du 
Cange.)    William  du  Puy,  another  his- 
torian of  the  same  time,  makes  a  similar 
distinction.    Erant  quidam  Ariani,  qui- 
dam  Manich»i,  quidam  etiam  Waldenses 
sive  Lugdunenses,  qui  licet  inter  se  dis- 
sidentes,  omnes  tamen  in  animarum  per- 
niciem  contra  fidt^m  Catholicam  conspira- 
bant;  et  illi   quidem  Waldenses  contra 
alios  acutissime  disputant.    Du  Chesne, 
t.  y.  p.  666.    Alanus,  in  his  second  book, 
where  he  treats  of  the  Waldenses,  charges 
them  principally  with  du^regarding  the 
authority  of  the  church  and  preaching 
without  a  regular  mission.     It  is  evident 
however  from  the  acts  of  the  Inquis^ition, 
that  they  denied  the  existence  of  purga- 
tory ;  and  I  should  suppose  that,  even  at 
that  time,  they  had  thrown  off  most  of 
the  popish  system  of  doctrine,  which  is 
so  nearly  connected  with  clerical  wealth 
and   power.     The    difference   made   in 
these  records  between  the  Waldenses  and 
the  Manichean  sects  shows  that  the  im- 

ftutations  cast  upon  the  latter  were  not 
ndiscriminate  calumnies.  See  Limborch, 
p.  201  and  228. 

The  History  of  Languedoc,  by  Vais- 
sette  and  Vich,  contains  a  very  good 
account  of  the  sectaries  in  that  country  i 


but  I  have  not  immediate  access  to  the 
book.  I  believe  that  proof  will  he  found 
of  the  distinction  between  the  Waldenses 
and  Albigenses  in  t.  iii.  p.  446.  But  I 
am  sati.sfled  that  no  one  who  ha.<»  looked 
at  the  original  authorities  will  dispute  the 
proposition.  Those  Benedictine  historians 
represent  the  Uenrieians,  an  early  set  of 
reformers,  condemned  by  the  council  of 
Lombez,  in  1165,  as  Manichees.  Mosheim 
considers  them  as  of  the  Vaudois  school. 
They  appeared  some  time  before  Waldo. 

2  The  general  testimony  of  their  ene- 
mies to  the  purity  of  morals  among  the 
Langucdooian  and  Lyoncse  sectarTes  is 
abundantly  sufficient.  One  Kegnier,  who 
had  lived  among  them,  and  became  after- 
wards an  inquisitor,  does  them  justice  in 
this  respect.  See  Turner's  History  of 
England  for  several  other  proofs  of  this. 
It  must  be  confessed  that  the  Catharists 
are  not  free  from  the  imputation  of  pro- 
miscuous licentiousness.  But  whether 
this  was  a  mere  calumny,  or  partly 
founded  upon  truth,  I  cannot  determine. 
Their  prototypes,  the  ancient  Gnostics, 
are  said  to  have  been  divided  into  two 
parties,  the  austere  and  the  relaxed ;  both 
condemning  marriage  for  opposite  rea- 
sons. Alanus,  in  the  book  above  quoted, 
seems  to  have  taken  up  Hevcnil  vulgar 
prejudices  against  the  Cathari.  He  gives 
an  etymology  of  their  name  ^  catto; 
quia  osculantur  posteriora  catti ;  in  cujus 
specie,  ut  aiunt.  appareret  iis  Lucifer,  p. 
146.  This  notable  charge  was  brought 
afterwards  against  the  Templars. 

As  to  the  Waldenses,  their  innocence 
is  out  of  all  doubt.  No  book  can  be 
written  in  a  more  edifying  manner  than 
La  Noble  Loi^on,  of  which  large  extracts 
are  given  by  I.#ger,  in  his  Histoire  des 
Eglises  Vaudoises.  Four  lines  are  quoted 
by  Voltaire  (Hist.  Universclle,  c.  69),  as 
a  specimen  of  the  Provencal  language, 
though  thej  belong  rather  to  the  patoii 


ways  important  to  perceive  that  these  high  moral  excellences 
have  no  necessary  connection  with  speculative  truths ;  and 
upon  this  account  I  have  been  more  disposed  to  state  ex- 
plicitly the  real  Manicheism  of  the  Albigenses  ;  especially  as 
Protestant  writers,  considering  all  the  enemies  of  Rome  as 
their  friends,  have  been  apt  to  place  the  opinions  of  these 
sectaries  in  a  very  false  light.  In  the  course  of  time,  un- 
doubtedly,  the  system  of  their  Paulician  teachers  would  have 
yielded,  if  the  inquisitors  had  admitted  the  experiment,  to  a 
more  accurate  study  of  the  Scriptures,  and  to  the  knowledge 
which  they  would  have  imbibed  from  the  church  itself.  And, 
in  fact,  we  find  that  the  peculiar  tenets  of  Manicheism  died 
away  after  the  middle  of  the  thirteenth  century,  although  a 
spirit  of  dissent  from  the  established  creed  broke  out  in  abun- 
dant instances  during  the  two  subsequent  ages. 

We  are  in  general  deprived  of  explicit  testimonies  in  tra- 
cing the  revolutions  of  popular  opinion.  Much  must  therefore 
be  left  to  conjecture ;  but  I  am  inclined  to  attribute  a  very 
extensive  effect  to  the  preaching  of  these  heretics.  They 
apf)ear  in  various  countries  nearly  during  the  same  period, 
in  Spain,^  Lombardy,  Germany,  Flanders,  and  England,  as 
well  as  France.  Thirty  unhappy  persons,  convicted  of  deny- 
ing the  sacraments,  are  said  to  have  perished  at  Oxford  by 
cold  and  famine  in  the  reign  of  Henry  II.  In  every  coun- 
try the  new  sects  appear  to  have  spread  chiefly  among  the 
lower  people,  which,  while  it  accounts  for  the  imperfect  notice 
of  historians,  indicates  a  more  substantial  influence  upon  the 
moral  condition  of  society  than  the  conversion  of  a  few  nobles 
or  ecclesiastics.^ 


of  the  valleys.  But  as  he  ha.<j  not  copied 
them  rightly,  and  as  they  illustrate  the 
subject  of  this  note,  I  shall  repeat  them 
here  from  Leger,  p.  28. 

Que  sel  se  troba  alcun  bon  que  voUia 

amar  Dio  e  temcr  Jcshu  Xrist, 
Que  non  vollia  maudire,  ni  jura,  ni 

mentir, 
Ni  avoutrar,  ni  aucire,  ni  penre  de 

I'autruy, 
Ni  Tenjar  se  de  li  sio  enncmie, 
Illi  dison  quel  es  Vaudes  e  dcgne  de 

murir. 

»  It  would  bo  difficult  to  specify  all 
the  dispersed  authorities  which  attest 
the  existence  of  the  sects  derived  from 
the  Waldenses  and  Paulicians  in  the 
twelfth,  thirteenth,  and  fourteenth  cen- 


turies. Besides  Mosheim,  who  has  paid 
considerable  attention  to  the  subject,  I 
would  mention  some  articles  in  Du  Cange 
which  supply  gleanings ;  namely,  Beg- 
hardi,  Bulgari,  Lollardi,  Paterini,  Picar- 
di.  Pitii.  Populicani. 

Upon  the  subject  of  the  Waldenses  and 
Albigenses  generally,  I  have  borrowed 
some  light  from  Mr.  Turner's  History  of 
England,  vol.  ii.  p.  377,  393.  This  learned 
writer  has  seen  some  books  that  have  not 
fallen  into  my  way ;  and  I  am  indebted  to 
him  for  a  knowledge  of  Alanus's  treatise, 
which  I  have  since  read.  At  the  same 
time  I  must  observe,  that  Mr.  Turner 
has  not  perceived  the  essential  distinc- 
tion between  the  two  leading  sects. 

The  name  of  Albigenses  does  not  fre 
qucntly  occur  after  the  middle  of  the 


3G4 


TRANSLATIONS  OF 


Chap.  IX  Pabt  n. 


ii. 


But  even  where  men  did  not  absolutely  enlist  under  the 
banners  of  any  new  sect,  they  were  stimulated  by  the  temper 
of  their  age  to  a  more  zealous  and  independent  discussion  of 
their  religious  system.  A  curious  illustration  of  this  is  fur- 
nished by  one  of  the  letters  of  Innocent  III.  He  had  been 
informed  by  the  bishop  of  Metz,  as  he  states  to  the  clergy 
of  the  diocese,  that  no  small  multitude  of  laymen  and  women, 
having  procured  a  translation  of  the  gospels,  epistles  of  St. 
Paul,  the  psalter.  Job,  and  other  books  of  Scripture,  to  be 
made  for  them  into  French,  meet  in  secret  conventicles  to 
hear  them  read,  and  preach  to  each  other,  avoiding  the  com- 
pany of  those  who  do  not  join  in  their  devotion,  and  having 
been  reprimanded  for  this  by  some  of  their  parish  priests, 
have  withstood  them,  alleging  reasons  from  the  Scriptures, 
why  they  should  not  be  so  forbidden.  Some  of  them  too 
deride  the  ignorance  of  their  ministers,  and  maintain  that 
their  own  books  teach  them  more  than  they  can  learn  from 
the  pulpit,  and  that  they  can  express  it  better.  Although  the 
desire  of  reading  the  Scriptures,  Innocent  proceeds,  is  rather 
praiseworthy  than  reprehensible,  yet  they  are  to  be  blamed 
for  frequenting  secret  assemblies,  for  usurping  the  office  of 
preaching,  deriding  their  own  ministers,  and  scorning  the 
company  of  such  as  do  not  concur  in  their  novelties.  He 
presses  the  bishop  and  chapter  to  discover  the  author  of  this 
translation,   which   could  not  have  been    made   without  a 


thirteenth  century  ;  but  the  Waldenses, 
or  sects  bearing  that  denomination,  were 
dispersed  over  Europe.  As  a  term  of 
different  reproach  was  derived  from  the 
word  Bulg:irian,  so  vaiirlerie,  or  the  pro- 
fession of  the  Vaudois,  was  sometimes 
applied  to  witchcraft.  Thus  in  the  pro- 
ceedings of  the  Chambre  Brulante  at 
Arras,  in  1459,  against  persons  accused 
of  sorcery,  their  crime  i.-»  denominated 
vau'lerie.  The  fullest  account  of  this  re- 
markable story  is  found  in  the  Memoirs 
of  Du  Clercq,  first  published  in  the  gen- 
eral collection  of  Historical  Memoirs,  t. 
ix.  p.  590,  471.  It  exhibits  a  complete 
parallel  to  the  events  that  happened  in 
1GS2  at  Salem  in  New  England.  A  few 
obscure  persons  were  accused  of  vauderie, 
or  witchcraft.  After  their  condemnation, 
which  was  founded  on  confessions  ob- 
tained by  torture,  and  afterwards  retrac- 
ted, an  epidemical  contJigion  of  super- 
stitious dread  was  diffused  all  around. 
Numbers  were  arrested,  burned  alive  by 
order  of  a  tribunal  instituted  for  the  de- 
tection of  this  offence,  or  detained  ia 


prison ;  bo  that  no  person  in  Arras 
thought  himself  safe.  It  was  believed 
that  many  were  accused  for  the  sake  of 
their  possessions,  which  were  confiscated 
to  the  use  of  the  church.  At  length  the 
duke  of  Bur::undy  interfered,  nnd  put  a 
stop  to  the  persecutions.  The  whole 
narrative  in  Du  Clercq  is  interesting,  as 
a  curious  document  of  the  tyranny  of 
bigots,  and  of  the  facility  with  which  it 
ia  turned  to  private  ends. 

To  return  to  the  Waldenses  :  the  prin- 
cipal course  of  their  emigration  is  said  to 
have  been  into  Bohemia,  where,  in  the 
fifteenth  century,  the  name  was  borne  by 
one  of  the  seceding  sects.  By  their  pro- 
fession of  fiith,  presented  to  Ladislatu 
Posthumus,  it  appears  that  they  ac- 
knowledged the  corporal  presence  in  the 
eucharist,  but  rejected  purgatory  and 
other  Romish  doctrines.  See  it  in  the 
Fasciculus  Uerum  expetendarum  et  fu- 
giendarum,  a  collection  of  treatises  illu8< 
trating  the  origin  of  the  Reformation, 
originally  published  at  Colosne  in  1585) 
and  reprinted  at  London  in  1690. 


State  of  Society.         THE  SCRIPTURES. 


365 


knowledge  of  letters,  and  what  were  his  intentions,  and  what 
degree  of  orthodoxy  and  respect  for  the  Holy  See  those  who 
used  it  possessed.  This  letter  of  Innocent  III.,  however, 
considering  the  nature  of  the  man,  is  sufficiently  temperate 
and  conciliatory.  It  seems  not  to  have  answered  its  end ;  for 
in  another  letter  he  complains  that  some  members  of  this  little 
association  continued  refractory  and  refused  to  obey  either  the 
bishop  or  the  pope.^ 

In  the  eighth  and  ninth  centuries,  when  the  Vulgate  had 
ceased  to  be  generally  intelligible,  there  is  no  reason  to  sus- 
pect any  intention  in  the  church  to  deprive  the  laity  of  the 
Scriptures.  Translations  were  freely  made  into  the  vernac- 
ular languages,  and  perhaps  read  in  churches,  although  the 
acts  of  saints  were  generally  deemed  more  instructive. 
Louis  the  Debonair  is  said  to  have  caused  a  German  version 
of  the  New  Testament  to  be  made.  Otfrid,  in  the  same  cen- 
tury, rendered  the  gospels,  or  rather  abridged  them,  into 
German  verse.  This  work  is  still  extant,  and  is  in  several 
respects  an  object  of  curiosity.^  In  the  eleventh  or  twelfth 
century  we  find  translations  of  the  Psalms,  Job,  Kings,  and 
the  Maccabees  into  French.'  But  after  the  diffusion  of  he- 
retical opinions,  or,  what  was  much  the  same  thing,  of  free 
inquiry,  it  became  expedient  to  secure  the  orthodox  faith  from 
lawless  interpretation.  Accordingly,  the  council  of  Toulouse 
in  1229  prohibited  the  laity  from  possessing  the  Scriptures; 
and  this  precaution  was  frequently  repeated  upon  subsequent 
occasions.* 


»  Opera  Innocent.  III.  p.  468,  537.  A 
translation  of  the  Bible  had  been  made 
by  direction  of  Peter  Waldo;  but  wheth- 
er this  used  in  Lorraine  was  the  same, 
does  not  appear.  Metz  was  full  of  the 
Vaudois,  as  we  find  by  other  authorities. 

»  Schilteri  Thesaurus  Antiq.  Teutoni- 
corum. 

8  Mem.  do  I'Acad.  des  Inscript.  t.  xvii. 
p.  720. 

*  The  Anglo-Saxon  versions  are  deserv- 
ing of  particular  remark.  It  has  been 
eaid  that  our  church  maintained  the 
privilege  of  having  part  of  the  daily  ser- 
vice in  the  mother  tongue.  "Even  the 
mass  itself,"  says  Lappenberg.  "  was  not 
read  entirely  in  Latin."  Hist,  of  Eng- 
land, vol.  i.  p.  202.  This,  however,  is 
denied  by  Lingard,  whose  authority  i.s 
probably  superior.  Hist,  of  Ang.-Sax. 
Church,  i.  307.  But  he  allows  that  the 
Epistle  and  Gospel  were  read  in  English, 


which  implies  an  authorized  translation. 
And  we  may  adopt  in  a  great  measure 
Lappenberg's  proposition,  which  follows 
the  above  passage  :  "  The  numerous  ver- 
sions and  paraphrases  of  the  Old  and 
New  Testament  made  those  books  known 
to  the  laity  and  more  familiar  to  the 
clergy." 

We  have  seen  a  little  above,  that  the 
laity  were  not  permitted  by  the  Greek 
Church  of  the  ninth  century,  and  prob- 
ably before,  to  read  the  Scriptures,  even 
in  the  original.  This  shows  how  much 
more  honest  and  pious  the  Western 
Church  was  before  she  became  corrupted 
by  ambition  and  by  the  captivating  hope 
of  keeping  the  laity  in  servitude  by  means 
of  ignorance.  The  translation  of  the  four 
Books  of  Kings  into  French  has  been 
published  in  the  Collection  de  Documens 
In^dits,  1841.  It  is  in  a  northern  dialect, 
but  the  age  seems  not  satisfactorily  as 


9 


I 


866 


LOLLARDS. 


Chap.  IX.  Part  11 


State  of  Society. 


HUSSITES. 


367 


The  ecclesiastical  history  of  the  thirttenth  or  fourteenth 
centuries  teems  with  new  sectaries  and  schismatics,  various  in 
their  aberrations  of  opinion,  but  all  concurring  in  detestation 
of  the  established  church.^  They  endured  severe  persecu- 
tions with  a  sincerity  and  firmness  which  in  any  cause  ought 
to  command  respect.  But  in  general  we  find  an  extravagant 
fanaticism  among  them;  and  I  do  not  know  how  to  look  for 
any  amelioration  of  society  from  the  Franciscan  seceders,  who 
quibbled  about  the  property  of  things  consumed  by  use,  or 
from  the  mystical  visionaries  of  different  appellations,  whose 
moral  practice  was  sometimes  more  than  equivocal.  Those 
who  feel  any  curiosity  about  such  subjects,  which  are  by  no 
means  unimportant,  as  they  illustrate  the  history  of  the 
human  mind,  will  find  them  treated  very  fully  by  Mosheim. 
But  the  original  sources  of  information  are  not  always 
accessible  in  this  country,  and  the  research  would  perhaps  be 
more  fatiguing  than  profitable. 

I  shall,  for  an  opposite  reason,  pass  lightly  over  the  great 
Lollards  of  revolution  in  religious  opinion  wrought  in  England 
England.  \yy  WicUffc,  which  wiU  generally  be  familiar  to  the 
reader  from  our  common  historians.  Nor  am  I  concerned  to 
treat  of  theological  inquiries,  or  to  write  a  history  of  the 
church.  Considered  in  its  effects  upon  manners,  the  sole 
point  which  these  pages  have  in  view,  the  preaching  of  this 
new  sect  certainly  produced  an  extensive  reformation.  But 
their  virtues  were  by  no  means  free  from  some  unsocial  qual- 
ities, in  which,  as  well  as  in  their  superior  attributes,  the  Lol- 
lards bear  a  very  close  resemblance  to  the  Puritans  of 
Elizabeth's  reign ;  a  moroseness  that  proscribed  all  cheerful 
amusements,  an  uncharitable  malignity  that  made  no  distinc- 
tion in  condemning  the  established  clergy,  and  a  narrow 
prejudice  that  applied  the  rules  of  the  Jewish  law  to  modern 
institutions.^     Some  of  their  principles  were  far  more  dan- 


certained ;  the  close  of  the  eleventh  cen- 
tury is  the  earliest  date  that  can  be  as- 
Bigned.  Translations  into  the  Proven- 
<;al  by  the  Waldensian  or  other  heretics 
were  made  in  the  twelfth  ;  several  man- 
tiscripts  of  them  are  in  existence,  and 
one  has  been  published  by  Dr.  Qilly. 
[1848.1 

1  The  application  of  the  visions  of  the 
Apocalypse  to  the  corruptions  of  Rome, 
has  commonly  been  said  to  have  been 
flnt  made  by  the  Franciscan  seceders. 


But  it  may  be  traced  higher,  and  is  re- 
markably pointed  out  by  Dante. 

Di  voi  pastor  s'  accorso  '1  Vangclista, 
Quando  colei,  chi  siede  sovra  1'  acque, 
Puttaneggiar  co'  regi  a  lui  fa  vista. 

Inferno,  cant.  xix. 

«  Walsingham,  p.  238  ;  Lewis's  Life  of 
Pecock,  p.  65.  Bishop  Pecock's  answer 
to  the  Lollards  of  his  time  contains  pas- 
gages  well  worthy  of  Hooker,  both  for 
weight  of  matter  and  dignity  of  style. 


gerous  to  the  good  order  of  society,  and  cannot  justly  be 
ascribed  to  the  Puritans,  though  they  grew  afterwards  out  of 
the  same  soil.  Such  was  the  notion,  which  is  imputed  also  to 
the  Albigenscs,  that  civil  magistrates  lose  their  right  to  gov- 
ern by  committing  sin,  or,  as  it  was  quaintly  expressed  in 
the  seventeenth  century,  that  dominion  is  founded  in  gi-ace. 
These  extravagances,  however,  do  not  belong  to  the  learned 
and  politic  Wicliffe,  however  they  might  be  adopted  by  some 
of  his  enthusiastic  disciples.*  Fostered  by  the  general  ill-will 
towards  the  church,  his  principles  made  vast  progress  in  Eng- 
land, and,  unlike  those  of  earlier  sectaries,  were  embraced  by 
men  of  rank  and  civil  influence.  Notwithstanding  the  check 
they  sustained  by  the  sanguinary  law  of  Henry  IV.,  it  is 
highly  probable  that  multitudes  secretly  cherished  them  down 
to  the  era  of  the  Reformation. 

From  England  the  spirit  of  religious  innovation  was  propa- 
gated into  Bohemia ;  for  though  John  Huss  was  Hussites  of 
very  far  from  embracing  all  the  doctrinal  system  Bohemia. 
of  Wicliffe,  it  is  manifest  that  his  zeal  had  been  quickened  by 
the  writings  of  that  reformer.^  Inferior  to  the  Englishman  in 
ability,  but  exciting  greater  attention  by  his  constancy  and 
sufferings,  as  well  as  by  the  memorable  war  which  his  ashes 
kindled,  the  Bohemian  martyr  was  even  more  eminently  the 
precursor  of  the  Reformation.  But  still  regarding  these  dis- 
sensions merely  in  a  temporal  light,  I  cannot  assign  any 
beneficial  effect  to  the  schism  of  the  Hussites,  at  least  in  its 
immediate  results,  and  in  the  country  where  it  appeared. 
Though  some  degree  of  sympathy  with  their  cause  is  inspired 


setting  forth  the  necessity  and  impor- 
tance of  *'  the  moral  law  of  kinde,  or 
moral  philosophic,"  in  opposition  to 
those  who  derive  all  morality  from  rev- 
elation. 

This  great  man  fell  afterwards  under 
the  displeasure  of  the  church  for  propo- 
sitions, not  indeed  heretical,  but  repug- 
nant to  her  scheme  of  spiritual  power. 
He  asserted,  indirectly,  the  right  of  pri- 
vate judgment,  and  wrote  on  theological 
subjects  in  English,  which  gave  much 
offence.  In  fact,  Pecock  seems  to  have 
hoped  that  his  acute  reasoning  would 
convince  the  people,  without  requiring  an 
implicit  faith.  But  he  greatly  misunder- 
stood the  principle  of  an  infallible  church. 
Lewis's  Life  of  Pecock  does  justice  to  his 
character,  which,  I  need  not  say,  is  un- 
fUrly  represented  by  such  historians  as 


Collier,  and  such  antiquaries  as  Thomas 
Hearne. 

1  Lewises  Life  of  Wicliffe,  p.  115;  Ticn- 
fant,  Hist,  du  Concile  de  Constance,  t.  i. 
p.  213. 

2  Hiiss  does  not  appear  to  have  reject- 
ed any  of  the  peculiar  tenets  of  popery 
Lenfant,  p.  414.  He  embi-aced,  like 
Wicliffe,  the  predestinarian  system  of 
Augustiu,  without  pausing  at  any  of 
those  inferences,  apparently  deducible 
from  it,  which,  in  the  heads  of  enthusi- 
asts, may  produce  such  extensive  mis- 
chief. These  were  maintained  by  Huss 
(id.  p.  328),  though  not  perhaps  so  crude- 
ly &n  i)y  Luther.  Everything  relative  to 
the  history  and  doctrine  of  Huss  and  his 
followers  will  be  found  in  Lenfant's  three 
works  on  the  councils  of  Pisa,  Constance, 
and  Basle 


I' 


I 


■: 


E 


368 


INSTITUTION  OF  CHIVALRY.     Chap.  IX.  Part  IL 


"I 

I 


K 


by  resentment  at  the  ill  faith  of  their  adversaries,  and  by 
the  associations  of  civil  and  religious  liberty,  we  cannot  esti- 
mate the  Taborites  and  other  sectaries  of  that  description  but 
as  ferocious  and  desperate  fanatics.*  Perhaps  beyond  the 
confines  of  Bohemia  more  substantial  good  may  have  been 
produced  by  the  influence  of  its  reformation,  and  a  better 
tone  of  morals  inspired  into  Germany.  But  I  must  again 
repeat  that  upon  this  obscure  and  ambiguous  subject  I  assert 
nothing  definitely,  and  little  with  confidence.  The  tendencies 
of  religious  dissent  in  the  four  ages  before  the  Reformation 
appear  to  have  generally  conduced  towards  the  moral  improve- 
ment of  mankind ;  and  facts  of  this  nature  occupy  a  far 
greater  space  in  a  philosophical  view  of  society  during  that 
period,  than  we  might  at  first  imagine ;  but  eveiy  one  who  is 
disposed  to  prosecute  this  inquiry  will  assign  their  character 
according  to  the  result  of  his  o>vn  investigations. 

But  the  best  school  of  moral  discipline  which  the  middle 
Institution  ages  afforded  was  the  institution  of  chivalry.  There 
of  chiTairy.  jg  something  perhaps  to  allow  for  the  partiality  of 
modem  writers  upon  this  interesting  subject;  yet  our  most 
sceptical  criticism  must  assign  a  decisive  influence  to  this 
great  source  of  human  improvement  The  more  deeply 
it  is  considered,  the  more  we  shall  become  sensible  of  its 
importance. 

There  are,  if  I  may  so  say,  three  powerful  spirits  which 
have  from  time  to  time  moved  over  the  face  of  the  waters, 
and  given  a  predominant  impulse  to  the  moral  sentiments  and 
energies  of  mankind.  These  are  the  spirits  of  liberty,  of 
religion,  and  of  honor.  It  was  the  principal  business  of 
chivalry  to  animate  and  cherish  the  last  of  these  three.  And 
whatever  high  magnanimous  energy  the  love  of  liberty  or 
religious  zeal  has  ever  imparted  was  equalled  by  the  exquisite 
sense  of  honor  which  this  institution  preserved. 

It  appears  probable  that  the  custom  of  receiving  amis  at 
the  age  of  manhood  with  some  solemnity  was  of 
^°*      immemorial  antiquity  among  the  nations  that  over- 
threw the  Roman  empire.     For  it  is  mentioned  by  Tacitus  to 
have  prevailed  among  their  German  ancestors ;  and  his  ex- 
pressions might  have  been  used  with  no  great  variation  to 


1  Lenfant,  Hist,  de  la  Guerre  des  HoBsites  et  du  Ck>&cile  de  Basle;  Schmidt 
Hist,  des  Allemands,  t.  r. 


State  of  Sociktt.     ORIGIN  OF  CmVALRY. 


369 


describe  the  actual  ceremonies  of  knighthood.^  There  was 
even  in  that  remote  a^e  a  sort  of  public  trial  as  to  the  fitness 
of  the  candidate,  which,  though  perhaps  confined  to  his  bodily 
strength  and  activity,  might  be  the  germ  of  that  refined 
investigation  which  was  thought  necessary  in  the  perfect 
stage  of  chivalry.  Proofs,  though  rare  and  incidental,  miffht 
be  adduced  to  show  that  in  the  time  of  Chariemacrne  and 
even  eariier,  the  sons  of  monarchs  at  least  did  not°  assume 
manly  arms  without  a  regular  investiture.  And  in  the  elev- 
enth century  it  is  evident  that  this  was  a  general  practice.^ 

This  ceremony,  however,  would  perhaps  of  itself  have 
done   little  towards  forming  that  intrinsic  principle  which 
characterized  the  genuine  chivah-y.     But  in  the  reign  of 
Charlemagne  we  find  a  military  distinction  that  appears,  in 
fact  as  well  as  m  name,  to  have  given  birth  to  that  institu- 
tion.    Certain  feudal  tenants,  and  I  suppose  also  alodial  pro- 
prietors  were  bound  to  serve  on  horseback,  equipped  with 
the  coat  of  mail.     These  were  called  Caballarii,  from  which 
the  word  chevaliers  is  an  obvious  corruption.^     But  he  who 
fought  on  horseback,  and  had  been  invested  with  peculiar 
arms  m  a  solemn  manner,  wanted  nothing  more  to  render 
him  a  knight.     Chivalry  therefore  may,  in  a  general  sense, 
be  referred  to  the  age  of  Charlemagne.     We  may,  however 
go  further,  and  observe   that  these  distinctive   advanta^res 
above  ordinary  combatants  were  probably  the  sources  of  that 
remarkable   valor  and   that    keen   thirst  for  glory,   which 
became  the  essential  attributes  of  a  knightly  character.     For 
confidence  m  our  skill  and  strength  is  the  usual  foundation  of 
courage ;  it  is  by  feeUng  ourselves  able  to  surmount  common 
dangers    that  we  become  adventurous  enough  to  encounter 
those  of  a  more  extraordinary  nature,  and  to  which  more 
glory   IS  attached.     Tlie    reputation   of   superior   personal 
prowess,  so  diflScult  to  be  attained  in  the  course  of  modern 


>  Nihil  neque  publicae  neque  privatje 
pel  nis<l  armati  agunt.  3ed  arma  suraere 
Don  ante  cuiquam  moris,  qnkm  civitas 
suffecturum  probarerit.  Turn  in  ipso 
concilio,  vol  princlpum  aliquis,  vcl  pater, 
ornSri''"l?""''''*!J***^''*'"'^^'l"«J"^enem 

^uvtnL  u''  '"P"**  ^'^^^  **»«*'  •^*«  primus 
JuventaB  lionos;    ante  iioc  domus  pars 

AifJ?"'**?   °^.  Malmsbury    says   tliat 

Alfred  conferred  knighthood  on  Athel- 

VOL.  III.  j^ 


Stan,  donatum  chlamyde  coccinel,  gem- 
mato  balteo,  ens©  Saxonico  cum  vagina 
aurea.  I.  ii.  c.  6.  St.  Palaye  (Mem<Jire8 
sur  la  Chevalerie,  p.  2)  mentions  other 
instances  ;  which  may  also  be  found  in 
Du  Cange's  Glossary,  v.  Arraa,  and  in 
his  22d  dissertation  on  Joinville. 

3  Comites  et  vassalli  nostri  qui  bene- 
ficia  habere  noscuntur,  et  caballarit  om 
nes  ad  placitum  nostrum  yeniant  bene 
preparati.    Capitularia,  a-D.  807,  in  Ba> 
luze,  t.  i.  p.  460. 


370 


CHIVALRY. 


Chap.  DC.  Part  n. 


State  of  Socibtt. 


CHIVALRY. 


371 


warfare,   and   so  liable   to   erroneous   representations,   was 
always  within  the  reach  of  the   stoutest  knight,  and  was 
founded  on   claims  which   could   be   measured  with   much 
accuracy.     Such  is  the  subordination  and  mutual  dependence 
in  a  modern  army,  that  every  man  must  be  content  to  divide 
his  glory  with  his  comrades,  his  general,  or  his  soldiers.     But 
the    soul  of  chivalry  was    individual   honor,  coveted  in  so 
entire  and  absolute  a  perfection  that  it  must  not  be  shared 
with  an  army  or  a  nation.     Most  of  the  virtues  it  inspired 
were  what  we  may  call  independent,  as  opposed  to  those 
which  are  founded  upon  social  relations.     The  knights-eiTant 
of  romance  perform  their  best  exploits  from  the   love  of 
renown,  or  from  a  sort  of  abstract  sense  of  justice,  rather 
than  from  any  solicitude  to  promote  the  happiness  of  man- 
kind.    If  these  springs  of  action  are  less  generally  beneficial, 
they  are,  however,  more  connected  with  elevation  of  charac- 
ter than  the  systematical  prudence  of  men  accustomed  to 
social  life.     This  solitary  and  independent  spirit  of  chivalry, 
dwelling,  as  it  were,  upon  a  rock,  and  disdaining  injustice  or 
falsehood  from  a  consciousness  of  internal  dignity,  without 
any  calculation  of  their  consequences,  is  not  unlike  what  we 
sometimes  read  of  Arabian  chiefs  or  the  North  American 
Indians.*    These  nations,  so  widely  remote  from  each  other, 
seem  to  partake  of  that  moral  energy,  which,  among  European 
nations  far  remote  from  both  of  them,  was  excited  by  the 
spirit  of  chivalry.     But  the  most  beautiful  picture  that  was 
ever  portrayed  of  this  character  is  the  Achilles  of  Homer, 
the  representative  of  chivalry  in  its  most  general  form,  with 
all  its  sincerity  and  unyielding  rectitude,  all  its  courtesies  and 
munificence.     Calmly  indifferent  to  the  cause  in  which  he  is 
engaged,  and  contemplating  with  a  serious  and  unshaken  look 
the  premature  death  that  awaits  him,  his  heart  only  beats  for 
glory  and  friendship.     To  this  sublime  character,  bating  that 
imaginary  completion  by  which  the  creations  of  the  poet,  like 
those  of  the  sculptor,  transcend  all  single  works  of  nature, 
there  were  probably  many  parallels  in  the  ages  of  chivalry ; 
especially  before  a  set   education  and  the   refinements  of 
society  had  altered  a  little  the  natural  unadulterated  warrior 

1  We  must  take  for    this    the  more  traction  has  tended  to  elbce  those  Tirtuee 

&vorable  representations  of  the  Indian  which  possibly  were  rather  ezaggeratea 

nations.  A  deteriorating  intercourse  with  by  earlier  writers. 
Earopeans,  or  a  race  of  European  ex 


of  a  ruder  period.  One  illustrious  example  from  this  earlier 
age  is  the  Cid  Ruy  Diaz,  whose  history  has  fortunately  been 
preserved  much  at  length  in  several  chronicles  of  ancient 
date  and  in  one  valuable  poem ;  and  though  I  will  not  say 
that  the  Spanish  hero  is  altogether  a  counterpart  of  Achilles 
in  gracefulness  and  urbanity,  yet  was  he  inferior  to  none  that 
ever  lived  in  frankness,  honor,  and  magnanimity.* 

In  the  first  state  of  chivalry,  it  was  closely  connected  with 
the  military  service  of  fiefs.     The  Caballarii   in 
the  Capitularies,  the  Milites  of  the  eleventh  and  iS^Sn  with 
twelfth  centuries,  were  landholders  who  followed  *?"dai  ser- 
thcir  lord  or  sovereign  into  the  field.     A  certain  ^**^** 
value  of  land  was  termed  in  England  a  knight's  fee,  or  in 
Nonnandy  feudum  loric«,  fief  de  haubert,  from  the  coat  of 
mail  which  it  entitled  and  required  the  tenant  to  wear ;  a  mil- 
itary tenure  was  said  to  be  by  service  in  chivalry.     To  serve 
as  knights,  mounted  and  equipped,  was  the  common  duty  of 
vassals ;  it  implied  no  personal  merit,  it  gave  of  itself  a  claim 
to  no  civil  privileges.     But  this  knight-service  founded  upon 
a  feudal  obligation  is  to  be  carefully  distinguished  from  that 
superior  chivalry,  in  which  all  was  independent  and  voluntary. 
The  latter,  in  fact,  could  hardly  flourish  in  its  full  perfection 
till  the  military  service  of  feudal  tenure  began  to  decline ; 
namely,  in  the  thirteenth  century.     The  origin  of  this  per- 
sonal chivalry  I  should  incline  to  refer  to  the  ancient  usage 
of  voluntary  commendation,  which  I  have  mentioned  in  a 
former  chapter.    Men  commended  themselves,  that  is,  did 


»  Since  this  passage  was  written,  I 
have  found  a  parallel  drawn  by  Mr. 
Sharon  Turner,  in  his  valuable  History  of 
England,  between  Achilles  and  Richard 
Coeur  de  Lion  ;  the  superior  justness  of 
which  I  readily  acknowledge.  The  real 
hero  doe«  not  indeed  excite  so  much  in- 
terest In  me  as  the  poetical ;  but  the 
marks  of  resemblance  are  very  striking, 
whether  we  consider  their  passions,  their 
talents,  their  virtues,  their  vices,  or  the 
waste  of  their  heroism. 

The  two  principal  persons  in  the  Iliad, 
If  I  may  digress  into  the  observation,  ap- 
pear to  me  representatives  of  the  heroic 
character  in  its  two  leading  varieties  ;  of 
the  energy  which  has  its  sole  principle  of 
action  within  itself,  and  of  that  which 
borrows  its  impulse  from  external  rela- 
tions ;  of  the  spirit  of  honor,  in  short, 
and  of  patriotism.  As  every  sentiment 
•w  Achilles  id  independent  and  self-sup- 


ported, so  those  of  Hector  all  bear  ref- 
erence to  his  kindred  and  his  country. 
The  ardor  of  the  one  might  have  been 
extinguished  for  want  of  nourishment  in 
Thessaly ;  but  that  of  the  other  might, 
we  fancy,  have  never  been  kindled  but 
for  the  dangers  of  Troy.     Peace  could 
have  brought  no  delight  to  the  one  but 
from  the  memory  of  war;    war  had  no 
alleviation   to  the  other  but  from  the 
images  of  peace.     Compare,  for  example, 
the  two  speeches,  beginning  II.  Z.  441, 
and  II.  II.  49;  or  rather  compare  the 
two  characters  throughout  the  Iliad.   So 
wonderfully  were  those  two  great  springs 
of  human  sympathy,  variously  interest- 
ing according  to  the  diversity  of  our 
tempers,  first  touched   by  that  ancient 
patriarch, 

i  quo,  ceu  fonte  perenni, 
Vatum  Pieriis  era  rigautur  aquis 


] 

1 


« 


872 


CHIVALRY 


Chap.  DL.  Pabt  IL 


tSTATK  OF  SOCIBTT. 


CHIVALRT. 


373 


II 


homatre  and  professed  attachment  to  a  prince  or 
2^oT       lord ;  generally  indeed  for  protection  or  the  hope  of 
broken.         reward,  but  sometimes  probably  for  the  sake  ot  dis- 
tincruishing  themselves  in  his  quarrels.     When  they  received 
pay,  which  must  have  been  the  usual  case,  they  were  literally 
his  soldiers,  or  stipendiary  troops.    Those  who  could  afford  to 
exert  their  valor  without  recompense  were  like  the  knights 
of  whom  we  read  in  romance,  who  served  a  foreign  master 
through  love,  or  thirst  of  glory,  or  gratitude.     The  extreme 
poverty  of  the  lower  nobility,  arising  from  the  subdivision  of 
fiefs,  and  the  poliUc  generosity  of  rich  lords,  made  this  connec- 
tion  as  strong  as  that  of  territorial  dependence.     A  younger 
brother,  leaving  the  patenial  estate,  in  which  he  took  a  slender 
share,  might  look  to  wealth  and  dignity  in  the  service  ot  a 
powerful  count.     Knighthood,  which  he  could  not  claim  as  his 
legal  right,  became  the  object  of  his  chief  ambition.     It  raised 
him  in  the  scale  of  society,  equalling  him  in  dress,  m  arms, 
and  in  title,  to  the  rich  landholders.     As  it  was  due  to  his 
merit,  it  did  much  more  than  equal  him  to  those  who  ha.d  no 
pretensions   but   from  wealth;    and  the   territorial  knights 
became  by  degrees  ashamed  of  assuming  the  title  Ull  they 
could  challenge  it  by  real  desert. 

This  class  of  noble  and  gallant  cavaUers  servmg  commonly 
for  pay,  but  on  the  most  honorable  footing,  became  far  more 
numerous  through  the  crusades ;  a  great  epoch  in  the  history 
,  ^    of  European  society.     In  these  wars,  as  all  feudal 
SS^eson    service  was  out  of  the  question,  it  was  necessary 
chiTairy.        ^^^  ^y^G  richer  barous  to  take  into  their  pay  as 
many  knights  as  they  could  afford  to  maintain ;  speculating, 
80  far  as  such  motives  operated,  on  an  influence  with  the 
leaders  of  the  expedition,  and  on  a  share  of  plunder,  propor- 
tioned to  the  number  of  their  followers.     During  the  period 
of  the  ci-usades,  we  find  the  institution  of  chivalry  acquire  its 
full  Yi^OT  as  an  order  of  personal  nobility ;  and  its  original 
connection  with  feudal  tenure,  if  not  altogether  effaced,  became 
in  a  great  measure  forgotten  in  the  splendor  and  dignity  ot 
the  new  form  which  it  wore. 

The  crusaders,  however,  changed  in  more  than  one  respect 

the  character  of  chivalry.     Before  that  epoch  it 

Chirairy        appears  to  have  had  no  particular  reference  to 

Sto?e-         religion.     Ingulfus  indeed  tells  us  that  the  Anglo- 

^'''''  Saxons  preceded  the  ceremony  of  investiture  by  a 


confession  of  their   sins,  and  other   pious  rites,  Knd   they 
received  the  order  at  the  hands  of  a  priest,  instead  of  a 
knight.    But  this  was  derided  by  the  Normans  as  effeminacy, 
and  seems  to  have  proceeded  from  the  extreme  devotion  of 
the  English  before  the  CJonquest.*     We  can  hardly  perceive 
indeed  why  the  assumption  of  arms  to  be  used  in  butchering 
mankind  should  be  treated  as  a  religious  ceremony.     The 
clergy,  to  do  them  justice,  constantly  opposed  the  private  wars 
in  which  the  courage  of  those  ages  wasted  itself;   and  all 
bloodshed  was  subject  in  strictness  to  a  canonical  penance. 
But  the  purposes  for  which  men  bore  arms  in  a  crusade  so 
sanctified  their  use,  that  chivalry  acquired  the  character  as 
much  of  a  religious  as  a  military  institution.     For  many  cen- 
turies, the  recovery  of  the  Holy  Land  was  constantly  at  the 
heart  of  a  brave  and  superstitious  nobility ;  and  every  knight 
was  supposed  at  his  creation  to  pledge  himself,  as  occasion 
should  arise,  to  that  cause.     Meanwhile,  the  defence  of  God's 
law  against  infidels  was  his  primary  and  standing  duty.     A 
knight,  whenever  present  at  mass,  held  the  point  of  his  sword 
before  him  while  the  gospel  was  read,  to  signify  his  readiness 
to  support  it     Writers   of  the   middle   ages   compare   the 
knightly  to  the  priestly  character  in  an  elaborate  parallel, 
and  the  investiture  of  the  one  was  supposed  analogous  to  the 
ordination  of  the  other.     The  ceremonies  upon  this  occasion 
were  almost  wholly  religious.     The  candidate  passed  nights 
in  prayer  among  priests  in  a  church ;  he  received  the  sacra- 
ments;  he  entered  into  a  bath,  and  was  clad  with  a  white 
robe,  in  allusion  to  the  presumed  purification  of  his  life ;  his 
sword  was  solemnly  blessed ;  everything,  in  short,  was  con- 
trived to  identify  his  new  condition  with  the  defence  of  relig- 
ion, or  at  least  of  the  church.* 

To  this  strong  tincture  of  religion  which  entered  into  the 
composition  of  chivalry  from  the  twelfth  century,  was  added 
another  ingredient  equally  distinguishing.    A  great  And  with 
respect  for  the  female  sex  had  always  been  a  re-  eaii^ntry. 
markable  characteristic  of  the  Northern  nations.     The  Ger- 
man women  were  high-spirited  and  virtuous ;  qualities  which 


»  Inffulfus,  Jn  Gale,  XV.  Scriptores,  t. 
I- p.  <0.  William  Uufus,  however,  was 
taiighted  by  Archbishop  Lanfranc,  which 
looks  as  if  the  ceremony  was  not  abso- 
wtely  repugnant  to  the  Norman  prac- 
tloe. 

*  Dn  Cange,  v.  MUes.  and  22d  Dis- 


sertation  on  Joinville,  St.  Palaye,  Mem. 
sur  la  Chevalerie,  part  ii.  A  curious 
original  illustration  of  this,  as  well  as  of 
other  chivalrous  principles,  will  be  found 
in  rOrdene  de  Chevalerie,  a  long  met- 
rical romance  published  in  Barbazan' 
Fabliaux,  t.  i.  p.  59  (edit.  1808). 


874 


CHIVALRY. 


Chap.  IX.  Paut  II 


State  or  Society. 


CmVALRY. 


375 


might  be  causes  or  consequences  of  the  veneration  with  which 
they  were  regarded.     I  am  not  sure  that  we  could  trace  very 
minutely  the  condition  of  women  for  the  period  between  the 
subversion  of  the  Roman  empire  and  the  first  crusade ;  but 
apparently  man  did  not  grossly  abuse  his  superiority ;  and  m 
point  of  civil  rights,  and  even  as  to  the  inheritance  of  proper- 
ty,  the  two  sexes  were  placed  perhaps  as  nearly  on  a  level  as 
the  nature  of  such  warlike  societies  would  admit.     There 
seems,  however,  to  have  been  more  roughness  in  the  social 
intercourse  between  the  sexes  than  we  find  in  later  periods. 
The  spirit  of  gallantry  which  became  so  animating  a  principle 
of  chivalry,  must  be  ascribed  to  the  progressive  refinement  of 
society  during  the  twelfth  and  two  succeeding  centuries.     In 
a  rude  state  "of  manners,  as  among  the  lower  people  in  all 
acres,  woman  has  not  full  scope  to  display  those  fascinating 
CTaces,  by  which  nature  has  designed  to  counterbalance  the 
strength  and  energy  of  mankind.     Even  where  those  jealous 
customs  that  degrade  alike  the  two  sexes  have  not  prevailed, 
her  lot  is  domestic  seclusion ;  nor  is  she  fit  to  share  in  the 
boisterous  pastimes  of  drunken  merriment  to  which  the  inter- 
course of  an  unpolished  people  is  confined.     But  as  a  taste 
for  the  more  elegant  enjoyments  of  wealth  arises,  a  taste 
which  it  is  always  her  policy  and  her  delight  to  nourish,  she 
obtains  an  ascendency  at  first  in  the  lighter  hour,  and  from 
thence  in  the  serious  occupations  of  life.     She  chases,  or 
brings  into  subjection,  the  god  of  wine,  a  victory  which  might 
seem  more  ignoble  were  it  less  difficult,  and  calls  in  the  aid 
of  divinities  more  propitious  to  her  ambition.     The  love  of 
becoming  ornament  is  not  perhaps  to  be  regarded  in  the  light 
of  vanity ;  it  is  rather  an  instinct  which  woman  has  received 
from   nature  to  give  effect  to  those  charms  that   are   her 
defence ;  and  when  commerce  began  to  minister  more  effect- 
ually to  the  wants  of  luxury,  the  rich  furs  of  the  North,  the 
<ray  silks  of  Asia,  the  wrought  gold  of  domestic  manufacture, 
fllumined  the  halls  of  chivalry,  and  cast,  as  if  by  the  spell  of 
enchantment,  that   ineffable   grace   over  beauty  which   the 
choice  and  arrangement  of  dress  is  calculated   to  bestow. 
Courtesy  had  always  been  the  proper  attribute  of  knight- 
hood ;  protection  of  the  weak  its  legitimate  duty ;  but  these 
were   heightened   to   a  pitch   of  enthusiasm   when   woman 
became  their  object.     There  was  little  jealousy  shown  in  the 
treatment  of  that  sex,  at  least  in  France,  the  fountain  of 


chivalry ;  they  were  present  at  festivals,  at  tournaments,  and 
sat  promiscuously  in  the  halls  of  their  castle.  The  romance 
of  Perceforest  (and  romances  have  always  been  deemed 
good  witnesses  as  to  manners)  tells  of  a  feast  where  eight 
hundred  knights  had  each  of  them  a  lady  eating  off"  his 
plate.^  For  to  eat  off*  the  same  plate  was  an  usual  mark  of 
gallantry  or  friendship. 

Next  therefore,  or  even  equal  to  devotion,  stood  gallantry 
among  the  principles  of  knighthood.  But  all  comparison 
between  the  two  was  saved  by  blending  them  together.  The 
love  of  God  and  the  ladies  was  enjoined  as  a  single  duty.  He 
who  was  faithful  and  true  to  his  mistress  was  held  sure  of 
salvation  in  the  theology  of  castles  though  not  of  cloisters.' 
Froissart  announces  that  he  had  undertaken  a  collection  of 
amorous  poetry  with  the  help  of  God  and  of  love;  and 
Boccace  returns  thanks  to  each  for  their  assistance  in  the 
Decameron.  The  laws  sometimes  united  in  this  general 
homage  to  the  fair.  "  We  will,"  says  James  II.  of  Aragon, 
"  that  every  man,  whether  knight  or  no,  who  shall  be  in  com- 
pany with  a  lady,  pass  safe  and  unmolested,  unless  he  be  guilty 
of  murder."*  Louis  II.,  duke  of  Bourbon,  instituting  the 
order  of  the  Golden  Shield,  enjoins  his  knights  to  honor 
above  all  the  ladies,  and  not  to  permit  any  one  to  slander 
them,  "  because  from  them  after  God  comes  all  the  honor 
that  men  can  acquire."  * 

The  gallantry  of  those  ages,  which  was  very  often  adulter- 
ous, had  certainly  no  right  to  profane  the  name  of  religion ; 
but  its  union  with  valor  was  at  least  more  natural,  and  became 
so  intimate,  that  the  same  word  has  served  to  express  both 
qualities.  In  the  French  and  English  wars  especially,  the 
knights  of  each  country  brought  to  that  serious  conflict  the 
spirit  of  romantic  attachment  which  had  been  cherished  in 
the  hours  of  peace.  They  fought  at  Poitiers  or  Vemeuil  as 
they  had  fought  at  tournaments,  bearing  over  their  armor 
scarfs   and   devices   as   the   livery  of  their  mistresses,  and 


1  T  eut  hiiit  cens  cheyalicrs  s6ant  k 
table ;  et  si  n'y  eust  celui  qui  n'eust  uno 
damo  ou  une  pucelle  k  son  ecuelle.  In 
jAuncelot  du  Lac,  a  lady,  who  was 
troubled  with  a  jealous  husband,  com- 
plains that  it  was  a  long  time  since  a 
knight  had  eaten  ofiF  her  plate.  Le 
Grand,  t.  i.  p.  24. 

»  Le   Grand  Fabliaux,  t.  lU.  p.  438 ; 
Bt.  Palaye,  t   i.  p.  41.    I  quote  St.  Pa- 


laye's  M6moires  from  the  first  edition  in 
1759,  which  is  not  the  best. 

3  Statuimus,  quod  omnis  homo,  sive 
miles  sive  alius,  qui  iverit  cum  dominSk 
generos^,  salvus  sit  atque  securus,  nisi 
fuerit  homicida.  De  Marca,  Marca  His> 
panica,  p.  1428. 

4  Le  Grand,  t.  i.  p.  120 ;  St.  Palaye, 
t.  i.  p.  13, 134,  221 ;  Fabliaux,  fiomances, 
&c.,  passim. 


876 


CHIVALRY. 


Chap.  IX.  Pabt  II. 


State  of  Socibtt.    VIRTDES  OF  CHIVALRY. 


377 


asserting  the  paramount  beauty  of  her  they  served  in  vaunt- 
ing challenges  towards  the  enemy.  Thus  in  the  middle  of  a 
keen  skirmish  at  Cherbourg,  the  squadrons  remained  motion- 
less, while  one  knight  challenged  to  a  single  combat  the  most 
amorous  of  the  adversaries.  Such  a  defiance  was  soon 
accepted,  and  the  battle  only  recommenced  when  one  of  the 
champions  had  lost  his  life  for  his  love.^  In  the  first  cam- 
paign of  Edward's  war  some  young  English  knights  wore  a 
covering  over  one  eye,  vowing,  for  the  sake  of  their  ladies, 
never  to  see  with  both  till  they  should  have  signalized  their 
prowess  in  the  field.^  These  extravagances  of  chivalry  are 
so  common  that  they  form  part  of  its  general  character,  and 
prove  how  far  a  course  of  action  which  depends  upon  the 
impulses  of  sentiment  may  come  to  deviate  from  common 
sense. 

It  cannot  be  presumed  that  this  enthusiastic  veneration, 
this  devotedness  in  life  and  death,  were  wasted  upon  ungrate- 
ful natures.     The  goddesses  of  that  idolatry  knew  too  well 
the  value  of  their  worshippers.    There  has  seldom  been  such 
adamant  about  the  female  heart,  as  can  resist  the  highest  re- 
nown for  valor  and  courtesy,  united  with  the  steadiest  fidelity. 
"  He  loved,"  says  Froissart  of  Eustace  d'Auberthicourt,  "  and 
afterwards    married  lady  Isabel,  daughter  of  the  count  of 
Juliers.     This  lady  too  loved  lord  Eustace  for  the  great  ex- 
ploits in  arms  which  she  heard  told  of  him,  and  she  sent  him 
horses  and  loving  letters,  which  made  the  said  lord  Eustace 
more  bold  than  before,  and  he  wrought  such  feats  of  chival- 
ry, that  all  in  his  company  were  gainers."'     It  were  to  be 
wished  that  the  sympathy  of  love  and  valor  had  always  been 
as  honorable.     But  the  morals  of  chivalry,  we  cannot  deny, 
were  not  pure.     In  the  amusing  fictions  which  seem  to  have 
been   the  only  popular  reading  of  the  middle   ages,  there 
reigns  a  licentious  spirit,  not  of  that  slighter  kind  which  is 
usual  in  such  compositions,  but  indicating  a  general  dissolute- 
ness in  the  intercourse  of  the  sexes.     This  has  often  been 
noticed  of  Boccaccio  and  the  early  Italian  novelists ;  but  it 
equally   characterized  the   tales   and  romances   of  France, 
whether  metrical  or  in  prose,  and  all  the  poetry  of  the  Trou- 
badours.*   The  violation  of  marriage  vows  passes  in  them 


1  8t.  Palaye,  p.  222. 
■  Froissart,  p.  33. 
>  St.  Palaye,  p.  268. 


*  The  romances  will  speak  for  them* 
felTes ;  and  the  character  of  the  Pro- 
Ten^  morality  may  be  collected  from 


for  an  incontestable  privilege  of  the  brave  and  the  fair ;  and 
an  accomplished  knight  seems  to  have  enjoyed  as  undoubted 
prerogatives,  by  general  consent  of  opinion,  as  were  claimed 
by  the  brilliant  courtiers  of  Louis  XV. 

But  neither  that  emulous  valor  which  chivalry  excited,  nor 
the  religion  and  gallantry  which  were  its  animating  principles, 
alloyed  as  the  latter  were  by  the  corruption  of  those  ages, 
could  have  rendered  its  institution  materially  conducive  to 
the  moral  improvement  of  society.  There  were,  however, 
excellences  of  a  very  high  class  which  it  equally  encouraged. 
In  the  books  professedly  written  to  lay  down  the  duties  of 
knighthood,  they  appear  to  spread  over  the  whole  compass  of 
human  obligations.  But  these,  like  other  books  of  morality, 
strain  their  schemes  of  perfection  far  beyond  the  actual  prac- 
tice of  mankind.  A  juster  estimate  of  chivalrous  manners  is 
to  be  deduced  from  romances.  Yet  in  these,  as  in  all  similar 
fictions,  there  must  be  a  few  ideal  touches  beyond  the  simple 
truth  of  character ;  and  the  picture  can  only  be  interesting 
when  it  ceases  to  present  images  of  mediocrity  or  striking 
imperfection.  But  they  referred  their  models  of  fictitious 
heroism  to  the  existing  standard  of  moral  approbation;  a 
rule,  which,  if  it  generally  falls  short  of  what  reason  and  re- 
ligion prescribe,  is  always  beyond  the  average  tenor  of  hu- 
man conduct.  From  these  and  from  history  itself  we  may 
infer  the  tendency  of  chivalry  to  elevate  and  purify  the 
moral  feelings.  Three  virtues  may  particularly 
be  noticed  as  essential  in  the  estimation  of  man-  Jeemed  es- 
kind  to  the  character  of  a  knight ;  loyalty,  cour-  sentiai  to 

.  J  •/?  <=>  ^       y  chivalry. 

tesy,  and  munificence. 

The  first  of  these  in  its  original  sense  may  be  defined, 
fidelity  to  engagements ;  whether  actual  promises, 
or  such  tacit  obligations  as  bound  a  vassal  to  his 
lord  and  a  subject  to  his  prince.  It  was  applied  also,  and  in 
the  utmost  strictness,  to  the  fidelity  of  a  lover  towards  the 
lady  he  served.  Breach  of  faith,  and  especially  of  an  ex- 
press promise,  was  held  a  disgrace  that  no  valor  could  re- 
deem. False,  perjured,  disloyal,  recreant,  were  the  epithets 
which  he  must  be  compelled  to  endure  who  had  swerved  from 
a  plighted  engagement  even  towards  an  enemy.  This  is  one 
of  the  most  sticking  changes  produced  by  chivalry.     Treach- 

Millot,  Hist,  des  Troubadours,  passim;  t.  i.  p.  179,  &c.  See  too  St.  Palaye,  t. 
and  from  Siamondi,  Litt^rature  du  Midi,    ii.  p.  62  and  6S. 


i 


378 


CHARACTERISTIC  VIRTUES     Chap.  IX.  Part  II. 


State  of  Society. 


OF  CHTVALRT. 


379 


m 


Conrtesy. 


eiy,  the  usual  vice  of  savage  as  well  as  corrupt  nations,  be- 
came infamous  during  the  vigor  of  that  disi^pline.  As  per- 
sonal rather  than  national  feelings  actuated  its  heroes,  they 
never  felt  that  hatred,  much  less  that  fear  of  their  enemies, 
which  blind  men  to  the  heinousness  of  ill  faith.  In  the  wars 
of  Edward  III.,  originating  in  no  real  animosity,  the  spirit 
of  honorable  as  well  as  courteous  behavior  towards  the  foe 
seems  to  have  arrived  at  its  highest  point.  Though  avarice 
may  have  been  the  primary  motive  of  ransoming  prisoners 
instead  of  putting  them  to  death,  their  permission  to  return 
home  on  the  word  of  honor  in  order  to  procure  the  stipulated 
sum  —  an  indulgence  never  refused  —  could  only  be  founded 
on  experienced  confidence  in  the  principles  of  chivalry.* 
A  knight  was  unfit  to  remain  a  member  of  the  order  if  he 
violated  his  faith;  he  was  ill  acquainted  with  its 
duties  if  he  proved  wanting  in  courtesy.  This 
word  expressed  the  most  highly  refined  good  breeding,  found- 
ed less  upon  a  knowledge  of  ceremonious  politeness,  though 
this  was  not  to  be  omitted,  than  on  the  spontaneous  modesty, 
self-denial,  and  respect  for  others,  which  ought  to  spring  from 
his  heart.  Besides  the  grace  which  this  beautiful  virtue  threw 
over  the  habits  of  social  life,  it  softened  down  the  natural 
roughness  of  war,  and  gradually  introduced  that  indulgent 
treatment  of  prisoners  which  was  almost  unknown  to  antiqui- 
ty. Instances  of  this  kind  are  continual  in  the  later  period 
of  the  middle  ages.  An  Italian  writer  blames  the  soldier  who 
wounded  Eccelin,  the  famous  tyrant  of  Padua,  after  he  was 
taken.  ."  He  deserved,"  says  he,  "  no  praise,  but  rather  the 
greatest  infamy  for  his  baseness ;  since  it  is  as  vile  an  act  to 
wound  a  prisoner,  whether  noble  or  otherwise,  as  to  strike  a 
dead  body."  ^  Considering  the  crimes  of  Eccelin,  this  senti- 
ment is  a  remarkable  proof  of  generosity.  The  behavior  of 
Edward  III.  to  Eustace  de  Ribaumont,  after  the  capture  of 
Calais,  and  that,  still  more  exquisitely  beautiful,  of  the  Black 
Prince  to  his  royal  prisoner  at  Poitiers,  are  such  eminent  in- 
stances of  chivalrous  virtue,  that  I  omit  to  repeat  them  only 
because  they  are  so  well  known.  Those  great  princes  too 
might  be  imagined  to  have  soared  far  above  the  ordinary 

1  St.  Palayo,  part  11.  Tel  Ignobilem  offendere,  vel  ferire,  qu^m 

*  Non  laudem    meruit,  sed   summsa  gladio  caedcre  cadaver.    Kolandiuus,  io 

potius  opprobrium  vilitatlfl  ;  nam  idem  Script.  Ber.  Ital.  t.  yiii.  p.  851. 

facinus  est  putandum  captum  nobilem 


track  of  mankind.  But  in  truth,  the  knights  who  surrounded 
them  and  imitated  their  excellences,  were  only  inferior  in 
opportunities  of  displaying  the  same  virtue.  After  the  battle 
of  Poitiers,  "  the  English  and  Giiscon  knights,"  says  Frois- 
sart,  "  having  entertained  their  prisoners,  went  home  each  of 
them  with  the  knights  or  squires  he  had  taken,  whom  he  then 
questioned  upon  their  honor  what  ransom  they  could  pay 
without  inconvenience,  and  easily  gave  them  credit ;  and  it 
was  common  for  men  to  say,  that  they  would  not  straiten 
any  knight  or  squire  so  that  he  should  not  live  well  and  keep 
up  his  honor.*  Liberality,  indeed,  and  disdain  of 
money,  might  be  reckoned,  as  I  have  said,  among  ^'^"^'y- 
the  essential  virtues  of  chivalry.  All  the  romances  inculcate 
the  duty  of  scattering  their  wealth  with  profusion,  especially 
towards  minstrels,  pilgrims,  and  the  poorer  members  of  their 
own  order.  The  last,  who  were  pretty  numerous,  had  a  con- 
stant right  to  succor  from  the  opulent ;  the  castle  of  every 
lord,  who  respected  the  ties  of  knighthood,  was  open  with 
more  than  usual  hospitality  to  the  traveller  whose  armor  an- 
nounced his  dignity,  though  it  might  also  conceal  his  pov- 
erty.* 

Valor,  loyalty,  courtesy,  munificence,  formed  collectively 
the  character  of  an  accomplished  knight,  so  far  as  was  dis- 
played in  the  ordinary  tenor  of  his  life,  reflecting  these  vir- 
tues as  an  unsullied  mirror.  Yet  something  more  was  re- 
quired for  the  perfect  idea  of  chivalry,  and  enjoined  by  its 
principles ;  an  active  sense  of  justice,  an  ardent  ^ 
indignation  against  wrong,  a  determination  of  ""^  ^* 
courage  to  its  best  end,  the  prevention  or  redress  of  injury. 
It  grew  up  as  a  salutary  antidote  in  the  midst  of  poisons, 
while  scarce  any  law  but  that  of  the  strongest  obtained  re- 
gard, and  the  rights  of  territorial  property,  which  are  only 
rights  as  they  conduce  to  general  good,  became  the  means  of 
general  oppression.  The  real  condition  of  society,  it  has 
sometimes  been   thought,  might   suggest   stories  of  knight- 


*  Proissart,  1.  i.  c.  161.  He  remarks 
In  another  place  that  all  English  and 
French  gentlemen  treat  their  prisoners 
well ;  not  so  the  Germans,  who  put  them 
In  fetters,  ia  order  to  extort  more 
money,  c.  136. 

«  St.  Palaye,  part  iy.  p  312,  367,  &c. 
Le  Grand,  Fabliaux,  t.  i.  p.  115.  167.    It 


was  the  custom  in  Great  Britain,  (says 
the  romance  of  Perceforest,  speaking  of 
course  in  an  imaf^nary  history.)  that 
noblemen  and  ladies  placed  a  helmet  on 
the  highest  point  of  their  castles,  as  a 
sign  that  all  persons  of  such  rank  tray- 
elling  that  road  might  boldly  enter  their 
houses  like  their  own.    St.  Palaye,  p.  367. 


380 


CHARACTERISTIC  VIRTUES     Chap.  DC.  Part  H 


errantry,  which  were  wrought  up  into  the  popular  romances 
of  the  middle  ages.  A  baron,  abusing  the  advantage  of  an 
inaccessible  castle  in  the  fastnesses  of  the  Black  Forest  or 
the  Alps,  to  pillage  the  neighborhood  and  confine  travellers 
in  his  dungeon,  though  neither  a  giant  nor  a  Saracen,  was  a 
monster  not  less  formidable,  and  could  perhaps  as  little  be 
destroyed  without  the  aid  of  disinterested  bravery.  Knight- 
errantry,  indeed,  as  a  profession,  cannot  rationally  be  con- 
ceived to  have  had  any  existence  beyond  the  precincts  of  ro- 
mance. Yet  there  seems  no  improbabihty  in  supposing  that 
a  knight,  journeying  through  uncivilized  regions  in  his  way 
«k  to  the  Holy  Land,  or  to  the  court  of  a  foreign  sovereign, 
might  find  himself  engaged  in  adventures  not  very  dissimilar 
to  those  which  are  the  theme  of  romance.  We  cannot  in- 
deed expect  to  find  any  historical  evidence  of  such  incidents. 
The  characteristic  virtues  of  chivalry  bear  so  much  re- 
Resembiance  semblance  to  thosc  which  eastern  writers  of  the 
of  chivalrous  same  period  extol,  that  I  am  a  little  disposed  to 
ma^^err  suspect  Europe  of  having  derived  some  improve- 
ment from  imitation  of  Asia.  Though  the  cru- 
sades began  in  abhorrence  of  infidels,  this  sentiment  wore  off 
in  some  degree  before  their  cessation  ;  and  the  regular  inter- 
course of  commerce,  sometimes  of  alliance,  between  the 
Christians  of  Palestine  and  the  Saracens,  must  have  re- 
moved part  of  the  prejudice,  while  experience  of  their  ene- 
my's courage  and  generosity  in  war  would  with  those  gallant 
knights  serve  to  lighten  the  remainder.  The  romancers  ex- 
patiate with  pleasure  on  the  merits  of  Saladin,  who  actually 
received  the  honor  of  knighthood  from  Hugh  of  Tabaria,  his 
prisoner.  An  ancient  poem,  entitled  the  Order  of  Chivalry, 
is  founded  upon  this  story,  and  contains  a  circumstantial  ac- 
count of  the  ceremonies,  as  well  as  duties,  which  the  institu- 
tion required.^  One  or  two  other  instances  of  a  similar  kind 
bear  witness  to  the  veneration  in  which  the  name  of  knijjht 
was  held  among  the  eastern  nations.  And  certainly  the  Mo- 
hammedan chieftains  were  for  the  most  part  abundantly  qual- 
ified to  fulfil  the  duties  of  European  chivalry.  Their  man- 
ners had  been  polished  and  courteous,  while  the  western 
kingdoms  were  comparatively  barbarous. 

The  principles   of  chivalry   were  not,  I  think,  naturally 

1  Fabliaux  de  Barlwsan,  t.  i. 


State  of  Society. 


OF  CHIVALRY. 


881 


productive  of  many  evils.    For  it  is  unjust  to  class 
those  acts  of  oppression   or  disorder  among   the  duce/by^the 
abuses  of  knighthood,  which  were  committed  in  «p!"'  o^ 
spite  of  its  regulations,  and  were  only  prevented  *  '^ 
by  them  from   becoming  more   extensive.     The   license  of 
times  so  imperfectly  civilized  could  not  be  expected  to  yield 
to  institutions,  which,  like  those  of  religion,  fell  prodigiously 
short  in  their  practical  result  of  the  reformation  which  they 
were  designed  to  work.     Mim's  guilt  and  frailty  have  never 
admitted  more  than  a  partial  corrective.     But  some  bad  con- 
sequences may  be  more  fairly  ascribed  to  the  very  nature  of 
chivalry.     I  have  already  mentioned  the  dissoluteness  which 
almost  unavoidably  resulted  from  the  prevailing  tone  of  gal- 
lantry.    And  yet  we  sometimes  find  in  the  writings  of  those 
tunes  a  spirit  of  pure  but  exaggerated  sentiment ;  and  the 
most  fanciful  refinements  of  passion  are  mingled  by  the  same 
poets  with  the  coarsest  immorality.     An  undue  thirst  for  mil- 
itary renown  was  another  fault  that  chivalry  must  have  nour- 
ished; and  the  love   of  war,  sufficiently  pernicious  in  any 
shape,  was  more  founded,  as  I  have  observed,  on  personal 
feelings  of  honor,  and  less  on  public  spirit,  than  in  the  cit- 
izens of  free  states.     A  third  reproach  may  be  made  to  the 
character  of  knighthood,  that  it  widened  the  separation  be- 
tween the   different   classes  of  society,  and   confirmed  that 
aristocratical  spirit  of  high  birth,  by  which  the  large  mass  of 
mankind  were   kept  in  unjust  degradation.      Compare  the 
generosity  of  Edward  HI.  towards  Eustace  de  Ribaumont 
at  the   siege   of  Calais   with   the  harshness  of  his  conduct 
towards   the  citizens.     This  may  be  illustrated  by  a  story 
from  Joinville,  who  was  himself  imbued  with  the  full  spirit 
of  chivalry,  and  felt  like  the  best  and  bravest  of  his  age. 
He  is  speaking  of  Henry  count  of  Champagne,  who  ac- 
quired, says  he,  very  deservedly,  the  surname  of  Liberal, 
and  adduces  the  following  proof  of  it.     A  poor  knight  im- 
plored of  him  on  his  knees  one  day  as  much  money  as  would 
serve  to  marry  his  two  daughters.    One  Arthault  de  Nogent, 
a  rich  burgess,  willing  to  rid  the  count  of  this  importunity, 
but  rather  awkward,  we  must  own,  in  the  turn  of  his  ar- 
gument, said  to  the  petitioner:  My  lord  has  already  given 
away  so  much  that  he  has  nothing  left.     Sir  Villain,  replied 
Henry,  turning  round  to  him,  you  do  not  speak  truth  in  say- 
ing that  I  have  nothing  left  to  give,  when  I  have  got  your- 


882 


SPIRIT  OF  CHIVALRY.      Chap.  IX.  Part  IL 


State  of  Society.    ENCOURAGEMENT  OF  PRINCES 


383 


self.  Here,  Sir  Knight,  I  give  you  this  man  and  warrant 
your  possession  of  him.  Then,  says  Joinville,  the  poor 
knight  was  not  at  all  confounded,  but  seized  hold  of  the  bur- 
gess fast  by  the  collar,  and  told  him  he  should  not  go  till  he 
had  ransomed  himself.  And  in  the  end  he  was  forced  to  pay 
a  ransom  of  five  hundred  pounds.  The  simple-minded  writer 
who  brings  this  evidence  of  the  count  of  Champagne's  lib- 
erality is  not  at  all  struck  with  the  facility  of  a  virtue  that  is 
exercised  at  the  cost  of  others.* 

There  is  perhaps  enough  in  the  nature  of  this  institution 
and  its  congeniality  to  the  habits  of  a  warlike 
ste^S'tend-  generation  to  account  for  the  respect  in  which  it 
ingtopro-  was  held  throughout  Europe.  But  several  collat- 
"'°**  ''■  eral  circumstances  served  to  invigorate  its  spirit. 
Besides  the  powerful  efficacy  with  which  the  poetry  and  ro- 
mance of  the  middle  ages  stimulated  those  susceptible  minds 
which  were  alive  to  no  other  literature,  we  may  enumerate 
four  distinct  causes  tending  to  the  promotion  of  chivalry. 

The  first  of  these  was  the  regular  scheme  of  education,  ac- 
cording to  which  the  sons  of  gentlemen  from  the 
SStTon  age  of  seven  years,  were  brought  up  in  the  eas- 
ier knight-  ties  of  Superior  lords,  where  they  at  once  learned 
^'^'  the   whole  discipline  of   their  future   profession, 

and  imbibed  its  emulous  and  enthusiastic  spirit  This  was 
an  inestimable  advantage  to  the  poorer  nobility,  who  could 
hardly  otherwise  have  given  their  children  the  accomplish- 
ments of  their  station.  From  seven  to  fourteen  these  boys 
were  called  pages  or  varlets;  at  fourteen  they  bore  the  name 
of  esquire.  They  were  instructed  in  the  management  of 
arms,  in  the  art  of  horsemanship,  in  exercises  of  strength 
and  activity.  They  became  accustomed  to  obedience  and 
courteous  demeanor,  serving  their  lord  or  lady  in  offices  which 
had  not  yet  become  derogatory  to  honorable  birth,  and  striv- 
ing to  please  visitors,  and  especially  ladies,  at  the  ball  or 
banquet.  Thus  placed  in  the  centre  of  all  that  could  awa- 
ken their  imaginations,  the  creed  of  chivalrous  gallantry,  su- 
perstition, or  honor  must  have  made  indehble  impressions. 
Panting  for  the  glory  which  neither  their  strength  nor  the 
established  rules  permitted  them  to  anticipate,  the  young 
scions  of  chivahy  attended  their  masters  to  the  tournament, 

1  JoinTiUe  in  Collection  des  M^moires,  t.  i.  p.  48. 


and  even  to  the  battle,  and  riveted  with  a  sigh  the  armor 
they  were  forbidden  to  wear.^ 

It  was  the  constant  policy  of  sovereigns  to  encourage  this 
institution,  which  furnished  them  with  faithful  sup-  Encourage- 
ports,  and  counteracted  the  independent  spirit  of  ment  of 
feudal   tenure.     Hence   they   displayed   a  lavish  touS'. 
magnificence  in  festivals  and  tournaments,  which  ""ents. 
may  be  reckoned  a  second  means  of  keeping  up  the  tone  of 
chivalrous  feeling.     The  kings  of  France  and  England  held 
solemn  or  plenary  courts  at  the  great  festivals,  or  at  other 
times,  where  the  name   of  knight  was  always  a  title  to  ad- 
mittance ;  and  the  mask  of  chivalry,  if  I  may  use  the  ex- 
pression, was  acted  in  pageants  and  ceremonies  fantastical 
enough  in  our  apprehension,  but  well  calculated  for  those 
heated  understandings.     Here  the  peacock  and  the  pheasant, 
birds  of  high  fame  and  romance,  received  the  homage  of  all 
true  knights.'^     The  most  singular  festival  of  this  kind  was 
that  celebrated  by  Philip  duke  of  Burgundy,  in  1453.     In 
the  midst  of  the  banquet  a  pageant  was  introduced,  repre- 
senting the  calamitous  state  of  religion  in  consequence  of  the 
recent  capture  of  Constantinople.     This  was  followed  by  the 
appearance  of  a  pheasant,  which  was  laid  before  the  duke, 
and  to  which  the  knights  present  addressed  their  vows  to 
undertake  a  crusade,  in  the  following  very  characteristic  pre- 
amble :  I  swear  before  God  my  Creator  in  the  first  place, 
and  the  glorious  Virgin  his  mother,  and  next  before  the  ladies 
and  the  pheasant.'     Tournaments  were  a  still  more  powerful 
incentive  to  emulation.     These  may  be  considered  to  have 
arisen  about  the  middle  of  the  eleventh  century  ;  for  though 
every  martial  people  have  found  diversion  in  representing 
the  image   of  war,  yet  the   name  of  tournaments,   and  the 
laws  that   regulated   them,  cannot  be   traced   any  higher.* 
Every  scenic  performance  of  modem  times  must  be  tame  in 
comparison  of  these  animating  combats.     At  a  tournament, 
the  space  enclosed  within  the  lists  was  surrounded  by  sov- 
ereign princes  and  their  noblest  barons,  by  knights  of  estab- 
lished renown,  and  all  that  rank  and  beauty  had  most  dis- 


1  St.  Palaye,  part  i. 

«  Du  Cange,  5^  Dissertation  sur 
JoinvUle.  St.  Palaye,  t  i.  p.  87,  118. 
Le  Grand,  t.  i.  p.  14. 

»  St.  Palaye,  t.  i.  p.  191. 

*  Godfrey  de  Preuilly,  a  French  knight. 
Is  said  by  several  contemporary  writers 


to  hare  invented  tournaments ;  which 
must  of  course  be  understood  in  a  limited 
sense.  The  Germans  ascribe  them  tc 
Henry  the  Fowler ;  but  this,  according  to 
Du  Cange,  is  on  no  authority.  6<^  Dis- 
sertation sur  Joinville. 


384 


KNIGHTHOOD. 


Chap.  IX.  Part  II 


tinguished  among  the  fair.  Covered  with  steel,  and  known 
only  by  their  emblazoned  shield  or  by  the  favors  of  their 
mistresses,  a  still  prouder  bearing,  the  combatants  rushed  for- 
ward to  a  strife  without  enmity,  but  not  without  danger. 
Though  their  weapons  were  pointless,  and  sometimes  only 
of  wood,  though  they  were  bound  by  the  laws  of  tourna- 
ments to  strike  only  upon  the  strong  armor  of  the  trunk,  or, 
as  it  was  called,  between  the  four  limbs,  those  impetuous  con- 
flicts often  terminated  in  wounds  and  death.  The  church 
uttered  her  excommunications  in  vain  against  so  wanton  an 
exposure  to  peril ;  but  it  was  more  easy  for  her  to  excite 
than  to  restrain  that  martial  enthusiasm.  Victory  in  a  tour- 
nament was  little  less  glorious,  and  perhaps  at  the  moment 
more  exquisitely  felt,  than  in  the  field;  since  no  battle  could 
assemble  such  witnesses  of  valor.  "  Honor  to  the  sons  of 
the  brave,"  resounded  amidst  the  din  of  martial  music  from 
the  hps  of  the  minstrels,  as  the  conqueror  advanced  to  re- 
ceive the  prize  from  his  queen  or  his  mistress;  while  the 
surrounding  multitude  acknowledged  in  his  prowess  of  that 
day  an  augury  of  triumphs  that  might  in  more  serious  con- 
tests be  blended  with  those  of  his  country.* 

Both  honorary  and  substantial  privileges  belonged  to  the 
Privileges  of  Condition  of  knighthood,  and  had  of  course  a  ma- 
knighthood,  terial  tendency  to  preserve  its  credit.  A  knight 
was  distinguished  abroad  by  his  crested  helmet,  his  weighty 
armor,  whether  of  mail  or  plate,  bearing  his  heraldic  coat,  by 
his  gilded  spurs,  his  horse  barded  with  iron,  or  clothed  in 
housing  of  gold;  at  home,  by  richer  silks  and  more  costly 
furs  than  were  permitted  to  squires,  and  by  the  appropriated 
color  of  scarlet  He  was  addressed  by  titles  of  more  re- 
spect.*  Many  civil  offices,  by  rule  or  usage,  were  confined  to 
his  order.  But  perhaps  its  chief  privilege  was  to  form  one 
distinct  class  of  nobility  extending  itself  throughout  great 
part  of  Europe,  and  almost  independent,  as  to  its  rights  and 
dignities,  of  any  particular  sovereign.  Whoever  had  been 
legitimately  dubbed  a  knight  in  one  country  became,  as  it 
were,  a  citizen  of  universal  chivalry,  and  might  assume  most 
of  its  privileges  in  any  other.  Nor  did  he  require  the  act  of 
a  sovereign  to  be  thus  distinguished.     It  was  a  fundamental 

1  St.  Palaye,  part  ii.  and  part  iii.  an  a  St.  Palaye,  part  ir.    Selden's  Titles 

commencement.    Du  Cange,  Dissert.  6  of  Honor,  p.  806.    There  was  not,  how- 

and  7 :  and  Glossary,  v.  Tomeamentum.  ever,  so  much  distinction  In  England  as 

Le  Grand,  Fabliaux,  t.  i.  p.  184.  in  France. 


State  of  Socuett. 


KNIGHTHOOD. 


385 


principle  that  any  knight  might  confer  the  order ;  responsible 
only  in  his  own  reputation  if  he  used  lightly  so  high  a  pre- 
rogative. But  as  all  the  distinctions  of  rank  might  have  been 
confounded,  if  this  right  had  been  without  limit,  it  was  an 
equally  fundamental  rule,  that  it  could  only  be  exercised  in 
favor  of  gentlemen.^ 

The  privileges  annexed  to  chivalry  were  of  peculiar  ad- 
vantage to  the  vavassors,  or  inferior  gentry,  as  they  tended 
to  counterbalance  the  influence  which  territorial  wealth  threw 
into  the  scale  of  their  feudal  suzerains.  Knighthood  brought 
these  two  classes  nearly  to  a  level ;  and  it  is  owing  perhaps 
in  no  small  degree  to  this  institution  that  the  lower  nobility 
saved  themselves,  notwithstanding  their  poverty,  from  being 
confounded  with  the  common  people. 


1  St.  Palaye,  vol.  i.  p.  70,  has  forgotten 
to  make  this  distinction.  It  is,  however, 
capable  of  abundant  proof.  Gunther,  in 
bis  poem  called  liigurinus,  observes  of 
the  Milanese  republic  : 

Quoslibet  ex  humili  vulgo,  quod  Gallia 

foedum 
Judicat,  accingi  gladio  concedit  cques- 

tri. 

Otho  of  Frisiogen  expresses  the  same  in 
prose.    It  is  said,  in   the  Establishments 
of  St.  Louis,  that  if  any  one  not  being 
a  gentleman   on  the  father's   side  was 
knighted,  the  king  or  baron  in  whose 
territory  he  resides,  may  hack   off  liis 
spurs  on  a  dunghill,  c.  130.    The  count 
de  Nevers,  having  knighted  a  person  who 
was  not  noble  ex  parte  paterna,  was  fined 
in  the  king's  court.    The  king,  however, 
(Philip  III.)  confirmed  the  knighthood. 
Daniel,  Hist,  de  la  Milico  Fran^oise,  p. 
98.     Fuit  propositum  (says   a  pa-ssagc 
quoted  by  Daniel)  contra  comiteni  Flan- 
driensem,  quod  non  poterat,  nee  debebat 
facere  de  villano  mllitem,  sine  auctoritate 
i^s.  ibid.    Statuimus,  says  James  I.of 
Aragon.  in  1234,  ut  nullus  faciat  militem 
nisi    filiuui    niilitis.      Marca  Ilispanica, 
p.   1428.    Selden,  Titles  of  Honour,  p. 
692,  produces  other  evidence  to  the  same 
effect.     And    the    emperor    Sigismund 
having  conferred  knighthood,  during  his 
stay  in  Paris  in  1415.  on  a  person  incom- 
petent to  receive  it  for  want  of  nobility, 
the  Krr;nch  were  indignant  at  his  conduct, 
as  an  assumption  of  sovereignty.  Villaret, 
t.  viii.  p.  397.     We  are  told,  however,  by 
Qiannone,  1.  xx.  c.  3,  that  nobility  was 
not  in  fact  required  for  receiving  chivalry 
»t  Naples,  though  it  was  in  France. 

The  privilege  of  every  knight  to  associ- 
ate qualified  persons  to  the  order  at  hif 

VOL.  III.  25 


pleasure,  lasted    very  long  in  France, 
certainly  down  to  the  English  wars  of 
Charles  VIT.     (Monstrelet,  part  ii.  folio 
50),  and,  if  I  am  not  mistaken,  down  to 
the  time  of  Francis  I.    But  in  England, 
where  the  spirit  of  independence  did  not 
prevail  so  much  among  the  nobility,  it 
soon  ceased.     Seldcn   mentions   one  re- 
markable instance  in  a  writ  of  the  29th 
year  of  Henry  III.  summoning  tenants  in 
capite  to  come  and  receive  knighthood 
from  the  king,  ad  recipiendum  a  nobis 
Jirma  militaria ;  and    tenants  of  mesne 
lords  to  be  knighted  by  whom.soever  they 
pleased,  ad  recipiendum  arma  de  quibus- 
cunque  voluerint.     Titles  of  Honor,  p. 
792.     But  soon  after  this   time,  it  be- 
came   an    established   principle  of  our 
law  that  no  subject  can  confer  knight- 
hood except  by  the  king's   authority. 
Thus  Edward  III.  grants  to  a  burgess  of 
Lyndia  in  Guienne  (I  know  not  what 
place  this  is)  the  privilege  of  receiving 
that  rank  at  the  hands  of  any  knight, 
his  want  of  noble  birth  notwithstanding. 
Rynicr,  t.  v.  p.  623.     It  seems,  however, 
that  a  different   law  obtained  in  some 
places.      Twenty-three   of  the  chief  in- 
habitants of  Beaucaire.  partly  knights, 
partly  burgesses,  certified  in  1298,  that 
the  immemorial  usage  of  Beaucaire  and 
of  Provence  had  been,  for  burgesses  to  re- 
ceive knii^hthood  at  the  hands  of  noble- 
men, without    the  prince's    permission. 
Valssette,  Hist,  de  Languedoc,  t.  iii.  p 
530.    Burgesses  in  the  great  commercial 
towns,  were  considered  as  of  a  superior 
class  to  the  roturiers,  and   possessed  a 
kind  of  demi-nobility.     Charles  V.   ap- 
pears to  have  conceded  a  similar  indul« 
gence  to  the  citizens  of  Paris.    Villaret. 
t.  X.  p.  248. 


386 


MILITARY  SERVICE.       Chap.  IX.  Part  II. 


State  of  Society.      DECLINE  OF  CHIVALRY. 


387 


I 


I  I 


Lastly,  the  customs  of  chivalry  were  maintained  by  their 

connection  with  military  service.     After  armies, 

Sf^htJairy     ^hich   wc   may  call   comparatively  regular,  had 

with  mill-       superseded  in  a  great  degree  the  feudal  militia, 

tary  service.    ^^-^^^^^  ^^^^  anxious  to  bid  high  for  the  service 

of  knights,  the  best-equipped  and  bravest  warriors  of  the 
time,  on  whose  prowess  the  fiite  of  battles  was  for  a  long 
period  justly  supposed  to  depend.  War  brought  into  relief 
the  generous  virtues  of  chivalry,  and  gave  lustre  to  its  dis- 
tinctive privileges.  The  rank  was  sought  with  enthusiastic 
emulation  through  heroic  achievements,  to  which,  rather  than 
to  mere  wealth  and  station,  it  was  considered  to  belong.  In 
the  wars  of  France  and  England,  by  fi\r  the  most  splendid 
period  of  this  institution,  a  promotion  of  knights  followed 
every  success,  besides  the  innumerable  cases  where  the  same 
honor  rewarded  individual  bravery.^  It  may  here  be  men- 
tioned that  an  honorary  distinction  was  made  between  knights- 
bannerets  and  bachelors.'  The  foi-mer  were  the 
SSine^  richest  and  best  accompanied.  No  man  could 
and  bache-  properly  be  a  banneret  unless  he  possessed  a  cer- 
*°"'  tain  estate,  and  could  bring  a  certain  number  of 

lances  into  the  field.'  His  distinguishing  mark  was  the 
square  banner,  carried  by  a  squire  at  the  point  of  his  lance ; 
while  the  knight-bachelor  had  only  the  coronet  or  pointed 
pendant.  When  a  banneret  was  created,  the  general  cut  off 
this  pendant  to  render  the  banner  square.*  But  this  dis- 
tinction, however  it  elevated  the  banneret,  gave  him  no  claim 
to  military  command,  except  over  his  own  dependents  or 


1  St.  Palaye,  part  iii.  passim. 

*  The  word  bachelor  has  been  some- 
times derived  from  has  chevalier ;  in  op- 

Eosition  to  banneret.  But  this  cannot 
e  right.  We  do  not  find  any  authority 
for  the  expression  bas  chevalier,  nor  any 
equivalent  in  Latin,  baccalaureus  cer- 
tainly not  suggesting  that  sen^e ;  and  it 
is  strange  that  the  corruption  sliould  ob- 
literate every  trace  of  the  original  term. 
Bachelor  is  a  very  old  word,  and  is  used 
in  early  French  poetry  for  a  young  man, 
as  bacbelette  is  for  a  girl.  So  also  in 
Chaucer : 

"  A  yonge  Squire, 
A  lover,  and  a  lusty  bachelor." 

*  Du  Cange,  Dissertation  Qine  sur  Join- 
ville.  The  number  of  men  at  arms,  whom 
a  banneret  ought  to  command,  was 
properly  fifty.    But  Olivier  de  la  Blarche 


speaks  of  twenty-five  as  sufficient ;  and 
it  appears  that,  in  fact,  knights-banneret 
often  did  not  bring  so  many. 

4  Ibid.  Olivier  de  la  Marche  (Collec- 
tion de.s  Memoires,  t.  viii.  p.  337)  gives 
a  particular  example  of  this  ;  and  makes 
a  distinction  between  the  bachelor,  creat- 
ed a  banneret  on  account  of  his  cxtate, 
and  the  hereditary  banneret,  who  took 
a  public  opportunity  of  requesting  the 
POver»'ign  to  unfold  his  family  banner 
which  he  had  before  borne  wound  round 
his  lance.  The  first  was  said  relever  b.an- 
niere;  the  second,  entrer  en  banniere. 
This  diSerence  is  more  fully  explained 
by  Daniel,  Hist,  de  la  ^lilice  Fmncoise, 
p.  116.  Chandos's  banner  was  unfolded, 
not  cut,  at  Navarette.  We  read  some- 
times of  esquire-bannerets,  that  is,  of 
bannerets  by  descent,  not  yet  knighted. 


men-at-arms.  Chandos  was  still  a  knight-bachelor  when  he 
led  part  of  the  prince  of  Wales's  army  into  Spain.  He  first 
raised  his  banner  at  the  battle  of  Navarette ;  and  the  narra- 
tion that  Froissart  gives  of  the  ceremony  will  illustrate  the 
mannera  of  chivalry  and  the  character  of  that  admirable 
hero,  the  conqueror  of  Du  Guesclin  and  pride  of  Eno-lish 
chivalry,  whose  fame  with  posterity  has  been  a  little  over- 
shadowed by  his  master's  laurels.^  What  seems  more 
extraordinai-y  is,  that  mere  squires  had  frequently  the  com- 
mand over  knights.  Proofs  of  this  are  almost  continual  in 
Froissart.  But  the  vast  estimation  in  which  men  held  the 
dignity  of  knighthood  led  them  sometimes  to  defer  it  for 
great  part  of  their  lives,  in  hope  of  signaUzing  their  investi- 
ture by  .some  eminent  exploit. 

These  appear  to  have  the  chief  means  of  nourishing  the 
principles  of  chivalry  among  the  nobility  of  Eu-  Decimrof 
rope.     But  notwithstanding  all  encouragement,  it  cWvairy. 
underwent  the   usual   destiny  of    human   institutions.      St 
Palaye,  to  whom  we  are  indebted  for  so  vivid  a  picture  of 
ancient  manners,  ascribes  the  decline  of  chivalry  in  France 
to  the  profusion  with  which  the  order  was  lavished  under 
Charles  VI.,  to  the  establishment  of  the  companies  of  ordon- 
nance  by  Charles  VII.,  and  to  the  extension  of  knightly 
honors  to  lawyers,  and  other  men  of  civil  occupation,  by 
Francis  I.^     But  the  real  principle  of  decay  was  something 
different  from  these  three  subordinate  circumstances,  unless 
60  fiir  as  it  may  bear  some  relation  to  the  second.     It  was 
the  invention  of  gunpowder  that  eventually  overthrew  chiv- 
alry.    From  the  time  when  the  use  of  fire-arms  became 
tolerably  perfect  the  weapons  of  former  warfare  lost  their 
efficacy,  and  physical  force  was  reduced  to  a  very  subordinate 
place  in  the  accomphshments  of  a  soldier.     The  advantages 
of  a  disciplined  infantry  became  more  sensible ;  and  the  lan- 
cers, who  continued  till  almost  the  end  of  the  sixteenth  century 
to  charge  in  a  long  line,  felt  the  punishment  of  their  presump- 
^on  and  indiscipline.     Even  in  the  wars  of  Edward  III.,  the 
disadvantageous  tactics  of  chivalry  must  have  been  percepti- 
ble ;  but  the  military  art  had  not  been  sufficiently  studied  to 
overcome  the  prejudices  of  men  eager  for  individual  distinc- 
tion.     Tournaments  became  less  frequent;    and,  after  the 
fatal  accident  of  Henry  U.,  were  entirely  discontmued  in 

»  Froissart,  part  i.  c.  2tt.  «  Mim.  sur  la  Chevalerie,  part  t. 


388 


DECLINE  OF  CHIVALRY.     Chap.  DC.  Part  XL 


France.  Notwithstanding  the  convulsions  of  the  religious 
wars,  the  sixteenth  century  was  more  tranquil  than  any  that 
had  preceded ;  and  thus  a  large  part  of  the  nobility  passed 
their  lives  in  pacific  habits,  and  if  they  assumed  the  honors  of 
chivalry,  forgot  tlieir  natural  connection  with  military  prow- 
ess. Tliis  is  far  more  applicable  to  England,  where,  except 
from  the  reign  of  Edward  III.  to  that  of  Henry  VI.,  chivalry, 
as  a  military  institution,  seems  not  to  have  found  a  very  con- 
genial soil.^  To  these  circumstances,  immediately  affecting 
the  military  condition  of  nations,  we  must  add  the  progress 
of  reason  and  literature,  which  made  ignorance  discreditable 
even  in  a  soldier,  and  exposed  the  follies  of  romance  to  a 
ridicule  which  they  were  very  ill  calculated  to  endure. 

The  spirit  of  chivalry  left  behind  it  a  more  valuable  suc- 
cessor. The  character  of  knight  gradually  subsided  in  that 
of  gentleman  ;  and  the  one  distinguishes  European  society  in 
the  sixteenth  and  seventeenth  centuries,  as  much  as  the  other 
did  in  the  preceding  ages.  A  jealous  sense  of  honor,  less 
romantic,  but  equally  elevated,  a  ceremonious  gallantry  and 
politeness,  a  strictness  in  devotional  observances,  a  high  pride 
of  birth  and  feeling  of  independence  upon  any  sovereign  for 
the  dignity  it  gave,  a  sympathy  for  martial  honor,  though 
more  subdued  by  civil  habits,  are  the  lineaments  which  prove 
an  indisputable  descent.  The  cavaliers  of  Charles  I.  were 
genuine  successors  of  Edward's  knights ;  and  the  resemblance 
is  much  more  striking,  if  we  ascend  to  the  civil  wars  of  the 
League.  Time  has  effaced  much  also  of  this  gentlemanly, 
as  it  did  before  of  the  chivalrous  character.  From  the  latter 
part  of  the  seventeenth  century  its  vigor  and  purity  have  un- 
dergone a  tacit  decay,  and  yielded,  perhaps  in  every  country, 


»  The  prerogatiTO  exercised  by  the 
kings  of  England  of  compelling  men  suf- 
ficiently qualiiieil  in  point  of  estito  to 
take  on  them  the  honor  of  knighthood 
was  inconsistent  with  the  true  spirit  of 
chivalry.  Thb  began,  according  to  Lord 
Lyttelton,  under  Henry  III.  HUt.  of 
Henry  II.  vol.  ii.  p.  233.  Independently 
of  this,  several  causes  tended  to  render 
England  less  under  the  influence  of  chiv- 
alrous principles  than  I  ranee  or  Ger- 
many ;  such  as,  her  comparatively  peace- 
ful state,  the  smaller  share  she  took  in 
the  crusades,  her  inferiority  in  romances 
of  knight-errantry,  but  above  all,  the 
democratical  character  of  her  laws  and 
Kovemment.    Still  this  b  only  to  be  un- 


derstood relatively  to  the  two  other 
countries  above  named ;  for  chivalry  wiu 
always  in  high  repute  among  us,  nor  did 
any  nation  produce  more  admirable 
specimens  of  its  excellences. 

I  am  not  minutely  acquainted  with 
the  state  of  chivalry  in  Spain,  where  it 
seems  to  have  flourished  considerably. 
Italy,  except  in  Naples,  and  perhaps 
Piedmont,  displayed  little  of  its  spirit ; 
which  neither  suited  the  free  republics  of 
the  twelfth  and  thirteenth,  nor  the  jeal- 
ous tyrannies  of  the  following  centuries. 
Yet  even  hero  we  find  enougli  to  turni.-th 
Muratori  with  materials  for  liis  63d  Dis- 
sertation. 


Statb  of  Socibtt. 


LITERATURE. 


389 


to  increasing  commercial  wealth,  more  diffused  instruction, 
the  spirit  of  general  liberty  in  some,  and  of  servile  obse- 
quiousness in  others,  the  modes  of  life  in  great  cities,  and  the 
levelling  customs  of  social  intercourse.^ 

It  is  now  time  to  pass  to  a  very  different  subject.     The 
third  head   under  which  I  classed  the  improve- 
ments of  society  during  the  four  last  centuries  of  ^'*«'^*"'*- 
the  middle  ages  was  that  of  literature.     But  I  must  apprise 
the  reader  not  to  expect  any  general  view  of  literary  history, 
even  in  the  most  abbreviated  manner.     Such  an  epitome 


»  The  well-known  Memoirs  of  St.  Pa- 
laye  arc  the  hv$t  repository  of  interesting 
and  illustrative  facts    respecting  chiv- 
alry.    Po.ssibly  he  may  have  relied  a 
little  too  much  on  romances,  whose  pic- 
tures   will     naturally    be    overcharged. 
FroisKirt  himself  has  somewhat  of  this 
partial  tendency,  and    the   manners   of 
chivalrouii  times  do  not  make  so  fair  an 
appearance  in  Monstrelet.     In   the  Me- 
moirs of  la  Tremouille  (Collect,  des  Mem. 
t.  xlv.  p.  169),  we  have  perhaps  the  ear- 
liest delineation  from    the  life  of  those 
severe  and  stately  virtues  in  high-born 
ladies,  of  which  our  own  country  fur- 
nished so  many  examples  in  the^ixteenth 
and  seventeenth  centuries,  and   which 
were  derived  from  the  influence  of  chiv- 
alrous principles.     And  those  of  Uayard 
In  the  same  collection  (t.  xiv.  and  xv.) 
are  a  beautiful  exhibition   of  the  best 
eflVTts  of  that  discipline. 

It  appears  to  me  that  M.  Ouizot,  to 
whose  judgment  I  owe  all  deference,  has 
dwelt  rather  too  much  on  the  feudal 
chanicter  of  chivalry.  Hist,  de  la  Civili- 
sation en  France,  Le^on  36.  Hence  he 
treats  the  institution  as  in  its  decline 
during  the  fourteenth  century,  when,  if 
Mre  can  trust  either  Froissart  or  the  ro- 
mancers, it  was  at  its  height.  Certainly, 
if  mere  knighthood  was  of  right  both  in 
Kngiaiid  and  the  north  of  France,  a  terri- 
torial dignity,  which  bore  with  it  no 
actual  presumption  of  merit,  it  was 
sometimes  also  conferred  on  a  more 
hono.-ablo  principle.  It  was  not  every 
knight  who  possessed  a  fief,  nor  in  prac- 
tice did  every  possessor  of  a  fief  receive 
knighthood. 

Guizot  justly  remarks,  as  Sismondihas 
done,  the  disparity  between  the  lives  of 
most  knights  and  the  theory  of  chival- 
rous rectitude.  But  the  same  has  been 
•een  in  religion,  and  can  be  no  reproach 
to  either  principle.  Partont  la  pens«ie 
morale  des  hommes  g'il^ve  et  aspire  fort 
so  dessus  de  leur  vie.  Et  gardez  vous 
ae  croire  que  parce  qu'elle  ne  gouvemait 
pas  immidiatement  les  actions,  parceque 


la  pratique  demon  tait  sans  cesse  et 
ctrangement  la  theorie,  Tinfluence  de  la 
theorie  fut  nulle  et  sans  valeur.  C'est 
beaucoup  que  le  jugement  des  hommes 
sur  les  actions  humaiues;  tot  ou  tard  il 
devient  efficace. 

It  may  be  thought  by  many  severe 
judges,  that  I  have  overvalued  the  effi- 
cacy of  chivalrous  sentiments  in  elevating 
the  moral  character  of  the  middle  ages. 
But  I  do  not  see  ground  for  withdrawing 
or  modifying  any  sentence.  The  com- 
parison is  never  to  be  made  with  an  ideal 
standard,  or  even  with  one  which  a  purer 
religion  and  a  more  liberal  organization 
of  society  may  have  rendered  effectual, 
buc  with  the  condition  of  a  country  wher« 
neither  the  sentiments  of  honor  nor 
those  of  right  prevail.  And  it  seems  to 
me  that  I  have  not  veiled  the  deficiencies 
and  the  vices  of  chivalry  any  more  than 
its  beneficial  tendencies. 

A  very  fascinating  picture  of  chival- 
rous manners  has  been  drawn  by  a  writer 
of  considerable  reading,  and  still  more 
considerable  ability,  Mr.  Kenelra  Digby, 
in  his  Broad  Stone   of  Honour.      The 
bravery,  the  courteousness.  the  munifi- 
cence,   above  all,    the   deeply   religious 
character  of  knighthood  and  its  reverence 
for  the  church,  naturally  took  hold  of  a 
heart  so  susceptible  of  these  emotions, 
and  a  fimcy  so  quick  to  embody  them. 
St.  Palaye  himself  is  a  less  enthusiastic 
eulogist  of  chivalry,  because  he  has  seen 
it  more  on  the  side  of  mere  romance,  and 
been  less  penetrated  with  the  conviction 
of  its  moral  excellence.   But  the  progress 
of  still  deeper  impression  seems  to  have 
moderated    the    ardor    of  Mr.   Digby's 
admiration  for  the  historical  character  of 
knighthood;  he  has  discovered  enough 
of  human  alloy  to  render  unqualified 
praise  hardly  fitting,  in  his  judgment, 
for  a  Christian  writer;  and  in  the  Mores 
Catholici,  the  second  work  of  thisamiabl* 
and  gifted  man,  the  colors  in  which  chiv- 
alry appears  are  by  no  means  so  brilliant. 
[1848.J 


f 


390 


CIVIL  LAW. 


Chaf.  IX.  Tart  IL 


State  of  Society. 


CIVIL  LAW. 


391 


would  not  only  be  necessarily  superficial,  but  foreign  in  many 
of  its  details  to  the  purposes  of  this  chapter,  which,  attempt- 
ing to  develop  the  circumstances  that  gave  a  new  complexion 
to  society,  considers  literature  only  so  far  as  it  exercised  a 
general  and  powerful  influence.  The  private  researches, 
therefore,  of  a  single  scholar,  unproductive  of  any  material 
effect  in  his  generation,  ought  not  to  arrest  us,  nor  indeed 
would  a  series  of  biographical  notices,  into  which  literary 
history  is  apt  to  fall,  be  very  instructive  to  a  philosophical 
inquirer.  But  I  have  still  a  more  decisive  reason  against 
taking  a  large  range  of  literary  history  into  the  compass  of 
this  work,  founded  on  the  many  contributions  which  have 
been  made  within  the  last  forty  years  in  that  department, 
some  of  them  even  since  the  commencement  of  my  own  la- 
bor.^ These  have  diffused  so  general  an  acquaintance  with 
the  literature  of  the  middle  ages,  that  I  must,  in  treating 
the  subject,  either  compile  secondary  information  from  well- 
known  books,  or  enter  upon  a  vast  field  of  reading,  with  little 
hope  of  improving  upon  what  has  been  already  said,  or  even 
acquiring  credit  for  original  research.  I  shall,  therefore, 
confine  myself  to  four  points :  the  study  of  civil  law ;  the  in- 
stitution of  universities ;  the  application  of  modern  languages 
to  literature,  and  especially  to  poetry ;  and  the  revival  of 
ancient  learning. 

The  Roman  law  had  been  nominally  preserved  ever  since 
the  destruction  of  the  empire  ;  and  a  great  portion 
of  the  inhabitants  of  France  and  Spain,  as  well  as 
Italy,  were  governed  by  its  provisions.  But  this  was  a  mere 
compilation  from  the  Theodosian  code  ;  which  itself  contained 
only  the  more  recent  laws  promulgated  after  the  establish- 
ment of  Christianity,  with  some  fragments  from  earlier  col- 
lections. It  was  made  by  order  of  Alaric  king  of  the  Visi- 
goths about  the  year  500,  and  it  is  frequently  confounded  with 
the  Theodosian  code  by  writers  of  the  dark  ages.*     The 

>  Four  very  recent  publications  (not  prefer  it,  as  far  as  its  subjects  extend,  to 

to  mention   that   of  Buhle  on    modern  Tiraboscbi. 

philosophy)  enter  much  at  large  into  the  [A  subsequent  work  of  my  own,  Intro- 
middle  literature ;  those  of  M.  Ginguene  duction  to  the  History  of  Literature  in 
and  M.  Sismondl,  the  history  of  England  the  15th,  16th,  and  17th  Centuries,  con- 
by  Mr.  Sharon  Turner,  and  the  Literary  tains,  in  the  first  and  second  chapters, 
History  of  the  Middle  Ages  by  Mr.  Be-  some  additional  illustrations  of  the  unte- 
rington.  All  of  these  contain  more  or  cedent  period,  to  which  the  reader  may 
less  useful  information  and  judicious  re-  be  referred,  as  complementary  to  thess 
marks;  but  that  of  Oinguene  is  among  pages.     1848.] 

the  most  learned  and  important  works  of  >  Heineccius,  Hist.  Juris  Oerman.  e.  1 

this  century.    I  have  no  hesitation  to  s.  15. 


GItU  law. 


code  of  Justinian,  reduced  into  system  after  the  separation  of 
the  two  former  countries  from  the  Greek  empire,  never  ob« 
tained  any  authority  in  them ;  nor  was  it  received  in  the  part 
of  Italy  subject  to  the  Lombards.  But  that  this  body  of  laws 
was  absolutely  unknown  in  the  West  during  any  period  seems 
to  have  been  too  hastily  supposed.  Some  of  the  more  eminent 
ecclesiastics,  as  Hincmar  and  Ivon  of  Chartres,  occasionally 
refer  to  it,  and  bear  witness  to  the  regard  which  the  Roman 
church  had  uniformly  paid  to  its  decisions.* 

The  revival  of  the  study  of  jurisprudence,  as  derived  from 
the  laws  of  Justinian,  has  generally  been  ascribed  to  the  dis- 
covery made  of  a  copy  of  the  Pandects  at  Amalfi,  in  1135, 
when  that  city  was  taken  by  the  Pisans.  This  fact,  though 
not  improbable,  seems  not  to  rest  upon  sufficient  evidence.* 
But  its  truth  is  the  less  material,  as  it  appears  to  be  unequiv- 
ocally proved  that  the  study  of  Justinian's  system  had  recom- 
menced before  that  era.  Early  in  the  twelfth  century  a 
professor  named  Irnerius'  opened  a  school  of  civil  law  at 
Bologna,  where  he  commented,  if  not  on  the  Pahdects,  yet  on 
the  other  books,  the  Institutes  and  Code,  which  were  suffi- 
cient to  teach  the  principles  and  inspire  the  love  of  that 
comprehensive  jurisprudence.  The  study  of  law,  having  thus 
revived,  made  a  surprising  progress  ;  within  fifty  years  Lom- 
bardy  was  full  of  lawyers,  on  whom  Frederic  Barbarossa  and 
Alexander  III.,  so  hostile  in  every  other  respect,  conspired 
to  shower  honors  and  privileges.  The  schools  of  Bologna 
were  preeminent  throughout  this  century  for  legal  learning. 
There  seem  also  to  have  been  seminaries  at  Modena  and 
Mantua ;  nor  was  any  considerable  city  without  distinguished 
civilians.  In  the  next  age  they  became  still  more  numerous, 
and  their  professors  more  conspicuous,  and  universities  arose 
at  Naples,  Padua,  and  other  places,  where  the  Roman  law 
was  the  object  of  peculiar  regard.* 

There  is  apparently  great  justice  in  the  opinion  of  Tira- 
boscbi, that  by  acquiring  internal  freedom  and  the  right  of 
determining  controversies  by  magistrates  of  their  own  elec- 
tion, the  Italian  cities  were  led  to  require  a  more  extensive 
and  accurate  code  of  written  laws  than  they  had  hitherto  pos- 

1  Giannone,  1.  iv.  c.  6.    Selden,  ad  Fie-  man  W  is  changed  into  Ou  by  the  Ital- 

tam,  p.  1071.  ians,  and  occasionally  omitted,  especially 

*  Tiraboscbi.  t.  iii.  p.  %9.    Qinguen6,  in  Latinizing,  for  the  sake  of  euphony  oc 

Hist.  Litt.  de  lltaUe,  t.  i.  p.  155.  purity. 

3  Irnerius  is  sometimes  called  Guar-       *  Tiraboscbi,  t.  ir.  p.  33;  t.  y.  p.  65. 
nerius,  sometimes  Warnerius :  the  Q«r- 


892 


CIVIL  LAW. 


Chap.  IX.  Part  IL 


State  of  Society. 


CIVIL  LAW. 


393 


sessed.  These  municipal  judges  were  chosen  from  among 
the  citizens,  and  the  succession  to  offices  was  usually  so  rapid) 
that  almost  every  freeman  might  expect  in  his  turn  to  par- 
take in  the  public  goveraraent,  and  consequently  in  the  ad- 
ministration of  justice.  The  latter  had  always  indeed  been 
exercised  in  the  sight  of  the  people  by  the  count  and  his 
assessors  under  the  Lombard  and  Carlovingian  sovereigns ; 
but  the  laws  were  rude,  the  proceedings  tumultuary,  and  the 
decisions  perverted  by  violence.  The  spirit  of  liberty  begot  a 
stronger  sense  of  right ;  and  right,  it  was  soon  perceived, 
could  only  be  secured  by  a  common  standard.  Magistrates 
holding  temporary  offices,  and  little  elevated  in  those  simple 
times  above  the  citizens  among  whom  they  were  to  return, 
could  only  satisfy  the  suitors,  and  those  who  surrounded  their 
tribunal,  by  proving  the  conformity  of  their  sentences  to  ac- 
knowledged authorities.  And  the  practice  of  alleging  reasons 
in  giving  judgment  would  of  itself  introduce  some  uniformity 
of  decision  and  some  adherence  to  great  rules  of  justice  in 
the  most  arbitrary  tribunals ;  while,  on  the  other  hand,  those 
of  a  free  country  lose  part  of  their  title  to  respect,  and  of 
their  tendency  to  maintain  right,  whenever,  either  in  civil  or 
criminal  questions,  the  mere  sentence  of  a  judge  is  pronounced 
without  explanation  of  its  motives. 

The  fame  of  this  renovated  jurisprudence  spread  very  rap- 
idly from  Italy  over  other  parts  of  Europe.  Students  flocked 
from  all  parts  of  Bologna  ;  and  some  eminent  masters  of  that 
school  repeated  its  lessons  in  distant  countries.  One  of  these, 
Placentinus,  explained  the  Digest  at  Montpelier  before  the 
end  of  the  twelfth  century ;  and  the  collection  of  Justinian 
soon  came  to  supersede  the  Theodosian  code  in  the  domin- 
ions of  Toulouse.*  Its  study  continued  to  flourish  in  the 
universities  of  both  these  cities ;  and  hence  the  Roman  law, 
as  it  is  exhibited  in  the  system  of  Justinian,  became  the 
rule  of  all  tribunals  in  the  southern  provinces  of  France.  Its 
authority  in  Spain  is  equally  great,  or  at  least  is  only  disputed 
by  that  of  the  canonists  ;2  and  it  forms  the  acknowledcred 
basis  of  decision  in  all  the  Germanic  tribunals,  sparingly 
modified  by  the  ancient  feudal  customaries,  which  the  jurfsts 
of  the  empire  reduce  within  narrow  bounds.'    In  the  north- 


em  parts  of  France,  where  the  legal  standard  was  sought  in 
local  customs,  the  civil  law  met  naturally  with  less  regard. 
But  the  code  of  St.  Louis  borrows  from  that  treasury  many 
of  its  provisions,  and  it  was  constantly  cited  in  pleadings  be- 
fore the  parliament  of  Paris,  either  as  obligatory  by  way  of 
authority,  or  at  least  as  written  wisdom,  to  which  great  defer- 
ence was  shown.*  Yet  its  study  was  long  prohibited  in  the 
university  of  Paris,  from  a  disposition  of  the  popes  to  estab- 
lish exclusively  their  decretals,  though  the  prohibition  was 
silently  disregarded.^ 

As  early  as  the  reign  of  Stephen,  Vacarius,  a  lawyer  of 
Bologna,  taught  at  Oxford  with  great  success  ;  but  J^^  jntroduc- 
the  students  of  scholastic  theology  opposed  them-  tion  into 
selves,  from  some  unexplained  reason,  to  this  new  ^^^land. 
jurisprudence,  and  his  lectures  were  interdicted.''  About  the 
time  of  Henry  III.  and  Edward  I.  the  civil  law  acquired 
some  credit  in  England ;  but  a  system  entirely  incompatible 
with  it  had  established  itself  in  our  courts  of  justice  ;  and  the 
Eoman  jurisprudence  was  not  only  soon  rejected,  but  became 
obnoxious.*  Everywhere,  however,  the  clergy  combined  its 
study  with  that  of  their  own  canons ;  it  was  a  maxim  that 
every  canonist  must  be  a  civilian,  and  that  no  one  could  be  a 
good  civilian  unless  he  were  also  a  canonist.  In  all  uni- 
versities, degrees  are  granted  in  both  laws  conjointly ;  and 
in  all  courts  of  ecclesiastical  jurisdiction,  the  authority  of 
Justinian  is  cited,  when  that  of  Gregory  or  Clement  is  want- 


mg.' 


I  should  earn  little  gratitude  for  my  obscure  diligence,  were 


1  Tiraboschi,  t.  v.  Vaissette,  Hist,  de 
Languedoc,  t.  a.  p.  517;  t.  iii.  p.  627:  t. 
IV.  p.  504.  ' 


I  Dock,  de  Usa  Juria  arUifl,  1.  U.  o.  6 
»  Idem,  1.  ii.  2. 


»  Duck.  1.  ii,  c.  5,  8.  30,  31.  Fleury, 
Ilist.  du  Droit  Francois,  p.  74  (prefixed 
ta  Ar;rou.  Institutions  au  Droit  Francois, 
edit.  1787),  says  that  it  was  a  great  ques- 
tion anion;;  la\vycrs,  and  still  undecided 
(i.  e.  in  1G74),  wUcther  tiio  Iloman  law 
was  the  common  law  in  the  pays  coutu- 
miers.  as  to  those  points  wherein  their 
local  customs  were  silent.  And,  if  I  un- 
derstand Denisirt.  (Dictionnaire  des  De- 
cisions, art.  Droit-ecrit,)  the  affirmative 
prevailed.  It  Is  plain  at  least  by  the 
Causes  Celebres,  that  appeal  was  con- 
tinually made  to  the  principles  of  the 
civil  l;iw  in  the  argument  of  Parisian 
advocates. 

3  Crevier,  Hist,  de  I'Universite  de  Pa- 
ri*, t.  i.  p.  316;  t.  ii.  p.  275. 

'  Johan.  Salisburiensis,  apud  Selden 
ad  Fletam,  p.  1082. 


*  Selden,  nbi  supra,  p.  1095-1104.  Thi« 
passage  is  worthy  of  attention.  Yet, 
notwithstanding  Selden's  authority,  I 
am  not  satisfied  that  he  h:is  not  extenu- 
ated the  effect  of  Bracton's  predilection 
for  the  maxims  of  Iloman  jurisprudence. 
No  early  lawyer  has  contributed  so  much 
to  form  our  own  system  as  Brae  ton  ;  and 
if  his  definitions  and  rules  are  sometimes 
borrowed  from  the  civilians,  as  all  admit, 
our  commou  law  may  have  indirectly  re- 
ceived greater  modification  from  that  in- 
fluence, than  its  professors  were  ready  to 
acknowledge,  or  even  than  they  knew. 
A  full  view  of  this  subject  is  still,  I  think, 
a  desideratum  in  the  history  of  English 
law,  which  it  would  illustrate  in  a  verj 
interesting  manner. 

6  Duck,  De  Usu  Juris  Civilis,  1. 1,  c.  87. 


394 


CIVIL  LAW. 


Chap.  DC.  Part  II. 


State  of  Society.     PUBLIC  SCHOOLS  IN  FRANCE. 


395 


The  elder 
civilians 
little  re> 
garded. 


I  to  dwell  on  the  forgotten  teachers  of  a  science 
that  attracts  so  few.  These  elder  professoi*s  of 
Roman  jurisprudence  are  infected,  as  we  are  told, 
with  the  faults  and  ignorance  of  their  time ;  fail- 
ing in  the  exposition  of  ancient  law  through  incorrectness  of 
manuscripts  and  want  of  subsidiary  learning,  or  pervertin<» 
their  sense  through  the  verbal  subtleties  of  scholastic  philoso^ 
phy.  It  appears  that,  even  a  hundred  years  since,  neither 
Azzo  and  Accursius,  the  principal  civilians  of  the  thirteenth 
century,  nor  Bartolus  and  Baldus,  the  more  conspicuous  lu- 
minaries of  the  next  age,  nor  the  later  writings  of  Accolti, 
Fulgosius,  and  Panormitanus,  were  greatly  regarded  as  au- 
thorities; unless  it  were  in  Spain,  where  improvement  is 
always  odious,  and  the  name  of  Bartolus  inspired  absolute 
deference.^  In  the  sixteenth  century,  Alciatus  and  the  great- 
er Cujacius  became,  as  it  were,  the  founders  of  a  new  and 
more  enlightened  academy  of  civil  law,  from  which  the  latter 
jurists  derived  their  lessons.  The  laws  of  Justinian,  stripped 
of  their  impurer  alloy,  and  of  the  tedious  glos.^es  of  their 
commentators,  will  form  the  basis  of  other  system;?,  and  min- 
gling, as  we  may  hope,  with  the  new  institutions  of  philosoph- 
ical legislators,  continue  to  influence  the  social  relations  of 
mankind,  long  after  their  direct  authority  shall  have  been 
abrogated.  The  ruins  of  ancient  Rome  supplied  the  mate- 
rials of  a  new  city ;  and  the  fragments  of  her  law,  which 
have  already  been  wrought  into  the  recent  codes  of  France 
and  Prussia,  will  probably,  under  other  names,  guide  far  dis- 
tant generations  by  the  sagacity  of  Modestinus  and  Ulpian.^ 

The  establishment  of  public  schools  in  France  is  owing  to 
Charlemange.  At  his  accession,  we  are  assured  that  no 
means  of  obtaining  a  learned  education  existed  in  his  do- 


1  Oravina,  Origines  Juris  Cirilis,  p. 
196. 

2  Those  who  feel  some  curiosity  about 
the  civilians  of  the  middle  n^cs  will  find 
a  concise  and  elephant  account  in  Gravi- 
na,  De  Origine  Juris  Civilis,  p.  163-208. 
(Lips.  1708.)  Tinboschi  contains  perh-ips 
more  information ;  but  his  prolixity  Ls 
very  wearisome  Besides  this  fault,  it  is 
evident  that  Tiraboschi  knew  very  little 
of  law,  and  had  not  read  the  civilians  of 
whom  he  treats  ;  whereas  Qravina  dis- 
cusses their  merits  nototily  with  lefjal 
knowledge,  but  with  an  acuteness  of  crit- 
icism which,  to  say  the  truth,  Tiraboschi 
never  shows  except  on  a  date  or  a  name. 


[The  civil  lawyers  of  the  mediaeval 
period  are  not  at  all  forsotton  on  the 
continent,  as  the  great  work  of  Savijrny, 
History  of  Roman  Law  in  the  Middle 
Ages,  sufRciently  proves.  It  is  cerbtin 
that  the  civil  law  must  always  be  studied 
in  Europe,  nor  ought  the  new  codes 
to  supersede  it,  seeing  they  are  in 
great  measure  derived  from  Its  fountain; 
though  I  have  heard  that  it  is  less  re- 
garded in  France  than  formerly.  In  my 
earlier  editions  I  depreciated  the  study 
of  the  civil  law  too  much,  and  wifh  too 
exclusive  an  attention  to  English  no> 
tioos.] 


minions  ;^  and  in  order  to  restore  in  some  degree  pubiic 
the  spirit  of  letters,  he  was  compelled  to   invite  f  S^L'  ®'" 

*"  ^      I  \  ,  '        .  tJiblKshed  by 

Strangers  from  countries  where  learnmg  was  not  charie- 
80  thoroughly  extinguished.  Alcuin  of  England,  ^'^"®- 
Clement  of  Ireland,  Theodulf  of  Germany,  were  the  true 
Paladins  who  repaired  to  his  court.  With  the  help  of  these 
he  revived  a  few  sparks  of  diligence,  and  established  schools  in 
different  cities  of  his  empire;  nor  was  he  ashamed  to  be  the 
di.-^ciple  of  that  in  his  own  palace  under  the  care  of  Alcuin. 
His  two  next  successors,  Louis  the  Debonair  and  Charles  the 
Bald,  wei'e  also  encouragers  of  letters ;  and  the  schools  of 
Lyons,  Fulda,  Corvey,  Rheims,  and  some  other  cities,  might 
be  said  to  flourish  in  the  ninth  century.^  In  these  were  taught 
the  trivium  and  quadrivium,  a  long-established  division  of 
sciences  :  the  first  comprehending  grammar,  or  what  we  now 
call  philology,  logic,  and  rhetoric ;  the  second,  music,  arith- 
metic, geometry,  and  astronomy.*  But  in  those  ages  scarcely 
anybody  mastered  the  latter  four ;  and  to  be  perfect  in  the 
three  former  was  exceedingly  rare.  All  those  studies,  how- 
ever, were  referred  to  theology,  and  that  in  the  narrowest 
manner ;  music,  for  example,  being  reduced  to  church  chant- 
ing, and  astronomy  to  the  calculation  of  Eastei*.®  Alcuin  was, 
in  his  old  :ige,  against  reading  the  poets  ;  ^  and  this  discour- 
agement of  secular  learning  was  very  general ;  though  some, 
as  for  instance  Raban,  permitted  a  slight  tincture  of  it,  as 
subsidiary  to  religious  instruction.' 


4   » 


1  Ante  ipsum  dominum  Carolum  rc- 
gem  in  Qnlli^  nullum  fuit  studiuni  libera- 
fium  artium.  Monachus  KngolLsmensis, 
apud  Launoy,  De  Scholis  per  occidentem 
instauratis,  p.  6.  See  too  Uistoire  Lit- 
tir.iire  de  la  France,  t.  iv.  p.  1.  "  Stu- 
dia  liberalium  artium '*  in  this  pa.<:sage, 
must  be  understood  to  exclude  litera- 
ture, commonly  so  called,  but  not  a  cer- 
tain measure  of  very  ordinary  instruc- 
tion. For  there  were  episcopal  and  con- 
ventual schools  in  the  seventh  and  eighth 
centuries,  even  in  France,  especially 
Aquitaine;  we  need  hardly  repeat  that  in 
England,  the  former  of  these  ages  pro- 
duced Bede  and  Theodore,  and  the  men 
trained  under  them  ;  the  Lives  of  the 
Saints  also  lead  us  to  take  with  some  lim- 
itation the  absolute  denial  of  liberal 
studies  before  Charlemagne.  See  Guizot, 
Hist,  de  la  Civiiis.  en  France,  I^on  16; 
and  Ampere,  Hist.  Litt.  de  la  France,  iii. 
p.  4.   But,  perhaps,  philology,  logic,  phi- 


losophy, and  even  theology  were  not 
taught, as  sciences,  in  any  of  the  French 
schools  of  these  two  centuries  ;  and  con- 
sequently those  estiblished  by  Charle« 
magno  justly  make  an  epoch. 

2  Id.  Ibid.  There  was  a  sort  of  liter- 
ary club  among  them,  where  the  mem- 
bers assumed  ancient  names.  Charle- 
magne was  called  David;  Alcuin,  IIor< 
ace ;  another,  Dametas.  &c. 

'■i  Hist.  Litteraire,  p.  217,  &c. 

*  This  division  of  the  sciences  is  as. 
cribed  to  St.  Augustin  ;  and  we  certainly 
find  it  established  early  in  the  sixth  cen* 
tury.  Brucker,  Historia  Critica  Philo- 
Sophia?,  t.  iii.  p.  597. 

6  Schmidt,  Hist,  des  AUemands,  t.  il. 
p.  126. 

0  Crevier,  Hist,  de  I'Universiti  de  Pa- 
ris,  t  i.  p.  28. 

7  Brucker,  t.  iii.  p.  612.  Raban  Man* 
rus  was  chief  of  the  cathedral  school  at 
Fulda,  in  the  ninth  century. 


t 

t 


396 


UNIVERSITY  OF  PARIS.    Chap.  IX.  Part  U. 


State  op  Society. 


OXFORD. 


397 


About  the  latter  part  of  the  eleventh  century  a  greater 
University  of  ardoF  foF  intellectual  pursuits  began  to  show  itself 
Pans.  jjj  Europe,  which  in  the  twelfth  broke  out  into  a 

flame.  This  was  manifested  in  the  numbers  who  repaired  to 
the  pubHc  academies  or  schools  of  philosophy.  None  of 
these  grew  so  early  into  reputation  as  that  of  Paris.  This 
cannot  indeed,  as  has  been  vainly  pretended,  trace  its  pedi- 
gree to  Charlemagne.  The  first  who  is  said  to  have  read 
lectures  at  Paris  was  Remigius  of  Auxerre,  about  the  year 
900.^  For  the  two  next  centuries  the  history  of  this  school 
is  veiy  obscure  ;  and  it  would  be  hard  to  prove  an  unbroken 
continuity,  or  at  least  a  dependence  and  connection  of  its  pro- 
fessors. In  the  year  1100  we  find  William  of  Champcaux 
teaching  logic,  and  apparently  some  higher  parts  of  philoso- 

Abeiard.  1*^^^»  ^^'^^^^  much  Credit.  But  this  preceptor  was 
eclipsed  by  his  disciple,  afterwards  his  rival  and 
adversary,  Peter  Abelard,  to  whose  brilliant  and  hardy 
genius  the  university  of  Paris  appears  to  be  indebted  for  its 
rapid  advancement.  Abelard  was  almost  the  first  who  awa- 
kened mankind  in  the  ages  of  darkness  to  a  sympathy  with 
intellectual  excellence.  His  bold  theories,  not  the  less  at- 
tractive perhaps  for  treading  upon  the  bounds  of  heresy,  his 
imprudent  vanity,  that  scorned  the  regularly  acquired  repu- 
tation of  older  men,  allured  a  multitude  of  disciples,  who 
would  never  have  listened  to  an  ordinary  teacher.  It  is  said 
that  twenty  cardinals  and  fifty  bishops  had  been  among  his 
hearers.'^  Even  in  the  wilderness,  where  he  had  erected  the 
monastery  of  Paraclete,  he  was  surrounded  by  enthusiastic 
admirers,  relinquishing  the  luxuries,  if  so  they  might  be 
called,  of  Paris,  for  the  coarse  living  and  impeifect  accom- 
modation which  that  retirement  could  afford.^  But  the  whole 
of  Abelard's  life  was  the  shipwreck  of  genius  ;  and  of  genius, 
both  the  source  of  his  own  calamities  and  unserviceable  to 
posterity.  There  are  few  lives  of  literary  men  more  inter- 
esting or  more  diversified  by  success  and  adversity,  by  glory 
and  humiliation,  by  the  admiration  of  mankind  and  the  per- 
secution of  enemies  ;  nor  from  which,  I  may  add,  more  im- 
pressive lessons  of  moral  prudence  may  be  derived.*     One 


*  Crevier.  p.  66. 

2  Crevier,  p.  171;   Brucker,  p.  677; 
Tiraboschi,  t.  iii.  p.  275. 
'  Brucker,  p.  750. 

*  A  great  interest  has  been  reTiyed  in 


France  for  the  philosophy,  as  well  as  the 
personal  history  of  Abelard,  by  the  pub- 
lication of  his  philosophical  writings,  in 
1836,  under  so  eminent  an  editor  as  M. 
Cousin,  and  by  the  excellent  work  of  M 


of  Abelard*s  pupils  was  Peter  Lombard,  afterwards  arch- 
bishop of  Paris,  and  author  of  a  work  called  the  Book  of 
Sentences,  which  obtained  the  highest  authority  among  the 
scholastic  disputants.  The  resort  of  students  to  Paris  be- 
came continually  greater ;  they  appear,  before  the  year  1169, 
to  have  been  divided  into  nations  ;  ^  and  probably  they  had 
an  elected  rector  and  voluntary  rules  of  discipline  about  the 
same  time.  This,  however,  is  not  decisively  proved ;  but  in 
the  last  year  of  the  twelfth  century  they  obtained  their  ear- 
liest charter  from  Philip  Augustus.^ 

The  opinion  which  ascribes  the  foundation  of  the  universi- 
ty of  Oxford  to  Alfred,  if  it  cannot  be  maintained  university  of 
as  a  truth,  contains  no  intrinsic  marks  of  error.  Oxford. 
Ingulfus,  abbot  of  Croyland,  in  the  earliest  authentic  passage 
that  can  be  adduced  to  this  point,"  declares  that  he  was  sent 
from  Westminster  to  the  school  at  Oxford  where  he  learned 
Aristotle,  with  the  first  and  second  books  of  Tully^s  Rhetoric* 
Since  a  school  for  dialectics  and  rhetoric  subsisted  at  Oxford, 
a  town  of  but  middling  size  and  not  the  seat  of  a  bishop,  we 
are  naturally  led  to  refer  its  foundation  to  one  of  our  kings, 


de  Remusat,  in  1845,  with  the  title  Abe- 
lard, containing  a  copious  account  both 
of  the  life  and  writings  of  that  most  re- 
marltable  man,  the  father,  perhaps,  of 
the  theory  as  to  the  nature  of  universal 
ideas,  now  so  generally  known  by  the 
Dame  of  conceptualisni. 

1  The  faculty  of  arts  in  the  university 
of  Paris  was  divided  into  four  nations ; 
those  of  France,  Picardy,  Normandy,  and 
England.  These  had  distinct  suffrages 
In  the  affairs  of  the  university,  and  con- 
Bequently,  when  united,  outnumbered 
the  three  higher  faculties  of  theology, 
law,  and  medicine.  In  11G9,  Henry  II. 
of  England  offers  to  refer  his  dispute  with 
Becket  to  the  provinces  of  the  school  of 
Paris. 

3  Crevier,  t.  i.  p.  279.  The  first  stat- 
ute regulating  the  discipline  of  the 
university  was  given  by  Uobert  de  Cour- 
9on,  legate  of  Ilonorius  III.,  in  1215,  id. 
p.  298. 

3  No  one  probably  would  choose  to  re- 
ly on  a  pas^age  found  in  one  manu- 
■cript  of  Asserius,  which  has  all  appear- 
uncti  of  an  interpolation.  It  is  evident 
from  an  anecdote  in  Wood's  History  of 
Oxford,  vol.  i.  p.  23  (Gutch's  edition), 
that  Camden  did  not  believe  in  the  au- 
thenticity of  this  passage,  though  ho 
thought  proper  to  insert  it  in  the  Bri- 
tannia. 

4  1  Qale,  p.  75.    The  mention  of  Aris- 


totle at  so  early  a  period  might  seem  to 
throw  some  suspicion  on  this  passage. 
But  it  is  impossible  to  detach  it  from  the 
context ;  and  the  works  of  Aristotle  in- 
tended by  Ingulfus  were  translations  of 
parts  of  his  Ix)gic  by  Boethius  and  Vic- 
torin.  Brucker,  p.  678.  A  passage  in- 
deed in  Peter  of  Blois's  continuation  of 
Ingulfus,  where  the  study  of  A  verroes  is 
said  to  have  taken  place  at  Cambridge 
some  years  before  he  was  born,  is  of  a 
different  complexion,  and  must  of  course 
be  rejected  as  spurious.  In  the  Oesta 
Comitum  Andegdvensium,  Fulk,  count 
of  Anjou,  who  lived  about  920,  is  said  to 
have  been  skilled  Aristotelicis  et  Cicero- 
nianis  ratiocinationibus. 

[The  authenticity  of  Ingulfus  has  been 
called  in  question,  not  only  by  Sir  Fran- 
cis Palgrave,  but  by  Mr.  Wright.  Biogr. 
Liter.,  Anglo-Norman  Period,  p.  29.  And 
this  implies,  apparently,  the  spuriousness 
of -the  continuation  ascribed  to  Peter  of 
Blois,  in  which  the  passage  about  Aver- 
roes  throws  doubt  upon  the  whole.  I 
have,  in  the  Introduction  to  the  History 
of  Literature,  retracted  the  degree  of 
credence  here  given  to  the  foundation 
of  the  university  of  Oxford  by  Alfred 
If  Ingulfus  is  not  genuine,  wo  hare  no 
proof  of  its  existence  as  a  school  of 
learning  before  the  middle  of  the  twelfth 
century.] 


\i' 


398 


BOLOGNA. 


Chap.  DC.  Pakt  H 


State  of  Socieit.     UNIVERSITIES  ENCOURAGED. 


399 


and  none  who  had  reigned  after  Alfred  appears  likely  to  have 
manifested  such  zeal  for  learning.  However,  it  is  evident 
that  the  school  of  Oxford  was  frequented  under  Edward  the 
Confessor.  There  follows  an  interval  of  above  a  century, 
during  which  we  have,  I  believe,  no  contemporary  evidence 
of  its  continuance.  But  in  the  reign  of  Stephen,  Vacarius 
read  lectures  there  upon  civil  law ;  and  it  is  reasonable  to 
suppose  that  a  foreigner  would  not  have  chosen  that  city,  if 
he  had  not  found  a  seminary  of  learning  already  established. 
It  was  probably  inconsiderable,  and  might  have  been  inter- 
rupted during  some  part  of  the  preceding  century.*  In  the 
reign  of  Henry  II.,  or  at  least  of  Richard  I.,  Oxford  became 
a  very  flourishing  university,  and  in  1201,  according  to  Wood, 
contained  3000  scholars.*  The  earliest  charters  were  granted 
by  John. 

If  it  were  necessary  to  construe  the  word  university  in  the 
University  Strict  scnsc  of  a  legal  incorporation,  Bologna  might 
of  Bologna,     j^^  ^.jj^jjj^  ^^  ^  jjigj^^j.  j^ntiquity  than  either  Paris  or 

Oxford.  There  are  a  few  vestiges  of  studies  pursued  in  that 
city  even  in  the  eleventh  century ;  •  but  early  in  the  next  the 
revival  of  the  Roman  jurisprudence,  as  has  been  already 
noticed,  brought  a  throng  of  scholars  round  the  chairs  of  its 
professors.  Frederic  Barbarossa  in  1158,  by  his  authentic, 
or  rescript,  entitled  Habita,  took  these  under  his  protection, 
and  permitted  them  to  be  tried  in  civil  suits  by  their  own 
Enconra  J^^o^s.  This  exemption  from  the  ordinary  tribu- 
meSt^gTv^  nals,  and  even  from  those  of  the  church,  was 
^ti^!"""^'  naturally  coveted  by  other  academies;  it  was 
granted  to  the  university  of  Paris  by  its  earliest 
charter  from  Philip  Augustus,  and  to  Oxford  by  John.  From 
this  time  the  golden  age  of  universities  commenced ;  and  it  is 
hard  to  say  whether  they  were  favored  more  by  their  sover- 
eigns or  by  the  see  of  Rome.  Their  history  indeed  is  full  of 
struggles  with  the  municipal  authorities,  and  with  the  bishops 
of  their   several  cities,  wherein  they  were  sometimes  the 


1  It  may  be  remarked,  that  John  of 
Saliibury,  who  wrote  in  the  first  years 
of  Uenry  II/8  reign,  since  hiis  Polycra- 
ticon  Is  dedicated  to  Becket,  before  he 
became  archbishop,  makes  no  mention  of 
Oxford,  which  he  would  probably  have 
done  if  it  had  been  an  eminent  seat  of 
learning  nt  that  time. 

3  Wood's  Hist,  and  Antiquities  of  Ox- 


ford, p.  177.  The  Benedictines  of  St. 
Maur  say,  that  there  was  an  eminent 
school  of  canon  law  at  Oxford  about  th« 
end  of  the  twelfth  century,  to  which 
many  students  repaired  from  Paris.  Hist. 
Litt.  de  la  France,  t.  Ix.  p.  216. 

3  Tiraboschi,  t.  iii.  p.  259,  et  alibi 
Muratori,  Dissert.  43. 


aggi'cssors,  and  generally  the  conquerors.  From  all  parts 
of  Europe  students  resorted  to  these  renowned  seats  of 
learning  with  an  eagerness  for  instruction  which  may  aston- 
ish those  who  reflect  how  little  of  what  we  now  deem  useful 
could  be  imparted.  At  Oxford,  under  Henry  III.,  it  is  said 
tliat  there  were  30,000  scholars;  an  exaggeration  which 
seems  to  imply  that  the  real  number  was  very  great.^  A 
respectable  contemporary  writer  asserts  that  there  were  full 
10,000  at  Bologna  about  the  same  time.^  I  have  not  observed 
any  luimerical  statement  as  to  Paris  during  this  age;  but 
there  Ciin  be  no  doubt  that  it  was  more  frequented  than  any 
other.  At  the  death  of  Charles  VII.,  in  1453,  it  is  said  to 
have  contained  25,000  students.'  In  the  thirteenth  century 
other  universities  sprang  up  in  different  countries ;  Padua 
and  Naples  under  the  patronage  of  Frederic  II.,  a  zealous 
and  useful  friend  to  letters,*  Toulouse  and  Montpelier,  Cam- 
bridge and  Salamanca.''  Orleans,  which  had  long  been  dis- 
tinguished as  a  school  of  civil  law,  received  the  privileges  of 
incorporation  early  in  the  fourteenth  century,  and  Angers 
before  the  expiration  of  the  same  age.*  Prague,  the  earliest 
and  most  eminent  of  German  universities,  was  founded  in 
1350 ;  a  secession  from  thence  of  Saxon  students,  in  conse- 
quence of  the  nationality  of  the  Bohemians  and  the  Hussite 
schism,  gave  rise  to  that  of  Leipsic.^     The  fifteenth  century 


li 


1  "  But  among  these,"  says  Anthony 
Wood,  '•  a  company  of  varlets,  who  pre- 
tended to  be  scholars,  shuftie  themselves 
in,  and  did  act  much  villany  in  the  iini- 
tersity  by  thieving,  whoring,  quarrelling, 
&c.  They  lived  under  no  discipline, 
neither  had  they  tutors;  but  only  for 
fiishion's  sake  would  sometimes  thrust 
thomsolvos  into  the  schools  at  ordinary 
lecture.",  and  when  they  went  to  perform 
any  mischief,  then  would  they  be  ac- 
counted scholars,  that  so  they  might  free 
themselves  from  the  jurisdiction  of  the 
burghers."  p.  206.  If  we  allow  three 
yarlets  to  one  Fcholar,  the  university  will 
still  have  been  very  fully  frequented  by 
the  Intter. 

-  Tiniboschi,  t.  ir.  p.  47.  Azarius, 
about  the  middle  of  the  fourteenth  cen- 
tury, says  the  number  was  about  13,000 
in  his  time.  Muratori,  Script.  Ker.  Ital. 
t  xvi.  p.  325. 

'  Villaret,  Hist,  de  France,  t.  xvi.  p. 
841.  This  may  perhaps  require  to  be 
taken  with  allowance.  But  Paris  owes 
A  gnat  part  of  its  buildings  on  the 
TOuthem  bank  of  the  Seine  to  the  uni- 


versity. The  students  are  said  to  have 
been  about  12,000  before  1480.  Crevier, 
t.  iv.  p.  410. 

*  Tiraboschi,  t.  iv.  p.  43  and  46. 

<>  The  earliest  authentic  mention  of 
Cambridge  as  a  place  of  learning,  if  I 
mistake  not,  is  in  Matthew  Paris,  who 
informs  us,  that  in  1209,  John  having 
caused  three  clerks  of  Oxford  to  be 
hanged  on  suspicion  of  murder,  the 
whole  bod}'  of  scholars  left  that  city,  and 
emigrated,  some  to  Cambridge,  some  to 
Heading,  in  order  to  carry  on  their  stud- 
ies (p.  191,  edit.  1684).  But  it  may  be 
conjectured  with  some  probability,  that 
they  were  led  to  a  town  so  distant  as 
Cambridge  by  the  previous  establishment 
of  academical  instruction  in  that  place. 
The  incorporation  of  Cambridge  is  in 
1231  (15  lien.  III.),  so  that  there  is  no 
great  difference  in  the  legal  antiquity  of 
our  two  universities. 

0  Crevier,  Hist,  de  l'Universit6  de  Pa- 
ris, t.  ii.  p.  216 ;  t.  iii.  p.  140. 

7  Pfeffel,  Abrdg6  Chronologique  de 
PHist.  de  I'AUemagne,  p.  550,  607. 


400 


UNIVERSITIES  ENCOURAGED.     Chap.  IX.  Part  U. 


State  of  Society.    SCHOLASTIC  PHILOSOPHY. 


401 


produced  several  new  academical  foundations  in  France  and 
Spain. 

A  large  proportion  of  scholars  in  most  of  those  institutions 
were  drawn  by  the  love  of  science  from  foreign  countries. 
Tiie  chief  univei-sities  had  their  own  particular  departments 
of  excellence.  Paris  was  unrivalled  for  scholastic  theology ; 
Bologna  and  Orleans,  and  afterwards  Bourges,  for  jurispru- 
dence ;  Montpelier  for  medicine.  Though  national  prejudices, 
as  in  the  case  of  Prague,  sometimes  interfered  with  this  free 
resort  of  foreigners  to  places  of  education,  it  was  in  general 
a  wise  policy  of  government,  as  well  as  of  the  universities 
themselves,  to  encourage  it.  The  thirty-fifth  article  of  the 
peace  of  Bretigni  provides  for  the  restoration  of  former  privi- 
leges to  students  respectively  in  the  French  and  English  uni- 
versities.^ Various  letters  patent  will  be  found  in  Rymer's 
collection,  securing  to  Scottish  as  well  as  French  natives  a 
safe  passage  to  their  place  of  education.  The  English  nation, 
including  however  the  Flemings  and  Germans,^  had  a  sepa- 
rate vote  in  the  faculty  of  arts  at  Paris.  But  foreign  students 
were  not,  I  believe,  so  numerous  in  the  English  academies. 

If  endowments  and  privileges  are  the  means  of  quickening 
a  zeal  for  letters,  they  were  liberally  bestowed  in  the  last 
three  of  the  middle  ages.  Crevier  enumerates  fifteen  col- 
leges founded  in  the  university  of  Paris  during  the  thirteenth 
century,  besides  one  or  two  of  a  still  earlier  date.  Two  only, 
or  at  most  three,  existed  in  that  age  at  Oxford,  and  but  one 
at  Cambridge.  In  the  next  two  centuries  these  universities 
could  boast,  as  every  one  knows,  of  many  splendid  founda- 
tions, though  much  exceeded  in  number  by  those  of  Paris. 
Considered  as  ecclesiastical  institutions  it  is  not  surprisinf^ 
that  the  universities  obtained,  according  to  the  spirit  of  their 
age,  an  exclusive  cognizance  of  civil  or  criminal  suits  affect- 
ing their  members.  This  jurisdiction  was,  however,  local  as 
well  as  personal,  and  in  reality  encroached  on  the  rc'-ular 
police  of  their  cities.  At  Pans  the  privilege  turned  to  a 
flagrant  abuse,  and  gave  rise  to  many  scandalous  conten- 
tions.' Still  more  valuable  advantages  were  those  relatin'^ 
to  ecclesiastical  preferments,  of  which  a  large  proportion  was 
reserved  in  France  to  academical  graduates.  Something  of 
the  same  sort,  though  less  extensive,  may  still  be  traced  in 

1  Bymer,  t.  vi.  p.  292.  »  CreTler,  t.  ii.  p.  S86. 

*  CreTier  and  YUlaret,  passim. 


the  rules  respecting  plurality  of  benefices  in  our  English 
church. 

This  remarkable  and  almost  sudden  transition  from  a  total 
indifference  to  all  intellectual  pursuits  cannot  be  Causes  of 
ascribed  perhaps  to  any  general  causes.  The  their  ce- 
restoration  of  the  civil,  and  the  formation  of  the  ^®^"'y* 
canon  law,  were  indeed  eminently  conducive  to  it,  and  a 
large  proportion  of  scholars  in  most  universities  confined 
themselves  to  jurisprudence.  But  the  chief  attraction  to  the 
studious  was  the  new  scholastic  philosophy.  The  scholastic 
love  of  contention,  especially  with  such  arms  as  the  piiJiosophy. 
art  of  dialectics  supplies  to  an  acute  understanding,  is  natural 
enough  to  mankind.  That  of  speculating  upon  the  mysterious 
questions  of  metaphysics  and  theology  is  not  less  so.  These 
disputes  and  speculations,  however,  appear  to  have  excited 
httle  interest  till,  after  the  middle  of  the  eleventh  century, 
Roscelin,  a  professor  of  logic,  revived  the  old  question  of  the 
Grecian  schools  respecting  universal  ideas,  the  reality  of 
which  he  denied.  This  kindled  a  spirit  of  metaphysical  dis- 
cussion, which  Lanfranc  and  Anselm,  successively  archbishops 
of  Canterbury,  kept  alive ;  and  in  the  next  century  Abelard 
and  Peter  Lombard,  especially  the  latter,  completed  the 
scholastic  system  of  philosophizing.  The  logic  of  Aristotle 
seems  to  have  been  partly  known  in  the  eleventh  century, 
although  that  of  Augustin  was  perhaps  in  higher  estima- 
tion;^ in  the  twelfth  it  obtained  more  decisive  influence. 
His  metaphysics,  to  which  the  logic  might  be  considered  as 
preparatory,  were  introduced  through  translations  from  the 
Arabic,  and  perhaps  also  from  the  Greek,  early  in  the  ensu- 
ing century.^     This  work,  condemned  at  first  by  the  decrees 


1  Brucker,  Ilist.  Crit.  Philosophise,  t. 
Ui.  p.  678. 

-  Id.  Ibid.  Tiraboschi  conceives  that 
the  translations  of  Aristotle  made  by 
command  of  Frederic  II.  were  directly 
from  the  Greek,  t.  iv.  p.  145;  and  cen- 
sures Brucker  for  the  contrary  opinion. 
Buhle,  however  (Hist,  de  la  I'hilosophie 
Moderne,  t.  i.  p.  696),  appears  to  agree 
witli  Brucker.  It  is  almost  certain  that 
Versions  were  made  from  the  Arabic 
Ariiitotle :  which  itself  was  not  imme- 
diately  taken  from  the  On-ck,  but  from  a 
Syriac  medium.  Oinguene,  Ilist.  Litt. 
de  ritalie.  t.  i.  p.  212  (on  the  authority 
of  M.  Langlte). 

It  was  not  only  a  knowledge  of  Aris- 
voL.  lu.  26 


totle  that  the  scholastics  of  Europe  de« 
rived  from  the  Arabic  language.  His 
writings  had  produced  in  the  tiourishing 
Mohammedan  kingdoms  a  va5t  number 
of  commentators,  and  of  metaphysicians 
trained  in  the  same  school.  Of  these 
Averroes,  a  native  of  Cordova,  who  died 
early  in  the  thirteenth  century,  was  the 
most  eminent.  It  would  be  curious  to 
examine  more  minutely  than  has  hitherto 
been  done  the  original  writings  of  these 
famous  men,  which  no  doubt  have  suf- 
fered in  translation.  A  passage  from  Al 
Gazel,  which  Mr.  Turner  has  rendered 
from  the  Latin,  with  all  the  disadvantage 
of  a  double  remove  from  the  author's 
irords,  appears  to  state  the  argument  in 


!!! 


402 


SCHOLASTIC  PHILOSOPHY.     Chap.  IX.  Part  H. 


State  of  Society.     SCHOLASTIC  PHILOSOPHY. 


403 


of  popes  and  councils  on  account  of  its  supposed  tendency  to 
atheism,  acquired  by  degrees  an  influence,  to  which  even 
popes  and  councils  were  obliged  to  yield.  The  Mendicant 
Friars,  established  througliout  Europe  in  the  thirteenth  cen- 
tury, greatly  contributed  to  promote  the  Aristotelian  pliiloso- 
phy;  and  its  final  reception  into  the  orthodox  system  of  the 
church  may  chiefly  be  ascribed  to  Thomas  Aquinas,  the  boast 
of  the  Dominican  order,  and  certainly  the  most  distinguished 
metaphysician  of  the  middle  ages.  His  authority  silenced 
all  scruples  as  to  that  of  Aristotle,  and  tlie  two  philosophers 
were  treated  with  equally  implicit  deference  by  the  later 
schoolmen.* 

This  scholastic  philosophy,  so  famous  for  several  ages,  has 
Bince  passed  away  and  been  forgotten.  The  history  of  liter- 
ature, like  that  of  empire,  is  full  of  revolutions.  Our  public 
libraries  are  cemeteries  of  departed  reputation,  and  the  dust 
accumulating  upon  their  untouched  volumes  speaks  as  forci- 
bly as  the  grass  that  waves  over  the  ruins  of  Babylon.  Few, 
very  few,  for  a  hundred  years  past,  have  broken  the  repose 
of  the  immense  works  of  the  schoolmen.  None  perhaps  in 
our  own  country  have  acquainted  themselves  particularly 
with  their  contents.  Leibnitz,  however,  expressed  a  wish 
that  some  one  conversant  with  modem  philosophy  would  un- 
dertake to  extract  the  scattered  particles  of  gold  which  may 
be  hidden  in  their  abandoned  mines.  This  wish  has  been  at 
length  partially  fulfilled  by  three  or  four  of  those  industrious 
students  and  keen  metaphysicians,  who  do  honor  to  modern 
Germany.  But  most  of  their  works  are  unknown  to  me 
-except  by  repute,  and  as  they  all  appear  to  be  formed  on  a 
very  extensive  plan,  I  doubt  whether  even  those  laborious 
men  could  afford  adequate  time  for  this  ungrateful  research. 
Yet  we  cannot  pretend  to  deny  that  Roscelin,  Anselm,  Abe- 
lard,  Peter  Lombard,  Albertus  Magnus,  Thomas  Aquinas, 


fkror  of  that  class  of  Nominalists,  called 
ConceptualistM,  with  more  clearness  and 
precision  than  anything  I  have  seen 
fh)m  the  schoolmen.  Al  Gazel  died  in 
1126,  and  consequently  mi<;ht  have  sug- 
gested this  theory  to  Abelard,  which 
EoweTer  is  not  probable.  Turner's  Hist. 
of  Engl.  vol.  i.  p.  613. 

1  Brucker,  Hist.  Grit.  Philosophiae, 
t.  iii.  I  have  found  no  better  fruide  than 
Brucker.  But  ho  confesses  himself  not 
to  have  read  the  original  writings  of  the 


scholastics;  an  admission  which  every 
reader  will  perceive  to  be  quite  nwc^e- 
sary.  Consequently,  he  gives  us  ratner 
a  verbose  declamation  against  their 
philosophy  than  any  clear  view  of  its 
chanioter.  Of  the  valuable  works  lately 
published  in  Germany  on  the  history  of 
philosophy.  I  have  only  seen  that  of 
Buhle,  which  did  not  fall  into  my  hand! 
till  I  ha/l  nearly  written  these  pages 
Tiedemann  and  Tennemann  are  I  b** 
lieve,  still  untranslated. 


Duns  Scotus,  and  Ockham,  were  men  of  acute  and  even 
profound  understandings,  the  giants  of  their  own  generation. 
Even  with  the  slight  knowledge  we  possess  of  their  tenets, 
there  appear  through  the  cloud  of  repulsive  technical  barbar- 
isms rays  of  metaphysical  genius  which  this  age  ought  not  to 
despise.  Thus  in  the  works  of  Anselm  is  found  the  cele 
brated  argument  of  Des  Cartes  for  the  existence  of  a  Deity, 
deduced  from  the  idea  of  an  infinitely  perfect  being.  One 
great  object  that  most  of  the  schoolmen  had  in  view  was,  to 
csitablish  the  principles  of  natural  theology  by  abstract  rea- 
soning. This  reasoning  was  doubtless  liable  to  great  difficul- 
ties. But  a  modern  writer,  who  seems  tolerably  acquainted 
with  the  subject,  assures  us  that  it  would  be  difficult  to 
mention  any  theoretical  argument  to  prove  the  divine  attri- 
butes, or  any  objection  capable  of  being  raised  against  the 
proof,  which  we  do  not  find  in  some  of  the  scholastic  philos- 
ophers.* The  most  celebrated  subjects  of  discussion,  and 
those  on  which  this  class  of  reasoners  were  most  divided, 
were  the  reality  of  universal  ideas,  considered  as  extrinsic  to 
the  human  mind  and  the  freedom  of  will.  These  have  not 
cea^sed  to  occupy  the  thoughts  of  metaphysicians.^ 

But  all  discovery  of  truth  by  means  of  these  controversies 
was  rendered  hopeless  by  two  insurmountable  obstacles,  the 
authority  of  Aristotle  and  that  of  the  church.     Wherever 


1  Buhle,  Hist,  de  la  Philos.  Moderne, 
t.  i.  p.  723.  This  author  raises  upon  the 
whole  a  favorable  notion  of  Anselm  and 
Aquinas;  but  he  hardly  notices  any  other. 

*  Mr.  Turner  h;is  with  his  character- 
istic spirit  of  enterprise  examined  some 
of  the  writings  of  our  chief  English 
schoolmen.  Duns  Scotus  and  Ockham 
(Uist.  of  Eng.  vol.  i,),  and  even  given  us 
some  extnicta  from  them.  They  seem 
to  me  very  frivolous,  so  for  as  I  can  col- 
lect their  meaning.  Ockham  in  par- 
ticular falls  very  short  of  what  I  had  ex- 
pected ;  and  his  nominalism  is  strangely 
different  from  that  of  Berkeley.  We 
can  hardly  reckon  a  man  in  the  right, 
who  is  so  by  accident,  and  through  so- 
phisticil  reasoning.  However,  a  well- 
known  article  in  the  Edinburgh  Review, 
No.  liii.  p.  204,  gives,  from  Tenne- 
mann, a  more  fovorable  account  of  Ock- 
ham. 

Perhaps  I  may  have  imagined  the 
scholastics  to  be  more  forgotten  than  they 
really  are.  Within  a  short  time  I  have 
met  with  four  living  English  writers  who 
have  rend  parts  of  Thomas  Aquinas;  Mr. 
Turner,  Mr.  Bcrington,  Mr.  Coleri«ige, 


and  the  Edinburgh  Reviewer.  Still  I 
cannot  bring  myself  to  think  that  there 
are  four  more  in  this  country  who  can 
say  the  same.  Certain  portions,  how- 
ever, of  his  writings  are  still  read  in  the 
course  of  instruction  of  some  Catholic 
universities. 

[1  leave  this  passage  as  it  was  written 
about  1814.  But  it  must  be  owned 
with  regard  to  the  schoolmen,  as  well  as 
the  jurists,  that  I  at  that  time  under- 
rated, or  at  least  did  not  anticipate,  the 
attention  which  their  works  have  at- 
tracted in  modern  Europe,  and  that  the 
passage  in  the  text  is  more  applicable  to 
the  philosophy  of  the  eighteenth  century 
than  of  the  present.  For  several  years 
past  the  metaphysicians  of  Germany 
and  France  have  brushed  the  dust  from 
the  scholastic  volumes  ;  Tennemann  and 
Buhle,  Degerando,  but  more  than  al) 
Cousin  and  Remusat,  in  their  excellent 
labors  on  Abelard,  have  restored  the 
mediaeval  philosophy  to  a  place  in  tran- 
scendental metaphysics,  which,  during 
the  prevalence  of  the  Cartesian  school, 
and  those  derived  from  it,  had  been 
refused.    1848.J 


ill 


404 


SCHOLASTIC  PHILOSOPHY.     Ciiap.  IX.  Part  IL 


obsequious  reverence  is  substituted  for  bold  inquiiy,  truth,  if 
she  is  not  already  at  hand,  will  never  be  attained.  The 
scholastics  did  not  understand  Aristotle,  whose  original  writ- 
ings they  could  not  read  ;  ^  but  his  name  was  received  with 
implicit  faith.  They  learned  his  peculiar  nomenclature,  and 
fancied  that  he  had  given  them  realities.  The  authority  of 
the  church  did  them  still  more  harm.  It  has  been  said,  and 
probably  with  much  truth,  that  their  metaphysics  were  inju- 
rious to  their  theology.  But  I  must  observe  in  return  that 
their  theology  was  equally  injurious  to  their  metaphysics. 
Their  disputes  continually  turned  upon  questions  either  in- 
volving absurdity  and  contradiction,  or  at  best  inscrutable  by 
human  comprehension.  Those  who  assert  the  greatest  an- 
tiquity of  the  Roman  Catholic  doctrine  as  to  the  real  pres- 
ence, allow  that  both  the  word  and  the  definition  of  transub- 
stantiation  are  owing  to  the  scholastic  writers.  Their  subtle- 
ties were  not  always  so  well  received.  They  reasoned  at 
imminent  peril  of  being  charged  with  heresy,  which  Ros- 
celin,  Abelard,  Lombard,  and  Ockham  did  not  escape.  In 
the  virulent  factions  that  arose  out  of  their  metaphysical 
quarrels,  either  party  was  eager  to  expose  its  adversary  to 
detraction  and  persecution.  The  Nominalists  were  accused, 
one  hardly  sees  why,  with  reducing,  like  Sabellius,  the  per- 
sons of  the  Trinity  to  modal  distinctions.  The  Realists,  with 
more  pretence,  incurred  the  imputation  of  holding  a  language 
that  savored  of  atheism.^  In  the  controversy  Avhich  the 
Dominicans  and  Franciscans,  disciples  respectively  of  Thom- 
as Aquinas  and  Duns  Scotus,  maintained  about  grace  and 
free-will,  it  was  of  course  still  more  easy  to  deal  in  mutual 
reproaches  of  heterodoxy.  But  the  schoolmen  were  in  gen- 
eral prudent  enough  not  to  defy  the  censures  of  the  church ; 
and  the  popes,  in  return  for  the  support  they  gave  to  all 
exorbitant  pretensions  of  the  Holy  See,  connived  at  this 
factious  wrangling,  which  threatened  no  serious  mischief,  as 


1  Roger  Bacon,  by  far  the  truest  phi- 
losopher of  the  middle  ages,  complains  of 
the  ignorance  of  ArLstotle's  translators. 
Every  translator,  he  observes,  ought  to 
understand  his  author's  subject,  and  tl:e 
two  languages  from  which  and  into  which 
he  is  to  render  the  worlc.  But  none 
hitherto,  except  Boethius,  have  suffi- 
ciently known  the  languages ;  nor  has 
one,  except  Robert  Grostete  {the  famou-s 
)>ishop  of  Lincoln),  had  a  competent  ac- 
qu^ntance  with  science.    The  rest  make 


egregious  errors  in  both  respects.  And 
there  is  so  much  niisiipprohcnsion  and 
obscurity  in  the  Aristotelian  writinRS  as 
thus  translated,  that  ooone  understands 
them.    Opus  Majus,  p  45. 

3  Brucker,  p.  733,  912.  Mr.  Tumor 
has  fallen  into  some  confusion  a.<*  to  tbis 
point,  and  supposes  the  nominalist  sys- 
tem to  have  had  a  pantheistical  tendency, 
not  clearly  apprehending  its  character- 
istics, p.  612. 


SvATE  OF  SociBTTY.   SCHOLASTIC  FHILUSOPHY. 


405 


it  did  not  proceed  from  any  independent  spirit  of  research. 
Yet  with  all  -their  apparent  conformity  to  the  received  creed, 
there  was,  as  might  be  expected  from  the  circumstances,  a 
great  deal  of  real  deviation  from  orthodoxy,  and  even  of  infi- 
delity.     The  scholastic  mode  of  dispute,  admitting  of  no 
termination  and  pi-oducing  no  conviction,  was  the  sure  cause 
of  scepticism ;  and  the  system  of  Aristotle,  especially  with 
the  commentaries  of  Averroes,  bore  an  aspect  very  unfavor- 
able to  natural  religion.^     The  Aristotelian  philosophy,  even 
in  the  hands  of  the  Master,  was  like  a  barren  tree  that  con- 
ceals its   want  of  fruit  by  profusion  of  leaves.      But  the 
scholastic  ontology  was  much  worse.     What  could  be  more 
trifling  than  disquisitions  about  the  nature  of  angels,  their 
mode°of  operation,  their  means  of  conversing,  or  (for  these 
were  distinguished)  the  morning  and  evening  state  of  their 
understandings  ?  ^     Into  such  follies  the  schoolmen  appear  to 
have  launched,  partly  because  there  was  less  danger  of  run- 
ning against  a  heresy  in  a  matter  where  the  church  had 
defined°so  little  —  partly  from  their  presumption,  which  dis- 
dained all  inquiries  into  the  human  mind,  as  merely  a  part 
of  physics  —  and  in  no  small  degree  through  a  spirit  of  mysti- 
cal fanaticism,  derived  from  the  oriental  philosophy  and  the 
later  Platonists,  which  blended  itself  with  the  cold-blooded 
technicalities  of  the  Aristotelian  school.'*     But  this  unpro- 


^  Petrarch  gives  a  curious  account  of 
the  irreligion  that  prevailed  among  the 
learned  at  Venice  and  Padua,  in  con- 
sequence of  their  unbounded  admiration 
for  Aristotle  and  Averroes.  One  of  this 
school,  conversing  with  him,  after  ex- 
pressing much  contempt  for  the  Apostles 
and  Fathers,  exclaimed:  Utinam  tu 
Averroim  pati  posses,  ut  vidcres  quanto 
ille  tuis  his  nugatoribusmajorsit  I  Mem. 
de  Petrarque,  t.  lii.  p.  759.  Tiraboschi, 
t.  V.  p.  162. 

2  Brucker.  p.  808. 

3  This  mystical  philosophy  appears  to 
have  been  introiuced  into  Europe  by 
John  Scotus,  whom  Buhle  treats  as  the 
founder  of  the  scholastic  philosophy ; 
though,  as  it  made  no  sensible  progress 
for  two  centuries  after  his  time,  it  seems 
more  natural  to  give  that  credit  to  Ros- 
cehn  and  Anselm.  Scotus  or  Erigena, 
u  he  is  perhaps  nu>rc  frequently  called, 
took  up.  through  the  medium  of  a  spu- 
rious work,  ascribed  to  Dionysius  the 
Arcopngitc,  that  remarkable  system, 
which  has  from  time  immemoriiU  pre- 
vailed  in    some   schools    of    the  Eatit, 


wherein  all  external  phenomena,  as  well 
as  all  subordinate    intellects,  are  con- 
sidered as  emanating  from  the  Supreme 
Being,  into  whose  essence  they  are  here- 
after to  be  absorbed.    This  system,  re- 
produced under  various    modifications, 
and  combined  with  various  theories  of 
philosophy  and  religion,  is  perhaps  the 
most  congenuil  to  the  spirit  of  solitary 
speculation,  and  consequently  the  most 
extensively  diffused  of  any  which  those 
high  themes  have  enjjendered.     It  orig- 
inated no   doubt  in  sublime  conceptions 
of    divine  omnipotence    and    ubiquity. 
But  clearness  of  expression,  or  indeed  of 
ideas,  being  not  easily  connected   with 
mysticism,  the  language  of  philosophers 
adopting  the    theory   of    emanation    is 
often  hardly  distinguishable  from  that  of 
the  pantheists.    Brucker,  very  unjustly, 
as  I  imagine  from  the  passages  he  quotes, 
accuses    .lohn    Erigena    of    pantheism. 
Hist.  Crit.  Philos.  p.  620.    The  charge 
would,    however,   be    better    grounded 
against  some  who.se  style  might  deceive 
an   unaccustomed  resider.     In  feet,  the 
philosophy  of  emanation  leads  very  nearly 


!*1 


i06 


SCHOLASTIC  PHILOSOPHY.     Chap.  IX.  Pabt  H. 


ductive  waste  of  the  faculties  could  not  last  forever.     Men 
discovered  that  they  had  given  their  time  for  the  promise  of 
wisdom,  and  been  cheated  in  the  bargain.     What  John  of 
Salisbury  observes  of  the  Parisian  dialecticians  in  his  own 
time,  that,  after  several  years'  absence,  he  found  them  not  a 
step  advanced  and  still  employed  in  urging  and  parrying  tlie 
same  arguments,  was  equally  applicable  to  the  period  of 
centuries.     After  three  or  four  hundred  years,  the  scholastics 
had  not  untied  a  single  knot,  nor  added  one  unequivocal  truth 
to  the  domain  of  philosophy.     As  this  became  more  evident, 
the  enthusiasm  for  that  kind  of  learning  declined ;  after  the 
middle  of  the  fourteenth  century  few  distinguished  teachers 
arose  among  the  schoolmen,  and  at  the  revival  of  letters  their 
pretended  science  had  no  advocates  left,  but  among  the  preju- 
diced or  ignorant  adherents  of  established  systems.     How 
different  is  the  state  of  genuine  philosophy,  the  zeal  for  which 
will  never  wear  out  by  length  of  time  or  change  of  fashion, 
because  the  inquirer,  unrestrained  by  authority,  is  perpetu- 
ally cheered  by  the  discovery  of  truth  in  researches,  which 
the  boundless  riches  of  nature  seem  to  render  indefinitely 
progressive  !^ 

Yet,  upon  a  general  consideration,  the  attention  paid  in  the 
universities  to  scholastic  philosophy  may  be  deemed  a  source 
of  improvement,  in  the  intellectual  character,  when  we  com- 
pare it  with  the  pci-fect  ignorance  of  some  preceding  ages. 
Whether  the  same  industry  would  not  have  been  more  profit- 
ably directed  if  the  love  of  metaphysics  had  not  intervened, 
is  another  question.  Philology,  or  the  principles  of  good 
taste,  degenerated  through  the  prevalence  of  school-logic. 
The  Latin  compositions  of  the  twelfth  century  are  better  than 
those  of  the  three  that  followed  —  at  least  on  the  northern 
side  of  the  Alps.  I  do  not,  however,  conceive  that  any  real 
correctness  of  taste  or  general  elegance  of  style  was  likely  to 
subsist  in  so  imperfect  a  condition  of  society.  These  quali- 
ties seem  to  require  a  certain  harmonious  correspondence  in 


to  the  doctrine  of  an  universal  substance, 
which  begot  the  atheistic  system  of  Spi- 
noza, and  which  appears  to  have  revived 
with  similar  consequences  among  the 
metaphysicians  of  Germany.  How  very 
closely  the  langujige  of  this  oriental  phi- 
losopljy,  or  even  that  which  regards  the 
Deity  as  the  soul  of  the  world,  may 
Terge  upon  pantheism,  will  be  perceived 


(without  the  trouble  of  reading  the  first 
book  of  Cudworth)  from  two  famous 
passages  of  Virgil  and  Lucan.  Oeorg. 
1.  iv.  V.219;  and  Pharsalia,  I.  viii,  v.  578. 
1  This  subject,  as  well  as  come  others 
in  this  part  of  the  present  chapter,  has 
been  touched  in  my  Introduction  to  the 
Literature  of  the  15th,  16th,  and  17th 
Centuries. 


State  of  Society.      SCHOLASTIC  PHILOSOPHY.  407 

the  tone  of  manners  before  they  can  establish  a  prevalent  in* 
fluence  over  literature.     A  more  real  evil  was  the  diverting 
of  studious  men  from  mathematical  science.     Early  in  the 
twelfth  centurv  several  persons,  chiefly  English,  had  brought 
into  Europe  some  of  the  Arabian  writings  on  geometry  and 
physics.     In  the  thirteenth  the  works  of  Euclid  were  com- 
mented upon  by  Campano,*  and  Roger  Bacon  was  fully  ac- 
quainted  with  them.^     Algebra,  as  far  as  the  Arabians  knew 
it,  extending  to  quadratic  equations,  was  actually  in  the  hands 
of  some  Italians  at  the  commencement  of  the  same  age,  and 
preserved  for  almost  three  hundred  years  as  a  secret,  though 
without  any  conception  of  its  importance.    As  abstract  mathe- 
matics require  no  collateral  aid,  they  may  reach  the  highest 
perfection  in  ases  of  general  barbarism  ;  and  there  seems  to 
be  no  reason  why,  if  the  course  of  study  had  been  directed 
that  way,  there  should  not  have  arisen  a  Newton  or  a  La 
Place,  instead  of  an  Aquinas  or  an  Ockham.     The  knowl- 
cdcre  displayed  by  Roger  Bacon  and  by  Albertus  Magnus, 
even  in  the  mixed  mathematics,  under  every  disadvantage 
from   the  imperfection  of  instruments  and   the  want  of  re- 
corded experience,  is  suflicient  to  inspire  us  with  regret  that 
their  contemporaries  were  more  inclined  to  astonishment  than 
to  emulation.     These  inquiries  indeed  were  subject  to  the  or- 
deal of  fire,  the  great  purifier  of  books  and  men ;  for  if  the 
metaphysician  stood  a  chance  of  being  burned  as  a  heretic, 
the  natural  philosopher  was  in  not  less  jeopardy  as  a  magician. 


1  Tiraboschi,  t.  Iv.  p.  150. 

2  There  is  a  very  copious  and  ficnsibio 
account  of  Roger  Uacon  inWood's  History 
of  Oxford,  vol.  i.  p.  332  (dutch's  edition). 
I  am  a  little  surprised  that  Antony  should 
have  found  out  Bacon's  merit. 

The  resemblance  between  Roger  Bacon 
and   his   greater   namesake   is  very  re- 
markable.     Whether  Lord  Bacon  ever 
read  tlie  Opus  Majus,  I  know  not ;  but  it 
is  singular  that  his  favorite  quaint  ex- 
pu  ssion,  ;^r  xro-^mt  ivep.  scientiar  um.should 
be  fi.und  in  that  work,  though  not  used 
with   the  same  allusion  to  the  Roman 
comitia.     And  whoever  reads  the  sixth 
part   of  the  Opus  Majus,   upon  exper- 
imental science,  must  be  struck  by  it  as 
the  prototype,  in  spirit,  of  the  Novum 
Organum.'    The    same    sanguine    and 
sometimes  rash  confidence  in  the  effect 
of  physical  discoveries,  the  same  fondness 
for  experiment,  the  same  preference  of 
inductive  to  abstract  reasoning,  pervade 
both  works.    Roger  Bacon's  philosoph- 
ical   spirit    may  bo  illustrated  by  the 


following  passage  :  Duo  sunt  modi  cog- 
noscendi ;   scilicet  per  argumentum  et 
cxperimentum.    Argumentum  concludit 
et  facit  nos  concludere  qua?8tionem ;  sed 
non    certificat    neque  removet  dubita- 
tionem,  ut  quiescat  animus  in  intuitu 
veritatis,    nisi    earn    invciiiat  vil  expe- 
riential ;  quia  multi  habent  argumenta 
ad  scibilia,  sed   quia   non  habent  expe- 
rientiam,    negligunt    ea,   neque    vitant 
nociva  nee  persequuntur  bona.     Si  enim 
aliquis  homo,  qui  nunquam  vidit  ignem, 
probavit  per  argumenta  sufficientia  quod 
ignis  comburit  et  laedit  res  et  destruit, 
nunquam  propter  hoc  quiesceret  animus 
audientis,  nee  ignem  vitaret  antequam 
poncret  manum  vel  rem  combustibilem 
ad    ignem,  ut    per    exporientiam    pro- 
baret  quod  argumentum  edocebat ;  sed 
assumpta  experieutia  combustionis  cer- 
tificatur  animus  et  quiescit  in   fulgore 
veritatis,  quo  argumentum  non  sufficib, 
sed  experientia.     p.  446. 

3  See  the  fate    of^  Cecco  d'Ascoli  in 
Tiraboschi,  t.  v.  p.  174. 


J' 

\ 

( 

'1: 


408  THE  ROMANCE  LANGUAGE.     Chap.  IX.  Part  II. 

A  far  more  substantial  cause  of  intellectual  improvement 
Cultivation    ^^  ^^^  development  of  those  new  lant^ua^-es  that 

IguageT  'PT^  """^  ""^  *^^  corruption  of  Latin.  °  For  three 
or  four  centuries  after  what  was  called  the  Ro- 
mance  tongue  was  spoken  in  France,  there  remain  but  few 
vestiges  of  its  employment  in  writing;  though  we  cannot 
Division  of  ^^^^  ^^  absolute  inference  from  our  want  of  proof, 
theKomanco  and   a  cHtic  of  much  authority  supposes  transla- 

tonojue  into      *:^^-,    *^  i  i.  ■•       .  /    ^    '^^  •'•c*i*o*«, 

two  dialects.    "O"^'  ^^  liavc  bccu  made  into  it  for  religious  pur- 
poses from  the  time  of  Charlemagne.^   Durin^  this 
period  the  language  was  split  into  two  very  separate  dialects, 
the  regions  of  which  may  be  considered,  though  by  no  means 
strictly,  as  divided   by  the  Loire.     These  were  called   the 
Langue  d'Oil  and   the  Langue  d'Oc ;  or  in  more   modem 
times,  the  French  and  Provenjal  dialects.     In  the  latter  of 
these  I  know  of  nothing  which  can  even  by  name  be  traced 
beyond  the  year  1100.     About  that  time  Gregory  de  Becha- 
da,  a  gentleman  of  Limousin,  recorded  the  memorable  events 
,        f  f^^^J^^"'^ade,  then  recent,  in  a  metrical  history  of  great 
length.       This  poem   has  altogether  perished ;  which,  con- 
sidering  the  popularity  of  its  subject,  as  M.  Sismondi  justly 
remarks,  would  probably  not  have  been  the  case  if  it  had 
possessed  any  merit     But  very  soon  afterwards  a  multitude 
ot  poets,  like  a  swarm  of  summer  insects,  appeared  in  the 
Troubadours  Southern  provinces  of  France.      These  were  the 
Of  Provence    celebrated  Troubadours,  whose  fame  depends  far 
less  on  their  positive  exceUence  than  on  the  darkness  of  pre- 
ceding  ages,  on  the  temporary  sensation   they  excited,  and 
their  permanent  influence  on  the  state  of  European  poetry 
From  William  count  of   Poitou,  the  eariiest  troubadour  on 
record,  who  died  m  1126,  to  their  extinction,  about  the  end 
ot  the  next  century,  there  were  probably  several  hundred  of 
these  versifiers  in  the  language  of   Provence,  though  not 
always  natives  of  France.     Millot  has  pubUshed  the  lives  of 
one  hundred  and  forty-two,  besides  the  names  of  many  more 


1  Le  Boeuf,  Mem.  de  I'Acad.  des 
Inscnpt.  t.  xvii.  p.  711. 

»  Gregorius,  cognomento  Bechada,  de 
Castro  de  Turribus,  professione  miles, 
Bubtihssimi  ingenii  vir,  aliquantulum 
Imbutus  literis,  horum  gesta  pra?liorum 
matema  lingui  rhythmo  vulgari,  ut  po- 
pulus  pleniter  intelligeret,  ingens  volu- 
men  deceater  composuit,  et  ut  vera  et 


faceta  verba  proferret,  duodecim  annorum 
spatium  super  hoc  opus  operam  dedit. 
Ne  verb  vilesceret  propter  verbum  vul- 
gare.  non  sine  pra^ccpto  cplscopi  Eus- 
torgii,  et  consilio  Gauberti  Nomianni, 
hoc  opus  aggressus  est,  I  transcribe  this 
from  Heeren'8  Essai  sur  Ics  Croisadcs,  p 
44 1 ;  whose  reference  is  to  Ubbe,  Biblio- 
theca  nova  MSS.  t.  U.  p.  296. 


State  of  Society. 


TROUBADOURS. 


409 


whose  history  is  unknown ;  and  a  still  greater  number,  it 
cannot  be  doubted,  are  unknown  by  name.     Among  those 
poets  are  reckoned  a  king  of  England  (Richard  I.),  two  of 
Aragon,  one  of  Sicily,  a  dauphin  of  Auvergne,  a  count  of 
Foix,  a  prince  of  Orange,  many  noblemen  and  several  ladies. 
One  can  hardly  pretend  to  account  for  this  sudden  and  tran- 
sitory love  of  verse  :  but  it  is  manifestly  one  symptom  of  the 
rapid  impulse  which  the  human  mind  received  in  the  twelfth 
century,  and  contemporaneous  with  the  severer  studies  that 
began  to  flourish  in  the  universities.     It  was  encouraged  by 
the  prosperity  of  Languedoc  and  Provence,  undisturbed,  com- 
paratively Avith  other  countries,  by  internal  warfare,  and  dis- 
posed by  the  temper  of  their  inhabitants  to  feel  with  voluptu- 
ous sensibility  the  charm  of  music  and  amorous  poetry.    But 
the  tremendous  storm  that  fell  upon  Languedoc  in  the  crusade 
against  the  Albigeois   shook   off  the   flowers   of  Proven9al 
verse  ;  and  the  final  extinction  of  the  fief  of  Toulouse,  with 
the  removal  of  the  counts  of  Provence  to  Naples,  deprived 
the  troubadours  of  their  most  eminent  patrons.     An  attempt 
was  made  in  the  next  century  to  revive  them,  by  distributing 
prizes  for  the  best  composition  in  the  Floral  Games  of  Tou- 
louse, which  have  sometimes  been  erroneously  referred  to  a 
higher  antiquity.*    This  institution  perhaps  still  remains ;  but 
even  in  its  earliest  period  it  did  not  establish  the  name  of  any 
Proven9al  poet.    Nor  can  we  deem  these  fantastical  solemni- 
ties, styled  Courts  of  Love,  where  ridiculous  questions  of 
metaphysical  gallantry  were  debated  by  poetical  advocates, 
under  the  presidency  and  arbitration  of  certain  ladies,  much 
calculated  to  bring  forward  any  genuine  excellence.      They 
illustrate,  however,  what  is  more  immediately  my  own  ob- 
ject, the  general  ardor  for  poetry  and  the  manners  of  those 
chivalrous  ages.* 

The   great  reputation  acquired   by  the  troubadours,  and 
panegyrics  lavished   on  some  of  them  by  Dante  ^^^.j.  p^^, 
and  Petrarch,  excited  a  curiosity  among  literary  cai  char- 
men,  which  has  been  a  good  deal  disappointed  by  ^ 
further  acquaintance.      An  excellent  French  antiquary  of 
the  last  age.  La  Curne  de  St.  Palaye,  spent  great  part  of  his 


1  De  Sade,  Vie  de  Petrarque,  t.  i.  p.  155. 
Sismondi,  Litt.  du  Midi,  t.  i.  p.  228. 

*  For  the  Courts  of  Love,  see  De  Sade, 
Vie  de  Petrarque,  t.  ii.  note  19.  Le 
Grand,  Fabliaux,  t.  i.  p.  270.    Roquefort, 


Etat  do  la  Po6sie  Franqoise,  p.  94.  I 
have  never  had  patience  to  look  at  the 
older  writers  who  have  treated  this  tire- 
some subject. 


410 


TROUBADOURS. 


Chap.  IX.  Part  U. 


f 


life  in  accumulating  manuscripts  of  Proven9al  poetry,  very 
little  of  which  had  ever  been  printed.  Translations  from 
part  of  this  collection,  with  memorials  of  the  writers,  were 
published  by  Millot ;  and  we  certainly  do  not  often  meet  with 
passages  in  his  three  volumes  which  give  us  any  poetical 
pleasure.^  Some  of  the  original  poems  have  since  been  pub- 
lished, and  the  extracts  made  from  them  by  the  recent  iiisto- 
rians  of  southern  literature  are  rather  superior.  The  trou- 
badours chiefly  confined  themselves  to  subjects  of  love,  or 
rather  gallantry,  and  to  satires  (sirventes),  which  are  some- 
times keen  and  S[)irited.  No  romances  of  chivalry,  and 
hardly  any  tales,  are  found  among  their  works.  There  seems 
a  general  deficiency  of  imagination,  and  especially  of  that 
vivid  description  which  distinguishes  works  of  genius  in  the 
rudest  period  of  society.  In  the  poetry  of  sentiment,  their 
favorite  province,  they  seldom  attain  any  natural  expression, 
and  consequently  produce  no  interest.  I  speak,  of  course,  on 
the  presumption  that  the  best  specimens  have  been  exhibited 
by  those  who  have  undertaken  the  task.  It  must  be  allowed, 
however,  that  we  cannot  judge  of  the  troubadours  at  a  great- 
er disadvantage  than  through  the  prose  translations  of  Millet. 
Their  poetry  was  entirely  of  that  class  which  is  allied  to 
inusic,  and  excites  the  fancy  or  feelings  rather  by  the  power 
of  sound  than  any  stimulancy  of  imagery  and  passion.  Pos- 
sessing a  flexible  and  harmonious  language,  they  invented  a 
variety  of  metrical  arrangements,  perfectly  new  to  the  na- 
tions of  Europe.  The  Latin  hymns  were  striking,  but  mo- 
notonous, the  metre  of  the  northern  French  unvaried ;  but 
in  Provencal  poetry,  almost  every  length  of  verse,  from  two 
syllables  to  twelve,  and  the  most  intricate  disposition  of 
rhymes,  were  at  the  choice  of  the  troubadour.  The  can- 
zoni,  the  sestine,  all  the  lyric  metres  of  Italy  and  Spain  were 
borrowed  from  his  treasury.  With  such  a  command  of  poet- 
ical sounds,  it  was  natural  that  he  should  inspire  delight  into 
ears  not  yet  rendered  familiar  to  the  artifices  of  verse ;  and 
even  now  the  fragments  of  these  ancient  lays,  quoted  by  M. 
Sismondi  and  M.  Ginguene,  seem  to  possess  a  sort  of  charm 
that  has  evaporated  in  translation.  Upon  this  harmony,  and 
upon  the  facility  with  which  mankind  are  apt  to  be  deluded 
into  an  admiration  of  exaggerated  sentiment  in  poetry,  they 


»  EQstoire  Litt^raire  des  Troubadours.    Paria,  1774. 


:lf 


State  of  Society.        POETRY  AND  PROSE. 


411 


depended  for  their  influence.  And  however  vapid  the  songs 
of  Provence  may  seem  to  our  apprehensions,  they  were  un- 
doubtedly the  source  from  which  poetry  for  many  centuries 
derived  a  great  portion  of  its  habitual  language.* 

It  has  been  maintained  by  some  antiquaries,  that  the 
nortiiern  Romance,  or  what  we  properly  call 
French,  was  not  formed  until  the  tentli  century,  ^rJ^ch™ 
the  common  dialect  of  all  France  having  previous-  poetry  and 
ly  resembled  that  of  Languedoc.  Th's  hypothesis  ^^°^' 
may  not  be  indisputable  ;  but  the  question  is  not  likely  to  be 
settled,  as  scarcely  any  written  specimens  of  Romance,  even 
of  that  age,  have  survived.^  In  the  eleventh  century,  among 
other  more  obscure  productions,  both  in  prose  and  metre, 
there  appears  what,  if  unquestioned  as  to  authenticity,  would 
be  a  valuable  monument  of  this  language;  the  laws  of  AVil- 
liam  the  Conqueror.  These  are  preserved  in  a  manuscript 
of  Ingullus'ri  History  of  Croyland,  a  blank  being  left  in  other 
copies  where  they  should  be  inserted.®  They  are  written  in 
an  idiom  so  far  removed  from  the  Proven9aL  that  one  would 
be  disposed  to  think  the  separation  between  these  two  species 
of  Romance  of  older  standing  than  is  commonly  allowed. 
But  it  has  been  thought  probable  that  these  laws,  which  in 
fact  were  nearly  a  repetition  of  those  of  Edward  the  Con- 
fessor, were  originally  published  in  Anglo-Saxon,  the  only 
language  intelligible  to  the  people,  and  translated,  at  a  subse- 
quent period,  by  some  Norman  monk  into  French.* 


1  Two  Tory  modem  French  writers,  M. 
Qingucnc  (Ilistoire  Litteraire  d'ltalie, 
Paris,  1811)  and  51.  Sismondi  (Litterature 
du  Midi  de  lEuropc,  Paris,  1813),  have 
revived  the  poetical  lii.story  of  the  trou- 
badours. To  them,  still  more  than  to 
Millot  and  Tirabo.schi,  I  would  acknowl- 
edge my  obligation!*  for  the  little  I  have 
learned  in  respect  of  this  forgotten  school 
of  poetry.  Notwithstanding,  however, 
the  heaviness  of  Millot's  work,  a  fault 
not  imputable  to  himself,  though  Ritson, 
as  I  remember,  calls  him,  in  his  own 
polit'i  style,  *•  a  blockhead,"  it  will  always 
be  ustfui  to  the  inquirer  into  the  manuerH 
and  opinions  of  the  middle  ages,  from  the 
numerous  illustmtions  it  contains  of  two 
^ncral  facts;  the  extreme  dissoluteness 
of  morals  among  the  higher  ranks,  and 
the  prevailing  animosity  of  all  classes 
against  the  clergy. 

-  Hist.  Litt.  de  la  France,  t.  vii.  p.  58. 
I«  Boeuf,  according  to  these  Benedic- 
tines, has  puhlishcd  some  poetical  frag- 


ments of  the  tenth  century;  and  they 
quote  part  of  a  charter  as  old  as  940  in 
Romance,  p.  59.  But  that  antiquary, 
in  a  memoir  printed  in  the  seventeenth 
volume  of  the  Academy  of  Inscriptions, 
which  throws  more  light  on  the  infancy 
of  the  French  language  than  anything 
within  my  knowledge^,  says  only  that  the 
earliest  specimens  of  verse  in  the  royal 
library  are  of  the  eleventh  century  au 
plus  tard.  p.  717.  M.  de  la  Rue  is  said  tc 
have  found  some  poems  of  the  eleventh 
century  in  the  British  Museum,  Roque- 
fort, EtAt  de  la  Poesie  Francoise,  p.  206. 
Le  Ilocurs  fragment  may  be  found  in  this 
work,  p.  379 ;  it  seeuiH  nearer  to  the 
Provencal  than  the  French  dialect. 

3  Gale,  XV.  Script,  t.  i.  p.  88. 

♦  Ritson's  Dissertation  on  Romance^ 
p.  66.  [The  laws  of  William  the  Con- 
queror, published  in  Ingulfus,  are  trans« 
lated  from  a  Latin  original ;  the  French 
is  of  the  thirteenth  century.  It  is  novr 
doubted  whether  any  French,  except  a 


ill 


412    FRENCH  METRICAL  TRANSLATIONS.    Chap.  DC.  Part  II 


I 


The  use  of  a  popular  language  became  more  common  af- 
ter the  year  1100.  Translations  of  some  books  of  Scripture 
and  acts  of  saints  were  made  about  that  time,  or  even  earlier, 
and  there  are  French  sermons  of  St.  Bernard,  from  which 
extracts  have  been  published,  in  the  royal  library  at  Paris.* 
In  1126,  a  charter  was  granted  by  Louis  VI.  to  the  city  of 
Beauvais  in  French.^  Metrical  compositions  are  in  .general 
the  first  literature  of  a  nation,  and  even  if  no  distinct  proof 
could  be  adduced,  we  might  assume  their  existence  before 
the  twelfth  century.  There  is  however  evidence,  not  to  men- 
tion the  fragments  printed  by  Le  Bocuf,  of  certain  lives  of 
saints  translated  into  French  verse  by  Thibault  de  Vernon, 
a  canon  of  Rouen,  before  the  middle  of  the  preceding  age. 
And  we  are  told  that  Taillefer,  a  Norman  minstrel,  recited  a 
song  or  romance  on  the  deeds  of  Roland,  before  the  army  of 
his  countrymen,  at  the  battle  of  Hastings  in  1066.  Philip 
de  Than,  a  Norman  subject  of  Henry  I.,  seems  to  be  the 
earliest  poet  whose  works  as  well  as  name  have  reached  us, 
unless  we  admit  a  French  translation  of  the  work  of  one 
Marbode  upon  precious  stones  to  be  more  ancient.*  This 
De  Than  wrote  a  set  of  rules  for  computation  of  time  and 
an  account  of  different  calendars.  A  happy  theme  for  in- 
spiration without  doubt !  Another  performance  of  the  same 
author  is  a  treatise  on  birds  and  beasts,  dedicated  to  Ade- 
laide, queen  of  Henry  I.*  But  a  more  famous  votary  of  the 
muses  was  Wace,  a  native  of  Jersey,  who  about  the  begin- 
ning of  Henry  II.'s  reign  turned  Geoffrey  of  Monmouth's 
history  into  French  metre.  Besides  this  poem,  called  le 
Brut  d*Angleterre,  he  composed  a  series  of  metrical  histo- 
ries, containing  the  transactions  of  the  dukes  of  Normandy, 
from  Rollo,  their  great  progenitor,  who  gave  name  to  the 
Roman  de  Rou,  down  to  his  own  age.  Other  productions 
are  ascribed  to  Wace,  who  was  at  least  a  prolific  versifier. 


fragment  of  a  translation  of  Bocthius,  in 
verf^e.  is  extant  of  an  earlier  ago  than  the 
twelfth.  Introduction  to  Uist.  of  Literat. 
8d  edit.  p.  28.] 

1  lli.-«t.  Litt.  t.  ix.  p.  149;  Fabliaux 
par  Barbasan,  vol.  i.  p.  9,  edit.  1808; 
Metn.  de  T Academic  des  Inscr.  t.  xv.  and 
xvii.  p.  714,  &c. 

2  Mabillon  speaks  of  this  aa  the  oldest 
French  instrument  he  had  seen.  But  the 
Benedictines  quote  some  of  the  eleventh 
century.  Hist.  Litt.  t.  vii.  p.  69.  This 
charter  \s  supposed  by  the  authors  of 


Nouveau  Trait6  de  Diplomatique  to  be 
translated  from  the  Latin,  t.  iv.  p.  519. 
French  charters,  they  say,  are  not  com- 
mon before  the  age  of  Louis  IX.;  and 
this  is  confirmed  by  those  published 
in  Martenne'S  Thesaurus  Anecdotorum, 
which  are  very  commonly  in  French 
from  his  reign,  but  hardly  ever  before. 

3  Ravaliere,  Re  vol.  de  la  Lnngue  Fran* 
coisc,  p.  116,  doubts  the  age  of  thb  trans* 
lation. 

*  Archteclogia,  vols.  xii.  and  ziii. 


Btatk  op  Society.     NOUMAN  ROMANCES  AND  TALES.       413 


and,  if  he  seem  to  deserve  no  higher  title  at  present,  has  a 
claim  to  indulgence,  and  even  to  esteem,  as  having  far  ex- 
celled his  contemporaries,  without  any  superior  advantages 
of  knowledge.  In  emulation,  however,  of  his  fame,  several 
Norman  writers  addicted  themselves  to  composing  chronicles, 
or  devotional  treatises  in  metre.  The  court  of  our  Norman 
kint^s  was  to  the  early  poets  in  the  Langue  d'Oil,  what  those 
of  Aries  and  Toulouse  were  to  the  troubadours.  Henry  I. 
was  fond  enough  of  literature  to  obtain  the  surname  of  Beau- 
clerc;  Henry  II.  was  more  indisputably  an  encourager  of 
poetry  ;  and  Richard  I.  has  left  compositions  of  his  own  in 
one  or  other  (for  the  point  is  doubtful)  of  the  two  dialects 
spoken  in  France.* 

If  the  poets  of  Normandy  had  never  gone  beyond  histori- 
cal and  religious  subjects,  they  would  probably  have  had  less 
claim  to  our  attention  than  their  brethren  of  Provence.     But 
a  different  and  far  more  interesting  species  of  com-  jjonnan  re- 
position began  to  be  cultivated  in  the  latter  part  of  mances  and 
the  twelfth  century.     Without  entering  upon  the 
controverted  question  as  to  the  origin  of  romantic  fictions, 
referred  by  one  party  to  the  Scandinavians,  by  a  second  to 
the  Arabs,  by  others  to  the  natives  of  Britany,  it  is  manifest 
that  the  actual  stories  upon  which  one  early  and  numerous 
class  of  romances  was  founded  are  related  to  the  traditions 
of  the  last  people.     These  are  such  as  turn  upon  the  fable 
of  Arthur ;  for  though  we  are  not  entitled  to  deny  the  exist- 
ence of  such  a  personage,  his  story  seems  chiefly  the  creation 
of  Celtic  vanity.    Traditions  current  in  Britany,  though  proba- 
bly derived  from  this  island,  became  the  basis  of  Geoffrey  of 
Monmouth's  Latin  prose,  which,  as  has  been  seen,  was  trans- 
fused into  French  metre  by  Wace.^     The  vicinity  of  Nor- 


1  Millot  says  that  Richard's  sirventes 
(satirical  songs)  have  appeared  in  French 
Rs  well  as  Proven9al,  but  that  the  former 
is  probably  a  translation.  Hist,  des 
Troubadours,  vol.  i.  p.  54.  Yet  I  have 
met  with  no  writer  who  quotes  them  in 
the  latter  language,  and  M.  Ginguene, 
as  well  as  Le  Grand  d'Aussy,  considers 
Richard  as  a  trouveur. 

[Raynouard  has  since  published,  in 
Provcn<jal,  the  song  of  Richard  on  his 
captivity,  which  had  several  times  ap- 
peared in  French.  It  is  not  improbable 
that  he  wrote  it  in  both  dialects.  Leroux 
de  Lincy,  Chants  Historiqucs  Fran^ais, 


vol.  i.  p.  65.  Richard  also  composed 
verses  in  the  Poitevin  dialect,  spoken  at 
that  time  in  Maine  and  Anjou,  which 
resembles  the  Langue  d"0c  more  than 
that  of  northern  France,  though,  espe- 
cially in  the  latter  countries,J_t  gave  way 
not  long  afterwards.    Id.  p.  77.] 

2  This  derivation  of  the  romantic  sto- 
ries of  Arthur,  which  Le  Grand  d'Aussy 
ridiculously  attributes  to  the  jealousy 
entertained  by  the  English  of  the  re- 
nown of  Charlomagne,  is  stated  in  a  very 
perspicuous  and  satisfactory  manner  by 
Mr.  Ellis,  in  his  Specimens  of  EarJy  Eng- 
lish Metrical  Romances. 


'I 


I 


414 


ROMAN  DE  LA  ROSE.      Chap.  TX.  Part  IT. 


inandy  enabled  its  poets  to  enrich  their  narratives  with  other 
Armorican  fictions,  all  relating  to  the  heroes  who  had  sur- 
rounded the  table  of  the  son  of  Uther.^  An  equally  imagi- 
nary history  of  Charlemagne  gave  rise  to  a  new  family  of 
romances.  The  authors  of  these  fictions  were  called  Trou- 
veurs,  a  name  obviously  identical  with  that  of  Troubadours. 
But  except  in  name  there  was  no  resemblance  between  the 
minstrels  of  the  northern  and  southern  dialects.  Tiie  inven- 
tion of  one  class  was  turned  to  description,  that  of  the  other 
to  sentiment ;  the  first  were  epic  in  their  form  and  style,  the 
latter  almost  always  lyric.  We  cannot  perhaps  give  a  better 
notion  of  their  dissimilitude,  than  by  saying  that  one  school 
produced  Chaucer,  and  the  other  Petrarch.  Besides  these 
romances  of  chivalry,  the  trouveurs  displayed  their  powers 
of  lively  narration  in  comic  tales  or  fabliaux,  (a  name  some- 
times extended  to  the  higher  romance,)  which  have  aided 
the  imagination  of  Boccace  and  La  Fontaine.  These  com- 
positions are  certainly  more  entertaining  than  those  of  the 
troubadours ;  but,  contrary  to  what  I  have  said  of  the  latter, 
they  often  gain  by  appearing  in  a  modern  dress.  Their 
versification,  which  doubtless  had  its  charm  when  listened  to 
around  the  hearth  of  an  ancient  castle,  is  very  languid  and 
prosaic,  and  suitable  enough  to  the  tedious  prolixity  into 
which  the  narrative  is  apt  to  fall ;  and  though  we  find  many 
sallies  of  that  arch  and  sprightly  simplicity  which  character- 
izes the  old  language  of  France  as  well  as  England,  it 
requires,  upon  the  whole,  a  factitious  taste  to  rehsh  these 
Nonnan  tales,  considered  as  poetry  in  the  higher  sense  of 
tlie  word,  distinguished  from  metrical  fiction. 

A  manner  very  different  from  that  of  the  fabliaux  was 
Roman  dc  la  adopted  in  the  Roman  de  la  Rose,  begun  by  Wil- 
^°^  liam  de  Loris  about  1250,  and  completed  by  John 

de  Meun  half  a  century  later.  This  poem,  which  contains 
about  16,000  lines  in  the  usual  octo-syllable  verse,  from 
which  the  early  French  writers  seldom  deviated,  is  an  alle- 
gorical vision,  wherein  love  and  the  other  passions  or  qualities 


1  [Though  the  stories  of  Arthur  were 
not  invented  by  the  English  out  of  jeal- 
ousy of  Charlemagne,  it  has  been  ingen- 
iously conjectured  and  rendered  highly 
probable  by  Mr.  Sharon  Turner,  that 
the  history  by  Geoffrey  of  Monmouth 
was  composed  with  a  political  view  to  dis- 
play the  iadependeace  and  dignity  of  the 


British  crown,  and  was  intended,  conse- 
quently, as  a  counterpoise  to  that  of 
Turpin,  which  never  became  popular  in 
England.  Tt  is  doubtful,  in  njy  judg- 
ment, whether  Geoffrey  borrowed  ko  much 
from  Armorican  traditions  as  he  pr** 
tended.] 


State  of  Society.    WORKS  IN  FRENCH  PROSE. 


415 


connected  with  it  pass  over  the  stage,  without  the  interven- 
tion, I  believe,  of  any  less  abstract  personages.  Though 
similar  allegories  were  not  unknown  to  the  ancients,  and, 
which  is  moi*e  to  the  purpose,  may  be  found  in  other  produc- 
tions of  the  thirteenth  century,  none  had  been  constructed  so 
elaborately  as  that  of  the  Roman  de  la  Rose.  Cold  and 
tedious  a^  we  now  consider  this  species  of  poetry,  it  originated 
in  the  creative  power  of  imagination,  and  appealed  to  more 
refined  feeling  than  the  common  metrical  narratives  could 
excite.  This°poem  was  highly  popular  in  the  middle  ages, 
and  became  the  source  of  those  numerous  allegories  which 
had  not  ceased  in  the  seventeenth  century. 

The  French  language  w^as  employed  in  prose  as  well  as  in 
metre.     Indeed  it  seems  to  have  had  almost  an  ^o^ksin 
exclusive  privilege   in   this  respect.     "The  Ian- French 
guage  of  Oil,"  says  Dante,  in  his  treatise  on  vul-  ^"'^®* 
<rar°  [)eech,  "  prefers  its  claim  to  be  ranked  above  those  of  Oc 
and  Si  (Provencal  and  Italian),  on  the  ground  that  all  trans- 
lations or  compositions  in  prose  have  been  written  therein, 
from  its  greater  facility  and  grace,  such  as  the  books  com- 
piled  from   the  Trojan  and   Roman   stories,  the  delightful 
fables  about  Arthur,  and  many  other  works  of  history  and 
science."^     I  have  mentioned  already  the  sermons  of  St. 
Bernard  and  translations  from  Scripture.     The  laws  of  the 
kingdom  of  Jerusalem  purport  to  have  been  drawn  up  imme- 
diately after  the  first  crusade,  and  though  their  language  has 
been  materially  altered,  there  seems  no  doubt  that  they  were 
originally   compiled   in    French.^      Besides    some   charters, 
the°e  are  said  to  have  been  prose  romances  before  the  year 
1200.*     Early  in  the  next  age  Ville  Hardouin,  seneschal  of 


1  Prose  e  Rime  di  Dante,  Venez.  1758, 
t.  iv.  p.  201.  Dante'8  words,  biblia  cum 
Trojanorum  Romanorumciuo  gestibus 
complliita,  seem  to  beiir  no  other  mean- 
ing than  what  I  have  given.  But  there 
may  be  a  doubt  whether  biblia  is  ever 
u.sed  except  for  the  Scriptures ;  and  the 
Italian  translator  renders  it,  cioe  la  bib- 
bia,  i  fitti  de  i  Trojani,  e  de  i  Romani. 
In  this  case  something  is  wrong  in  the 
original  Latin,  and  Dante  will  have  allud- 
ed to  the  translations  of  parts  of  Scrip- 
ture made  into  French,  as  mentioned  in 
the  text. 

3  The  .Assises  de  Jerusalem  have  un- 
dergone two  revisions ;  one,  in  1250.  by 
urder  of  John  d'IbcUn,  count  of  Jaffa, 


and  a  second  in  1369,  by  sixteen  com- 
missioners chosen  by  the  states  of  the 
kingdom  of  Cyprus.  Their  language 
seems  to  be  such  as  might  be  expected 
from  the  time  of  the  former  revision. 

3  Several  prose  romances  were  written 
or  translated  from  the  Latin,  about  1170, 
and  afterwards.  Mr.  Ellis  seems  in- 
clined to  dispute  their  antiquity.  But, 
besides  the  authorities  of  La  Ravali^re 
and  Tressan,  the  latter  of  which  is  not 
worth  much,  a  late  very  extensively  in- 
formed writer  seems  to  have  put  this 
matter  out  of  doubt.  Roquefort  Fla- 
mericourt,  Etat  de  li  Poesie  Fran^aise 
dans  les  12'ne  et  13«e  siecles,  Parb,  1815, 
p.  147 


416 


SPANISH  LANGUAGE.      Chap.  IX.  Part  II 


State  of  Society.     EARLY  ITALIAN  WRITERS. 


417 


J' 
I-* 


Campagne,  recorded  the  capture  of  Constantinople  in  the 
fourth  crusade,  an  expedition,  the  glory  and  reward  of  which 
he  had  personally  shared,  and,  as  every  original  work  of  prior 
date  has  cither  perished  or  is  of  small  importance,  may  he 
deemed  the  father  of  French  prose.  The  Estahlishments  of 
St.  Louis,  and  the  law  treatise  of  Beaumanoir,  fill  up  the 
interval  of  the  thirteenth  century,  and  before  its  conclusion 
we  must  suppose  the  excellent  memoirs  of  Joinville  to  have 
been  composed,  since  they  are  dedicated  to  Louis  X.  in  1315, 
when  the  author  could  hardly  be  less  than  ninety  years  of 
age.  Without  prosecuting  any  further  the  history  of  French 
literature,  I  will  only  mention  the  translations  of  Livy  and 
Sallust,  made  in  the  reign  and  by  the  order  of  John,  with 
those  of  Caesar,  Suetonius,  Ovid,  and  parts  of  Cicero,  which 
are  due  to  his  successor  Charles  V.^ 

I  confess  myself  wholly  uninformed  as  to  the  original 
Spanish  formation  of  the  Spanish  language,  and  as  to  the 
language.  epoch  of  its  Separation  into  the  two  principal  dia- 
lects of  Castile  and  Portugal,  or  Gallicia;*  nor  should  I 
perhaps  have  alluded  to  the  literature  of  that  peninsula,  were 
it  not  for  a  remarkable  poem  which  shines  out  among  the 
minor  lights  of  those  times.  This  is  a  metrical  life  of  the 
Cid  Ruy  Diaz,  written  in  a  barbarous  style  •  and  with  the 
rudest  inequality  of  measure,  but  with  a  truly  Homeric 
warmth  and  vivacity  of  delineation.  It  is  much  to  be 
regretted  that  the  author's  name  has  perished ;  but  its  date 
has  been  referred  by  some  to  the  middle  of  the  twelfth  cen- 
tury, while  the  hero's  actions  were  yet  recent,  and  before  the 
taste  of  Spain  had  been  corrupted  by  the  Proven9al  trouba- 
dours, whose  extremely  different  manner  would,  if  it  did  not 


1  Vniaret,  Hist,  de  France,  t.  xl.  p.  121 ; 
Do  Sade.  Vie  do  Petrarque,  t.  Jii.  p.  548. 
Charles  V.  had  more  learning  than  most 
princes  of  his  time.  Christine  de  Pisan, 
a  lady  who  has  written  memoirs,  or 
rather  an  eulogy  of  him,  says  that  his 
father  le  fist  introdire  en  lettres  moult 
Bufiisammcnt,  et  tunt  que  competemment 
entendoit  son  Latin,  et  soufflsammcnt 
ecavoit  les  regies  de  grammaire  ;  la  quelle 
chose  pleust  a  dieu  qu'ainsi  fust  accou- 
tumee  cntre  les  princes.  Collect,  de 
Mem.  t.  ▼.  p.  103,  190.  &c. 

s  The  earliest  Spanish  that  I  remember 
to  have  t^een  in  an  instrument  in  Mar- 
tenne,  Thesaurus  Anecdotorum,  t.  i.  p. 
263 ;  the  date  of  which  is  1095.  Persons 
more  conversant  with  tho  antiquities  of 


that  country  may  possibly  go  further 
back.  Another  of  1101  is  published  in 
Marina's  Teoria  de  las  Cortes,  t.  iii.  p.  1 
It  is  in  a  Vidimus  by  Peter  the  Cruel, 
and  cannot,  I  presume,  have  been  a 
translation  from  the  Latin.  Yet  the  ed- 
itors ofNouveau  Tr.de  Diploni.  mention 
a  charter  of  1243,  as  the  oarlii'st  they  are 
acquainted  with  in  the  Spanish  language, 
t.  iv.  p.  526. 

Charters  in  the  German  language,  ao 
cording  to  tho  same  work,  first  appe.ir 
in  the  time  of  tho  emperor  Uodolph, 
after  1272,  and  became  usual  in  the 
next  century,  p.  523.  But  Struvius 
mentions  an  instrument  of  1235,  as  the 
earliest  in  German.  Corp.  Hist.  Germ, 
p.  457. 


pervert  the  poet's  genius,  at  least  have  impeded  his  popular- 
ity. A  very  competent  judge  has  pronounced  the  poem  of 
the  Cid  to  be  "  decidedly  and  beyond  comparison  the  finest  in 
the  Spanish  language."  It  is  at  least  superior  to  any  that 
was  written  in  Europe  before  the  appearance  of  Dante.^ 

A  strange  obscurity  envelops  the  infancy  of  the  Itahan 
language.  Though  it  is  certain  that  grammatical  ^^^^ 
Latin  had  ceased  to  be  employed  in  ordinary  dis-  J^jJj^J^jjJ^ 
course,  at  least  from  the  time  of  Charlemagne,  we 
have  not  a  single  passage  of  undisputed  authenticity,  in 
the  current  idiom,  for  nearly  four  centuries  afterwards. 
Though  Italian  phrases  are  mixed  up  in  the  barbarous  jar- 
gon of  some  charters,  not  an  instrument  is  extant  in  that 
language  before  the  year  1200,  unless  we  may  reckon  one  in 
tje'^Sardinian  dialect  (which  I  believe  was  rather  Provencal 
than  Italian),  noticed  by  Muratori.^  Nor  is  there  a  vestige 
of  Italian  poetry  older  than  a  few  fragments  of  Ciullo  d'Al- 
camo,  a  Sicilian,  who  must  have  written  before  1193,  since 
he  mentions  Saladin  as  then  living.*  This  may  strike  us  as 
the  more  remarkable,  when  we  consider  the  political  circum- 
stances of  Italy  in  the  eleventh  and  twelfth  centuries.  From 
the  struggles  of  her  spirited  republics  against  the  emperors 
and  their  internal  factions,  w^e  might,  upon  all  general  rea- 
soning, anticipate  the  early  use  and  vigorous  cultivation  of 
their  native  language.  Even  if  it  were  not  yet  ripe  for 
historians  and  philosophers,  it  is  strange  that  no  poet  should 
have  been  inspired  with  songs  of  triumph  or  invective  by  the 
various  fortunes  of  his  country.  But,  on  the  contrary,  the 
poets  of  Lombardy  became  troubadours,  and  wasted  their 
genius  in  Provenyal  love  strains  at  the  courts  of  princes. 
The  Milanese  and  other  Lombard  dialects  were,  indeed, 
exceedingly  rude;  but  this  rudeness  separated  them  more 
decidedly  from  Latin :  nor  is  it  possible  that  the  Lombards 
could  have  employed  that  language  intelligibly  for  any  public 
or  domestic  purpose.     And  indeed  in  the  earhest  Italian 


1  An  extract  from  this  poem  was  pub- 
lished in  1808  by  Mr.  Southey,  at  the 
end  of  his  '"Chronicle  of  the  Cid,"  the 
matcri:il8  of  which  it  partly  supplied, 
accompanied  by  an  excellent  version  by 
a  gentleman  who  is  distinguished,  among 
many  other  taWnts,  for  an  unrivalled 
felicity  in  expres-ajng  the  peculiar  manner 
of  authors  wh^m  he  translates  or  imi- 
tates.   M.  Sismondi  has  given  other  pas- 

VOL.  III.  27 


sages  in  the  third  volume  of  his  History 
of  Southern  Literature.  This  popular 
and  elegant  work  contains  some  interest- 
ing and  not  very  common  information  as 
to  the  early  Spanish  poets  in  the  Proven- 
cal dialect,  as  well  as  those  who  wrote  in 
Castilian. 

3  Dissert.  32. 

3  Tiraboschi,  t.  iv.  p.  840. 


418 


EARLY  ITALIAN  WRITERS.     Chap.  IX.  Part  H. 


compositions  that  have  been  published,  the  new  language  is 
60  thoroughly  formed,  that  it  is  natural  to  infer  a  very  long 
disuse  of°that  from  which  it  was  derived.     The  Sicilians 
claim  the  glory  of  having  first  adapted  their  own  harmonious 
dialect  to°poetry.     Frederic  II.  both  encouraged  their  art 
and  cultivated  it;   among  the  very  first  essays  of  Italian 
verse  we  find  his  productions  and  those  of  his  chancellor 
Piero  delle  Vigne.     Thus  Italy  was  destined  to  owe  the  be- 
ginnings of  her  national  literature   to  a  foreigner  and  an 
enemy.     These  poems  are  very  short  and  few  ;    tltose  as- 
cribed to  St.  Francis  about  the  same  time  are  hardly  distin- 
guishable from  prose  ;  but  after  the  middle  of  the  thirteenth 
century  the  Tuscan  poets  awoke  to  a  sense  of  the  beauties 
which  their  native  language,  refined  from  the  impurities  of 
vulgar  speech,^  could  display,  and  the  genius  of  lUilian  liter- 
ature was  rocked  upon  the  restless  waves  of  the  Florentine 
democracy.      Ricordano  Malespini,  the  first  historian,  and 
nearly  the  first  prose  writer  in  Italian,  left  memorials  of  the 
republic  down  to  the   year  1281,  which  was  that  of  his 
death,  and  it  was  continued  by  Giacchetto  Malespini  to  1286. 
These  are  little  inferior  in  purity  of  style  to  the  best  Tuscan 
authors ;  for  it  is  the  singular  fate  of  that  language  to  have 
spared  itself  all  intermediate  stages  of  refinement,  and,  start- 
ing the  last  in  the  race,  to  have  arrived  almost  instantaneous- 
ly at  the  goal.     There  is  an  interval  of  not  much  more  than 
half  a  century  between  the  short  fragment  of  CiuUo  d'Alca- 
mo,  mentioned  above,  and  the  poems  of  Guido  Guinizzelli, 
Guitone  d'Arezzo,  and   Guido   Cavalcante,  which,  in  their 
diction  and  turn  of  thought,  are  sometimes  not  unworthy  of 
Petrarch.^ 


1  Dante,  in  his  treatise  De  vulgari  Elo- 
quentia,  reckons  fourteen  or  fifteen  dia- 
lects, spoken  in  different  partn  of  Italy, 
all  of  which  were  debased  by  impure 
modra  of  expression.  But  the  ''  noble, 
principal,  nnd  courtly  Italian  idiom," 
was  that  which  belonged  to  every  city, 
and  Fwmed  to  belong  to  none,  and 
which,  if  luily  had  a  court,  would  be  the 
language  of  that  court,    p.  274,  277. 

Allowing  for  the  metaphysical  obscu- 
rity in  which  Dante  chooses  to  envelop 
the  subject,  this  might  perhaps  be  said 
at  present.  The  Florentine  dialect  has 
its  peculiarities,  which  distinguish  it 
from  the  general  Italian  language, 
though  these  are  seldom  discerned  by 
foreigners,  nor  always  by  natives,  with 


whom  Tuscan  is  the  proper  denomina 
tion  of  their  national  tongue. 

«  Tlraboschl,  t.  iv.  p.  30D-377.  Gin- 
guene,  vol.  i.  c.  6.  The  style  of  the 
Vita  Nuova  of  Dante,  written  soon  after 
the  death   of  his   Beatrice,  which  hap- 

Eened  in  1290,  is  hardly  distinguishable, 
y  a  foreigner,  from  that  of  Machiavel 
or  Castiglione.  Yet  so  recent  was  thn 
adoption  of  this  language,  that  the  cele- 
brated master  of  Daute,  IJrunetto  Liitini. 
had  written  his  Tesoro  in  French ;  and 
gives  as  a  reason  for  it,  that  it  was  a 
more  agreeable  and  useful  language  than 
his  own.  Et  se  aucuns  demandoit  pour- 
quoi  chis  livre  est  ecris  en  Ilomans,  selon 
la  raison  de  France,  pour  chose  que  nous 
eommes  Ytalien,  jc  diroie  que  ch'est  pour 


State  of  Societt. 


DANTE. 


419 


But  at  the  beginning  of  the  next  age  arose  a  much  greater 
genius,  the  true  father  of  Italian  poetry,  and  the 
first  name  in  the  literature  of  the  middle  ages. 
This  was  Dante,  or  Durante  Alighieri,  born  in  12G5,  of  a 
respectable  family  at  Florence.  Attached  to  the  Guelf 
party,  which  had  then  obtained  a  final  ascendency  over  its 
rival,  he  might  justly  promise  himself  the  natural  reward  of 
talents  under  a  free  government,  public  trust  and  the  esteem 
of  his  compatriots.  But  the  Guelfs  unhappily  were  split 
into  two  factions,  the  Bianchi  and  the  Neri,  with  the  former 
of  whom,  and,  as  it  proved,  the  unsuccessful  side,  Dante  was 
connected.  In  1300  he  filled  the  office  of  one  of  the  Priori, 
or  chief  magistrates  at  Florence  ;  and  having  manifested  in 
this,  as  was  alleged,  some  partiality  towards  the  Bianchi,  a 
sentence  of  proscription  passed  against  him  about  two  years 
afterwards,  when  it  became  the  turn  of  the  opposite  faction 
to  triumph.  Banished  from  his  country,  and  baffled  in  sev- 
eral efforts  of  his  friends  to  restore  their  fortunes,  he  had  no 
resource  but  at  the  courts  of  the  Scalas  at  Verona,  and  other 
Italian  princes,  attaching  himself  in  adversity  to  the  Imperial 
interests,  and  tasting,  in  his  own  language,  the  bitterness  of 
another's  bread.^  In  this  state  of  exile  he  finished,  if  he  did 
not  commence,  his  great  poem,  the  Divine  Comedy ;  a  rep- 
resentation of  the  three  kingdoms  of  futurity.  Hell,  Purga- 
tory, and  Paradise,  divided  into  one  hundred  cantos,  and 
containing  about  14,000  lines.     He  died  at  Ravenna  in  1321. 

Dante  is  among  the  very  few  who  have  created  the  na- 
tional poetry  of  their  country.  For  notwithstanding  the  pol- 
ished elegance  of  some  earlier  Italian  verse,  it  had  been 
confined  to  amorous  sentiment ;  and  it  was  yet  to  be  seen 
that  the  language  could  sustain,  for  a  greater  length  than  any 
existing  poem  except  the  Iliad,  the  varied  style  of  narration, 
reasoning,  and  ornament.  Of  all  writers  he  is  the  most  un- 
questionably original.  Virgil  was  indeed  his  inspiring  genius, 
as  he  declares  himself,  and  as  may  sometimes  be  perceived  in 
his  diction ;  but  his  tone  is  so  peculiai*  and  characteristic,  that 


chose  que  nous  sommes  en  France ; 
I'aiitre  pour  chose  f/M«  la  parUure  en  est 
plus  deli  table  et  plus  commune  a  toutes 
gens  There  is  said  to  be  a  manuscript 
history  of  Venice  down  to  1275,  in  the 
Florentine  llbniry,  written  in  French  by 
Martin  d»r  ('aiiale,  svho  saj  s  that  he  has 
chosen  that  language,  parceque  lalaugue 


franceise  cort  parmi  le  monde,  et  est  la 
plus  delitable  a  lire    et  a  oir  que  null« 
autre.     Ginguene,  vol.  i.  p.  384. 
1  Tu  proverai  si  (says  Cacciaguida  to 
him)  come  sk  di  sale 
II  pane  altrui,  e  come  e  duro  calle 
II  scendere  c  '1  salir  per  altrui  scale. 
Paradid.  cant.  16 


420 


DANTE. 


Chap.  IX.  Part  IL 


State  of  Sociktt. 


DANTE. 


421 


I 


I 


few  readers  would  be  willing  at  first  to  acknowledge  any  re- 
semblance.     He  possessed,  in  an  extraordinary  degree,  a 
command  of  language,  the  abuse  of  which  led  to  his  obscurity 
and  licentious  innovations.     No  poet  ever  excelled  him  in 
conciseness,  and  in  the  rare  talent  of  finishing  his  pictures  by 
a  few  bold  touches  ;  the  merit  of  Pindar  in  his  better  hours. 
How  prolix  would  the  stories  of  Francesca  or  of  Ugolino 
have  become  in  the  hands  of  Ariosto,  or  of  Tasso,  or  of  Ovid, 
or  of  Spenser !     This  excellence  indeed  is  most  striking  in 
the  first  part  of  his  poem.     Having  formed  his  plan  so  as  to 
give  an  equal  length  to  the  three  regions  of  his  spiritual 
world,  he  found  himself  unable  to  vary  the  images  of  hope 
or  beatitude,  and  the  Paradise  is  a  continual  accumulation  of 
descriptions,  separately  beautiful,  but  uniform  and  tedious. 
Though  images  derived  from  light  and  music  are  the  most 
pleasing,  and  can  be  borne  longer  in  poetry  than  any  others, 
their  sweetness  palls  upon  the  sense  by  frequent  repetition, 
and  we  require  the  intermixture  of  sharper  flavors.     Yet 
there  are  detached  passages  of  great  excellence  in  this  third 
part  of  Dante's  poem  ;  and  even  in  the  long  theological  dis- 
cussions which  occupy  the  greater  proportion  of  its  thirty- 
three  cantos,  it  is  impossible  not  to  admire  the  enunciation 
of  abstract  positions  with  remarkable  energy,  conciseness,  and 
sometimes  perspicuity.     The  first  twelve  cantos  of  the  Pur- 
gatory are  an  almost  continual  flow  of  soft  and  brilliant 
poetry.     The  last  seven  are  also  very  splendid  ;  but  there  is 
some  heaviness  in  the  intermediate  parts.     Fame  has  justly 
given  the  preference  to  the  Inferno,  which  displays  through- 
out a  more  vigorous  and  masterly  conception  ;  but  the  mind 
of  Dante  cannot  be  thoroughly  appreciated  without  a  perusal 
of  his  entire  poem. 

The  most  forced  and  unnatural  turns,  the  most  barbarous 
licenses  of  idiom,  are  found  in  this  poet,  whose  power  of  ex- 
pression is  at  other  times  so  peculiarly  happy.  His  style  is 
indeed  generally  free  from  those  conceits  of  thought  which 
discredited  the  other  poets  of  his  country ;  but  no  sense  is  too 
remote  for  a  word  which  he  finds  convenient  for  his  measure 
or  his  rhyme.  It  seems  indeed  as  if  he  never  altered  a  line 
on  account  of  the  necessity  of  rhyme,  but  forced  anotlicr,  or 
perhaps  a  third,  into  company  with  it.  For  many  of  his 
feults  no  sufficient  excuse  can  be  made.  But  it  is  candid  to 
remember,  that  Daiite,  writing  almost  in  the  infancy  of  a 


language,  which  he  contributed  to  create,  was  not  to  antici- 
pate that  words  which  he  borrowed  from  the  Latin,  and  fi'oin 
the  provincial  dialects,  would  by  accident,  or  through  the  ti- 
midity of  later  writers,  lose  their  place  in  the  classical  idiom 
of  Italy.  If  Petrarch,  Bembo,  and  a  few  more,  had  not 
aimed  rather  at  purity  than  copiousness,  the  phrases  which 
now  appear  barbarous,  and  are  at  least  obsolete,  might  have 
been  fixed  by  use  in  poetical  language. 

The  great  characteristic  excellence  of  Dante  is  elevation 
of  sentiment,  to  which  his  compressed  diction  and  the  em- 
phatic cadences  of  his  measure  admirably  correspond.  We 
read  him,  not  as  an  amusing  poet,  but  as  a  master  of  moral 
wisdom,  with  reverence  and  awe.  Fresh  from  the  deep  and 
serious,  though  somewhat  barren  studies  of  philosophy,  and 
schooled  in  the  severer  discipline  of  experience,  he  has  made 
of  his  poem  a  mirror  of  his  mind  and  life,  the  register  of  his 
solicitudes  and  sorrows,  and  of  the  speculations  in  which  he 
sought  to  escape  their  recollection.  The  banished  magistrate 
of  Florence,  the  disciple  of  Brunetto  Latini,  the  statesman 
accustomed  to  trace  the  varying  fluctuations  of  Italian  fac- 
tion, is  forever  before  our  eyes.  For  this  reason,  even  the 
prodigal  display  of  erudition,  which  in  an  epic  poem  would 
be  entirely  misplaced,  increases  the  respect  we  feel  for  the 
poet,  though  it  does  not  tend  to  the  reader's  gratification. 
Except  Milton,  he  is  much  the  most  learned  of  all  the  great 
poets,  and,  relatively  to  his  age,  far  more  learned  than  Mil- 
ton. In  one  so  highly  endowed  by  nature,  and  so  consum- 
mate by  instruction,  we  may  well  sympathize  with  a  resent- 
ment which  exile  and  poverty  rendered  perpetually  fresh. 
The  heart  of  Dante  was  naturally  sensible,  and  even  tender; 
his  poetry  is  full  of  simple  comparisons  from  rural  life ;  and 
the  sincerity  of  his  early  passion  for  Beatrice  pierces  through 
the  veil  of  allegory  which  surrounds  her.  But  the  memory 
of  his  injuries  pursues  him  into  the  immensity  of  eternal 
light ;  and,  in  the  company  of  saints  and  angels,  his  unfor- 
giving spirit  darkens  at  the  name  of  Florence.^ 

This  great  poem  was  received  in  Italy  with  that  enthu- 
siastic admiration  which  attaches  itself  to  works  of  genius 
only  in  ages  too  rude  to  listen  to  the  envy  of  competitors,  or 
the  fastidiousness  of  critics.     Almost  every  Ubrary  in  that 

1  Paradiso,  cant.  16 


422 


DANTE. 


Chap.  IX.  Part  II 


Statb  of  Society. 


PETRARCH. 


423 


I 


country  contains  manuscript  copies  of  the  Divine  Comedj, 
and  an  account  of  those  who  have  abridged  or  commented 
upon  it  would  swell  to  a  volume.  It  was  thrice  printed  in 
(he  year  1472,  and  at  least  nine  times  within  the  fifteenth 
century.  The  city  of  Florence  in  1373,  with  a  magnanimity 
which  almost  redeems  her  original  injustice,  appointed  a  pub- 
lic professor  to  read  lectures  upon  Dante ;  and  it  was  hardly 
less  honorable  to  the  poet's  memory  that  the  fii'st  person  se- 
lected for  this  office  was  Boccaccio.  The  universities  of  Pisa 
and  Piacenza  imitated  this  example ;  but  it  is  probable  that 
Dante's  abstruse  philosophy  was  often  more  regarded  in  their 
chairs  than  his  higher  excellences.^  Italy  indeed,  and  all 
Europe,  had  reason  to  be  proud  of  such  a  master.  Since 
Claudian,  there  had  been  seen  for  nine  hundred  years  no 
considerable  body  of  poetry,  except  the  Spanish  poem  of  the 
Cid,  of  which  no  one  had  heard  beyond  the  peninsula,  that 
could  be  said  to  pass  mediocrity ;  and  we  must  go  much 
further  back  than  Claudian  to  find  any  one  capable  of  being 
compared  with  Dante.  His  appearance  made  an  ei)och  in 
the  intellectual  history  of  modern  nations,  and  banished  the 
discouraging  suspicion  which  long  ages  of  lethargy  tended  to 
excite,  that  nature  had  exhausted  her  fertility  in  the  great 
poets  of  Greece  and  Rome.  It  was  as  if,  at  some  of  the  an- 
cient games,  a  stranger  had  appeared  upon  the  plain,  and 
thrown  his  quoit  among  the  marks  of  former  casts  which  tra- 
dition had  ascribed  to  the  demigods.  But  the  admiration  of 
Dante,  though  it  gave  a  general  impulse  to  the  human  mind, 
did  not  produce  imitators.  I  am  unaware  at  least  of  any 
writer,  in  whatever  language,  who  can  be  said  to  have  fol- 
lowed the  steps  of  Dante :  I  mean  not  so  much  in  his  sub- 
ject as  in  the  character  of  his  genius  and  style.  His  orbit  is 
still  all  his  own,  and  the  track  of  his  wheels  can  never  be 
confounded  with  that  of  a  rival.^ 

In  the  same  year  that  Dante  was  expelled  from  Florence, 

Petrarch.       ^.  ".^^''^^J^  ^Y   "^^^  Pctracco,  was  involved  in  a 

similar  banishment.     Retired  to  Arezzo,  he  there 

became  the   father  of  Francis  Petrarch.     This  great   man 


»  Velli,  Vita  di  Dante.    Tiraboschl. 

*  The  source  from  whicli  Dante  de- 
riTed  the  scheme  and  general  idea  of  hia 
poem  has  been  a  subjt>ct  of  inquiry  in 
Italy.  To  his  original  mind  one  might 
have  thought  the  sixth  .Eueid  would  have 


Bufflccd.  But  besides  several  legendary 
visions  of  the  12th  and  13th  centuries,  it 
seems  probable  that  he  derived  hints  from 
the  Tesoretto  of  his  master  in  philo- 
sophical studies,  Brunetto  Latinl.  Oin* 
guene,  t.  ii.  p.  8. 


shared  of  course,  during  his  early  years,  in  the  adverse  for- 
tune of  his  family,  which  he  was  invincibly  reluctant  to  re- 
store,  according  to  his  father's  wish,  by  the  profession  of  Ju- 
risprudence.    The  strong  bias  of  nature  determined  him  to 
mlite  letters  and  poetry.     These  are  seldom  the  fountains  of 
wealth ;  yet  they  would  perhaps  have  been  such  to  Petrarch, 
if  his  temper  could  have  borne  the  sacrifice  of  liberty  for 
any  worldly  acquisitions.     At  the  city  of  Avignon,  where  his 
parents  had  latterly  resided,  his  graceful  appearance  and  the 
reputation  of  his  talents  attracted  one  of  the  Colonna  family, 
then  bishop  of  Lombes  in   Gascony.     In  him,  and  in  other 
members  of  that  great  house,  never  so  illustrious  as  in  the 
fourteenth  century,  he  experienced  the  union  of  patronage 
and  friendship.     This,  however,  was  not  confined  to  the  Co- 
lonnas.     Unlike  Dante,  no  poet  was  ever  so  liberally  and 
sincerely  encouraged  by  the  great;  nor  did  any  perhaps  ever 
carry  to  that  perilous  intercourse  a  spirit  more  irritably  inde- 
pendent, or  more  free  fi*om  interested  adulation.    He  praised 
his  friends  lavishly  because  he  loved  them  ardently ;  but  his 
temper  w:is  easily  susceptible  of  offence,  and  there  must  have 
been  much  to  tolerate  in  that  restlessness  and  jealousy  of 
reputation  which  is  perhaps  the  inevitable  failing  of  a  poet. 
But  everything  was  forgiven  to  a  man  who  was   the  ac- 
knowledged boast  of  his  age  and  country.    Clement  VI.  con- 
ferred one  or   two   sinecure  benefices   upon   Petrarch,  and 
would  probably  have  raised  him  to  a  bishopric  if  he   had 
chosen  to  adopt  the  ecclesiastical  profession.     But  he  never 
took  orders,  the  clerical  tonsure  being  a  sufficient  qualification 
for  holding  canonries.  The  same  pope  even  afforded  him  the 
post  of  apostolical  secretary,  and  this  was  repeated  by  Inno- 
cent VI.     I  know  not  whether  we  should   ascribe  to  mag- 
nanimity or  to  a  politic  motive  the  behavior  of  Clement  VI. 


1  There  is  an  unpleasing  proof  of  this 
quality  in  a  letter  to  Boccaccio  on  Dante, 
whose  meiit  he  rather  disingenuously  ex- 
tenuates ;  and  whose  popularity  evidently 
Btung  him  to  the  quick.  De  Sade,  t.  iii. 
p.  612.  Yet  we  judge  so  ill  of  ourselves, 
that  Petrarch  chose  envy  as  the  vice  from 
vrhich  of  all  otliers  he  was  most  free.  In 
his  dialogue  with  St.  Augustin,  he  says: 
Quicquid  libuerit,  dicito;  modo  mo  non 
accuses  invidiaj.  Aua  Utinam  non  tibi 
magis  superbia  quani  invidia  nocuisset : 
nam  hoc  crimine,  me  judice,  liber  es. 
De  Contemptu  Mundi,  edit.  1581,  p. 
SI2 


I  have  read  in  some  modern  book,  hut 
know  not  where  to  seek  the  passage,  that 
Petrarch  did  not  intend  to  allude  to 
Dante  in  the  letter  to  Boccaccio  men- 
tioned above,  but  rather  to  Zanobi  Strata, 
a  contemporary  Florentine  poet,  whom, 
however  forgotten  at  present,  the  bad 
taste  of  a  party  in  criticism  preferred  to 
himself.  —  Matteo  Villani  mentions  them 
to'^ther  as  the  two  great  ornaments  of 
his  age.  This  conjecture  seems  probable, 
for  some  expressions  are  not  in  the  least 
applicable  to  Dante.  But  whichever  was 
intended,  the  letter  equally  shows  tho 
irritable  humor  of  Petrarch. 


424 


PETRARCH. 


Chap.  EX.  Part  n. 


State  op  Socibtt. 


PETRARCH. 


425 


II 


towards  Petrarch,  who  had  pursued  a  course  as  vexatious  aa 
possible  to  the  Holy  See.  For  not  only  he  made  the  resi- 
dence of  the  supreme  pontiffs  at  Avignon,  and  the  vices  of 
their  court,  the  topic  of  invectives,  too  well  founded  to  be 
despised,  but  he  had  ostentatiously  put  himself  forward  as  the 
supporter  of  Nicola  di  Rienzi  in  a  project  which  could  evi- 
dently have  no  other  aim  than  to  wrest  the  city  of  Rome 
from  the  temporal  sovereignty  of  its  bishop.  Nor  was  the 
friendship  and  society  of  Petrarch  less  courted  by  the  most 
respectable  Italian  princes ;  by  Robert  king  of  Naples,  by 
the  Visconti,  the  Correggi  of  Parma,  the  famous  doge  of 
Venice,  Andrew  Dandolo,  and  the  Carrara  family  of  Padua, 
under  whose  protection  he  spent  the  latter  years  of  his  life. 
Stories  are  related  of  the  respect  shown  to  him  by  men  in 
humbler  stations  which  are  perhaps  still  more  satisfactory.^ 
But  the  most  conspicuous  testimony  of  public  esteem  was 
bestowed  by  the  city  of  Rome,  in  his  solemn  coronation  as 
laureate  poet  in  the  Capitol.  This  ceremony  took  place  in 
1341 ;  and  it  is  remarkable  that  Petrarch  had  at  that  time 
composed  no  works  which  could,  in  our  estimation,  give  him 
pretensions  to  so  singular  an  honor. 

The  moral  character  of  Petrarch  was  formed  of  disposi- 
tions peculiarly  calculated  for  a  poet.  An  enthusiast  in  the 
emotions  of  love  and  friendship,  of  glory,  of  patriotism,  of 
religion,  he  gave  the  rein  to  all  their  impulses ;  and  there  is 
not  perhaps  a  page  in  his  Italian  writing  which  does  not  bear 
the  trace  of  one  or  other  of  these  affections.  By  far  the  most 
predominant,  and  that  which  has  given  the  greatest  celebrity 
to  his  name,  is  his  passion  for  Laura.  Twenty  years  of  un- 
requited and  almost  unaspiring  love  were  lightened  by  song ; 
and  the  attachment,  which,  having  long  survived  the  beauty 
of  its  object,^  seems  to  have  at  one  time  nearly  passed  from 


1  a  goldsmith  of  Ber^mo,  by  name 
Henry  Capra,  smitten  with  an  enthusi- 
astic love  of  letters,  and  of  Petrarch, 
earnestly  requested  the  honor  of  a  visit 
from  the  poet.  The  house  of  this  good 
tradesman  was  full  of  representations  of 
his  person,  and  of  inscriptions  with  his 
name  and  arms.  No  expense  had  been 
spared  in  copying  all  his  works  as  they 
appeared.  He  was  received  by  Capra 
With  a  princely  m  ignificence;  lodged  in 
»  chamber  hung  with  purple,  and  a 
splendid  bed  on  which  no  one  before  or 
After  him  was  permitted  to  sleep.    Qold- 


smiths,  as  we  may  judge  by  this  instance, 
were  opulent  persons  ;  yet  the  friends  of 
Petrarch  dlosuadcd  him  from  the  visit,  ai 
derogatory  to  his  own  elevated  station. 
De  Sade,  t.  iii.  p.  496. 

3  See  the  beautiful  sonnet,  Erano  i  ca> 
pei  d'oro  all'  aura  sparsi.  In  a  famou* 
passage  of  his  Confessions,  he  says  :  Cor- 
pus illud  egregium  morbis  et  crebris  par- 
tubusexhaustum,niultun»pri8tinl  vigorii 
amisit.  Those  who  maintain  the  virginity 
of  Laura  are  forced  to  read  per turbat  iam- 
bus, instead  of  partubtis.  Two  iranu- 
scripts  in  the  royal  library  at  Parii  b*T* 


the  heart  to  the  fancy,  was  changed  to  an  intenser  feeling, 
and  to  a  sort  of  celestial  adoration,  by  her  death.  Laura,  be- 
fore the  time  of  Petrarch's  first  accidental  meeting  with  her, 
was  united  in  marriage  with  another ;  a  fact  which,  besides 
some  more  particular  evidence,  appears  to  me  deducible  from 
the  whole  tenor  of  his  poetry.^  Such  a  passion  is  undoubt- 
edly not  capable  of  a  moral  defence ;  nor  would  I  seek  its 
palliation  so  much  in  the  prevalent  manners  of  his  age,  by 
which  however  the  conduct  of  even  good  men  is  generally 
not  a  little  influenced,  as  in  the  infirmity  of  Petrarch's  char- 
acter, which  induced  him  both  to  obey  and  to  justify  the  emo- 
tions of  his  heart.  The  lady  too,  whose  virtue  and  prudence 
we  are  not  to  question,  seems  to  have  tempered  the  light  and 
shadow  of  her  countenance  so  as  to  preserve  her  admirer 
from  despair,  and  consequently  to  prolong  his  sufferings  and 
servitude. 

Tiie  general  excellences  of  Petrarch  are  his  command  over 
the  music  of  his  native  language,  his  correctness  of  style, 
scarcely  two  or  three  words  that  he  has  used  having  been 
rejected  by  later  writers,  his  exquisite  elegance  of  diction, 
improved  by  the  perpetual  study  of  Virgil ;  but,  far  above 
all,  that  tone  of  pure  and  melancholy  sentiment  which  has 
something  in  it  unearthly,  and  forms  a  strong  contrast  to  the 
amatory  poems  of  antiquity.     Most  of  these  are  either  licen- 
tious or  uninteresting ;  and  those  of  Catullus,  a  man  endowed 
by  nature  with  deep  and  serious  sensibility,  and  a  poet,  in  my 
opinion,  of  greater  and  more  varied  genius  than  Petrarch, 
are  contaminated  above  all  the  rest  with  the  most  degrading 
grossness.     Of  this  there  is  not  a  single  instance  in  the  poet 
of  Vaucluse ;  and  his  strains,  diffused  and  admired  as  they 
have  been,  may  have  conferred  a  benefit  that  criticism  cannot 
estimate,  in  giving  elevation  and  refinement  to  the  imagina- 
tions  of    youth.     The    great  defect   of    Petrarch   was    his 
want   of  strong  original  conception,  which  prevented   him 
from  throwing  off  the  affected  and  overstrained  manner  of 
the  Provencal  troubadours,  and  of  the  earlier  lUilian  poets. 
Among  his  poems  the  Triumphs  are  perhaps  superior  to  the 
Odes,  as  the  latter  are  to  the  Sonnets ;  and  of  the  latter, 

the  contraction  ptbus,  which  leaves  the  in  this  ;  but  I  am  clear  that  corpus  ex- 

niatter  open   to  controversy.     De  Sade  haustum  partubus   is  much  the  more 

contends  that  "  crebris"  is  less  applicable  elegant  Latin  expression  of  the  two 

to  "  perturbationibus  "  than  to  '•  partu-  »  [Notb  III.] 
bus."    I  do  not  know  that  there  is  much 


426 


ENGLISH  LANGUAGE.     Chap.  IX.  Part  II. 


State  of  Society.    ITS  SLOW  PROGRESS. 


427 


those  written  subsequently  to  the  death  of  Laura  are  in  gen- 
eral the  best.  But  that  constrained  and  laborious  measure 
cannot  equal  the  graceful  flow  of  the  canzone,  or  the  vi<Tor- 
ous  compression  of  the  terza  rima.  The  Triumphs  have  also 
a  claim  to  superiority,  as  the  only  poetical  composition  of 
Petrarch  that  extends  to  any  considerable  length.  Tliey  are 
in  some  degree  perhaps  an  imitation  of  tiie  dramatic  Myste- 
ries, and  form  at  least  the  earliest  specimens  of  a  kind  of 
poetry  not  uncommon  in  later  times,  wherein  real  and  al- 
legorical personages  are  intermingled  in  a  mask  or  scenic 
representation.^ 

None  of  the  principal  modern  languages  was  so  late  in  its 
English  Ian-  formation,  or  in  its  application  to  the  purposes  of 
guage.  literature,  as  the  English.     This  arose,  as  is  well 

known,  out  of  the  Saxon  branch  of  the  Great  Teutonic  stock 
spoken  in  England  till  after  the  Conquest.  From  tliis  mother 
dialect  our  EngHsh  differs  less  in  respect  of  etymology,  than 
of  syntax,  idiom,  and  flection.  In  so  gradual  a  transition  as 
probably  took  place,  and  one  so  sparingly  marked  by  any 
existing  evidence,  we  cannot  well  assign  a  definite  origin  to 
our  present  language.  The  question  of  identity  is  almost 
as  perplexing  in  languages  as  in  individuals.  But,  in  the 
reign  of  Henry  II.,  a  version  of  Wace's  poem  of  Brut,  by 
one  Layamon,  a  priest  of  Ernly-upon-Severn,  exhibits  as  it 
were  the  chrys^alis  of  the  English  language,  in  a  very  corrupt 
modification  of  the  Anglo-Saxon.^     Very  soon  afterwards  the 


*  [I  leave  this  as  it  stood.  But  my 
own  taste  has  changed.  I  retract  alto- 
gether the  preference  here  given  to  the 
Triumphs  above  the  Canzoni,  and  doubt 
whether  the  latter  are  superior  to  the 
Sonnets.  This  at  least  is  not  the  opinion 
of  Italian  critics,  who  ought  to  be  the 
most  competent.    1848.] 

2  A  sufficient  extract  from  this  work 
of  Layamon  has  been  published  by  Mr. 
Ellis,  in  his  Specimens  of  Early  English 
Poetry,  vol.  i.  p.  61.  This  extract  con- 
tains, he  observes,  no  word  which  we  are 
under  the  necessity  of  ascribing  to  a 
French  origin. 

[Layamon.  as  is  now  supposed,  wrote 
in  the  reign  of  John.  See  Sir  Frt'derick 
Madden's  edition,  and  Mr.  Wright's  Bio- 
graphia  Literaria.  The  best  reason  seems 
to  be  that  he  speaks  of  Eleanor,  queen 
of  Henrv-  as  then  dead,  which  took  place 
in  llX>i.  liut  it  requires  a  vast  knowl- 
edge of  the  language  to  And  a  date  by 
the  use  or  disuse  of  particular  forms ;  the 


idiom  of  one  part  of  England  not  being 
similar  to  thatof  another  in  grammatical 
flections.  See  Quarterly  lleview  for  April 
1W8. 

The  entire  work  of  Lnyamon  contains 
a  small  number  of  words  taken  from  the 
French  ;  about  fifty  in  the  original  text, 
and  about  forty  more  in  that  of  a  manu- 
script, perhaps  half  a  century  later,  and 
very  consid»*rably  altered  in  consequence 
of  the  progre.^3  of  our  languiige.  Many 
of  these  words  derived  from  the  French 
express  new  ideas,  as  admiral,  astronomy, 
baron,  mantel,  &c.  "  The  l:ingu;ige  of 
Layamon,"  says  Sir  Frederick  Madden, 
"  belongs  to  that  tran.sition  period  in 
which  the  groundwork  of  .\nglo-Saxon 
phraseology  and  grammar  still  existed, 
although  gradually  yielding  to  the  influ- 
ence of  the  popular  forms  of  speech.  Wo 
find  in  it,  as  in  the  later  portion  of  the 
Saxon  Chronicle,  marked  indications  of  a 
tendency  to  adopt  those  terminations  and 
sounds  which  characterize  a  language  in 


new  formation  was   better  developed;   and  some  metrical 
pieces,  referred  by  critics  to  the  earlier  part  of  the  tViirteenth 
century,  differ  but  little  from  our  legitimate  grammar.^   About 
the  beginning  of  Edward  I.'s  reign,  Robert,  a  monk  of  Glou- 
cester, composed  a  metrical  chronicle  from  the  histoiy  of 
Geoffrey  of  Monmouth,  which  he  continued  to  his  own  time. 
This  work,  with  a  similar  chronicle  of  Robert  Manning,  a 
monk  of    Brunne  (Bourne)  in    Lincolnshire,  nearly  thirty 
years  later,  stand  at  the  head  of  our  English  poetry.     The 
romance  of  Sir  Tristrem,  ascribed  to  Thomas  of  Erceldoune, 
surnamed  the  Rhymer,  a  Scottish  minstrel,  has  recently  laid 
claim  to  somewhat  higher  antiquity .^     In  the  fourteenth  cen- 
tury a  great  number  of  metrical  romances  were  translated 
from  the  French.     It  requires  no  small  portion  of  indulgence 
to  speak  favorably  of  any  of  these  early  English  productions. 
A  poetical  line  may  no  doubt  occasionally  be  found ;  but  in 
general  the  narration  is  as  heavy  and  prolix  as  the  versifica- 
tion is  unmusical.*     The  first  English  writer  who  can  be  read 
with  approbation  is  William  Langland,  the  author  of  Piers 
Plowman's  vision,  a  severe  satire  upon  the  clergy.     Though 
his  measure  is  more  uncouth  than  that  of  hi.^  predecessors, 
there  is  real  energy  in  his  conceptions,  which  he  caught  not 
from  the  chimeras  of  knight-errantry,  but  the  actual  manners 
and  opinions  of  his  time. 

The  very  slow  progress  of  the  English  language,  as  an 
instrument  of  literature,  is  chiefly  to  be  ascribed  ^ause  of  its 
to  the  effects  of  the  Norman  conquest,  in  degrad-  su^w  prog- 
ing   the   native   inhabitants   and    transferring   all  "'^^* 
poxver  and  riches  to  foreigners.     The  barons,  without  per- 


a  state  of  change,  and  which  are  apparent 
also  in  some  other  branches  of  the  Teu- 
tonic tongue.     The  use  of  a  as  an  article 

—  the  change  of  the  Anglo-Saxon  ter- 
minations a  and  an  into  e  and  en, as  well 
as  the  disregard  of  inflections  and  genders 

—  the  masculine  forms  given  to  neuter 
nouns  in  the  plural  —  the  neglect  of  the 
feminine  terminations  of  adjectives  and 
pronouns,  and  confusion  between  the 
definite  and  indefinite  declensions  —  the 
introduction  of  the  preposition  to  before 
Infinitives,  and  occji.'^ional  use  of  weak 
preterites  of  verbs  and  participles  instead 
of  strong  —  the  constant  recurrence  of 
er  for  or  in  the  plurals  of  verbs  —  together 
with  the  uncertainty  of  the  rule  for  the 
government  of  prepositions — all  these 
rariations,  more  or  leas  visible  in  the  two 


texts  of  Layamon,combined  with  the  vow- 
el-changes, which  are  numerous  though 
not  altogether  arbitrary,  will  show,  at 
once  the  progress  made  in  two  centuries, 
in  departing  from  the  ancient  and  purer 
grammatical  forms,  as  found  in  Anglo- 
Saxon  manu-scripts."   Preface,  p.  xxviii.] 

1  Warton's  History  of  English  Poetry, 
Ellis's  Specimens. 

2  This  conjecture  of  Scott  has  not  been 
favorably  received  by  later  critics. 

3  Warton  printed  copious  extracts  from 
some  of  these.  Ritson  gave  several  of 
them  entire  to  the  press.  And  Mr.  Ellis 
has  .adopted  the  only  plan  which  could 
render  them  palatable,  by  intermingling 
short  passages,  where  the  original  is 
rather  above  its  usual  mediocrity,  wit¥ 
his  own  lively  analysis. 


428 


SLOW  PROGRESS  OF  ENGLISH.    Chap.  DC.  Part  IL 


haps  one  exception,  and  a  large  proportion  of  the  gentry, 
were  ol*  French  descent,  and  preserved  among  themselves 
the  speech  of  their  fathers.  This  continued  much  longer 
than  we  should  naturally  have  expected ;  even  after  the  loss 
of  Normandy  had  snapped  the  thread  of  French  connections, 
and  they  began  to  pride  themselves  in  the  name  of  English- 
men, and  in  the  inheritance  of  traditionary  English  privileges. 
Robert  of  Gloucester  has  a  remarkable  passage,  which  proves 
that  in  his  time,  somewhere  about  1290,  the  superior  ranks 
continued  to  use  the  French  language.*  Ralph  Higden,  about 
the  early  part  of  Edward  III.'s  reign,  though  his  expressions 
do  not  go  the  same  length,  asserts,  that  **  gentlemen*s  children 
are  tauglit  to  speak  French  from  the  time  they  are  rocked  in 
their  cradle ;  and  uplandish  (country)  or  inferior  men  will 
liken  themselves  to  gentlemen,  and  learn  with  great  business 
for  to  speak  French,  for  to  be  the  more  told  of."  Notwith- 
standing, however,  this  predominance  of  French  among  the 
higher  class,  I  do  not  think  that  some  modem  critics  are  war- 
ranted in  concluding  that  they  were  in  general  ignorant  of 
the  English  tongue.  Men  living  upon  their  estates  among 
their  tenantry,  whom  they  welcomed  in  their  halls,  and  whose 
assistance  they  were  perpetually  needing  in  war  and  civil 
frays,  would  hardly  have  permitted  such  a  barrier  to  obstruct 
their  intercourse.  For  we  cannot,  at  the  utmost,  presume 
that  French  was  so  well  known  to  the  Englisli  commonalty 
in  the  thirteenth  century  as  English  is  at  present  to  the  same 
class  in  Wales  and  the  Scottish  Highlands.  It  may  be 
remarked  also,  that  the  institution  of  trial  by  jury  must  have 
rendered  a  knowledge  of  English  almost  indispensable  to 
those  who  administered  justice.  There  is  a  proclamation  of 
Edward  I.  in  Rymer,  where  he  endeavors  to  excite  his  sub- 
jects against  the  king  of  France  by  imputing  to  him  the 
intention  of  conquering  the  country  and  abolishing  the  Eng- 
lish language  (linguam  delere  Anglicanam),  and  this  is  fre- 
quently repeated  in  the  proclamations  of  Edward  III.*  In 
his  time,  or  perhaps  a  little  before,  the  native  language  had 
become  more  familiar  than  French  in  common  use,  even  with 

J  The  evidences  of  this  geueral   em-  Canterbury  Tales;  and  by  Ritson,  In  the 

ployment  and  gradual  disuse  of  French  preface  to  his  Metrical  Komances,  toI.  1. 

in  eonveniation  and  writing  are  collected  p.  70. 

by  Tyrwhitt,  in  a  disserLition  on   the  a  Rymer,  t.  t.  p.  400:  t.  tL  p.  642,  et 

ancient  English  language,  prefixed  to  the  alibi, 
fourth  Yolume  of  hia  editiou  of  Chaucer's 


State  of  Societt. 


CHAUCER. 


429 


the  court  and  nobility.  Hence  the  numerous  translations  of 
metrical  romances,  which  are  chiefly  referred  to  his  reign. 
An  important  change  was  effected  in  1362  by  a  statute,  which 
enacts  that  all  pleas  in  courts  of  justice  shall  be  pleaded, 
debated,  and  judged  in  English.  But  Latin  was  by  this  act 
to  be  employed  in  drawing  the  record ;  for  there  seems  to 
have  still  continued  a  sort  of  prejudice  against  the  use  of 
English  as  a  written  language.  The  earliest  English  instm- 
ment  known  to  exist  is  said  to  bear  the  date  of  1343.^  And 
there  are  but  few  entries  in  our  own  tongue  upon  the  rolls  of 
parliament  before  the  reign  of  Henry  VI.,  after  whose  acces- 
sion its  use  becomes  very  common.^  Sir  John  Mandeville, 
about  1356,  may  pass  for  the  father  of  English  prose,  no 
original  work  being  so  ancient  as  his  Travels.  But  the 
translation  of  the  Bible  and  other  writings  by  Wicliffe, 
nearly  thirty  years  afterwards,  taught  us  the  copiousness 
and  energy  of  which  our  native  dialect  was  capable;  and 
it  was  employed  in  the  fifteenth  century  by  two  writers 
of  distinguished  merit.  Bishop  Pecock  and  Sir  John  For- 

tescue. 

But  the  principal  ornament  of  our  English  literature  was 
Geoffrey  Chaucer,  who,  with  Dante  and  Petrarch,  chancer. 
fills  up  the  triumvirate  of  great  poets  in  the  middle 
ages.     Chaucer  was  born  in   1328,  and  his  life  extended 
to  the  last  year  of  the  fourteenth  century.     That  rude  and 
ignorant  generation  was  not  likely  to  feel  the  admiration  of 
native  genius  as  warmly  as  the  compatriots  of  Petrarch ;  but 
he  enjoyed  the  favor  of  Edward  III.,  and  still  more  conspic- 
uously of  John  duke  of  Lancaster;   his  fortunes  were  far 
more  prosperous  than  have  usually  been  the  lot  of  poets ; 
and  a  reputation  w^as  established  beyond  competition  in  his 
lifetime,  from  which  no  succeeding  generation  has  withheld 
its  sanction.     I  cannot,  in  my  own  taste,  go  completely  along 
with  the  eulogies  that  some  have  bestowed  upon  Chaucer, 
who  seems  to  me  to  have  wanted  grandeur,  where  he  is  origi- 
nal, both  in  conception  and  in  language.     But  in  vivacity  of 
imagination  and  ease  of  expression,  he  is  above  all  poets 
of  the  middle  time,  and  comparable  perhaps  to  the  greatest 
of  those  who  have  followed.     He  invented,  or  rather  intro- 
duced from  France,  and  employed  with  facility  the  regular 

1  Ritson.p.  80.    There  Is  one  In  Rymer  of  the  year  1385. 
«  tN0T£  IV.; 


430 


REVIVAL  OF 


Chap.  IX.  Part  II. 


iambic  couplet ;  and  though  it  was  not  to  be  expected  that 
he  should  perceive  the  capacities  latent  in  that  measure, 
his  versification,  to  which  he  accommodated  a  very  licen- 
tious and  arbitrary  pronunciation,  is  uniform  and  harmoni- 
ous.^ It  is  chiefly,  indeed,  as  a  comic  poet,  and  a  minute 
observer  of  manners  and  circumstances,  that  Chaucer  excel**. 
In  serious  and  moral  poetry  he  is  frequently  languid  jmd 
diffuse ;  but  he  springs  like  Antaeus  from  the  earth,  when  his 
subject  changes  to  coarse  satire,  or  merry  narrative.  Among 
his  more  elevated  compositions,  the  Knight's  Tale  is  abun- 
dantly sufficient  to  immortalize  Chaucer,  since  it  would  be 
difficult  to  find  anywhere  a  story  better  conducted,  or  told 
with  more  animation  and  strength  of  fancy.  The  second 
place  may  be  given  to  his  Troilus  and  Creseide,  a  beautiful 
and  interesting  poem,  though  enfeebled  by  expansion.  But 
perhaps  the  most  eminent,  or  at  any  rate  the  most  character- 
istic testimony  to  his  genius  will  be  found  in  the  prologue  to 
his  Canterbury  Tales ;  a  work  entirely  and  exclusively  his 
own,  which  can  seldom  be  said  of  his  poetry,  and  the  vivid 
delineations  of  which  perhaps  very  few  writers  but  Shak- 
speare  could  have  equalled.  As  the  first  original  English 
poet,  if  we  except  Langland,  as  the  inventor  of  our  most 
approved  measure,  as  an  improver,  though  with  too  much 
innovation,  of  our  language,  and  as  a  faithful  witness  to  the 
manners  of  his  age,  Chaucer  would  deserve  our  reverence, 
if  he  had  not  also  intrinsic  claims  for  excellences,  which  do 
not  depend  upon  any  collateral  considerations. 

The  last  circumstance  which  I  shall  mention,  as  having 
Kevivai  of  contributed  to  restore  society  from  the  intellectutd 
ancient  degradation  into  which  it  had  fallen  during  the 
learning.        ^^^.j,    ^^^^^  -^  ^j^^  revival  of  classical   learning. 

The  Latin  language  indeed,  in  which  all  legal  instruments 
were  drawn  up,  and  of  which  all  ecclesiastics  availed  them- 
selves in  their  epistolary  intercourse,  as  well  as  in  their  more 
solemn  proceedings,  had  never  ceased  to  be  familiar.  Though 
many  solecisms  and  barbarous  words  occur  in  the  writings 
of  what  were  called  learned  men,  they  possessed  a  fluency  of 
expression  in  Latin  which  does  not  often  occur  at  present 

I  See  Tyrwhitfs  essay  on  the  lanfjuage  Nott,  who  maintains  the  rersification  of 

and  versjaciitiou  of  Chaucer,  in  the  fourth  Chaucer  to  h:ive  been  wholly  founded  on 

▼olunie  of  his  edition  of  the  Canterbury  accentual  and  not  syllabic  regularity.    I 

Tales.  The  opinion  of  this  eminent  adhere,  however,  to  Tyrwhitt'8  doctrin*. 
eritic  haa  lately  been  controverted  by  Dr 


State  of  Society.     ANCIENT  LEARNING.  431 

Durin^r  the  dark  ages,  however,  properly  so  called,  or  the 
period"  from  the  sixth  to  the  eleventh  century,  we  chiefly 
meet  with  quotations  from  the  Vulgate  or  from  theological 
writers      Nevertheless,  quotations  from  the  Latin  poets  arc 
hai-dly  to  be  called  unusual.     Virgil  Ovid,  Statins,  and  Hor- 
ace  are  brought  forward  by  those  who  aspired  to  some  lit- 
erary reputation,  especially  during  the  better  periods  of  that 
lon'T  twilight,  the  reigns  of  Charlemagne  and   his   son   m 
France,  part  of  the  tenth  century  in  Germany,  and  the  elcr. 
enth  in  both.     The  prose  writers  of  Rome  are  not  so  familuir, 
but  in  quotations  we  are  apt  to  find  the  poets  preferred;  and 
it  is  certain  that  a  few  could  be  named  who  were  not  igno- 
rant of  Cicero,  Sallust,  and  Livy.     A  considerable  change 
took  place  in  the  course  of  the  twelfth   century,  j^  the 
The  polite  literature,  as  well  as  the  abstruser  sci-  Jjj^fth  cen- 
ence  of  antiquity,  became  the  subject  of  cultivation. 
Several  writers  of  that  age,  in  different  parts  of  Europe,  are 
distin<Tuished  more  or  less  for  elegance,  though  not  absolute 
purity  of  Latin  style  ;  and  for  their  acquaintance  with  those 
ancients,  who  are  its  principal  models.     Such  >vere  John  ot 
Salisbury,  the  acute  and  learned  author  of  the  Polycraticon, 
William  of  Malmsbury,  Giraldus  Cambrensis,  Roger  Hove- 
den,  in  England ;  and  in  foreign  countries,  Otho  of  Frismgen, 
Saxo  Grammaticus,  and  the  best  perhaps  of  all  I  have  named 
as  to  style,  Falcandus,  the  historian  of  Sicily.     In   these 
we  meet  with  frequent  quotations  from  Livy,  Cicero,  Plmy, 
and  other  considerable  writers  of  antiquity.     The  poets  were 
now  admired  and  even  imitated.     All  metrical  Latin  before 
the  latter  part  of  the  twelfth  century,  so  far  as  I  have  seen, 
is  of  little  value;  but  at  this  time,  and  early  in  the  succeed- 
m<r  a^e,  there  appeared  several  versifiers  who  aspired  to  the 
reSow°n  of  following  the  steps  of  Virgil  and  Statins  in  epic 
poetry.      Joseph   Iscanus,  an    Englishman,  seems  to   have 
been  the  earliest  of  these ;  his  poem  on  the  Trojan  war  con- 
tainincr  an  address  to  Henry  IL     He  wrote  another,  entitled 
Antiocheis,  on  the  third  crusade,  most  of  which  has  perished. 
The  wars  of  Frederic  Barbarossa  were  celebrated  by  Gun- 
ther  in  his  Ligurinus ;  and  not  long  afterwards,  Guillelmus 
Brito  wrote  the  Philippis,  in  honor  of  Philip  Augustus,  and 
Walter  de  Chatillon  the  Alexandreis,  taken  from  the  popular 
romance  of  Alexander.      None  of  these  poems,  I  believe, 
have  much  intrinsic  merit ;  but  their  existence  is  a  proot  ot 


432      REVIVAL  OF  ANCIENT  LEARNING.     Chap.  IX.  Part  U 


much  more 
the  four- 
teenth. 


taste  that  could  relish,  though  not  of  genius  that  could  emu- 
late antiquity.* 

In  the  thirteenth  century  there  seems  to  have  been  some 
dechne  of  classical  literature,  in  consequence  probably  of  the 
scholastic  philosophy,  which  was  then  in  its  greatest  vigor ; 
at  least  we  do  not  find  so  many  good  writers  as  in  the  pre- 
ceding age.  But  about  the  middle  of  the  four- 
teenth,  or  perhaps  a  little  sooner,  an  ardent  zeal 
for  the  restoration  of  ancient  learning  began  to 
display  itself.  The  copying  of  books,  for  some  ages  slowly 
and  sparingly  performed  in  monasteries,  had  already  become 
a  branch  of  trade  ;  ^  and  their  price  was  consequently  re- 
duced. Tiraboschi  denies  that  the  invention  of  making  pa- 
per from  linen  rags  is  older  than  the  middle  of 
that  century ;  and  although  doubts  may  be  justly 
entertained  as  to  the  accuracy  of  this  position,  yet 
the  confidence  with  which  so  eminent  a  scholar  advances  it 
is  at  least  a  proof  that  paper  manuscripts  of  an  earlier  date 
are  very  rare.^     Princes  became  far  more  attentive  to  litera- 


Invention 
of  linea 
paper. 


1  Warton's  Hist,  of  English  Poetry, 
vol.  i.  Dissertation  II.  Roiiuefort,  Etat 
de  la  Poesie  Fran^aise  du  douziemc  Sidclo 
p.  18.  The  following  lines  from  the  be- 
ginning of  the  eighth  book  of  the  Philip- 
pis  seem  a  fair,  or  rather  a  favorable 
specimen  of  these  epics.  But  I  am  very 
superficially  acqu:iintcd  with  any  of 
them. 

Solverat  interca  zephyris  melioribus 

annum 
Frigore  depulso  vcris  tepor,  et  reno- 

vari 
Coeperat  et  viridi  gremlo  juvenescere 

tell  us ; 
Cum  Ilea  licta  Jovis  rideret  ad  oscula 

mater, 
Cum  jam  post  tergum  Phryxi  vectore 

relicto 
Soils  Agenorel  premeret  rota  terga  ju- 

vcnci. 

The  tragedy  of  Eccerinus  (Eccelin  da 
Romano),  by  Albertinus  Mussatns,  a 
Paduati,  and  author  of  a  respectable  his- 
tory, deserves  some  attention,  as  the  first 
attempt  to  revive  the  regular  tragedy.  It 
was  written  soon  after  1300.  The  lan- 
guage by  no  means  wants  animation, 
notwithstanding  an  unskilful  conduct  of 
the  fable.  The  Eccerinus  is  printed  in 
the  tenth  volume  of  Muratori's  collec- 
tion. 

2  Booksellers  appear  in  the  latter  part 
of  the  twelfth  century.    Peter  of  Blois 


mentions  a  law  book  which  he  had  pro- 
cured a  quodam  publico  raaiigone  libro- 
rum.  Ilist.  Litt^raire  do  la  France,  t.ix. 
p.  81.  In  tho  thirteenth  century  there 
were  many  copyi^ts  by  occupation  in  the 
Italian  universities.  Tiraboschi,  t.  ir. 
p.  72.  The  number  of  these  at  Milan 
before  the  end  of  that  age  is  said  to  have 
been  fifty.  Ibid.  But  a  very  small  pro- 
portion of  their  labor  could  have  been 
devoted  to  purposes  merely  liteniry.  By 
a  variety  of  ordinances,  the  first  of  which 
bears  date  in  1275,  the  booksellers  of 
Paris  were  subjected  to  the  control  of 
the  university.  Crcvier,  t.  ii.  p.  67,  286 
The  pretext  of  this  was,  lest  erroneous 
copies  should  obtain  circulation.  And 
this  appears  to  have  been  the  original  of 
those  restraints  upon  the  freedom  of  pub- 
lication, which  since  the  invention  of 
printing  have  so  much  retarded  the  dif- 
fusion of  truth  by  means  of  that  great 
instrument. 

3  Tiraboschi,  t.  v.  p.  85.  On  tho  con- 
trary side  are  3Iontfaucon,  Mabillon,and 
Muratori  :  the  latter  of  whom  carries  up 
the  invention  of  our  ordinary  paper  to  the 
year  1000.  But  Tiraboschi  contends  that 
the  paper  used  in  m.anuscripts  of  so 
early  an  age  was  made  from  cotton  rags, 
and,  apparently  from  the  inferior  dura- 
bility of  that  material,  not  frequently 
employed.  The  editors  of  Nouveau  Trai- 
te  de  Diplomatique  are  of  tho  same  opin- 
ion, and  doubt  the  use  of  linen  paper  be- 


State  of  Sociktt. 


LIBRAKIES. 


433 


ture  when  it  was  no  longer  confined  to  metaphysical  theolo- 
gy and  canon  law.  I  have  already  mentioned  the  transla- 
tions from  classical  authors,  made  by  command  of  John  and 
Charles  V.  of  France.^  These  French  translations  diffused 
some  acquaintance  with  ancient  history  and  learning  among 
our  own  countrymen.  The  public  libraries  as-  libraries 
sumed  a  more  respectable  appearance.  Louis  IX. 
had  formed  one  at  Paris,  in  which  it  does  not  appear  that  any 
work  of  elegant  literature  was  found.^  At  the  beginning  of 
the  fourteenth  century,  only  four  classical  manuscripts  exist- 
ed in  this  collection ;  of  Cicero,  Ovid,  Lucan,  and  Boethius.' 
The  academical  library  of  Oxford,  in  1300,  consisted  of  a 
few  tracts  kept  in  chests  under  St.  Mary's  church.  That  of 
Glastonbury  Abbey,  in  1240,  contained  four  hundred  vol- 
umes, among  which  were  Livy,  Sallust,  Lucan,  Virgil,  Clau- 
dian,  and  other  ancient  writers.*  But  no  other,  probably,  of 
that  age  was  so  numerous  or  so  valuable.  Richard  of  Bury, 
chancellor  of  England,  and  Edward  III.,  spared  no  expense 
in  collecting  a  library,  the  first  perhaps  that  any  private  man 
had  formed.  But  the  scarcity  of  valuable  books  was  still  so 
great,  that  he  gave  the  abbot  of  St.  Albans  fifty  pounds 
weight  of   silver  for  between   thirty   and   forty   volumes.* 


fore  the  year  1300.  t.  i.  p.  517, 521.  Meer- 
man,  well  known  as  a  writer  upon  the 
antiquities  of  printing,  offered  a  reward 
for  tho  earliest  manuscript  upon  linen 
paper,  and,  in  a  treatise  upon  the  subject, 
fixed  the  date  of  its  invention  between 
1270  and  1300.  But  M.  Schwandner  of 
Vienna  is  said  to  have  found  in  tlie  im- 
perial library  a  small  charter  bearing  the 
date  of  1243  on  such  paper.  Macpher- 
son's  Annals  of  Commerce,  vol.  i.  p.  394. 
Tiraboschi,  if  he  had  known  this,  would 
probably  have  maintained  the  paper  to 
be  made  of  cotton,  which  he  says  it  is 
difficult  to  distinguish.  lie  assigns  the 
Invention  of  linen  paper  to  Pace  da  Fa- 
biano  of  Treviso.  But  more  than  one 
Arabian  writer  asserts  the  manuf  icture 
of  linen  paper  to  have  been  carried  on  at 
Samarcand  early  in  the  eight  century, 
having  been  brought  thither  fi-om  China. 
And  what  is  more  conclusive,  Ciisiri 
positively  declares  many  manuscripts  in 
the  Escurial  of  the  eleventli  and  twelfth 
centuries  to  be  written  on  that  sub- 
stance. Bibliotheca  Arabico-IIispanica, 
t.  ii.  p.  9.  This  authority  appears  much 
to  outweigh  the  opinion  of  Tiraboschi  in 
Ikvor  of  I'ace  da  F&biano,  who  must  per- 
haps take  his  place  at  the  table  of  fabu- 
lous heroes  with  Bartholomew  Schwartz 
VOL.  lu.  28 


and  Flavio  Gioja.  But  the  material 
point,  that  paper  was  very  little  known 
in  Europe  till  the  latter  part  of  the  four- 
teenth century,  remains  as  before.  See 
Introduction  to  History  of  Literature,  c. 
i  $58. 

1  Warton's  Hist,  of  English  Poetry, 
vol.  ii.  p.  122. 

Velly,  t.  V.  p.  202 ;  Crevier, 


36 


t.  ii.  p. 


Dissert.  II. 


Warton,  vol.  i. 

4  Ibid. 

6  Warton,  vol.  i.  Dissert.  II.  Fifty- 
eight  books  were  transcribed  in  this  ab- 
bey under  one  abbot,  about  the  year  1300. 
Every  considerable  monastery  had  a 
room,  called  Scriptorium,  where  this 
work  was  performed.  More  than  eighty 
were  transcribed  at  St.  Albans  under 
Whethamstede,  in  the  time  of  Henry  VI. 
ibid.  See  also  Da  Cange,  V.  Scriptores. 
Nevertheless  we  must  remember,  first, 
that  the  far  greater  part  of  these  books 
were  mere  monastic  trash,  or  at  least 
useless  in  our  modern  apprehension ;  sec- 
ondly, that  it  depended  upon  the  char- 
acter of  the  abbot,  whether  the  scripto- 
rium should  be  occupied  or  not.  Every 
head  of  a  monastery  was  not  a  Whetham- 
stede. Ignorance  and  jollity,  such  as  we 
find  in  Bolton  Abbey,  were  their  mor« 


I^i 


li 


434 


MANUSCRIPTS. 


Chap.  IX.  Pa«t  n 


State  of  Society. 


INDUSTRY. 


435 


Charles  V.  increased  the  royal  library  at  Paris  to  nine  hun- 
dred volumes,  which  the  duke  of  Bedford  purchased  and 
transported  to  London.^  His  brother  Humphrey  duke  of 
Gloucester  presented  the  university  of  Oxford  with  six  hun- 
dred books,  which  seem  to  have  been  of  extraordinary  value, 
one  hundred  and  twenty  of  them  having  been  estimated  at 
one  thousand  pounds.  This  indeed  was  in  1440,  at  which 
tune  such  a  library  would  not  have  been  thought  remarkably 
numerous  beyond  the  Alps,^  but  England  had  made  compar- 
atively little  progress  in  learning.  Germany,  however,  was 
probably  still  less  advanced.  Louis,  Elector  Palatine,  be- 
queathed in  1421  his  library  to  the  university  of  Heidelberg, 
consisting  of  one  hundred  and  fifty-two  volumes.  Eighty- 
nine  of  these  related  to  theology,  twelve  to  canon  and  civil 
law,  forty-five  to  medicine,  and  six  to  philosophy.* 

Those  who  first  undertook   to  lay  open  the  stores  of  an- 
.         cient  learning  found  incredible  difficulties  from  the 
tion"o7Sanu.  scarcity  of  manuscripts.    So  gross  and  supine  was 
■cripts.  ^j^g  ignorance  of  the  monks,  within  whose  walls 

these  treasures  °were  concealed,  that  it  was  impossible  to 
ascertain,  except  by  indefatigable  researches,  the  extent  of 
what  had  been  saved  out  of  the  great  shipwreck  of  antiquity. 
To  this  inquiry  Petrarch  devoted  continual  attention.  He 
spared  no  means  to  preserve  the  remains  of  authors,  who 
were  perishing  from  neglect  and  time.  This  danger  was 
by  no  means  past  in  the  fourteenth  century.  A  treatise  of 
Gcero  upon  Glory,  which  had  been  in  his  possession,  was 
afterwards  irretrievably  lost.-*  He  declares  that  he  had  seen 
in  his  youth  the  works  of  Varro ;  but  all  his  endeavors  to  re- 
cover these  and  the  second  Decad  of  Livy  were  fruitless. 
He  found,  however,  Quintilian,  in  1350,  of  which  there  was 
no  copy  in  Italy .'^    Boccaccio,  and  a  man  of  less  general 


tuual  characteristics.    By  the  account 
books  of  this  rich  monastery,  about  the 
beginning  of  the    fourteenth    century, 
three  books  only  appear  to  have  been 
purchaseJIn  forty  years.    One  of  those 
was  the   Liber    Sententiarum  of   Peter 
Lombard,  which    cost  thirty  shillings, 
eqUiralent  to  near  forty  pounds  at  pres- 
ent.   Whitaker'8  Hist,  of  CraTen,  p.  330. 
»  Ibid. ;  Villaret.  t  xi.  p.  117. 
«  Niccolo  Niccoli,  a  private    scholar, 
who  contributed  essentially  to  the  res- 
toration of  ancient  learning,  bequeathed 
a  library  of  eight  hundred  volumes  to 
the  republic  of  Florence.     This  Niccoli 


hardly  published  anything  of  his  own; 
but  earned  a  well  merited  reputation  by 
copying  and  correcting  manuscripts.  Tl- 
raboschi,  t.  vl.  p.  114  ;  Shepherdu  Pog- 
gio,  p.  319.  In  the  preceding  century, 
CoUuccio  Salutato  had  procured  as  many 
as  eight  hundred  volumes.  Ibid.  p.  23. 
Koscoe's  Lorenzo  de'  Medici,  p.  66. 

3  Schmidt,  Hist,  des  Allemands.  t.  ▼. 
p.  520. 

4  He  had  lent  it  to  a  needy  man  of 
letters,  who  pawned  the  book,  which 
was  never  recovered.  De  Sade,  t.  i>  p. 
57. 

&  Tiraboschi,  p.  89. 


fame,  Colluccio  Salutato,  were  distinguished  in  the  same  hon- 
orable task.  The  diligence  of  these  scholars  was  not  con- 
fined to  searching  for  manuscripts.  Transcribed  by  slovenly 
monks,  or  by  ignorant  persons  who  made  copies  for  sale, 
they  required  the  continual  emendation  of  accurate  critics.^ 
Though  much  certainly  was  left  for  the  more  enlightened  sa- 
gacity of  later  times,  we  owe  the  first  intelligible  text  of  the 
Latin  classics  to  Petrarch,  Poggio,  and  their  contemporary 
lalMjrers  in  this  vineyard  for  a  hundred  years  before  the  in- 
vention of  printing. 

What  Petrarch  began  in  the  fourteenth  century  was  car- 
ried on  by  a  new  generation  with  unabating  indus-  industry  of 
try.  The  whole  lives  of  Italian  scholars  in  the  the  fifteenth 
fifteenth  century  were  devoted  to  the  recovery  of  ^°'"'^^- 
manuscripts  and  the  revival  of  philology.  For  this  they  sac- 
rificed their  native  language,  which  had  made  such  surpris- 
ing shoots  in  the  preceding  age,  and  were  content  to  trace, 
in  humble  reverence,  the  footsteps  of  antiquity.  For  this  too 
they  lost  the  hope  of  permanent  glory,  which  can  never  re- 
main with  imitators,  or  such  as  trim  the  lamp  of  ancient  sep- 
ulchres. No  writer  perhaps  of  the  fifteenth  century,  except 
Politian,  can  aspire  at  present  even  to  the  second  class,  in  a 
just  marshalling  of  literary  reputation.  But  we  owe  them 
our  respect  and  gratitude  for  their  taste  and  diligence.  The 
discovery  of  an  unknown  manuscript,  says  Tiraboschi,  was 
regarded  almost  as  the  conquest  of  a  kingdom.  The  classi- 
cal writers,  he  adds,  were  chiefly  either  found  in  Italy,  or  at 
least  by  Italians ;  they  were  first  amended  and  first  printed 
in  Italy,  and  in  Italy  they  were  first  collected  in  public  libra- 
ries.^ This  is  subject  to  some  exception,  when  fairly  consid- 
ered ;  several  ancient  authors  were  never  lost,  and  therefore 
cannot  be  said  to  have  been  discovered ;  and  we  know  that 
Italy  did  not  always  anticipate  other  countries  in  classical 
printing.  But  her  superior  merit  is  incontestable.  Poggio 
Bracciolini,  who  stands  perhaps  at  the  head  of  the  , 
restorers  of  learning,  in  the  earlier  part  of  the 
fifteenth  century,  discovered  in  the  monastery  of  St.  Gall, 
among  dirt  and  rubbish  in  a  dungeon  scarcely  fit  for  con- 
demned criminals,  as  he  describes  it,  an  entire  copy  of  Quin- 
tilian, and  part  of  Valerius  Flaccus.    This  was  in  1414 ;  and 

1  Idem.  t.  T.  p.  83:  De  Sade,  t.  i.  p.  88. 
t  Tiraboschi,  p.  101. 


436 


GREEK  LANGUAGE.       Chap.  K.  Part  II 


8TATB  OF  Society.       GREEK  LANGUAGE. 


487 


soon  afterwards,  he  rescued  the  poem  of  Sihus  Italicus,  and 
twelve  comedies  of  Plautus,  in  addition  to  eight  that  were 
previously  known ;  besides  Lucretius,  Columella,  TertuUian, 
Ammianus  Marcellinus,  and  other  writers  of  inferior  note  * 
A  bishop  of  Lodi  brought  to  light  the  rhetorical  treatises  of 
Cicero.    Not  that  we  must  suppose  these  books  to  have  been 
universally  unknown  before;  Quintilian, at  least,  is  quoted  by 
English  writers  much  earlier.     But  so  little  intercourse  pre- 
vaiFed  among  different  countries,  and  the  monks  had  so  little 
acquaintance  with  the   riches  of  their  conventual  libraries, 
that  an  author  might  pass  for  lost  in  Italy,  who  was  familiar 
to   a  few  learned  men  in  other  parts  of  Europe.     To  the 
name  of  Poggio  we  may  add  a  number  of  others,  distin- 
guished in  tins  memorable  resurrection  of  ancient  literature, 
and  united,  not  always  indeed  by  friendship,  for  their  bitter 
animosities  disgrace  their  profession,  but  by  a  sort  of  com- 
mon sympathy  in  the  cause  of  learning  ;  Filelfo,  Laurentius 
Valla,  Niccolo  Niccoli,  Ambrogio  Traversari,  more  common- 
ly called  H  Camaldolense,  and  Leonardo  Aretino. 

From  the  subversion  of  the  Western  Empire,  or  at  least 
from  the  time  when  Rome  ceased  to  pay  obedience 
O^^JJJ;  to  the  exarchs  of  Ravenna,  the  Greek  language 
Gownin  and  literature  had  been  almost  entirely  forgotten 
the  West.  ^^iti^in  the  pale  of  the  Latin  church.  A  very  few 
exceptions  might  be  found,  especially  in  the  earlier  period  of 
the  middle  ages,  while  the  eastern  emperors  retained  their 
dominion  over  part  of  Italy .^  Thus  Charlemagne  is  said  to 
have  established  a  school  for  Greek  at  Osnaburg.'  John 
Scotus  seems  to  have  been  well  acquainted  with  the  language. 
And  Greek  characters  may  occasionally,  though  very  sel- 
dom, be  found  in  the  writings  of  learned  men  ;  such  as  Lan- 
franc  or  William  of  Malmsbury.*     It  is  smd  that  Roger 


1  Tiraboschi,  t.  yi.  p.  104  ;  and  Shep- 
herd's Life  of  Poggio,  p.  106, 110;  Ros- 
coe's  Lorenzo  de  Medici,  p.  38. 

»  Schmidt,  Uist.  des  Allemands,  t.  ii. 
p.  374;  Tiraboschi,  t.  iii.  p.  124,  et  alibi. 
Bede  extols  Theodore  primate  of  Canter- 
bury and  Tobias  bishop  of  Rochester 
for  their  knowledge  of  Greek.  Hist. 
Eccles.  c.  9  and  24.  But  the  former  cf 
these  prelates,  if  not  the  latter,  vtba  a 
oatiTe  of  Greece. 

s  Hist.  Litteralre  de  la  France,  t.  It. 
p.  12. 

4  Qreek    characters  axe    (bond  In  a 


charter  of  943,  published  in  Martenne, 
Thesaurus  Anecdot.  t.  i.  p.  74.  The  title 
of  a  treatise  nepl  ^vaewv  fiepiafiov, 
and  the  word  iJeOTO/cof,  occur  in  William 
of  Malmsbury,  and  one  or  two  others  in 
Lanfranc's  Constitutions.  It  is  said  that 
a  Greek  psalter  was  written  in  an  abbey 
at  Tour  nay  about  1105.  Ili^'t.  Litt.  de 
la  France,  t.  ix.  p.  102.  This  was,  1 
should  think,  a  Tery  rare  instance  of  a 
Greek  manuscript,  sacred  or  profane, 
copied  in  the  we.stern  parts  of  Europe 
before  the   fifteeenth    century.    But  ft 


Bacon  understood  Greek  ;  and  that  his  eminent  contemporary, 
Robert  Grostete,  Bishop  of  Lincoln,  had  a  sufficient  intimacy 
with  it  to  translate  a  part  of  Suidas.  Since  Greek  was 
spoken  with  considerable  purity  by  the  noble  and  well  edu- 
cated natives  of  Constantinople,  we  may  wonder  that,  even 
as  a  living  language,  it  was  not  better  known  by  the  western 
nations,  and  especially  in  so  neighboring  a  nation  as  Italy. 
Yet  here  the  ignorance  was  perhaps  even  more  complete 
than  in  France  or  England.  In  some  parts  indeed  of  Cala- 
bria, which  had  been  subject  to  the  eastern  empire  till  near 
the  year  1100,  the  liturgy  was  still  performed  in  Greek ;  and 
a  considerable  acquaintance  with  the  language  was  of  course 
preserved.  But  lor  the  scholars  of  Italy,  Boccaccio  posi- 
tively asserts,  that  no  one  undersftood  so  much  as  the  Greek 
characters.^  Nor  is  there  probably  a  single  line  quoted  from 
any  poet  in  that  language  from  the  sixth  to  the  fourteenth 
century. 

The  first  to  lead  the  way  in  restoring  Grecian  learning  in 
Europe  were  the  same  men  who  had  revived  the 
kindred  muses  of  Latium,  Petrarch,  and  Boccac-  Jwe^s'Jn^hT 
cio.     Barlaam,  a  Calabrian  by  birth,  during  an  fourteenth 
embassy  from  the  court  of  Constantinople  in  1335,  ^^^  ^^^' 
was  persuaded  to  become  the  preceptor  of  the  former,  with 
whom  he  read  the  works  of  Plato.'^     Leontius  Pilatus,  a  na- 
tive of  Thessalonica,  was  encouraged  some  years  afterwards 


Greek  psalter  written  in  Latin  charac- 
ters at  Milan  in  the  9th  century  was 
sold  some  years  ago  in  London.  John 
of  Salisbury  is  said  by  Crevier  to  have 
known  a  little  Greek,  and  he  several 
times  uses  technical  words  in  that  lan- 
guage. Yet  he  could  not  have  been 
much  more  learned  than  his  neigh- 
bors ;  since,  having  found  the  word 
ovaia  in  St.  Ambrose,  he  was  forced  to 
ask  the  meaning  of  one  John  Sarasin, 
an  Englishman,  because,  says  he.  none  of 
our  masters  here  (at  Paris)  understand 
Greek.  Paris,  indeed,  Crevier  thinks, 
could  not  furnish  any  Grevk  scholar  in 
that  age  except  Abelard  and  lleloise, 
and  probably  neither  of  them  knew 
much.  Uist.  de  I'Univers.  de  Paris,  t.  i. 
p.  259. 

The  ecclesiastical  language,  it  may  be 
observed,  was  full  of  Greek  words  Lat- 
inized. But  this  process  had  taken 
place  before  the  fifth  century  ;  and  most 
Of  them  will  be  found  in  the  Latin  dic- 
tionaries.   A  Greek  word   wa«  now  and 


then  borrowed,  as  more  imposing  than 
the  correspondent  Latin.  Thus  the 
English  and  other  kings  sometimes  called 
themselves  Basileus,  instead  of  Rex. 

It  will  not  be  supposed  that  I  have 
professed  to  enumerate  all  the  persons 
of  whose  acquaintance  with  the  Greek 
tongue  some  evidence  may  be  found ; 
nor  have  I  ever  directed  my  attention  to 
the  subject  with  that  view.  Doubtless 
the  list  might  be  more  than  doubled. 
But,  if  ten  times  the  number  could  be 
found,  w^e  should  still  be  entitled  to  say, 
that  the  language  was  almost  unknown, 
and  that  it  could  have  had  no  influence 
on  the  condition  of  literature.  [See  In- 
troduction  to  Hist,  of  Literature,  chap. 

2,  n.] 

1  Nemo  est  qui  Grsecas  litems  ndrit; 
at  ego  in  hoc  Latinitati  compatior,  quaa 
sic  omnino  Grseca  abjecit  studia,  ut  etiam 
non  noscamus  characteres  literarum. 
Genealogiaj  Deorum,  apud  Ilodium  d« 
Graecis  lUustribus,  p.  8. 

'i  Mem.  de  Petrarque,  t.  i.  p.  407. 


^3  STATE  OF  LEARNING      Chap.  IX.  Part  H. 

by  Boccaccio  to  give  public  lectures  upon  Homer  at  Flor- 
ence^     Whatever  might  be  the  share  of  general  attention 
that  he  excited,  he  had  the  honor  of  instructing  both  these 
great  Italians  in  his  native  language.     Neither  of  them  per- 
haps  reached  an  advanced  degree  of  proficiency ;  but  they 
bathed  their  lips  in  the  fountain,  and  enjoyed  the  pride  of 
beincr  the  first  who  paid  the  homage  of  a  new  posterity  to  the 
fathe°r  of  poetry.     For  some  time  little  fruit  apparent  y  re- 
sulted from  their  example ;  but  Italy  had  imbibed  the  desire 
of  acquisitions  in  a  new  sphere  of  knowledge,  which,  after 
some  interval,  she  was  abundantly  able  to  realize.     A  low 
years  before  the  termination  of  the  fourteenth  century,  Eman- 
uel  Chrysoloras,  whom  the  emperor  John  Palajologus  had 
previously  sent  into  Italy,  and  even  as  far  as  England,  upon 
one  of  those  unavailing  embassies,  by  which  the  Bvzantine 
court  strove  to  obtain  sympathy  and  succor  from  Europe, 
returned  to  Florence  as  a  public  teacher  of  Grecian  litera- 
ture *     His  school  was  afterwards  removed  successively  to 
Pavia,  Venice,  and  Rome ;  and  during  nearly  twenty  years 
that  he  taught  in  Italy,  most  of  those  eminent  scholars  whom 
I  have  already  named,  and  who  distinguish  the  first  half  ot 
that  century,  derived  from  his   instruction  their  knowledge 
of  the  Greek  tongue.     Some,  not  content  with  being  the  dis- 
ciples of  Chrysoloras,  betook  themselves  to  the  source  of  that 
literature  at  Constantinople ;  and  returned  to  Italy,  not  only 
with  a  more  accurate  insight  into  the  Greek  idiom  than  they 
could  have  attained  at  home,  but  with  copious  treasures  of 
manuscripts,  few,  if  any,  of  which  probably  existed  previously 
in  Italy,  where  none  had  ability  to  read  or  value  them  ;  so 
that  the  principal  authors  of  Grecian  antiquity  may  be  con- 
sidered as  brought  to  light  by  these  inquirers,  the  most  cele- 
brated of  whom  are  Guarino  of  Verona,  Aurispa,  and  Filelfo. 
The  second  of  these  brought  home  to  Venice  in  1423  not 
less  than  two  hundred  and  thirty-eight  volumes.* 

The  fall  of  that  eastern  empire,  which  had  so  long  outlived 


State  of  Society.    AMONG  THE  GREEKS. 


439 


t  M6in.  de  Petrarque,  t.  i.  p.  447  ;  t. 
!ii.  p.  634.  Hody  de  Graecis  lUust.  p.  2. 
Boccace  speaks  modestly  of  his  own  at- 
tainments in  Greek  :  etsi  non  satis  plend 
pertepcrim.  percepi  tamen  quantum  po- 
tui ;  nee  dubium,  si  permansisset  homo 
ille  vagus  diutius  penes  nos,  quin  pleniua 
peroepissem.    id.  p.  4. 


*  ITody  places  the  commencement  of 
Chrysoloras'S  teaching  as  early  as  1391. 
p.  3.  But  Tiraboschi,  whose  research 
was  more  precise,  fixes  it  at  the  end  of 
1396  or  beginning  of  1397,  t.  vii.  p  126. 

3  Tiraboschi,  t.    vi.  p.  102  ;   Roscoe'i 
Lorenzo  de'  Medici,  YOl.  i.  p.  48. 


all  other  pretensions  to  respect  that  it  scarcely  re-  g^^^^^  ^^ 
tained  that  founded  upon  its  antiquity,  seems  to  learning  in 
have  been  providentially  delayed  till  Italy  was  ^^®®-®' 
ripe  to  nourish  the  scattered  seeds  of  literature  that  would 
have  perished  a  few  ages  earlier  in  the  common  catastrophe. 
From  the  commencement  of  the  fifteenth  century  even  the 
national  pride  of  Greece  could  not  blind  her  to  the  signs  of 
approaching  ruin.  It  was  no  longer  possible  to  inspire  the 
European  republic,  distracted  by  wars  and  restrained  by 
calculating  policy,  with  the  generous  fanaticism  of  the  cru- 
sades ;  and  at  the  council  of  Florence,  in  1439,  the  court  and 
church  of  Constantinople  had  the  mortification  of  sacrificing 
their  long-cherished  faith,  without  experiencing  any  sensible 
return  of  protection  or  security.  The  learned  Greeks  were 
perhaps  the  first  to  anticipate,  and  certainly  not  the  last  to 
avoid,  their  country's  destruction.  Tlie  council  of  Florence 
brought  many  of  them  into  Italian  connections,  and  held  out 
at  least  a  temporary  accommodation  of  their  conflicting  opin- 
ions. Though  the  Roman  pontiffs  did  nothing,  and  probably 
could  have  done  nothing  effectual,  for  the  empire  of  Constanti- 
nople, they  were  very  ready  to  protect  and  reward  the  learn- 
ing of  individuals.  To  Eugenius  IV.,  to  Nicholas  V.,  to  Pius 
II.,  and  some  other  popes  of  this  age,  the  Greek  exiles  were 
indebted  for  a  patronage  which  they  repaid  by  splendid  ser- 
vices in  the  restoration  of  their  native  literature  throughout 
Italy.  Bessarlon,  a  disputant  on  the  Greek  side  in  the  coun- 
cil of  Florence,  was  well  content  to  renounce  the  doctrine  of 
single  procession  for  a  cardinal's  hat  —  a  dignity  which  he 
deserved  for  his  learning,  if  not  for  his  pliancy.  Theodore 
Gaza,  George  of  Trebizond,  and  Gemistus  Pletho,  might 
equal  Bessarion  in  merit,  though  not  in  honors.  They  all, 
however,  experienced  the  patronage  of  those  admirable  pro- 
tectors of  letters,  Nicholas  V.,  Cosmo  de'  Medici,  or  Alfonso 
king  of  Naples.  These  men  emigrated  before  the  final  de- 
struction of  the  Greek  empire  ;  Lascaris  and  Musurus,  whose 
arrival  in  Italy  was  posterior  to  that  event,  may  be  deemed 
perhaps  still  more  conspicuous  ;  but  as  the  study  of  the  Greek 
language  was  already  restored,  it  is  unnecessary  to  pursue 
Ihe  subject  any  further. 

The  Greeks  had  preserved,  through  the  course  of  the  mid- 
dle ages,  their  share  of  ancient  learning  with  more  fidelity  and 
attentior.  than  was  shown  in  the  west  of  Europe.     Genius 


1^ 


440 


BYZANTINE  WRITERS.    Chap.  IX.  Pai^  IL 


State  op  Societt.     CLASSICAL  LITERATURE. 


441 


indeed,  or  any  original  excellence,  could  not  well  exist  along 
with  their  cowardly  despotism,  and  their  contemptible  theolo- 
gy, more  corrupted  by  frivolous  subtleties  than  that  of  the 
Latin  church.     The  spirit  of  persecution,  naturally  allied  to 
despotism  and  bigotry,  had  nearly,  during  one  period,  extin- 
guished the  lamp,  or  at  least  reduced  the  Greeks  to  a  level 
with  the  most  ignorant  nations  of  the  West.     In  the  age  of 
Justinian,  who  expelled  the  last  Platonic  philosophers,  learn- 
ing  began  rapidly  to  decline;  in  that  of  Heraclius,  it  Imd 
reached  a  much  lower  point  of  degradation ;  and  for  two  cen- 
turies, especially  while  the  worshippers  of  images  were  perse- 
cuted  with  unrelenting  intolerance,  there  is  almost  a  blank  in 
the  annals  of  Grecian  literature.^     But  about  the  middle  of 
the  ninth  century  it  revived  pretty  suddenly,  and  with  con- 
siderable success.^     Though,  as  I  have  observed,  we  find  in 
very  few  instances  any  original  talent,  yet  it  was  hardly  less 
important  to  have  had  compilers  of  such  erudition  as  Photius, 
Suidas,  Eustathius,  and  Tzetzes.     With  these  certainly  the 
Latins  of  the  middle  ages  could  not  place  any  names  in  com- 
parison.    They  possessed,  to  an  extent  which  we  cannot  pre- 
cisely appreciate,  many  of  those  poets,  historians,  and  orators 
of  ancient  Greece,  whose  loss  we  have  long  regretted  and 
must  continue  to  deem  irretrievable.     Great  havoc,  however, 
was  made  in  the  libraries  of  Constantinople  at  its  capture  by 


1  The  authors  most  conversant  with 
Byzantine  learning  agree  in  this.  Never- 
theless, there  is  one  manifest  difference 
between  the  Greek  writers  of  the  worst 
period,  such  as  the  eighth  century,  and 
those  who  correspond  to  them  in  the 
West.    Syncellus,  for  example,  is  of  great 
use  in  chronology,  because  he  was  ac- 
quainted with  many  ancient    histories 
now  no  more.    But  Bede  possessed  noth- 
ing which  we  have  lost ;  and  his  compi- 
lations are  consequently  altogether  un- 
profitable.   The  eighth  century,  the  Saec- 
ulum  Iconoclaaticum  of  Cave,  low  as  it 
was  in  all  polite  literature,  produced  one 
man,  John  Damascenus,  who  has  been 
deemed  the  founder  of  scholastic  theol- 
ogy, and  who  at  least  set  the  example 
of  that  style  of  reasoning  in  the  East. 
This  person,  and  Michael  Psellus,  a  phi- 
losopher of   the  eleventh  century,  are 
the  only  considerable  men,  as  original 
writers,  in  the  annals  of  Byiantine  lit- 
erature. 

*  The  honor  of  restoring  ancient  or 
heathen  literature  is  due  to  the  Coesar 

B&rdasi  uncle  and  minister  of  Michael  II. 


Cedrenus  speaks  of  it  in  the  following 
terms :  hm^e7ai&ri  6e  koX  rffC  k^u  ao- 
ipiac,  Ivv  ytip  Ik  tto^Iov  xpoyov  tto- 
pal)pvelaa,  Kal  Trpdf  t;}  fiTjdiv  6^wf 
Xi^pTjo^oci  Ty  Tuv  KparovvTuv  upyi^ 
Kai  afiadi^)  d«irpi/3af  kKuary  tuv 
ImoTTifiuv  u^iaC^,  rdv  uev  oAAwv 
bTTQ  nep  ^ru;t^»  ^^f  ^'  ^^^  iraauv 
tnoxov  <pi?ioao<piag  Knr'  avru  tu  /3ii- 
oiTisia  iv  tij  Mayvavp'^'  koI  ovtu  k^ 
iKeivav  uvrj^aaKEiv  ai  izianjficu  J7p- 
^avTO.  K.  T.  X.  Uist.  Byzant.  Script. 
(Lutct.)  t.  X.  p.  547.  Bardas  found  out 
and  promoted  I'hotius,  afterwards  patri- 
arch of  Constantinople,  and  equally  fa- 
mous in  the  annals  of  the  church  and 
of  learning.  Gibbon  passes  perhaps  too 
rapidly  over  the  Byzantine  literature, 
chapt.  63.  In  this  as  in  many  other 
places,  the  masterly  boldness  and  precis- 
ion of  his  outline,  which  astonish  those 
who  have  trodden  parts  of  the  same 
field,  are  apt  to  escape  an  uninformed 
reader. 


the  Latins  —  an  epoch  from  which  a  rapid  decline  is  to  be 
traced  in  the  literature  of  the  eastern  empire.  Solecisms 
and  barbarous  terms,  which  sometimes  occur  in  the  old 
Byzantine  writers,  are  said  to  deform  the  style  of  the  four- 
teenth and  fifteenth  centuries.^  The  Turkish  ravages  and 
destruction  of  monasteries  ensued ;  and  in  the  cheerless  inter- 
vals of  immediate  terror  there  was  no  longer  any  encourage- 
ment to  preserve  the  monuments  of  an  expiring  language, 
and  of  a  name  that  was  to  lose  its  place  among  nations.*^ 
That  ardor  for  the  restoration  of  classical  literature  which 


1  Du    Cange,    Praefatio   ad    Glossar. 
Oraccitatis  Medil  Kvi.    Anna  Comnena 
quotes  some  popular  lines,  which  seem 
to  be  the  earliest  specimen  extant  of  the 
Bomaic  dialect^  or  something  approach- 
ing it.  as  they  observe  no  grammatical 
Intiection,  and  bear  about  the  same  re- 
semblance to    ancient    Greek   that  the 
worst    law-charters  cf  the    ninth  and 
tenth  centuries  do  to  pure  Latin.    In 
feet,  the  Greek  language  seems  to  have 
declined   much  in  the  same  manner  as 
the  Latin  did,  and  almost  at  as  early  a 
period.     In  the  sixth  century,  Damasci- 
us,  a  Platonic  philosopher,  mentions  the 
old  language  as  distinct  from  that  which 
was   vernacular,   T^v   apj^amv    yXcJr- 
rav  VTtip  ttjv  idtunjv  ii€?£TOvai.    Du 
Cange,  ibid.  p.  11.    It  is  well  known  that 
the  popular,  or  political  verses  of  Tzet- 
aes.  a  writer  of  the  twelfth  century,  are 
accentuiil ;  that  Is.  arc  to  be  read,  as  the 
modern  Greeks  do.  by  treating  every  acute 
or  circumHex  syllable  as  long,  without 
regard  to  its  original  quantity.    This  in- 
novation, which    must   have    produced 
still  greater  confusion  of  metrical  rules 
than  it  did  in  Latin,  is  much  older  than 
the  age  of  Tzetzes ;  if,  at  least,  the  editor 
of  some  notes  subjoined  to  Meursius's 
edition  of  the  Themata  of  Constantino 
Porphvrogenitus  (Lugduni,  1617)  is  right 
in  ascribinj^  certain   political  verses  to 
that  emperor,  who  died  in  959.     These 
verfsea  are  regular  accentual  trochaics. 
But  I  believe  they  have  since  been  given 
to  Oonstantine  RIanasses,  a  writer  of  the 
eleventh  century. 

According  to  the  opinion  of  a  modern 
traveller  (Uobhouse's  Travels  in  Albania, 
letter  33)  the  chief  corruptions  which 
distinguish  the  Romaic  from  its  parent 
stock,  especially  the  auxiliary  verbs,  are 
not  older  than  the  capture  of  Constanti- 
nople by  Mahomet  II.  But  it  seems 
difficult  to  obtain  any  satisfactory  proof 
of  this :  and  the  auxiliary  verb  is  so 
natural  and  convenient,  that  the  ancient 
Qraeks  may  probably,  in  some  of  their 


local  idioms,  have  fallen  into  the  use  of 
it ;  as  Mr.  II.  admits  they  did  with  re- 
spect to  the  future  auxiliary  i^eAtJ.  See 
some  instances  of  this  in  Lesbonax,  Trepl 
ff;^>7/zartjv»  ad  finera  Ammonii,  curl 
Valckenaer. 

2  Photius  (I  write  on  the  authority  of 
M.  Ileeren)  quotes  Theopompus.  Arrian's 
History  of  Alexander's  Successors,  and  of 
Parthia.  Ctesias,  Agatharcides,  the  whole 
of  Diodorus  Siculus,  Poly  bins,  and  Diony- 
sius  of  Ilalicarnassus.  twenty  lost  ora- 
tions of  Demosthenes,  almost  two  hun- 
dred of  Lycias,  sixty -four  of  Isaeus,  about 
fifty  of  Hyperides.  Ileeren  ascribes  the 
loss  of  these  works  altogether  to  the  Latin 
capture  of  Constantinople,  no  writer  sub- 
sequent to  that  time  having  quoted  them. 
Essai  sur  Ics  Croisades,  p.  413.  It  is  diffi- 
cult however  not  to  suppose  that  some 
part  of  the  destruction  was  left  for  the 
Ottomans  to  perform.  /Eneas  Sylvius 
bemoans,  in  his  speech  before  the  diet  of 
Frankfort,  the  vast  losses  of  literature  by 
the  recent  subversion  of  the  Greek  em- 
pire. Quid  do  libris  dicam,  qui  illic 
crant    innumerabiles,    nondum    Latinis 

cogniti  I Nunc  ergo,  et  Homero  et 

Pindaro  et  Menandro  et  omnibus  illus- 
trioribus  poetis,  secunda  mors  erit.  But 
nothing  can  be  inferred  from  this  dec- 
lamation, except,  perhaps,  that  he  did 
not  know  whether  Menauder  still  existed 
or  not.  JEn.  Sylv.  Opera,  p.  715;  also 
p.  881.  Harris's  Philological  Inquiries, 
part  iii.  c.  4.  It  is  a  remarkable  proof, 
however,  of  the  turn  which  Europe,  and 
especially  Italy,  was  taking,  that  a  pope's 
legate  should,  on  a  solemn  occasion, 
descant  so  seriously  on  the  injury  sus- 
tained by  profane  literature. 

An  useful  summary  of  the  lower 
Greek  literature,  taken  chiefly  from  the 
Bibliotheca  Graeca  of  Fabricius,  will  be 
found  in  Berington's  Literary  History  of 
the  Middle  Ages,  Appendix  I. ;  and  one 
rather  more  copious  in  SchoSll,  Abr6g6 
de  la  Litterature  Gricque.   (Paris,  1812.) 


442 


CLASSICAL  LITERATURK       Chap.  IX.  Part  11. 


State  of  Society.    INVENTION  OF  PRINTING. 


443 


I'- 


i 


animated  Italy  in  the  first  part  of  the  fifteenth 
Jfo?Su"ch  century,  was  by  no  means  common  to  the  rest  of 
improved  be-  Europe.  Neither  England,  nor  France,  nor  Ger- 
yond  Italy.  ^,^^^^  seemed  aware  of  the  approaching  change. 
We  are  told  that  learning,  by  which  I  believe  is  only  meant 
the  scholastic  ontology,  had  begun  to  decline  at  Oxlbrd  from 
the  time  of  Edward  III.^  And  the  fifteenth  century,  from 
whatever  cause,  is  particularly  barren  of  writers  in  the  Latin 
language.  The  study  of  Greek  was  only  introduced  by 
Grocyn  and  Linacer  under  Henry  VJL,  and  met  with 
violent  opposition  in  the  university  of  Oxford,  where  the 
unlearned  party  styled  themselves  Trojans,  as  a  pretext  for 
abusing  and  insulting  the  scholars.^  Nor  did  any  classical 
work  proceed  from  the  respectable  press  of  Caxton.  France, 
at  the  beginning  of  the  fifteenth  age,  had  several  eminent 
theologians ;  but  the  reigns  of  Charles  VII.  and  Louis  XI. 
contributed  far  more  to  her  political  than  her  literary  renown. 
A  Greek  professor  was  first  appointed  at  Paris  in  1458, 
before  which  time  the  language  had  not  been  publicly  taught, 
and  was  little  understood.^  Much  less  had  Germany  thrown 
off  her  ancient  rudeness,  ^neas  Sylvius,  indeed,  a  deliberate 
flatterer,  extols  every  circumstance  in  the  social  state  of  that 
country  ;  but  Campano,  the  papal  legate  at  Ratisbon  in  1471, 
exclaims  against  the  barbarism  of  a  nation,  where  very  few 
possessed  any  learning,  none  any  elegance.^  Yet  the  prog- 
ress of  intellectual  cultivation,  at  least  in  the  two  former 
countries,  was  uniform,  though  silent ;  libraries  became  more 
numerous,  and  books,  after  the  happy  invention  of  paper, 
though  still  very  scarce,  might  be  copied  at  less  expense. 
Many  colleges  were  founded  in  the  English  as  well  as  foreign 
universities  during  the  fourteenth  and  fifteenth  centuries. 
Nor  can  I  pass  over  institutions  that  have  so  eminently  con- 
tributed  to  the  literary  reputation  of  this  country,  and  that 


1  Wood's  Antiquities  of  Oxford,  toI.  i. 

p.  537. 

2  llopers  Vita  Mori,  ed.  nearne,  p.  75. 

3  Crevier,  t.  iv.  p.  243  ;  see  too  p.  46. 

4  Incredibilis  ingeniorum  barbariesest ; 
rarissirai  literas  norunt,  nullielegantiam. 
Papiensis  EpistoIsD,  p.  377.  Campano's 
notion  of  elegance  was  ridiculous  enough. 
Nobody  ever  carried  further  the  pedantic 
affectation  of  avoiding  modern  terms  in 
his  Lutinity.  Thus,  in  the  life  of  Braccio 
da  Montoue,  he  renders    his   meaning 


almost  unintelligible  by  excess  of  clas- 
sical purity.  Braccio  boasts  se  numquam 
deorum  immortaliuni  templa  violisse. 
Troops  committing  outrages  in  a  city  are 
accused  Tirgines  vestales  incestisse.  In 
the  terms  of  treaties  he  employs  the  old 
Roman  forms;  exercitum  trajicito  —  op- 
pida  pontificis  sunto,  &c.  And  with  a 
most  absurd  pedantry,  the  ecclesiastical 
state  is  called  Romanum  imperium. 
Campani  Vita  Braccii,  inMuratori  Script. 
Rer  Ital.  t.  xix. 


Still  continue  to  exercise  so  conspicuous  an  influence  over  her 
taste  and  knowledge,  as  the  two  great  schools  of  grammatical 
learning,  Winchester  and  Eton  —  the  one  founded  by  Wil- 
liam of  Wykeham,  bishop  of  Winchester,  in  1373  ;  the  other 
in  1432,  by  King  Henry  the  Sixth.^ 

But  while  the  learned  of  Italy  were  eagerly  exploring  their 
recent  acquisitions  of  manuscripts,  deciphered  invention  of 
with  difficulty  and  slowly  circulated  from  hand  P''^'^*»og. 
to  hand,  a  few  obscure  Germans  had  gradually  perfected  the 
most  important  discovery  recorded  in  the  annals  of  mankind. 
The  invention  of  printing,  so  far  from  being  the  result  of 
philosophical  sagacity,  does  not  appear  to  have  been  suggest- 
ed by  any  regard  to  the  higher  branches  of  literature,  or  to 
bear  any  other  relation  than  that  of  coincidence  to  their  re- 
vival in  Italy.  The  question  why  it  was  struck  out  at  that 
particular  time  must  be  referred  to  that  disposition  of  un- 
known causes  which  we  call  accident.  Two  or  three  centu- 
ries earlier,  we  cannot  but  acknowledge  the  discovery  would 
have  been  almost  equally  acceptable.  But  the  invention  of 
paper  seems  to  have  naturally  preceded  those  of  engraving 
and  printing.  It  is  generally  agreed  that  playing  cards, 
which  have  been  traced  far  back  in  the  fourteenth  century, 
gave  the  first  notion  of  taking  off  impressions  from  engraved 
figures  upon  wood.  The  second  stage,  or  rather  second 
application  of  this  art,  was  the  representation  of  saints  and 
other  religious  devices,  several  instances  of  which  are  still 
extant.  Some  of  these  are  accompanied  with  an  entire  page 
of  illustrative  text,  cut  into  the  same  wooden  block.  This 
process  is  indeed  far  removed  from  the  invention  that  has 
given  immortality  to  the  names  of  Fust,  Schocffer,  and  Gu- 
tenburg,  yet  it  probably  led  to  the  consideration  of  means 
whereby  it  might  be  rendered  less  operose  and  inconvenient. 
Whether  movable  wooden  characters  were  ever  employed  in 
any  entire  work  is  very  questionable  —  the  opinion  that  re- 
ferred their  use  to  Laurence  Coster,  of  Haarlem,  not  hav- 
ing stood  the  test  of  more  accurate  investigation.  They  ap- 
pear, however,  in  the  capital  letters  of  some  early  printed 


>  A  letter  from  Master  William  Paston 
at  Eton  (Paston  Letters,  vol.  i.  p.  299) 
proves  that  Ijatin  versification  was  taught 
there  as  early  as  the  beginning  of  Edward 
rV.'s  reign.  It  is  true  that  the  specimen 
Im  rather  proudly  exhibits  does  not  much 


differ  from  what  we  denominate  non^ 
sense  verses.  But  a  more  material  ob* 
servation  is,  that  the  sons  of  country 
gentlemen  living  at  a  considerable  dis- 
tance were  already  sent  to  public  schools 
for  grammatical  education. 


444 


EARLY  PRINTED  WORKS.     Chap.  IX.  Part  XL 


h 


l«< 


books.  But  no  expedient  of  this  kind  could  have  fulfilled 
the  great  purposes  of  this  invention,  until  it  was  perfected 
by  founding  metal  types  in  a  matrix  or  mould,  the  essential 
characteristic  of  printing,  as  distinguished  from  other  arts 
that  bear  some  analogy  to  it  i.  -r.  j 

The  first  book  that  issued  from  the  presses  of  Fust  and 
his  associates  at  Mentz  was  an  edition  of  the  Vulgate,  com- 
monly called  the  Mazarine  Bible,  a  copy  having  been  discov- 
ered in  the  library  that  owes  its  name  to  Cardinal  Mazarin  at 
Paris.     This  is  supposed  to  have  been  printed  between  the 
years  1450  and  1455.^    In  1457  an  edition  of  the  Psalter 
appeared,  and  in  this  the  invention  was  announced  to  the 
world  in  a  boasting  colophon,  though  certainly  not  unreason- 
ably bold.^     Another  edition  of  the  Psalter,  one  of  an  eccle- 
siastical book,  Durand's  account  of  liturgical  oflSces,  one  of 
the  Constitutions  of  Pope  Clement  V.,  and  one  of  a  popular 
treatise  on  general  science,  called  the   Catholicon,  filled  up 
the  interval  till  1462,  when  the  second  Mentz  Bible  proceed- 
ed from  the  same  printers.'     This,  in  the  opinion  of  some,  is 
the  earliest  book  in  which  cast  types  were  employed  —  those 
of  the  Mazarine  Bible  having  been  cut  with  the  hand.     But 
this  is  a  controverted  point.     In   1465  Fust  and  Schoeffer 
published  an  edition  of  Cicero's  Offices,  the  first  tribute  of 
the  new  art  to  polite  literature.     Two  pupils  of  their  school, 
Sweynheim  and  Pannartz,  migrated  the  same  year  into  Italy, 
and  printed  Donatus's  grammar  and  the  works  of  Lactantius 
at  the  monastery  of  Subiaco,  in  the  neighborhood  of  Rome.* 
Venice  had  the  honor  of  extending  her  patronage  to  John  of 
Spira,  the  first  who  applied  the  art  on  an  extensive  scale  to 
the  publication  of  classical  writers.*    Several  Latin  authors 
came  forth  from  his  press  in  1470  ;  and  during  the  next  ten 
years  a  multitude  of  editions  were  published  in  various  parts 
of  Italy.    Though,  as  we  may  judge  from  their  present  scar- 
city, these  editions  were  by  no  means  numerous  in  respect 
of  impressions,  yet,  contrasted  with  the  dilatory  process  of 
copying  manuscripts,  they  were  like  a  new  mechanical  power 


1  De  Bure,  t.  i.  p.  30.  Screral  copies 
of  this  book  have  come  to  light  siace  its 
discovery. 

*  Id.,  p.  71. 

«  M6in.  de  I'Acad.  des  Inscriptions,  t. 
xiv.  p.  265.  Another  edition  of  the  Bible 
Is  supposed  to  have  been  printed  by 
Pflster  at  Bamberg  in  1459. 


4  Tiraboscbl,  t.  vl.  p.  140. 

6  Sanuto  mentions  an  order  of  the 
senate  in  1469.  that  John  of  Spira  should 
print  the  epistles  of  Tully  and  Pliny  for 
five  years,  and  that  no  one  else  should  do 
so.  Script.  Rerum  Italic,  t  xxii.  p.  1189. 


r 


Stats  of  Society.    REVIVAL  OF  LEAKNING. 


445 


in  machinery,  and  gave  a  wonderfully  accelerated  impulse 
to  the  intellectual  cultivation  of  mankind.  From  the  era  of 
these  first  editions  proceeding  from  the  Spiras,  Zarot,  Janson, 
or  Sweynheim  and  Pannartz,  literature  must  be  deemed  to 
have  altogether  revived  in  Italy.  The  sun  was  now  fully 
above  the  horizon,  though  countries  less  fortunately  circum- 
stanced did  not  immediately  catch  his  beams ;  and  the  resto- 
ration of  ancient  learning  in  France  and  England  cannot  be 
considered  as  by  any  means  eff*ectual  even  at  the  expiration 
of  the  fifteenth  century.  At  this  point,  however,  I  close  the 
present  chapter.  The  last  twenty  years  of  the  middle  ages, 
according  to  the  date  which  I  have  fixed  for  their  termina- 
tion in  treating  of  political  history,  might  well  invite  me  by 
their  brilliancy  to  dwell  upon  that  golden  morning  of  Italian 
literature.  But,  in  the  history  of  letters,  they  rather  apper- 
tain to  the  modern  than  the  middle  period  ;  nor  would  it  be* 
come  me  to  trespass  upon  the  exhausted  patience  of  my 
readers  by  repeating  what  has  been  so  often  and  so  recently 
told,  the  story  of  art  and  learning,  that  has  employed  the 
comprehensive  research  of  a  Tiraboschi,  a  Ginguene  and  a 
Boscoe. 


446 


THE  DARK  AGES. 


Kons  TO 


Chap.  DL 


THE  DARK  AGES. 


447 


ll 


K« 


NOTES  TO  CHAPTER  IX. 


Note  I.    Page  273. 

A  RAPID  decline  of  learning  began  in  the  sixth  century, 
of  which  Gregory  of  Tours  is  both  a  witness  and  an  exam- 
ple.    It  is,  therefore,  properly  one  of  the  dark  ages,  more  so 
by  much  than  the   eleventh,  which  concludes  them;  since 
very  few  were  left  in  the  church   who  possessed  any  ac- 
quaintance with  classical  authors,  or  who  wrote  with  any 
command  of  the  Latin  language.     Their  studies,  whenever 
they  studied  at  all,  were  almost  exclusively  theological ;  and 
this  must  be  understood  as  to  the  subsequent  centuries.     By 
theological  is  meant  the  vulgate  Scriptures  and  some  of  the 
Latin  "fathers;  not,  however,  by  reasoning  upon  them,  or 
doing  much  more  than  introducing  them  as  authority  in  their 
own°words.     In  the  seventh  century,  and  still  more  at  the 
beginning  of  the  eighth,  very  little  even  of  this  remained  in 
Fmnce,  where  we  find  hardly  a  name  deserving  of  remem- 
brance in  a  literary  sense ;  but  Isidore,  and  our  own  Bede, 
do  honor  to  Spain  and  Britain. 

It  may  certainly  be  said  for  France  and  Germany,  not- 
withstanding a  partial  interruption  in  the  latter  part  of  the 
ninth  and  beginning  of  the  tenth  century,  that  they  were  grad- 
ually progressive  from  the  time  of  Charlemagne.  But  then 
this  progress  was  so  very  slow,  and  the  men  in  front  of  it  so 
little  capable  of  bearing  comparison  with  those  of  later  times, 
considering  their  writings  positively  and  without  indulgence, 
that  it  is  by  no  means  unjust  to  call  the  centuries  dark  which 
elapsed  between  Charlemagne  and  the  manifest  revival  of 
litemry  pursuits  towards  the  end  of  the  eleventh  century. 
Alcuin,  for  example,  ha^  left  us  a  good  deal  of  poetry.  This 
is  superior  to  what  we  find  in  some  other  writers  of  the  ob- 


scure period,  and  indicates  both  a  correct  ear  and  a  familiar- 
ity with  the  Latin  poets,  especially  Ovid.  Still  his  verses 
are  not  as  good  as  those  which  school-boys  of  fourteen  now 
produce,  either  in  poetical  power  or  in  accuracy  of  language 
and  metre.  The  errors  indeed  are  innumerable.  Aldlielm, 
an  earlier  Anglo-Saxon  poet,  with  more  imaginative  spirit,  is 
further  removed  from  classical  poetry.  Lupus,  abbot  of  Fer- 
rieres.  early  in  the  ninth  century,  in  some  of  his  epistles 
writes  tolerable  Latin,  though  this  is  far  from  being  always 
the  case ;  he  is  smitten  with  a  love  of  classical  literature, 
quotes  several  poets  and  prose  writers,  and  is  almost  as  cu- 
rious about  little  points  of  philology  as  an  Italian  scholar  of 
the  fifteenth  century.  He  was  continually  borrowing  books 
in  order  to  transcribe  them  —  a  proof,  however,  of  their  scar- 
city and  of  the  low  condition  of  general  learning,  which  is 
the  chief  point  we  have  to  regard.^  But  his  more  celebrated 
correspondent,  Eginhard,  went  beyond  him.  Both  his  An- 
nals and  the  Life  of  Charlemagne  are  very  well  written,  in  a 
classical  spirit,  unlike  the  church  Latin  ;  though  a  few  words 
and  phrases  may  not  be  of  the  best  age,  I  should  place  Egin- 
hard above  Alcuin  and  Lupus,  or,  as  far  as  I  know,  any  oth- 
er of  the  Caroline  period. 

The  tenth  century  has  in  all  times  borne  the  worst  name. 
Baronius  calls  it,  in  one  page,  plumheum^  obsciiru7n,  infelix 
(Annales,  a.  d.  900).  And  Cave,  who  dubs  all  his  centuries 
by  some  epithet,  assigns /errewwi  to  the  tenth.  Nevertheless, 
there  was  considerably  less  ignorance  in  France  and  Ger- 
many during  the  latter  part  of  this  age  than  before  the  reign 
of  Charlemagne,  or  even  in  it;  more  glimmerings  of  ac- 
quaintance with  the  Latin  classics  appear ;  and  the  schools, 
cathedral  and  conventual,  had  acquired  a  more  regular  and 
uninterrupted  scheme  of  instruction.  The  degraded  condi- 
tion of  papal  Rome  has  led  many  to  treat  this  century  rather 
worse  than  it  deserves  ;  and  indeed  Italy  was  sunk  very  low 
in  ignorance.  As  to  the  eleventh  century,  the  upward  prog- 
ress was  extremely  perceptible.  It  is  commonly  reckoned 
among  the  dark  ages  till  near  its  close ;  but  these  phrases  are 


*  The  writings  of  Lupus  Servatus, 
abbot  of  Ferri^res,  were  published  by 
Baluze ;  and  a  g<x>d  account  of  them 
will  be  found  in  Ampere's  Hist.  Litt. 
(toI.  iii.  p.  237),  as  well  as  in  older  works. 
He  is  a  much  better  writer  than  Gregory 


of  Tours,  but  quite  as  much  inferior  to 
Sidonius  Apollinaris.  I  have  observed 
in  Lupus  quotations  from  Horace,  Vir- 
pil,  Martial.  Cicero,  Aulus  Qellius,  and 
Trogus  Pompeius  (meaning  probably 
Justin). 


448 


THE  DARK  AGES. 


Notes  to 


Chaf.  IX. 


THE  DARK  AGES. 


449 


ti 


i 


of  course  used  comparatively,  and  because  the  difference 
between  that  and  the  twelfth  was  more  sensible  than  we  find 
in  any  two  that  are  consecutive  since  the  sixth. 

The  state  of  literature  in  England  was  by  no  means  paral- 
lel to  what  we  find  on  the  continent     Our  best  age  was  pre- 
cisely the  worst  in  France ;  it  was  the  age  of  the  Heptarchy 
^that  of  Theodore,  Bede,  Aldhelm,  Cffidmon,  and  Alcuin ; 
to  whom,  if  Ireland  will  permit  us,  we  may  desire  to  add 
Scotus,  who  came  a  little  afterwards,  but  whose  residence  ui 
this  island  at  any  time  appears  an  unauthenticated  tale.     But 
we  know  how  Alfred  speaks  of  the  ignorance  of  the  clergy 
in  his   own   age.     Nor   wiis   this   much   better   afterwards. 
Even  the  elev°enth  century,  especially  before  the  Conquest, 
is  a  very  blank  period  in  the  literary  annals  of  England. 
No  one  can  have  a  conception  how  wretchedly  scanty  is  the 
list  of  literary  names  from  Alfred  to  the  Conquest,  who  does 
not  look  to  Mr.  Turner's  History  of  the  Anglo-Saxons,  or  to 
Mr.  Wright's  Biographia  Literaria, 

There  could  be  no  general  truth  respecting  the  past,  as  it 
appeared  to  me,  more  notorious,  or  more  incapable  of  bemg 
denied  with  any  plausibility,  than  the  characteristic  ignorance 
of  Europe  during  those  centuries  which  we  commonly  style 
the  Dark  Ages.  A  powerful  stream,  however,  of  what,  as  to 
the  majority  at  least,  I  must  call  prejudice,  has  been  directed 
of  late  years  in  an  opposite  direction.  The  mediaeval  period, 
in  manners,  in  arts,  in  literature,  and  especially  m  religion, 
has  been  regarded  with  unwonted  partiality ;  and  this  favor- 
able  temper  has  been  extended  to  those  ages  which  had  lam 
most  frequently  under   the  ban  of  historical  and  hterary 

censure. 

A  considerable  impression  has  been   made  on  the  pre- 
disposed by  the  Letters  on  the  Dark  Ages,  which  we  owe  to 
Dr.  Maitland.     Nor  is  this  by  any  means  surprising;  both 
because  the  predisposed  are  soon  convinced,  and  because  the 
Letters  are  written  with  great  ability,  accurate  learning,  a 
spirited  and  lively  pen,  and  consequently  with  a  success  in 
skirmishing  warfare  which  many  readily  mistake  for  the  gam 
of  a  pitched  battle.     Dr.  Maitland  is  endowed  with  another 
quality,  far  more  rare  in  historical  controversy,  especially  of 
the  ecclesiastical  kind :  1  believe  him  to  be  of  scrupulous 
integrity,  minutely  exact  in  all  that  he  asserts ;  and  indeed 
the  wrath  and  asperity,  which  sometimes  appear  rather  more 


than  enough,  are  only  called  out  by  what  he  conceives  to  be 
wilful  or  slovenly  misrepresentation.  Had  I,  therefore,  the 
leisure  and  means  of  following  Dr.  Maitland  through  hia 
quotations,  I  should  probably  abstain  from  doing  so  from  the 
reliance  I  should  place  on  his  testimony,  both  in  regard  to  his 
power  of  discerning  truth  and  his  desire  to  express  it.  But 
I  have  no  call  for  any  examination,  could  I  institute  it ;  since 
the  result  of  my  own  reflections  is  that  everything  which 
Dr.  M.  asserts  as  matter  of  fact  —  I  do  not  say  suggests  in 
all  his  language  —  may  be  perfectly  true,  without  affecting 
the  great  proposition  that  the  dark  ages,  those  from  the  sixth 
to  the  eleventh,  were  ages  of  ignorance.  Nor  does  he,  as  far 
as  I  collect,  attempt  to  deny  this  evident  truth ;  it  is  merely 
his  object  to  prove  that  they  were  less  ignorant,  less  dark, 
and  in  all  points  of  view  less  worthy  of  condemnation 
than  many  suppose.  I  do  not  gainsay  this  position ;  being 
aware,  as  I  have  observed  both  in  this  and  in  another  work, 
that  the  mere  ignorance  of  these  ages,  striking  as  it  is  in 
comparison  with  earlier  and  later  times,  has  been  sometimes 
exaggerated ;  and  that  Europeans,  and  especially  Christians, 
could  not  fall  back  into  the  absolute  barbarism  of  the  Esqui- 
maux. But  what  a  man  of  profound  and  accurate  learning 
puts  forward  with  limitations,  sometimes  expressed,  and 
always  present  to  his  own  mind,  a  heady  and  shallow 
retailer  takes  up,  and  exaggerates  in  conformity  with  his 
own  prejudices. 

The  Letters  on  the  Dark  Ages  relate  principally  to  the 
theological  attainments  of  the  clergy  during  that  period, 
which  the  author  assumes,  rather  singularly,  to  extend  from 
A.D.  800  to  1200;  thus  excluding  midnight  from  his  defini- 
tion of  darkness,  and  replacing  it  by  the  break  of  day.  And 
in  many  respects,  especially  as  to  the  knowledge  of  the  vul- 
gate  Scriptures  possessed  by  the  better-informed  clergy,  he 
obtains  no  very  difficult  victory  over  those  who  have  imbibed 
extravagant  notions,  both  as  to  the  ignorance  of  the  Sacred 
Writings  in  those  times  and  the  desire  to  keep  them  away  from 
the  people.  This  latter  prejudice  is  obviously  derived  from 
a  confusion  of  the  subsequent  period,  the  centuries  preceding 
the  Reformation,  with  those  which  we  have  immediately 
before  us.  But  as  the  word  dark  is  commonly  used,  either 
in  reference  to  the  body  of  the  laity  or  to  the  general  extent 
of  liberal  studies  in  the  church,  and  as  it  involves  a  compari 

29 


VOL.  lU. 


450 


THE  DARK  AGES. 


Notes  to 


Chap.  IX. 


DOMESTIC  ARCHITECTURE. 


451 


son  with  prior  or  subsequent  ages,  it  cannot  be  improper  in 
such  a  sense,  even  if  the  manuscripts  of  the  Bible  should 
have  been  as  common  in  monasteries  as  Dr.  Maitland  sup- 
poses ;  and  yet  his  proofs  seem  much  too  doubtful  to  sustam 

that  hypothesis.  ^  ,.        .   .  ^ 

There  is  a  tendency  to  set  aside  the  verdict  of  the  most 
approved  writers,  which  gives  too  much  of  a  polemical  char- 
acter, too  much  of  the  tone  of  an  advocate  who  fights  every 
point,  rather  than  of  a  calm  arbitrator,  to  the  Letters  on  the 
Dark  A^-e^.     For  it  is  not  Henry,  or  Jortin,  or  Robertson, 
who  are°our  usual  testimonies,  but  their  immediate  masters, 
Muratori,  and  Fieury,  and  Tiraboschi,  and  Bruckcr  and  the 
Benedictine  authors  of  the  Literary  History  of  France,  and 
many  others  in  France,  Italy,  and  Germany.     The  latest  who 
has  '-one  over  this  rather  barren  ground,  and  not  interior 
to  any  in  well-applied  learning,  in  candor  or  good  sense,  i3 
M.  Ampere,  in  his  Histoire  Litteraire  de  la  France  avant  le 
douzieme  siecle  (3  vols.  Paris,  1840).     No  one  will  accuse 
this  intelligent  writer  of  unduly  depreciating  the  ages  which 
he  thus  brings  before  us ;  and  by  the  perusal  of  his  volumes, 
to  which  Heeren  and  Eichhorn  may  be  added  for  Germany, 
we  may  obtain  a  clear  and  correct  outline,  which,  considering 
the  shortness  of  life  compared  with  the  importance  of  exact 
knowledge  on  such  a  subject,  will  suffice  for  the  great  major- 
ity of  readers.     I  by  no  means,  however,  would  exclude  the 
Letters  on  the  Dark  Ages,  as  a  spirited  pleading  for  those 
who  have  often  been  condemned  unheard. 

I  shall  conclude  by  remarking  that  one  is  a  little  tempted 
to  inquire  why  so  much  anxiety  is  felt  by  the  advocates  of 
the  mediixival  church  to  rescue  her  from  the  charge  of  igno- 
rance.     For  this  ignorance  she  was  not,  generally  speaking, 
to  be  blamed.     It  was  no  crime  of  the  clergy  that  the  Huns 
burned  their  churches,  or  the  Normans  pillaged  their  monas- 
teries.     It  was  not  by  their  means  that  the  Saracens  shut  up 
the  supply  of  papyrus,  and   that  sheepskins  bore  a  great 
price.     Europe  was  altogether  decayed  in  intellectual  charac- 
ter, partly  in  consequence  of  the  barbarian  incursions,  partly 
of  other  sinister  influences  acting  long  before.     We  certainly 
owe  to  the  church  every  spark  of  learning  which  then  glim- 
mered, and  which  she  preserved  through  that  darkness  to 
rekindle  the  light  of  a  happier  age  — STrep/xa  irvpdf  aC,^(ja. 
Meantime,  what  better  apology  than  this  ignorance  can  be 


made  by  Protestants,  and  I  presume  Dr.  Maitland  is  not 
among  these  who  abjure  the  name,  for  the  corruption,  the 
superstition,  the  tendency  to  usurpation,  which  they  at  least 
must  impute  to  the  church  of  the  dark  ages  ?  Not  that  in 
these  respects  it  was  worse  than  in  a  less  obscure  period;  for 
the  reverse  is  true ;  but  the  fabric  of  popery  was  raised  upon 
its  foundations  before  the  eleventh  century,  though  not  dis- 
played in  its  full  proportions  till  afterwards.  And  there  was 
60  much  of  lying  legend,  so  much  of  fraud  in  the  acquisition 
of  property,  that  ecclesiastical  historians  have  not  been  loath 
to  aciknowledge  the  general  ignorance  as  a  sort  of  excuse. 
[1848.] 

Note  n.     Page  331. 

Tlie  account  of  domestic  architecture  given  in  the  text  is 
very  superficial ;  but  the  subject  still  remains,  comparatively 
with  other  portions  of  mediaeval  antiquity,  but  imperfectly 
treated.  The  best  sketch  that  has  hitherto  been  given  is  in 
an  article  with  this  title  in  the  Glossary  of  Ancient  Archi- 
tecture (which  should  be  read  in  an  edition  not  earlier  than 
that  of  1845),  from  the  pen  of  Mr.  Twopeny,  whose  atten- 
tion has  long  been  directed  to  the  subject.  "  There  is  ample 
evidence  yet  remaining  of  the  domestic  architecture  in  this 
country  during  the  twelfth  century.  The  ordinary  manor- 
houses,  and  even  houses  of  greater  consideration,  appear  to 
have  been  generally  built  in  the  form  of  a  parallelogram,  two 
stories  high,^  the  lower  story  vaulted,  with  no  internal  com- 
munication between  the  two,  the  upper  story  approached  by 
a  flight  of  steps  on  the  outside  ;  and  in  that  story  was  some- 
times the  only  fireplace  in  the  whole  building.  It  is  more 
than  probable  that  this  was  the  usual  style  of  houses  in  the 
preceding  century."     Instances  of  houses  partly  remaining 


1  This  is  rather  equivocal,  but  it  Is 
certiinly  not  uitnint  that  there  were  ever 
two  floors  above  that  on  the  ground. 
In  the  review  of  the  *'  Chronicles  of  the 
Mayors  and  Sheriffs,"  published  in  the 
Archocological  Journal  (vol.  iv.  p.  273), 
we  read  —  "The  houses  in  London,  of 
whatever  material,  seem  never  to  have 
exceeded  one  story  in  height."  (p,  2S2.) 
But,  8oon  afterwards  —  "The  ground 
floor  of  the  London  houses  at  this  period 
was  aptly  enough  called  a  cellar,  the 
npper  story  a  solar."    It  thus  appears 


that  the  reviewer  does  not  mean  the  samo 
thing  as  Mr.  Twopeny  by  the  word 
ston/y  which  the  former  confines  to  the 
floor  above  that  on  the  ground,  while  the 
latter  includes  both.  The  use  of  lan- 
guage, as  we  know,  supports,  in  some 
measure,  either  meaning  ;  but  perhaps 
it  is  more  correct,  and  more  common,  to 
call  the  first  story  that  which  is  reached 
by  a  staircase  from  the  ground -floor. 
The  solar,  or  sleeping-room,  raised  abort 
the  cellar,  was  often  of  wood. 


452 


DOMESTIC  AKCHITECTURE. 


Notes  to 


are  then  given.  We  may  add  to  those  mentioned  by  Mr. 
Twopeny  one,  perhaps  older  than  any,  and  better  pre- 
served than  some,  in  his  list.  At  Southampton  is  a  Noi-man 
house,  perhaps  built  in  the  first  part  of  the  twelfth  centui7. 
It  is  nearly  a  square,  the  outer  walls  tolerably  perfect ;  the 
principal  rooms  appear  to  have  been  on  the  first  (or  upper) 
floor  -it  has  in  this  also  a  fireplace  and  chimney,  and  lour 
windows  placed  so  as  to  indicate  a  division  mto  two  apart- 
ments ;  but  there  are  no  lights  below,  nor  any  appearance 
of  an  interior  staircase.  The  sides  are  about  forty  feet  m 
length.  Another  house  of  the  same  age  is  neixr  to  it,  but 
much  worse  preserved.^  ,  . 

The  parallelogram  house,  seldom  containing  more  than 
four  rooms,  with  no  access  frequently  to  the  upper  which  the 
family  occupied,  except  on  the  outside,  was  gradually  re- 
placed by  one  on  a  different  type  :  —  the  entrance  was  on  the 
ground,  the  staircase  within;    a  kitchen  and  other  offices, 
originally  detached,  were  usually  connected  with  the  hall  by 
a  passacre  running  through  the  house ;  one  or  more  apart- 
ments  o°n  the  lower  floor  extended  beyond  the  hall ;  there 
was  seldom  or  never  a  third  floor  over  the  entire  house,  but 
detached  turrets  for  sleeping-rooms  rose  at  some  of  the  an- 
gles.   This  was  the  typical  form  which  lasted,  as  we  know, 
to  the  age  of  Elizabeth,  or  even  later.     The  superior  houses 
of  this  class  were  sometimes  quadrangular,  that  is,  including 
a  court-yard,  but  seldom,  perhaps,  with  more  than  one  side 
allotted  to  the  main  dwelling ;  offices,  stables,  or  mere  walla 

filled  the  other  three. 

Many  dwellings  erected  in  the  fourteenth  century  may  be 
found  in  England  ;  but  neither  of  that  nor  the  next  age  are 
there  more  than  a  very  few,  which  are  still,  in  their  chief 
rooms,  inhabited  by  gentry.     But  houses,  which  by  their 


1  See  a  full  description  in  the  Archse- 
ological  Journal,  vol.  iv.  p.  11.    Those 


iition  of  our  forefathers.    The  house  of 
Cedric   the  Saxon   in  Ivanhoe,  with  its 


who  visit   Southampton  may  seek  this    distinct  and  numerous  apartments, 


house  near  a  gate  in  the  west  wall.  We 
may  add  to  the  contribution  of  Mr, 
Twopeny  one  published  in  the  Proceed 


very  unlike  any  that  remain  or  can  be 
traced.  This  is  by  no  means  to  be  cen- 
sured in  the  romancer,  whose  aim  is  to 


xwopeuy  outs  uuunsucu  iu   ni<- *  » "^^.■v'v-      •^—' —      .      .  '  •      j- i  tu„« 

ings  of  the  Archajological  Institute,  by  delight  by  images  more   splendid  than 

BIT.  Hudson  Turner,  Nov.  1847.    This  is  truth  ;  but,  especially  when   pro.<ented 

chiefly  founded  on  documents,  as  that  by  one  who  possessed  in  some  respects  a 

of  Mr.  Twopeny  is  on  existing  remains,  considerable  knowledge  of  antiquity,  ana 

These  give  more  light  where  they  can  bo  was  rather  fond  of  displaying  it,  there  W 

found;  but  the  number  is  very  small,  some  dinger  lest  the  rwid'-r  f"^"'^"^' 

Upon  the  whole,  it  maybe   here    ob-  lleve  that  he  has  a  faithful  pictur*  before 

served,  that  we  arc  frequently  misled  by  him. 
works  of  fiction  as  to  the  domestic  con- 


Chaf.  IX. 


PETRARCH'S  LAURA- 


453 


marks  of  decoration,  or  by  external  proof,  are  ascertained  to 
have  been  formerly  occupied  by  good  families,  though  now 
in  the  occupation  of  small  farmers,  and  built  apparently  from 
the  reign  of  the  second  to  that  of  the  fourth  Edward,  are 
common  in  many  counties.  They  generally  bear  the  name 
of  court,  hall,  or  grange;  sometimes  only  the  surname  of 
some  ancient  occupant,  and  very  frequently  have  been  the 
residence  of  the  lord  of  the  manor. 

The  most  striking  circumstance  in  the  oldest  houses  is  not 
BO  much  their  precautions  for  defence  in  the  outside  stair- 
case, and  when  that  was  disused,  the  better  safeguard  against 
robbery  in  the  moat  which  frequently  environed  the  walls, 
the  strong  gateway,  the  small  window  broken  by  mullions, 
which  are  no  more  than  wo  should  expect  in  the  times,  as 
the  paucity  of  apartments,  so  that  both  sexes,  and  that  even 
in  high  rank,  must  have  occupied  the  same  room.  The 
progress  of  a  regard  to  decency  in  domestic  architecture  has 
been  gradual,  and  in  some  respects  has  been  increasing  up 
to  our  own  age.  But  the  mediaeval  period  shows  little  of  it ; 
though  in  the  advance  of  wealth,  a  greater  division  of  apart- 
ments distinguishes  the  houses  of  the  fourteenth  and  fifteenth 
centuries  from  those  of  an  earlier  period. 

The  French  houses  of  the  twelfth  and  thirteenth  centuries 
were  probably  much  of  the  same  arrangement  as  the  Eng- 
hsh  ;  the  middle  and  lower  classes  had  but  one  hall  and  one 
chamber ;  those  superior  to  them  had  the  solarium  or  upper 
floor,  as  with  us.  See  Archaeological  Journal  (vol.  i.  p.  212), 
where  proofs  are  adduced  from  the  fabUaux  of  Bai'basan. 
[1848.] 


Note  III.    Page  425. 

The  Abbd  de  Sade,  in  those  copious  memoirs  of  the  life 
of  Petrarch,  which  illustrate  in  an  agreeable  though  rather 
prolix  manner  the  civil  and  literary  history  of  Provence  and 
Italy  in  the  fourteenth  century,  endeavored  to  establish  his 
own  descent  from  Laura,  as  the  wife  of  Hughes  de  Sade, 
and  born  in  the  family  de  Noves.  This  hypothesis  has  since 
been  received  with  general  acquiescence  by  literary  men  ;  and 
Tiraboschi  in  particular,  whose  talent  lay  in  these  petty  bi- 
ographical researches,  and  who  had  a  prejudice  against  every- 
thing that  came  from  France,  seems  to  consider  it  as  deci- 


454 


PETRARCH'S  LAURA. 


NOTKS  TO 


Chap.  IX. 


PETRARCH'S  LAURA. 


455 


i 


p 


rively  proved.     But  it  has  been  called  in  question  in  a 
modem  publication  by  the  late  Lord  Woodhouselee.     (Essay 
on  the  Life  and  Character  of  Petrarch,  1810.)     I  shall  not 
^ffer  any  opinion  as  to  the  identity  of  Pe'-f f^"\'^\-- 
with  Laura  de  Sade ;  but  the  mam  position  ot  Loid  W.s 
essay,  that  Laura  was  an  unmarried  woman,  and  the  object 
rf  an'honorable  attachment  in  lier  lover,  f  «™V'"Trere  s  no 
with  the  evidence  that  his  writings  supply.     1.  ^''e'e  is  no 
passage  in  Petrarch,  whether  of  poetry  or  prose,  that  alludes 
to  tte  virgin  character  of  Laura,  or  gives  her  the  usual  ap- 
^IMons^of  unmarried  women,  puella  in  Latin  or  donzeUa 
^Italian;  even  in  the  Trionfo  della  Cast.ti,  where  so  obv^ 
OTS  an  opportunity  occurred.     Yet  this  was  naturally  to  be 
expected Tm  so  ethereal  an  imagination  as  that  of  Petrarch, 
afways  inclined  to  invest  her  with  the  halo  of  celest.a  purity. 
We  know  how  Milton  took  hold  of  the  mvst.cal  notions  of 
virginity ;  notions  more  congenial  to  the  religion  of  PeU-arch 
than  his  own : 

Quod  tiW  perpetuus  podor,  et  line  lake  JttTento 

Pura  tuit,  quoJ  nulla  tori  libat.  Toluptns, 

En  etiam  tibi  vir^iuei  ««"»-'J,''p^i»g?S  D^onto. 

2.  The  coldness  of  Laura  towards  so  passionate  and  deserv- 
in"  a  lover,  if  no  insurmountable  obstacle  intervened  during 
his  twenty  years  of  devotion,  would  be  at  least  a  mark  that 
his  attachment  was  misplaced,  and  show  him  in  ratli^r^  ri- 
diculous light.    It  is  not  surprising,  that  persons  betev.  g 
Laura  to  be  unmarried,  as  seems  to  have  been  the  case  with 
the  Italian  commentators,  should  have  thought  his  passion 
affected,  and  little  more  than  poetical.     But  upon  the  con- 
trary supposition,  a  thread  runs  through  the  whole  of  his 
poetry,  and  gives  it  consistency.     A  love  on  the  one  side, 
i^tantaneously  conceived,  and  retained  by  the  suscept.b.lUy 
of  a  tender  heart  and  ardent  fancy ;  nourished  by  slight  en- 
couragement, and  seldom  presuming  to  hope  for  more ;  a 
mixture  of  prudence  and  coquetry  on  the  other,  kept  within 
bounds  either  by  virtue  or  by  the  want  of  mutual  at  achment, 
yet  not  dissatisfied  with  fame  more  brilliant  and  flattery  more 
refined  than  had  ever  before  been  the  lot  of  woman  — these 
are  surely  pretty  natural  circumstances,  and  such  as  do  not 
render  the  story   less  intelligible.     Unquestionably  such  a 
passion  is  not  innocent.     But  Lord  Woodhouselee,  who  is  so 


much  scandalized  at  it,  knew  little,  one  would  think,  of  the 
fourteenth  centuiy.     His  standard  is  taken  not  from  Avig- 
non, but  from  Edinburgh,  a  much  better  place,  no  doubt,  and 
where  the  moral  barometer  stands  at  a  very  different  altitude. 
In  one  passage  (p.  188)  he  carries  his  strictness  to  an  excess 
of  prudery.     From  all  we  know  of  the  age  of  Petrarch,  the 
only  matter  of  astonishment  is  the  persevering  virtue  of 
Laura.     The  troubadours  boast  of  much  better  success  with 
Provenjal  ladies.     3.  But  the  following  passage  from  Pe- 
trarch's dialogues  with  St.  Augustin,  the  work,  as  is  well 
known,  where  he  most  unbosoms  himself,  will  leave  no  doubt, 
I  think,  that  his  passion  could  not  have  been  gratified  con- 
sistently with  lionor.      At  mulier  ista  Celebris,  quam   tibi 
certissimam  ducem  fingis,  ad  superos  cur  non  haesitantem 
trepidumque  direxerit,  et  quod  cajcis  fieri   solet,  manu   ap- 
prehensum  non  tenuit,  quo  et  gradiendum  foret  admonuit? 
Petr.  Fecit  hoc  ilia  quantum  potuit.     Quid  enim  aliud  egit, 
cum  nullis  mota  precibus,  nuUis  victa  blanditiis,  muliebrem 
tenuit  decorem,  et  adversus  suam  semel  et  meam  aetatem, 
adversus  multa  et  varia  quae  flectere  adamantium  spiritum 
debuissent,  inexpugnabilis  et  firma  permansit  ?     Profecto  an- 
imus iste  fojmineus  quid  virum  decuit  admonebat,  praestabat- 
que  ne  in  sectando  pudicitiae  studio,  ut  verbis  utar  Senecae, 
aut  exemplum  aut  convitium  deesset ;  postremo  cum  lorifra- 
gum  ac  praecipitem  videret,  deserere  raaluit   potius  qu^m 
sequi.      August.     Turpe  igitur  aliquid  interdum  voluisti, 
quod  supra  negaveras.     At  iste  vulgatus  amantium,  vel,  ut 
dicam  verius,  amantium  furor  est,  ut  omnibus   merito   dici 
possit :  volo  nolo,  nolo  volo.     Vobis  ipsis  quid  velitis,  aut 
nolitis,  ignotum  est.     Pet.  Invitus  in  laqueum  offendi.     Si 
quid  tamen  olim  aliter  forte  voluissem,  amor  aetasque  coege- 
runt ;  nunc  quid  velim  et  cupiam  scio,  firmavique  jam  tandem 
animum  labentem ;  contra  autem  ilia  propositi  tenax  et  sem- 
per una  permansit,  quare  constantiam  focmineam  quo  magis 
intelligo,  magis  admiror:  idque  sibi  consilium  fuisse,  si  un- 
quam  debuit,  gaudeo   nunc  et  gratias   ago.     Aug.    Semel 
fallcnti,  non  facile  rursus  fides  habenda  est :  tu  prius  mores 
atque  habitum,  vitamque  mutavisti,  quam  animum  mutasse 
persuadeas ;  mitigatur  forte  si  tuus  leniturque  ignis,  extinctus 
non  est.     Tu  vero  qui  tantum  dilectioni  tribuis,  non  animad- 
vertis,  illam  absolvendo,  quantam  te  ipse  condemnas ;  illam 
£Eiteri  libet  fuisse  sanctissimam  dum  de  insanum  scelestumque 


456 


EARLY  LEGISLATIVE  USE  OF 


Notes  to 


Chaf.  IX. 


THE  ENGLISH  LANGUAGE. 


457 


i 


fateare.  —  De   Contemptu  Mundi,  Dialog.  3,  p.  367,  edit. 
1581. 

Note  IV.    Page  429. 

The  progress  of  our  language  in  proceedings  of  the  legis- 
lature is  so  well  described  in  the  preface  to  the  authentic  edi- 
tion of  Statutes  of  the  Realm,  published  by  the  Record  Com- 
mission, that  I  shall  transcribe  the  passage,  which  I  copy 
from  Mr.  Cooper's  useful  account  of  the  Public  Records 
(vol.  i.  p.  189)  :  — 

"  The  earliest  instance  recorded  of  the  use  of  the  English 
language  in  any  parliamentary  proceeding  is  in  36  Edw.  III. 
The  style  of  the  roll  of  that  year  is  in  French  as  usual,  but 
it  is  expressly  stated  that  the  causes  of  summoning  the  par- 
liament were  declared  en  Englois  ;  and  the  like  circumstance 
is  noted  in  37  and  38  Edw.  III.^  In  the  5th  year  of  Rich- 
ard II.,  the  chancellor  is  stated  to  have  made  un  hone  coUa- 
cion  en  Engleys  (introductory,  as  was  then  sometimes  the 
usage,  to  the  commencement  of  business),  though  he  made  use 
of  the  common  French  form  for  opening  the  parliament.  A 
petition  from  the  *  Folk  of  the  Mercerye  of  London,*  in  the 
10th  year  of  the  same  reign,  is  in  English ;  and  it  appears 
also  that  in  the  17th  year  the  Earl  of  Arundel  asked  pardon 
of  the  Duke  of  Lancaster  by  the  award  of  the  King  and 
Lords,  in  their  presence  in  parliament,  in  a  form  of  English 
words.  The  cession  and  renunciation  of  the  crown  by  Rich- 
ard II.  is  stated  to  have  been  read  before  the  estates  of  the 
realm  and  the  people  in  Westminster  Hall,  first  in  Latin  and 
afterwards  in  English,  but  it  is  entered  on  the  parliament  roll 
only  in  Latin.  And  the  challenge  of  the  crown  by  Henry 
IV.,  with  his  thanks  after  the  allowance  of  his  title,  in  the 
same  assembly,  are  recorded  in  English,  which  is  termed  his 
maternal  tongue.  So  also  is  the  speech  of  Lord  AVilliam 
Thyrning,  the  Chief  Justice  of  the  Common  Pleas,  to  the 
late  King  Richard,  announcing  to  him  the  sentence  of  his 
deposition,  and  the  yielding  up,  on  the  part  of  the  people,  of 
their  fealty  and  allegiance.  In  the  6th  year  of  the  reign  of 
Henry  IV.  an  English  answer  is  given  to  a  petition  of  the 
Commons,  touching  a  proposed  resumption  of  certain  granta 


of  the  crown  to  the  intent  the  king  might  live  of  his 
own.  The  English  language  afterwards  appears  occasionally, 
through  the  reigns  of  Henry  IV.  and  Henry  V.  In  the  first 
and  second  and  subsequent  years  of  Henry  VI.,  the  petitions 
or  bills,  and  in  many  cases  the  answers  also,  on  which  the 
statutes  were  afterwards  framed,  are  found  frequently  in 
Enprlish;  but  the  statutes  are  entered  on  the  roll  in  French 
or  Latin.  From  the  23rd  year  of  Henry  VI.  these  petitions 
or  bills  are  almost  universally  in  English,  as  is  also  some- 
times the  form  of  the  royal  assent ;  but  the  statutes  contin- 
ued to  be  enrolled  in  French  or  Latin.  Sometimes  Latin 
and  French  are  used  in  the  same  statute,^  as  in  8  Hen.  VI., 
27  Hen.  VL,  and  39  Hen.  VI.  The  last  statute  wholly  in 
Latin  on  record  is  33  Hen.  VI.  c.  2.  The  statutes  of  Ed- 
ward IV.  are  entirely  in  French.  The  statutes  of  Richard 
ni.  are  in  many  manuscripts  in  French  in  a  complete  stat- 
ute form  ;  and  they  were  so  printed  in  his  reign  and  that  of 
his  successor.  In  the  earlier  English  editions  a  translation, 
was  inserted  in  the  same  form  ;  but  in  several  editions,  since 
1618,  they  have  been  printed  in  English,  in  a  different  form, 
agreeing,  so  far  as  relates  to  the  acts  printed,  with  the  enrol- 
ment in  Chancery  at  the  Chapel  of  the  Rolls.  The  petitions 
and  bills  in  parliament,  during  these  two  reigns,  are  all  in 
English.  The  statutes  of  Henry  VII.  have  always,  it  is  be- 
lieved, been  published  in  English ;  but  there  are  manuscripts 
containing  the  statutes  of  the  first  two  parliaments,  in  his  first 
and  third  year,  in  French.  From  the  fourth  year  to  the  end 
of  his  reign,  and  from  thence  to  the  present  time,  they  are 
universally  in  English." 

1  All  the  acts  passed  in  the  same  ses-    ference   of    language   waa   in   lepanto 
lion  are  legally  one  statute ;   the  dif-    chapters  or  acts. 


1  Beferences  are  giren  to  the  Soils  of  Parliament  throughout  this  extract. 


INDEX. 


%*  The  Roman  Numerals  refer  to  the  Volumes  — the  Arabic  Figures  to  the  Page*  e} 

each  Volume.  ^      -^ 


\ 


A0BASSIDI8. 

Abbassides.  encouragement  of  science 
and  art  by  the,  ii.  119— progress  of 
their  dynasty,  120— its  decadence.  121. 

Abdalraiiman  proclaimed  khalif  of  Cor- 
dova, ii.  120. 

Abelard  (Peter),  enthusiasm  excited  by 
the  teachings  of,  iii.  3UG— his  erratic 
career,  ib. 

Acre,  consequences  to  commence  by  the 
capture  of,  iii.  311— vices  of  its  inhabi- 
tants, ib.  note^. 

Adorni  and  Fregosi  factions,  disruption 
of  Genoa  by  the,  i.  475. 

Adolphus  of  Nas.sau  elected  emperor  of 
Germany,  ii.  82. 

Adrian  II.  (pope),  attempts  to  overawe 
Charles  the  Bald,  ii.  167. 

Adrian  IV.  (the  only  English  pope),  in- 
solence of,  towards  Frederic  Barba- 
rossa,  ii.  187 — his  system  of  mandats. 
203.  ' 

Adventurers  (military).  See  Military 
Systems. 

JEneas  Sylvius  (afterwards  Pius  II.),  in- 
stance  of  the  political  foresight  of,  i. 
483 — he  abets  the  war  against  the 
Turks,  ii.  1.S4— specimen  of  his  or- 
atory, 134.  note — his  singular  sugges- 
tion to  Mahomet  II.,  ib.  no/«— he  plays 
into  the  hands  of  the  pope,  240— he 
obtains  the  repeal  of  the  Pragmatic 
Siinction,  242— his  sketch  of  Vienna. 
iii.  326.  iioi«*.  ' 

Agriculture,  cause  of  the  low  state  of, 
iii.  295,  339.  and  no^e  i— superior  cul- 
tivation of  church  lands.  340— exem- 
plary labors  of  the  Benedictines,  ib. 
no/e  2_agricultuml  colonies,  341  and 
notes  i  and  ^— early  enclosures  and 
clearances,  342— exportation  of  corn, 
how  limited,  344— usual  prices  ofland, 
t6.— high  state  of  Italian  agriculture, 


ALFONSO  T. 

f6.— effects  of  pestilence,  345— exceU 
lence  of  the  Italian  gardens,  ib. — neg- 
lect of  horticulture  In  England,  346. 

Alarie.  tolerance  of,  towards  his  catholic 
subjects,  17,  no/e2— defeated  by  Cle- 
vis, 17— laws  compiled  by  his  order, 
iii.  390. 

Albert  I.  of  Germany,  ii.  82— his  rule  in 
Switzerland.  105— his  expulsion  and 
assassination,  100— the  French  crown 
offered  to  him,  220. 

Albert  II.  succeeds  Sigismund  as  emper- 
or of  Germany,  ii.  87. 

Alblgensian  heresy,  spread  of  the,  i.  40— 
massacre  of  the  Albigeois,  ib.,  41,  notes. 
See  Religious  Sects. 

Albizi,  ascendency  in  Florence  regained 
by  the,  i.  476— Cusmo  de'  Medici  ban- 
ished at  their  instigation,  478— their 
overthiow,  »6.— exclusion  of  their  fam- 
ily from  the  magistracy,  478. 

Alcuin  teaches  Charlemagne,  iii.  395— he 
discourages  secular  learning,  ib.— 
character  of  his  poetry,  446. 

Alexander  II.  (pope),  election  of,  ii.  177 

—he  deposes  the  English  prelates,  289, 
note^.  '       * 

Alexander  III.  (pope),  supports  Thomas 
a  Becket,  ii.  187- adopts  the  system  of 
mandats,  203. 

Alexander  V.  elected  pope,  ii.  231— his 
successor,  ib. 

Alexander  III.  king  of  Scotland,  opposi- 
tion to  papal  domination  by,  ii.  207. 

Alexius  Comncnus  attacks  the  Turks, 
ii.  125— he  recovers  the  Greek  territo- 
ries, lb.  and  note-. 

Alfonso  I.  of  Aragon  bequeaths  his  king- 
dom to  the  Knights  Templars,  ii.  14. 

Alfonso  III.  of  Aragon  compelled  to  apol- 
ogize to  his  people,  ii.  48. 

Alfonso  V.  of  Aragon  (the  Magnanimous), 


460 


INDEX. 


INDEX. 


461 


AIF05S0  ▼.  AWD  VI. 


1  469— adopted  by  Joanna  11.  of  Na- 
ples, ib. — she  revokes  the  adoption,  470 
— his  accession,  ib. — his  imprisonment 
by  the  Genoese,  471— his  alliance  with 
Milan,  ib.  472— his  virtues  and  patron- 
age of  the  arts,  473— his  literary  medi- 
cine, 473,  note— hi:*  love  of  Naples,  ii.  45. 
Alfonso  V.  and  VI.  of  Castile,  towns  in- 
corporated by,  ii.  12. 
Alfonso  VII.  of  Castile,  unwise  division 

of  his  dominions  by,  ii.  14. 
Alfonso  X.  of  Castile,  scientific  acquire- 
ments and   governmental   deficiencies 
of,  ii.  17 — law  proiuuljjated  by  him,  41 
— his  election  as  emperor  of  Germany, 
76— tithes  established  in  his  reign,  142, 
„of«  1 — clerical  encroachments  favored 
by  him,  210,  note's—he  exempts  tlie 
clergy  from  civil  jurisdiction,  215. 
Alfonso  XI.   of  Castile  assassinates  his 
cousin,  ii.  19— his  disregard  of  law,  40. 
Alfred  the  Great,  rescue  of  the  Anglo- 
Saxou  monarchy  by,  ii.  257— hi.-*  al- 
leged division  of  the    kingdom    into 
counties,  &c.,  265— ascription  of  trial 
by  jury  to  him.  270— his  high  claim 
to  veneration,  273— extent  of   his  ac- 
quaintance with   Latin,  iii.  272— his 
declaration  of  the  ignorance  of   the 
clergy,  273— his  zeal  for  learning,  ib. 
note  *. 
Aliens  held  liable  for  each  other's  debts, 

iii.  318. 
Almaman  and  Almansor,  khalifs  of  Bag- 
dad, patronage  of  letters  by,  ii.  119. 
Alodial  tenure,  characteristics  of,  i.  150, 
161,  and  notes — converted  into  feudal 
tenure.  164 — except  in  certain  locali- 
ties, 165  and  nofe— causes  of  the  con- 
version, 307— alodial   proprietors  evi- 
dently freemen,  313. 
Alvaro  de  Luna.     See  Luna. 
Amadous  (duke  of  Savoy),  elected  pope, 

ii.  235. 
Amalfi,  early  commercial  eminence  of, 
iii.  310  and  note— its  decline,  311— al- 
leged invention  of  the  mariner's  com- 
pass there,  314  and  note — discovery 
of  the  Pandects,  391. 
Amurath  I.,  progresses  of  the  Turkish 

arms  under,  ii.  129. 
Amurath  II.,  rout  of  the   Hungarians 
by,  ii.  103— reunion  of  the  Ottoman 
monarchy  under  him,    131 — he    per- 
fects the  institution  of  the  Janizaries, 
134. 
Anastasius  confers  the  dignity  of  consul- 
ship on  Clovis,  i.  113— elucidatory  ob- 
servations thereon,  113,  116. 
Andalusia,  conquest  of,  by  Ferdinand 

III.,  ii.  15. 
Andrew  of  Hungary  married  to  Joanna 
of  Naples,  i.  466— his  murder  imputed 
to  Joanna,  ib. 


ABAGOir. 

Anglo-Normans.    See  England. 

Anglo-Saxons,  divisions  of  England  undel 
the,  ii.  256— their  Danish  assailants, 
257— Alfred  and  his  successors,  258, 
259 — descent  of  the  crown,  259— in- 
fluence of  provincial   governors,    260 

thanes  and  ceorla,  i6.— condition  of 

the  ceorls,  261— privileges  annexed  to 
their  possession  of  land,  ib. — position 
of  the  socage  tenants,  262— condition 
of  the  British  natives,  263— absence  of 
British  roots  in  the  English  language, 
ib.  and  note -—constitution  of  the 
Witenagemot,  264,  353,  357— adminis- 
tration of  justice,  and  divisions  of  the 
land  for  the  purpose,  265— hundreds 
and  their  probable  origin,  265,  266, 
357,  359— the  ty  thing-man  and  alder- 
man, 267,  note  ^— the  county  court 
and  its  jurisdiction,  267— contempo- 
rary report  of  a  suit  adjudicated  in  the 
reign  of  Canute,  268,  269,  and  note  i 

trial  by  jury  and  its  antecedents, 

270^273-^introduction  of    the  law  of 


frankpledge,  273,  274— turbulence  of 
the  Anglo-Saxons,  275— progress  of  the 
system  of  frank  pledges,  276— respon- 
sibilities and  uses  of  the  tythings,  276, 
277.  and  nofei- probable  existence  of 
feudal   tenures   before   the  Conquest, 
279,  284,  384,  386— observations  on  the 
change  of  the  heptarchy  into  a  mon- 
archy, 332,  336— consolidation  of  the 
monarchy,  336,  338— condition  of  the 
eorls    anil    ceorla  further   elucidated, 
338, 350— proportion  of  British  natives 
under  the  Anglo-Saxon  rule,  350,  353 
—judicial  functions  of  the  .\nglo-Saxon 
kings,     359— analogy     between     the 
French  and  Anglo-Saxon  monarchies 
360,  361— pcculiiir  jurisdiction  of  the 
king's  court,  362,  365. 
Anjou    (Louis,    duke    of),    seizure    of 
Charles  V.'s  treasures  by,  I.    to—nu 
claim  as  regent,  77  and  note— his  at- 
tempt  on  the  crown  of   Naples,  and 
death,  ib.    See  Charles  of  Anjou. 
Anselm  (archbishop),  cause  of  his  quar- 
rel with  William  II.  and  Henry  1.,  ii. 
\QQ — Descartes's     argument    on     the 
Deity  anticipated  by  him,  iii.  403. 
Appanages,  effect  of  the  system  of,  i.  96. 
Aquinas  (Thomas),    metaphysical  emi- 
nence of,  iii.  402— comparative  obso- 
leteness of  his  writings.  403.  note^. 
Aquitaine,    extent  of  the  dominions  so 
called,  i.  121— character  of  iU  people, 
ib. — effect  of  the  wars  of  the  Merovin- 
gian kings,  279. 
Arabia  and  the  Arabs.      See  Moham- 

Arngon,  bequest  to  the  Templars  by  Al- 
fonso I.,  and  reversal  thereof,  ii.  14— 
rise  of  the  kingdom  in  political  impox^ 


ASCOESS. 

iance,  42— struggle  for  the  succession 
to  itfl  crown,  42-44— points  of  inter- 
est in  Its  form  of  government,  46— 
privileges  of  its  nobles  and  people,  46, 
47— its  natural  defects  and  political 
advantages,  47,  48— statistics  of  its 
wealth,  population,  &c.,  48,  note*— 
grant  of  tiie  ''■  privilege  of  union,"  49 
—supersession  thereof,  50— the  office 
of  justiciary.  61— instances  of  that  of- 
ficer's integrity  and  courage.  51,  and 
of  the  8ubmis.sion  of  kings  to  his  de- 
crees. 55,  56— duration  and  responsi- 
bilities of  the  office,  50— the  Cortes  of 
Aragon,  58— social  condition  of  the 
kingdom,  60— its  union  with  Castile,  ib. 
-its  burgesses,  iii.  313,  note'^. 

Archers  (English),  invincibility  of  the, 
at  Crecy  and  Poitiers,  i.  65.  See  Mili- 
tary Systems. 

Architecture,  as  illustrative  of  domestic 

Erogress,  iii.  327— early  castles  in  Eng- 
ind,  »■<».- improvements  thereon,  328 
—early  houses,  329— revival  of  the  use 
of  bricks,  330— arrangement  of  ordi- 
nary mansion-houses,  331— dwellings 
in  France  and  Italy,  331,  332— intro- 
duction  of  chimneys  and  glass  win- 
dows, 332,  334,  and  nofw- house  fur- 
niture and  domestic  conveniences,  334, 
835,  and  /to/fs- farmhouses  and  cot- 
tages, 335 — ecclesiastical  architecture, 
its  grandeur  and  varieties,  3-33,  339,  and 
notes — domestic  architecture  of  the 
12th  and  14th  centuries,  451,  453. 

Arian  sovereigns,  tolerance  of  the,  i.  17 
and  note  -. 

Aribert  declared  king  of  Aquitaine,  i.  120. 

Aristocracy.    See  Nobility. 

Aristotle,  writings  of,  how  first  known  in 
Europe,  iii.  401  and  Mofe2_ignoranco 
of  his  translators,  404  and  note  i — char- 
acter of  the  Aristotelian  philosophy, 
405— its  influence  on  religion,  tb.,  notes. 

Armagnac  (count  of)  opposes  the  duke 
of  Burgundy,  i.  80— massacre  of  him- 
self and  partisans,  81 — assassination  of 
a  later  count  of  Armagnac,  93. 

Annjignacs,  rise  of  the  faction  of  the,  i. 
80— tactics  of  the  dauphin  towards 
them,  ib. — their  league  with  Ilcury 
IV.  of  England,  82— their  defeat  by 
the  Swiss,  ii.  109. 

Armorial  bearings,  general  introduction 
of,  i.  190— instances  of  their  earlie.st 
Yise,  191,  note. 

Armorican  I'cpublic,  questionable  exist- 
ence of  the,  i.  16— hypothesis  of  Dubos 
relative  thereto,  i6.,  note — further  elu- 
cidation theniof,  109— supposed  extent 
of  its  territories,  109, 110. 

Armor.     Sec  Militiry  Sy.stenis. 

Artois.    See  Robert  of  Artois. 

lurundel  (bishop   and   archbishop),  re- 


BARONS. 

monstrates  with  Richard  IT.,  iii.  67— 
deprived  of,  and  reinvested  with,  the 
great  seal,  72— his  subsequent  depriva- 
tion and  banishment,  76. 

Arundel  (earl  of,  temp.  Richard  II.), 
favored  by  the  parliament,  iii.  64— 
his  conduct  as  a  lord  appellant,  71 — 
his  breach  with  the  duke  of  Lancaster, 
73— refuses  to  aid  in  legitimating  Lan* 
caster's  children,  74— his  decapitation, 
76. 

Aschaffenburg.  concordats  of.  ii.  240. 

Athens  (duke  of).     See  Brienne. 

Augustin  (St.),  specimen  of  the  rerses 
of,  iii.  267,  note''. 

Aulic  council,  powers  and  jurisdiction  of 
the,  ii.  98. 

Auspicius  (bishop  of  Toul),  character  of 
the  poetry  of,  iii.  268— specimen 
thereof,  ib..  note. 

Austrasia,  characteristics  of  the  peoole 
of,  i.  122,  123. 

Auxiliary  verb  active,  probable  cause  of 
the,  iii.  266. 

Averroes.  error  relative  to,  iii.  397.  note* 
— his  eminence  as  a  philosopher,  401, 
note  - — tendency  of  his  commentaries. 
405.  ' 

Avignon,  removal  of  the  papal  court  to, 
ii.  222— rapacity  of  its  popes.  225,  227 
— its  abandonment  by  the  popes,  228. 

Azincourt  (battle  of),  i.  83  and  note. 

Bacon  (Roger),  a  true  philosopher,  iiL 
404,  note  i — his  acquaintance  with 
mathematics,  407— parallel  between 
him  and  Lord  Bacon,  ib.,  note^—hia 
knowledge  of  Greek,  4o6. 

Bagdad,  celebrity  of  the  early  khalifs  of, 
ii.  Il9— character  of  its  later  khalifs, 
120— frequency  of  their  assassination, 
121 — defection  of  its  provinces,  ib. 

Bajazet,  military  successes  of.  ii.  129— 
defeated  and  captured  by  the  Tartars. 
131.  ' 

Baltic  trade.    See  Trade. 

Banks  and  bankers  of  Italy,  iii.  322. 

Barbiano  (Alberic  di),  military  eminence 
of,  i.  455 — his  pupils,  461. 

Barcelona,  feudal  submission  to  France 
of  the  counts  of,  i.  23.  note— its  early 
commercial  eminence,  iii.  313— its  code 
of  maritime  laws,  315  and  note ; — and 
of  marine  insurance,  321,  note- — its 
bank  of  deposit,  322. 

Bardas.  revival  of  Greek  literature  by, 
iii.  440.  7iote'i. 

Bardi,  Florentine  bankers,  English  cus- 
toms farmed  by  the,  iii.  321,  note  3. 

Barons  (in  France),  occ;usional  assem- 
blages of  the,  i.  217 — consequenc&s  of 
their  non-:ittendanco  at  the  royal 
council,  219,  220— they  become  subject 
to  the  monarch,  220— their  privileges 


1 


462 


INDEX. 


INDEX. 


468 


BASRISTSft* 


BURQtmBIAnS. 


BuiunjirDT. 


CHABLEVAGirS. 


i 


curtailed  by  Philip  IV.,  224.    See  No- 
bility. ,         ... 
Barristers'  fees  in  the  15th  century,  ui. 

Basle,  council  of.    See  Council. 

Beaumauoir,  definition  of  the  three  con- 
ditions of  men  by,  i.  196-198. 

Bedford  {duke  of)  regent  for  Henry  Vl., 
i.  85~his  characU'P,  ib.— his  successes 
in  I  ranee,  i6.— overthrow  of  his  forces 
by  Joau  of  Arc,  87.  -  ..  ,nA 

B^Wade,  siege  and  relief  of,  ii.  1U4. 

Benedict  XI.  reconciles  Philip  the  Pair 
to  the  holy  see.  ii.  221— he  rescinds  the 
bulls  of  Bonif  ice  VIII.,  222. 

Benedict  XII.,  purport  of  his  letter  to 
Edward  III.,  i.  61,  note— his  rapacity, 

Benedict  XIII.  elected  pope  by  the 
Avijraon  cardinals,  ii.  230— deposed 
by  the  council  of  Pisa,  231-Spain  sup- 
ports him,  ib.  . 
Benedictines,  exempl.iry  agricultural  la- 
bors of  the,  iii.  340,  note-'. 
Benefices,  grants  of  land  so  called,  i.  101 

conditions  annexed    to  them,  tO.— 

their  extent,  102  and  jiofe— their  char- 
acter under  Charlemagne  and  Louis 
the  Debonair,  303— views  of  ^ano»« 
writers  concerning  iheir  nature,  30d- 
805— character  of  hereditary  ben- 
efices, 310— their  regenerative  effects 
upon  the  French  people,  tb. 
Benevolences,  by  whom  first  levied  in 

England,  iii.  191. 
Bereuger  I.  and  II.     See  Italy. 
Bermudo  III.  (king  of  Leon),  killed  in 

battle,  ii.  10.  ,  ^    . 

Bernard  (gnindson  of  Charlemagne),  de- 
prived of  sight  by  judicial  sentence,  i. 

Berry  (duke  of),  appointed  guardian^  of 

Charles  VI.,  i.  74— his  chai-acter,  tt. 
Bianchi.    See  Superstitions. 
Bianchi  and  Neri,  factions  of,  i.  dO<,  iu. 

419 
Bigod  (Roger,  earl  of  Norfolk),  patrlothan 

of,  iii.  6. 

Bills.    See  Parliament. 

Birth,  privileges  of.    See  Nobihty. 

Bishops.    See  Church,  Clergy. 

Blauchard  (Alain),  unjustifiable  execu- 
tion of,  i.  91.  *  ,   ^  « 

Blanche  of  Castile,  acts  as  regent  during 
the  minority  of  Louis  IX.,  i.  42-quells 
the  rebellion  of  the  barons,  t6.— in- 
stance of  her  undue  influence  over 

Boccaccio,  occasion  of  the  Dccamerone  of, 
i.  67,  note  i— appointed  to  lecture  on 
Dante,  iii.  422. 

Boccanegra  (Simon),  first  doge  of  Genoa, 
Btory  of  the  election  of,  i.  433. 

Bocland.  nature  ot,  ii.  278-385. 


Bohemia,  nature  of  its  connection  with 
Germany,  ii.  99-it3  polity,  i6.-th« 
Hussite  controversy  and  Its   result*, 

100,101.  ,     ,„      ... 

Bohun    (Humphrey,  earl  of  Uereford), 

patriotism  of,  iii.  6.  ,    .  , 

Bolingbroke  (carl  of  Derby  and  dulw 
of  Hereford),  made  lord  appellant, 
iii  71— he  sides  with  the  king,  td— 
his  quarrel  with  the  duke  of  Norfolk, 
78-advantnge  taken  of  it  by  Kichard 
II.,  78  and  vote  i— his  accession  to  the 
throne,  80.  See  Henry  IV. 
Bolo-^nese  law-schools,  iii.  391. 

Boniface  (St.).    See  Wiufrid.  

Boniface  VIII.  suspected  of  fraud  towardi 
Celestine  V.,   ii.  217-hi3  extravagant 
pretensions,  ih.  and  note— disregard  of 
his  bulls  by  Edward  I.,  21S-hi.s  dis- 
putes with  Philip  the  Fair,  219,  221— 
success  of  Philip's  stratagem  ngtilnst 
him  221— his  death,  i&.— rescindment 
of  his  bulls,  222-Oekham's  dialogue 
against  him.  225,  note  >— rejection  ofhia 
supremacy  by  the  English  t^roris,  £n. 
Boniface  IX.,  elected  pope,  i  .  2dO— hii 
traffic  in  benefices,  '^^^  ;^^},%^^- 
pacity  in  England  checked,  Zdi ,  mH. 
Books  and  booksellers.    See  Learning. 
Boroughs.     See  Municipal  Institutions, 

Parliament,  Towns. 
Braccio    di   Montone,  rivalry   of,  with 

Sforza,  i.  461-462. 
Brienne  (Walter  de,  duke  of  Athens), 
invested    with     extreme    powers    la 
Florence,  i.  411-hi3  tyranny  and  ex- 
cesses, 412— his  overthrow,  i6. 
Britany,  origin  of  the  people  of,  i.  106 
and    note  »-grant   of  the  duchy    to 
Montfort,  i6.— its  annexation  to  the 
crown,    i07-alleged    existence    of    a 
king  of  Britany,  109-right  of  its  dukefl 
to  coin  money,  204.    .     ^      ,     ,   ,«_ 
Brunehaut,  queen  of  Austrasia,  »•  i»-- 
her  character  and  conduct,  not*  19,^ 
—her     mayor,     Protadius,     120— her 
scheme  of  government,  122— she  falls 
into  the  hands  of  ClotJiire  II.,  and  la 
sentenced  to  death,  124— cause  of  her 
overthrow,  note  159,  285,  300-poi» 
Gregory  I.'s  adulation  towards  her,  li. 
156,°not«  1. 
Buchan    (earl  of),  made    constable   or 

France,  i.  86. 
Burdett  (Thomas),  cause  of  the  execution 

of,  iii.  190  and  notfi. 
Burgesses.    See  Parliament. 
Burgenscs  of  the  palisades,  origin  of  the, 

ii.  91.  .  ,  . 

Burgundians,  Roman  provinces  occupied 
by  the,  i.  15— their  tolerance,  17,  note* 
—their  mode  of  dividing  conquered 
provinces.  151— elucidatory  obserrap 
tions  theieon,  268, 271. 


Burgundy  (Eudes^  duke  of),  undertakes 
the  protection  of  his  niece  Jane,  i.  57 
— he  betrays  her  cause,  ib. 

Burgundy  (duke  of ),  named  guardian  of 
Charles  VI.,  i.  74 — losws  his  ascen- 
dency over  the  king,  78— regains  it, 
i6.— his  death,  79. 

Burgundy  (./o/in,  duke  of, "  Sans-peur  '•). 
aasassinatws  the  duke  of  Orleans,  i.  79 
— his  supposed  provocation,  ?6.,  note — 
obtains  pardon  lor  the  crime,  &0— con- 
sequence of  his  reconciliation  with  the 
court,  ib. — is  a.<:sa8sinated,81  and  note 
—his  defeat  at  Nicopolis,  ii.  129,  note^. 

Burgundy  (  Philip,  duke  of),  allies  him- 
self with  Henry  V.,  i.  83— his  French 
predilections,  89— and  treaty  with 
Charles  VII.,  ib.,  97,  98— splendor  of 
his  court,  98— jealousy  of  his  subjects 
concerning  tiixation,  100,  note  i. 

Burgundy  ( Charl(.%,  duke  of),  character 
and  ambitious  designs  of,  i.  98  and 
note  99 — his  contumacious  subjects,  99 
— his  rash  enterprises  and  f  lilures,  100 
is  defeated  and  killed,  ib. — adventures 
of  his  diamond,  101,  note. 

Burgundy  (Mar^,  duchess  of),  defends 
her  rights  against  Louis  XI.,  i.  100 
and  notes  102 — marries  Maximilian  of 
Austria  ;  her  death,  102. 

Caballeros  of  Spain,  privileges  enjoyed  by 
the,  ii.  13. 

Calais,  abject  condition  of  the  citizens  of, 
i.  68,  note'^ — terms  of  instruments 
signed  there,  69. 

Call  \ tins,  tenets  of  the,  ii.  101. 

Calixtus  II.  (pope),  compromise  effected 
by,  ii.  180— he  abolishes  feudal  services 
by  bishops,  181. 

Calverley  (Sir  Hugh),  characteristic  an- 
ecdote of,  i.  74. 

Cambridge  university,  first  mention  of, 
iii.  399,  note.  5. 

Canon  law,  promulgation  of  the,  ii.  194 
— its  study  made  imperative,  195. 

Cupet  (Hugh),  usurpation  of  the  French 
throne  by,  i.  30,  31 — antiquity  of  his 
family,  30,  note  3 — state  of  France  at 
his  accession,  35— opposition  to,  and  ul- 
timate recognition  of  his  authority,  ib. 
and  note  < — period  of  his  assumption  of 
regal  power,  133 — degree  of  authority 
exercised  by  his  immediate  descend- 
ants, 36, 140 — his  sources  of  revenue, 
207. 

Capitularies,  what  they  were,  i.  213 — their 
latest  date,  215  and  note. 

Caraccioli,  favorite  of  Joanna  II.  of 
Naples,  i.  469 — his  assassination,  471, 
note. 

Carloman,  inheritance  of  the  children 
of,  usurped   by  Charlemagne,  i.  23, 


CarloTingian  dynasty,  extinction  of  the, 
i.  31. 

Carrara  (Francesco  da),  Verona  seized  by, 
i.  446--kiiled  in  prison,  ib. 

Carroccio,  the,  i.  448  and  note-. 

Castile  and  Leon  united  into  one  king- 
dom, ii.  10 — their  subsequent  redi-d- 
sion  and  reunion,  14,  15— eompositiiti 
and  ch.aracter  of  the  cortes  of  Castile 
[see  Cortes],  the  council  and  its  func- 
tions. 37,  38— administration  of  jus- 
tice, 38 — violations  of  law  by  the  kings, 
2Q — confederacies  of  the  nobility,  40— 
similarity  of  its  polity  to  that  of  Eng- 

,  land,  41 — establishment  of  tithes  in 
Castile,  142,  note  i. 

Castle,  graphic  description  of  a,  i.  312. 

Castruccio,  Castrucani,  success  of,  i.  395. 

Catalonia,  character  of  the  people  of,  ii. 
59 — severity  of  the  state  of  villenage 
there,  t6.,  not<  2. 

Catharists,  religious  tenets  held  by  the, 
iii.  362. 

Catholics,  treatment  of  the,  by  their 
Gothic  conquerors,  i.  17,  note  2. 

Cava  (count  Julian's  daughter),  legend 
of  the  seduction  of,  ii.  63. 

Celestine  V.,  fraud  of  Boniface  VIII.  to- 
wards, ii.  217. 

Champs  de  Mars.     See  Field  of  March. 

Charlemagne,  reunion  of  the  Prankish 
empire  under,  i.  23  and  note  i — his  vie- 
tories  in  Italy  and  Spain,  23.24 — ob- 
stinate resistance  and  ultimate  sub- 
mission of  the  Saxons  to  his  rule,  24— 
his  Sclavonian  concjuests,  ib. — extent 
of  his  dominions,  ib. — bis  coronation  as 
emperor,  25  and  note  i — its  conse- 
quences, 26 — his  intellectual  acquire- 
ments and  domestic  improvements, 
ib.  and  note  i — his  vices,  cruelties,  re- 
ligious edicts,  26 — his  sons  and  suc- 
cessors, 27 — his  control  over  the  clergy, 
29 — degeneracy  of  his  descendants,  3() 
— state  of  the  people  under  his  rule, 
31 — his  dread  .  "  the  Normans,  33— his 
alleged  election  by  the  Konians  as  em- 
peror discussed,  126-129 — question  of 
succession  involved  in  his  elevation  to 
the  imperial  title,  129,  130— his  wise 
provisions  relative  to  fugitive  serfs,  197, 
note  2 — his  revenue  how  raised,  206— 
peculiarities  of  his  legislative  assem- 
blies, 212,  213~French  ignorance  of 
his  character  in  the  14th  century,  224 
— his  capitulary  relative  to  tithes, 
ii.  141,  1^,  note  » — his  authority  over 
the  popes,  174— state  of  his  education, 
iii.  272  .and  note"^ — his  library,  277, 
note — his  encouragement  of  ordeals, 
279 — his  agricultural  colonies,  341— 
public  schools  in  France  due  to  him, 
394 — becomes  a  disciple  of  Alcuin, 
395. 


i\ 


464 


INDEX. 


INDEX. 


465 


CHARLSS  TQS  BAD. 


OHIYAUtT. 


OHiurruiriTT. 


Oharlcs  the  Bad.    See  Charles  of  NsTarre. 

Charles  the  Bald,  share  of  empire  allot- 
ted to,  i.29,  and  note  on  p.  30 — niya- 
ges  of  the  Nomians  durin*;  his  rei^, 
84 — his  imbecile  i^rovernuient  and  its 
consequences,  139 — his  slavish  sub- 
mission to  tho  church,  ii.  151, 152 — he 
disobeys  pope  Adrian  II.,  1G7. 

Charled  the  Fat,  accession  and  deposition 
of.  i.  3<>— position  of  Germany  at  his 
dt'tath,  ii.  67— arrogance  of  pope  John 
VIII.  towards  him,  167. 

Charles  the  Sini])le,  policy  of,  towards  the 
Normans,  i.  31. 

Charles  IV.  (the Fair)  ascends  the  throne 
pursuant  to  tho  Salic  la,\r,  i.  59 — con- 
duct of  Edward  III.  of  England  after 
his  death,  i6. 

Charles  V.  (tho  Wise)  submits  to  the 
peace  of  Bretigni,  i.  68 — his  summons 
to  Edward  the  Black  Prince,  72— his 
treaty  with  Henry  of  Castile,  i6.,  note  3 
— hi:»  successes  agiiinst  the  English,  73 
— his  premature  death  and  character, 
74,  75 — seizure  of  his  treasures  by  the 
duke  of  Anjou,  74— expenses  of  his 
household.  77,  note  i — his  conflicts 
with  tho  States-General,  227,  223— he 
imposes  taxes  without  their  consent, 
228. 

Charles  VI.,  accession  of,  i.  74— state  of 
France  during  his  reign,  75 — defeats 
the  citizens  of  Ghent,  76— misapplica- 
tion of  taxes  during  his  minorityj  77 
and  note  i — his  seizure  with  insanity, 
78— disgraceful  conduct  of  his  queen, 
ib.  and  note — his  death,  85— his  sub- 
mission to  tho  remonstrances  of  the 
States  General,  228. 

Charles  VII.,  state  of  France  at  tho 
accession  of,  i.  85 — his  impoverished  ex- 
chequer, 86— his  Scotch  auxiliaries,  i6. 
— his  character,  and  choice  of  favor- 
ites, 87 — change  wrought  in  his  for- 
tunes by  Joan  of  Arc,  87,  88 — his  con- 
nection with  Agnes  Sorel,  88,  note  3 — 
restores  Kichemoiit  to  power,  89 — Is 
reconciled  with  the  duke  of  Burgundy, 
90 — re-conquers  the  provinces  ceded  to 
the  English  crown,  91 — his  cruelty  to 
Enaflish  captives,  92— consolidation  of 
his  lower,  93— insurrection  of  Guienne 
against  taxation,  93  and  note — his 
conduct  reUitive  to  the  States-General, 
229— he  levies  taxes  of  his  own  will, 
230 — he  enacts  the  Pragmatic  Sanction 
of  Bourges,  ii.  242. 

Charles  VUI.,  accession  of,  i.  104— con- 
test for  the  regency  during  his  minor- 
ity, ib.  231— marries  Anne  of  Britany, 
106 — consolidation  of  the  French  mon- 
archy under  his  sway,  107  and  notes — 
proceedings  of  the  StJites-Qeneral  dur- 
ing his  minority,  231,  282. 


Charles  of  Anjou  (I.  of  Naples),  setinn 
of  the  crown  of  Naples  by,  i.  391— he 
puts  Conradin,  the  heir,  to  death,  3&2 
— he  defeats  theGhibelins  and  governs 
Tuscany,  ib.  and  «o/«— rcTolt  of  his 
subjects,  395. 

Charles  II.  of  Naples,  war  of  the  Sicil- 
ians against,  i.  465 — his  death,  ib, 

Charles  of  Durazzo  (III.  of  Naples),  im- 
plicated in  the  murder  of  Andrew,  i. 
466,  note  > — puts  queen  Joanna  to 
death,  467 — his  assassination.  468. 

Charles  IV.  of  Oennany,  singular  char- 
acter of,  ii.  84,  85— his  Golden  Bull,  85 
and86/iot«  i — ho  alienates  the  imperial 
domains,  93 — advancement  of  Bohemia 
under  his  rule,  100. 

Charles  Martcl,  conquest  of  the  Saracens 
by,  i.  20 — site  and  importance  of  the 
battle,  ib. — its  object,  25 — his  spolia- 
tion of  the  church,  ii.  143. 

Charles  of  Navarre  (the  Bad)  tumults  in 
France  excited  by,  i.  66— his  crimes, 
ib. — allies  himself  with  Edward  III.,  ib. 

Chartered  towns.  Seo  Municipal  Insti- 
tutions, Towns. 

Chaucer  (Geofifrey),  testimony  borne  by 
his  writings,  iii.  153,  note — character 
of  his  works,  429,  430. 

Chaucer  (Sir  Thomas),  rebuked  by 
IlenrylV.,  iii.  93. 

Childebert  (son  of  Clovis),  dominions  al- 
lotted to,  i.  18  and  note'-^ — his  propo- 
sal relative  to  Clodomir's  children,  302, 
note. 

Childerick  III.,  deposition  of,  I.  21. 

Children,  crusado  undertaken  by,  Iii. 
280,  note  =. 

Chilperic,  guilty  conduct  of  Frcdegonde, 
the  queen  of,  i.  19,  124 — oppressive 
taxes  levied  by  him,  297 — tumult 
which  ensued,  ib. — what  followed  after 
his  death,  ib. — his  attempts  at  poetry, 
iii.  268 — his  attack  on  the  sanctuary, 
287. 

Chimneys.    See  Architecture. 

Chivalry  as  a  school  of  moral  discipline, 
iii.  338 — remoteness  of  its  origin,  ib. 
— individual  honor  it«»  keystone,  370— 
types  of  chivalry,  371  and  note  i.— its 
original  connection  with  feudal  ser- 
vice, 371— effect  of  the  crusades,  372 
— its  connection  with  religion,  372,  373 
—enthusiasm  inspired  by  gallantry, 
373,  375 — licentiousness  incident  to 
chivalry,  376 — virtues  inculcated  by  it, 
377 — practice  of  courtesy,  liberality, 
and  justice.  378,  380— obligations  of 
chivalry  to  tho  East,  880 — its  attendant 
evils,  381 — education  preparatory  to 
knighthood,  382 — chivalric  festivals, 
383— tournaments  and  their  dangers, 
881  —  privileges  of  knighthood,  ib. — 
who  were  admissible  thereto,  885,  and 


OLD  VIS. 


no«^— military  service:  knights  and 
bachelors.  386  and  no(f5— causes  of  the 
decline  of  chivalry,  387— influences 
by  which  it  was  superseded,  388  and 
notei. 

Christianity,  impetus  given  to  the  for- 
mation of  civic  institutions  by,  i.  126— 
^^beneflcial  effect  upon  the  Normans, 

Church,  wealth  of  the,  under  the  empire, 
Ii.  136— its  position  after  the  irruption 
of  the  barbarians,  137— .source  of  its 
legitimate    wealth,   138— its    religious 
extortions,  139— privileges  attached  to 
itj?  property,  140— iu.stitiition  of  tithes, 
140-142  and  nort-.t— liability  of  church 
property  to  spoILation,  142— origin  of 
prerarifTy   142,  «o<«  *— extent    of    the 
church's  lauded  pos.<!essions,  143  and 
fio<«6_jts  participation  in  the  admin- 
istration of  justice,  144— limitations  in- 
terposed   by   Justinian,   145.   146— Its 
iwlitical  influence,  147— source  thereof, 
148— its  subjection  to  the  state,  ib.— 
Charlemagne's  edicts  relative  to  its  af- 
fiiirs,  149,  150,  and  notes— \t&  assump- 
tion of  authority  over    tho    French 
king>»,    150,    152— ob.«!equiousness     of 
England  to  its  pretensions,  153— inves- 
titure of  it«  bishops  with  their  tempor- 
alities. 173— their  simoniacal  practices, 
1<4  and  wore 2— canons  and  chapters, 
183— liberties  of  the  Galilean  church, 
243— high    church    principles  .ilways 
dangerous,  244,    wo/e  2— privileges    of 
sanctuary,  iii.  286.  287.    Seo  Clergv-, 
Monasleries.  Papal  Power. 
Clan  service  not  based  on  feudality,  i. 

186. 
Clarence  (duke  of),  put  to  death  by  Ed- 
ward IV.,  iii.  190. 
Clarendon,    constitutions   of,   ii.   211— 
their  influence  on  Thomas  k  Beckefs 
quarrel  with  Henry  II.,  213. 
Cistertian    monk,    blasphemous   saying 

attributed  to  a,  i.  41,  note  i. 
Cities.    See  Municipal  Institutions  and 

Towns. 
Civil  Law.    See  Laws. 
Clement   IV.,  effi-ct  of  a  bull  promul- 
gated   by,  ii.  2a'>— opposition  of  the 
Scotch  king  to  his  edict,  207. 
Clement  V.  ritifies  Iloberts  claim  to  the 
crown  of  Naples,  i.  465-his  maxim 
relative  to  benefices,  ii.  205— he  re- 
moves the  papal  court  to  Avignon,  222 
—his  contests  with  the  emperor  Louis, 
i^wT'oo^'*"'*  remonstmtes  with  him, 
£iM,  lit,  notes— \\\»  outrageous  edict 
against  Venice,  247. 
Clement  VI.  acquits  Joanna  of  Naples  of 
murder,  i.  467— his  licentiousness,  ii. 

Clement  VII.,  circumstances  relative  to 
VOL.  HI.  3Q 


his  election  as  pope.  ii.  229— division 
of  the  papacy   thereupon,  230— pro- 
ceedings after  his  death,  230,  231. 
Clergy,  ascendency  of  the  (temp.  Charles 
the  Bald),  i.  139— their  privileges  under 
the  feudal  system,  194,  195— figiiting 
prelates,  194,  note  a— their  participation 
in   legislative  proceedings,  211,  213— 
privileges    of    their    tenants.    307— 
Bishops  in  Lombardy  and  their  tem- 
poralities, 352,  353  and  word— share 
of  the  citizens  in   their  election,  353 
and  no/e  2_a  robber  archbishop,  ii.  94 
— immense  territorial    possessions  of 
the  clergy,  143,  144.  and  notes- theiT 
acquisition  of  political  power,  147,  148 
—their  neglect  of  the  rule  of  celibacy, 
169,  170— sufferings   of  the    married 
clergy,   170  and  note^—\a.x  morality 
of  the  English  clergy,  171,  172,  notes— 
practice  of  simony,  172— consent  of  the 
laity  required  in  the  election  of  bish- 
ops, j6.— interference  of  the  sovereigns 
therein,  173  and  note'^ — ch.aracter  of 
the  clergy  of  Milai,  179.  nor<? i—taxa- 
tion  of  the  clergy  by  the  kings,  206— 
tribute  jevied  on  them  by  the  popes, 
206,  207— their    disaffection    towards 
Rome.    208— their     exemption    from 
temporal  jurisdiction,  208.  211— extor- 
tions  of  Edward    T.,  218— effects  of 
Wiclirs  principles,  239— priests  exe- 
cuted for  coining,  ?6.,  «o/cC— spiritual 
peers  in  the  English  parliament,  iii.  8, 
9— their     qualifications,     118— clergy 
summoned  to.«end  representatives,  126 
—cause  of  their  being  summoned,  127 
— result  of  their   segregating    them- 
selves from    tho   commons,   128— in- 
stances   of   their    parliamentary    ex- 
istence, 130,  132— right  of  bishops  to 
be  tried  by  the  peers,  194, 197— mediae- 
val clergy  not  supporters  of  despotism, 
245— their  ignorance  of  letters,  272,  274 
—their   monastic   vices.  287 — why  a 
bishop  made  a  Danisli  nobleman  drunk, 
2  0,  note  I.    See  Ciiurch,  Monasteries, 
Papal  Power.  Superstition. 
Clisson  (constable  de).  immense  wealth 

amjissed  by,  i.  78. 
Clodomir  (son  of  CIovls),  dominions  al- 
lotted to,  i.  18— propo.<!ed  alternative 
n-lative  to  his  children,  302,  note. 
Clotaire,  portion  of  dominions  allotted  to, 
i.  18 — union  of  the  whole  under  him, 
19— redivision  amongst  his  sons,  ib.— 
criminality  of  his  character,  123. 
Clotaire  II..  reunion  of  the  French  do- 
minions under,  i.   79— nature  of  the 
authority  exercised  by  him,  122. 
Clotilda  converts  her  husband  to  Christi< 

anity,  i.  17— her  sons,  18. 
Clovis  invades  Gaul  and  defeats  Syagrius, 
i.  16— accepts  the  title  of  consul,  ib 


l/i 


466 


INDEX. 


INDEX. 


467 


CLOvis  n. 


OSTTSASCS. 


and  no<e*— defeats  the  Alemanm,  16— 
his  conversion    to  Christianity,   li— 
defeats    Altiric,  i6.— his    last  exploits 
and  sanguinary  policy,  18  and  note  J— 
division  of  his  dominions  amongst  his 
sons,  18  and    notes— the   last  of  his 
race,  21— his  alleged  pubjoction  to  the 
emperors  discussed,  note  III.,  Ill,  11* 
—his  limited   authority ;  story  of  the 
vase  of  Soissojis,  157— theory  built  on 
the  story,  292.  293-<Tinie3  of  himself 
and  his  grandson,  iii.  290  and  note  i. 
Clovis  II.,  accession  of,  i.  124. 
Cobhani,  lord  (tewp.  Kichard  II.),  ban- 
ished, iii.  76. 
Coining,  extensive  practice  of.  amongst 
the     French    nobles,   i.   203— debased 
money    issued    by    them,    204 — sys- 
tematic adulteration  of  coin  by   the 
kings,  208. 226  227— measures  adopted 
for  remed\ing  these  frauds,  209,  note^ 

grant  of  taxes  made  conditional  on 

restoration  of  the  coin,  226— priests 
executed  fur  coining,  il.  239,  note<^— 
an  abbot  hanged  for  the  same  ofTonce, 
iii.  195— clipping  of  coins  by  the  Jews, 

848,  nore^.  .  .    ,  . 

Cologne,  antiquity  of  the  municipal  in- 
stitutions of,  i.  338. 
Coloni,  characteristics  and  privileges  or 

the,  i.  315. 
Combat.     See  Trial. 
Comines  [Philip  de],  characteristic  note 

on  taxation  by,  i.  231. 
Commodiauus,   literary  remains  of,  ui. 

267— specimen  thereof,  i6.,  note^. 
Comnenus.    See  Alexius. 
Conrad  (duke  of  Franconia),  elected  em- 
peror of  Germany,  ii.  68. 
Conrad  II.  (the  Salic),  important  edict 
of,  relative  to  feuds,  i.  167,  168,  and 
notes— elected  emperor  of  Germany,  ii. 
69— his  ancestry,  ib.,  note^. 
Conrad  III.  joins  in  the  second  crusade, 
1.  49_clected  emperor  of  Germany,  ii. 
72,73.  .    „_    ^, 

Conrad  IV.,  accession  of,  i.  3h— his 
struggles  for  dominion  in  Italy,  and 
death,  i&  —his  difilculties  in  Germany, 

ii.  76. 

Conradin  (son  of  Conrad  IV.)  attempts 
to  regain  his  inheritance,  i.  391— put 
to  death  by  Charles  of  Anjou,  392. 

Constance,  council  of.     See  Couucil. 

Constance,  treaty  of,  i.  364. 

Constantino  V.  dethroned  by  his  mother, 

i.  127. 
Constantinople,  advantageous  position 
of,  ii.  122— its  resisUnce  to  the  Moslem 
assaults,  123— its  capture  by  the  Lat- 
ins, 126 — it«<  magnificence  and  popu- 
lousness,  128.  127— Vandalism  cf  its 
conquerors,  127— its  recapture  by  the 
•Gnjeks,  128— besieged  by  Biyazet,  129, 


and  by  Amurath,  132— attacked  by 
Mahomet  11..  t6.— its  fall,  ib.,  133— 
nnrealized    schemes    for  its  recovery, 

1^.  135.  „       „     ,.  ,. 

Constitution  of  England.    See  EngUsh 

Constitution. 
Cordova  taken  from  the  Moors,  li.  ID- 
its  extent  and  we.alth,  ib  ,  note". 
Corn.     See  Agriculture.  Trade. 
Cortes  of  Castile,  original  composition 
of    the,    ii.  25— dwindling    down    of 
their  numbers.  26— their  remonstranco 
agiiinst  corruption,  27— spiritual  and 
temporal  nobility,  27,  28,  and  notes- 
control  of  the  Cortes  over  the  taxes, 
29   30— their  resolute  defence  of  their 
right.  31— their  control  over  expendi- 
ture,   »6.— its    active    exercise,    32-- 
their  forms  of    procedure,   33— their 
legislative  rights,  and  attempted  limi- 
tations thereon  by  the  kings,  33-3t>-- 
their  right  to  a  voice  in  the  disposal  of 
the   crown.    37.  38-position   of   the 
clergy  therein,  iii.  103,  note. 
Corvinus    (Matthias)    elected    king    of 
Hungary,    ii.   104— his   patronage  of 
literature.  105  and  note  i. 
Council  of  B;isle,  enmity  of  the,  towards 
the  papal  court,  ii.  234,  235— reforms 
eBi^cted  by  it,  236  and  note— its  indis- 
cretions, ib.  and  237,  notes  ^ -. 
Council  of  Constance  condemns    John 
IIuss  and  Jerome    of   Prague    to  be 
burned,  ii.  101— deposes  John  XXIII., 
231— preponderance  of   Italian  inter- 
ests  therein,  233— French    opposition 
to  the  English  deputies,  ib.,  note. — 
tactics  of  the  cardinals,  224— national 
divisions  in  the  council,  /6.— its  breach 
of  faith  relative  to  Uuss  and  Jerome 
canvassed,  237  and  note. 
Council  of  Frankfort  convoked  by  Saint 
Boniface,  ii.   159— its   importance   In 
papal  history,  ib. 
Council  of  Lyons,  i.  377  ;  h.  <6. 
Council  of  Pavia,  ii.  234. 
Council  of  Pisa,  proceedings  at  the,  U. 

231. 

Cours  plenieres,  character  of  the.  I.  217. 

Courtney  (archbishop),  despoUed  of  his 
temporalities,  iii.  66. 

Crecy,  battle  of,  i.  G4. 

Crescentius  put  to  death  by  Otho  ill., 
i.  847  and  note. 

Crusades,  origin  of  the,  i.  34*— energetic 
appeals  of  Peter  the  Uermit,  4fr— 
inducements  offered  to  those  who 
joined  in  them,  47— crimes  and  mis- 
eries attendant  on  them,  48— results 
of  the  first  crusade,  49— .second  cru- 
sade, i6.— its  failure,  ib.  and  notes-- 
origin  of  the  third  crusade.  61— its 
famous  commanders  and  Inconclusive 
results,  i6.— crusades  of  St,  Louis  and 


CTPKIAK. 


XNGLANO. 


their  miserable  ending,  52  and  note— 
cause  of  the  cessation  of  crusades,  iii. 
289— their  demoralizing  influence,  291. 
Cyprian's  views  relative  to  church  gov- 
ernment, ii.  153,  note  i— further  ob- 
servations thereon,  263,  254. 

Dagobert,  I  ,  insignificance  of  the  .succes- 
sors of,  i.  20— nature  of  the  authority 
exercised  by  him,  124— progress  of  the 
art.<  in  his  reign,  126. 

Digobert  II.,  name  of,  how  restored  to 
history,  i.  117. 

Damastus,  degeneracy  of  the  khalifa  of, 

Dai;«'s,  England  first  infested  by  the. 
i.  33.  ' 

Dante  Aliglucri  expelled  from  Florence, 
i.  387— his  birth,  iii.  419— style  of 
his  Vitii  Nuova,  ib.,  norc— charac- 
teristics of  his  great  poem.  420,  421— 
entliusiasm  which  attended  its  oub- 
liciition.  421. 
Dauphjne  annexed  to  the  French  crown, 

i.  107— its  origin,  ib..  note  2. 
Defiance,  institution  of  the  right  of.  ii. 

94 — its  abolition.  95. 
De  la  M.ire  (IN^ter),  opposes  the  duke  of 
Lancaster,    iii.     56— conduct    of    the 
eiti/x>ns   on    his   imprisonment,  67— 
elected  speaker  of  the  commons,  68. 
Delia  Bella  (Oiano  ,  improves   the  Flo- 
rentine  constitution,    i.    408— driven 
into  exile,  409. 
Derby  (eari  of).    See  Bolingbroke. 
Diet.    See  Council. 

Diet  of  Worms,  important  changes  ef- 
fected by    the,  ii.  93— abolishes    the 
right  of  defiance,  95— establishes  the 
imperial  chamber,  96-98. 
Domesday  Book,  origin  of  the  term,  iii. 

342,  «f»/«i.  ' 

Domestic  life  in  the  middle  ages,  iii.  323- 
326— income  and  style  of  living,  349. 
Dou;fla8  (earl  of)  aids  Charles  VII.,  i.  86. 
Duelling,  introduction  of  the  practice  of, 
iii.  279and  Mo/ci.  ' 

Du  Guesclin  (Bertrand),  proceeds  to 
Castile,  1.  67— his  character,  73— he 
icrves  against  Peter  the  cruel,  ii.  20 
— Is  taken  prisoner,  ib. 
Dunstan  and  Odo,  and  their  treatment 
of  tdwy  and  Elgiva.  ii.  163— elucida- 
tory remarks  relative  thereto,  250-263. 

Eftri.  origin  of  the  title  of,  ii.  260,  note  2. 
i'm   no'vy?"  °*"  «"Pf«nie  power  by, 

Bcielin  di  Uomano,  tyrannic  exercise  of 
power  by,  i.  374— pretexts  to  which  his 
Infamous  cruelty  gave  birth,  note^— 

Eccle:.i  istical  jurisdiction.  See  Church, 
Clergy,  Pupal  Power. 


Edessa,  extent  of  the  principality  of  i 
49  and  notei.  '    ' 

Edward  the  Confessor,  popularity  of  the 

laws  of.  ii.  306.  331. 
Edward  I.  offends  Philip  IV.  of  France, 
i.  64  and  note—h\s  brother  JJdmund 
outwitted  by  Philip,  ib.—he  curbs  the 
power  of  the  clergy,  ii.  314— his  ty- 
ranny  towards  them,  217— his  reign  a 
constitutional  epoch,  ill.  5— his  de- 
spotic tendencies,  6— he  confirms  the 
charters.  7  and  note  2. 
Edward  II,   marries  Isabel  of  France  i 

66— he  yields  to  the  pope,  ii.  227.      ' 
Edward  III.   lays  claim  to  the  French 
throne,    i.    69— its    injustice   shown, 
tb.  and  no^e— his  policy  prior  to  resort- 
ing to  arms,  60— his  chances  of  success, 
61— attempt  of  the  pope  to   dissuade 
him  from  the  attempt,  ib.,  note— prin. 
cipal  features  in  his  character,  62— ex 
tent  of  his  resources,  63,  64,  and  notes 
—excellence  of  his  armies.  64  and  note 
—his  acquisition  after  the  battles  of 
^rPi^y^,*"*^  Poitiers,  65-his    alliance 
with  Charies  the  Bad,  66— conditions 
of  the  peace  of  Bretigni,  68— his  stip- 
ulation relative  to  Aquitiine,  71  and 
l^?^i!^~^'^^  reverses  and  their  r-auses, 
n,  72,  and  notes— his  opposition  to  the 
pope,  ii.  227— progress  of  parliament 
under   him,  iii.  43— his  attempts   at 
encroachment,    45-47— ascendency    of 
Ijincaster  and  Alice  Perrers,  over  him 
55— ordinance    against  Alice,  66— re- 
peal thereof.  57— reviv.al  of  the  prose- 
cution against  her,  58  and  note  i— hi« 
debts  to  Italian  bankers,  321. 
Edward   the  Black  Prince,  character  of, 
1.    62— his    victory  at   Poitiers,   64— 
created  prince  of  Aquitaine,  71— his 
impolitic  conduct    in  Guienne,   72— 
summoned  before  the  peers  of  France 
ib.  and  nofe  a— machinations   relative 
to  his  heir,   iii,    55    and    notei—hia 
jealousy  of  the  duke  of  Lancaster,  66— 
his  death,  67. 
Edward   IV.    accepts   a    pension    from 
Louis  XI.,  i,  96— his  milit^iry  force,  ib.^ 
norei — Louis's   reasons    for  declining 
a  visit  from  him,  97— his  accession  to 
the  throne,  iii.  188— his  inexcusable 
barbarities,     189— Popularity    of    his 
government,  190— his  system  of  benev- 
olences, 191. 
Edwy  and  Elgiva.     See  Dunstan. 
England,  first  infested  by  the  Danes,  I. 
88— its  resources  under  Edward  III.,  63, 
64— causes   of  the  success  of  its  ar- 
mies, 65,  86— high  p.ayment  to  its  men- 
at-arms,  85,  note  2— discomfiture  of  its 
troops  by  Joan  of  Arc,  88— impolicy 
touching  its  relations  with  France,  90 
—deprived  of  its   French  possessions 


r 


468 


INDEX. 


S9QUSH. 


fnrDAif 


by  Charles  VTT.,  ib.—ita  obsequious- 
ness to  the  hierarchy,  ii.  153— its  op- 
position to  ecclesiastical  jurisdiction, 
212-214— its  protest  ajrainst  the  exac- 
tions of  the  church,  227  and  notes- 
its  fliiare  in  the  council  of  Constance, 
232  and  note- — enactment  of  the  statute 
of  praemunire,  238— effect  of  Wiclirs 
principles,  239— profjress  of  the  coun- 
try under  the  Anglo-Saxons  [see  An- 
glo-Saxons]—its  state  at  the  period  of 
the  Norman  confiuest,  286,  287— fruit- 
less resistance  of  its  people  to  Norman 
rule,  288  and  no/?*— expulsion  of  its 
prelates  and  maltreatment  of  its  no- 
bles, 289  and  noff— attempted  suppres- 
sion of  its  language,  290  and  note— 
wholesale  spoliation  of  property,  292— 
abject  condition  of  Englisli  occupiers, 
292.  293— vastness  of  the  Norman  es- 
tates   explained,    293, 294— conquered 
England  compared    with    conquered 
Gaul,  294— forest  devastations  and  for- 
est laws,  295  and  nor<?5— depopulation  of 
the  towns,  296— establishment  of  feu- 
dal customs,  297— preservation  of  the 
public  peace,  298— difference  between 
feudalism  in  England  and  in  France, 
299,  300— hatred  by  the  English  of  the 
Normans.  301 — oppressions  and  exac- 
tions of  the  Norman  government,  301, 
303— nature  of  the  taxes  then  levied, 
303,  304— laws  and    charters  of    the 
Norman  kings,  305,  306— banishment 
of  Longchamp  by  the  barons,  307,  308 
—establishment  of  Magna  Charta,  808 
—difficulty  of  overrating  its  value,  309 
—outline  of  its  provisions.  309,  310— 
confirmation  thereof  by  Henry  III., 
811— constitutional  struggles  between 
him  and  his  barons.  313,  316— limita- 
tions on  the   royal   prerogative,  316, 
817,  and  nor«— institution  of  the  vari- 
ous courts  of  law,  317,  319— origin  of 
the  common  law,  320,  322— character 
and  defects  of  the  English  law,  322, 324 
—hereditary  right  of  the  crown  estab- 
lished, 324,  326— legiil  position  of  the 
gentry,  326,  328— causes  of  civil  equal- 
ity, 328,  331— character  of  its  govern- 
ment, iii.  141— prerogatives  of  its  kings, 
141-144— mitigation  of  the  forest  laws, 
144  and  7io^#— jurisdiction  of  its  consta- 
ble and  marshal,  145, 146,  and  notes— 
spirit  of  independence  exhibited  in  mc- 
diasval  ballads,  252,  253— its  customs 
farmed  by  Italian  bankers,  321,  note'-i. 
English  constitution,  character  of  the, 
iii.  146— Sir  John  Fortescue's  doctrine, 
147, 149— Hume's  erroneous  views  re- 
garding it,  149,  152— causes  tending  to 
its  formation,  152— effect  of  the  lo^s  of 
Normandy,  154— njal  source  of  English 
freedom,  155— principles  involved    in 


the  relationship  bet%veon  lords  and 
their  Tasaals,  t6.— right  of  distress  on 
the  king's  property.  157  — feudal 
sources  of  constitutional  liberty,  167 
— intiuence  of  the  nobility,  158— salu- 
tary provisions  of  Edward  1.,  162- na- 
tureandgTadualextiuctionofvJllenage. 
164,  174— instances  of  regencies  and 
principles  whereon  they  are  founded, 
175,  !V1— l^ctrine  of  prerf-gativo,  244, 
246.  See  Anglo-Saxons,  England, 
Feudal  System,  I'arliament. 

Erigena.    See  Scotus  (John). 

Ethelwolf,  grant  of,  relative  to  tithes,  ii. 
142,  no/?  1,249. 

Eudes  elected  king  by  the  Franks,  i   133 
—his  qualifications  for  the  dignity,  i6. 

Eudes  (duke  of  Burgundy).    See  Bur- 
gundy. 

Eudon  signally  defeats  the  Saracens,  1. 
121— receives  aid  from  Charles  Martel, 

122. 

Eugenius  IV.  (cardinal  Julian)  advises 
Uladislaus  to  break  faith  with  Amu- 
rath,  ii.  103— its  fatal  consequences.  104 
—other  instances  of  his  perfidy,  201, 
note  1.— his  contests  with  the  councils, 
234— his  deposition  by  the  council  of 
Basle,  235  and  nole^. 

Euric,  harsh  treatment  of  his  catholic 
subjects  by,  i.  17,  note^. 


False  Decretals.    See  Isidore. 

Famines  in  the  midillo  ages,  frequency 
and  extreme  severity  of,  i.  317. 

Felix  V.  (pope),  election  and  supersession 
of,  ii.  235. 

Ferdinand  confirmed  in  his  succession  to 
the  crown  of  Naples,  1.  473— attempt 
of  John  of  Calabria,  to  oust  him,  ib. 
—his  odious  rule,  482  and  note. 

Ferdinand  I.  of  Arngon,  independence  of 
the  Catalans  towards,  ii.  59. 

Ferdinand  II.  of  Aragon  marries  Isabella 
of  Castile,  ii.  23— they  succeed  to  the 
Castilian  throne,  t6.— Ferdinand  in- 
vested with  the  crown  of  Aragon,  45— 
arrangement  of  the  united  govern- 
ments, 60,  61— conquest  of  Qranada, 
61,  62. 

Ferdinand  III.  of  Castile,  capture  of  Cor- 
dova bv,  ii.  15. 

Ferdinand  IV.  of  Castile,  preralenco  of 
civil  disscn.sions  in  the  reign  of,  ii.  17. 
18— his  gross  violation  of  justice  and 
remarkable  death,  39. 

Feudal  system,  rise  of  the,  i.  148— nature 
of  allodial  and  salic  lands.  150-152  and 
no/e;— distinction  of  laws,  153,  154 — 
origin  of  nobility,  159,  161,  188— fiscal 
lands  or  benefices,  their  nature,  condi- 
tion, and  extent,  161. 162— introduction 
of  subinfeudation,  163— origin  of  feu- 
dal tenures,  164— custom  of  personal 


INDEX. 


469 


VEUDS. 


TKkVCt. 


commendation,  165— its  character,  ib., 
166— edict  of  Conrad  II.,  167, 108,  and 
iioiM— principle  of   a  feudal  relation, 
168— rights  and  duties  of  vassals,  ib..— 
ceremonies  of  homage,  fealty,  and  in- 
vestiture, 170— obligations  of  the  vas- 
sal to  his  lord,  171— military   service, 
Its  conditions  and  extent,  172  and  notes 
-^feudal    incidents  :   origin  of  reliefs, 
173,  174 — of  fines  on  alienation,  174— 
the  custom  of  frcrage  in  France,  176 
— escheats  and  forfeitures,  177 — objects 
for  which  aids  were  levied,  i6.— limita- 
tions thereof  by  »Iagna  Charta,  178— 
Institution   of   wardships,   ib.  —  their 
vexatious  character  in  later  times,  179 
— extortionate   and    oppressive     pnic- 
tlces  relative  to  marriages,  179,  ISO- 
Introduction  of  Improper  feuds,  181— 
fiefs  of  office,  their  nature  and  variety, 
181,  182,  and  «o/c5— feudal  law-books, 
182  —  the    Milanese    collection,   183— 
difference  between  that  and  the  French 
and    English    systems,   183,   184— the 
feudal    system   not  of    Roman  origin, 
185.  186— localities   over  which  it  ex- 
tended, 187. 188 — privileges  of  nobility, 
191.  193— difference  between  a  French 
roturier  and  an  English  commoner^  191, 
note  1 — condition  of   the  clergy,  194, 
195— of  the  cKosses  below  the  gentry, 
195— assemblies  of  the  barons,  216— 
the  cours    plenieres,  217,  242— legis- 
lative   and  judicial    assemblies    [see 
Legislation,    States-General,    Justice] 
—decline  of  the  feudal  system,  243— 
its  causes  :  increase  of  the  domains  of 
the  crown,  247,  218— rise  of  the  char- 
tered towns,  249,  254,   [see  Towns]— 
commutation  of  military  service,  255, 
[see  Militiry  Systems]— decay  of  feudal 
principles,  2'31— infiuence  of  feudalism 
upon  the  institutions  of  England  and 
France.  262— civil  freedom    promoted 
by  it,  263— Its  tendency  to  exalt  war- 
like habits,  263,  264-its  value  as  an 
element  of  discipline.  264— and  as  pro- 
ducing .sentiments  of  loyalty,  264,  265 
—  the  miaifJittm,  308   ;/»/*- essentials 
of  the  feudal  sy.steni,  309— its  princl- 
pies  aristocratic  and  exclusive,  311— 
Ouizot's  description  of  a  feudal  castle, 
812— laxity  of  feudal  tenures  In  Italy, 
352— question   of    their    existence    in 
England  prior  to  the  Conquest,  ii.  277, 
^5— feudalism    under    the   Normans, 
297— iunov.ition    introduced    by   Wil- 
liam  I.,  298— difference  between    the 
feudal  policy  of  Kngland  and  France, 
299,  301- tenure  of  folcland  and  boc- 
land,  383, 336— abuses  of  feudal  rights, 
ill.  144. 
feuds,  nature  of,  and  derivation  of  the 
word,  i.  306 


Fiefs.    See  Benefices,  Feuaal  System. 
Field   of   March  (or  Champ   de  Mara), 
origin  of  the  a.ssemblles  so  termed,  i 
210  — their  character,  210,  211  — not 
attended  by  the  Roman  inhabitants  of 
Gaul,  275— how  often  held,  299. 
Field  Sports.    See  Sports. 
Fines,  extent  and  singularity  of,  under 

the  Anglo-Norman  kings.  Ii.  :  03. 
Fire-arms.     See  Military  Systems. 
Fiscal  lands.     See  Benefices. 
Flanders,  fraudulent  conduct  of  Philip 
IV.  towards  the  count  of,  i.  54— success- 
ful resistance  of  its  people,  55— large 
capture  of  gilt  spurs  by  them,  ib.,  nole^ 
— their  commerce  with  England,  64 — 
their  rebellion  against  count  Ivouis,  75, 
76,  and  notes— their  insubordination. 
99— their  resistance   to  taxation,   100 
and  notr—thtir  woollen  manufacture, 
iii.  301,  302— their  settlement  in  Eng- 
land,  303,   note-^— its    policy    relative 
thereto,  304  and  note  *.    See  Trade. 
Florence,  curtiilment   of  the  power  of, 
by  Frederic  Barbarossa,  I.  404 — e.xclu- 
sion  of  the  Ghibelins   from  offices  of 
trust,   ib. — Dante's   simile   relative  to 
its  unsettled  state,  f6.— corporations  of 
the  citizens,  405— its  magistracy,  ib. — 
curious  mode  of  election,  406— thecon- 
siglio  di  popolo,  407— defiance  of  law 
by  the  nobility.  408— Giano  della  Bella 
reduces  them  to  obedience,  408,  409— 
rise  of  the  plebeian  aristocracy^  410— 
Walter  dc  Brienne  invested  with  extra- 
ordinary powers,  411— his  tyranny  and 
excesses,    412— his    overthrow,    413— 
singular    ordinances  relative    to    the 
nobles,  413— machinations  of  the  Guel& 
and    persecutions    of    the    Ghibelins, 
414-416  and  note  i— prostration  of  the 
Guelfs,  417— Insurrection  of  the  Ciompi 
and  elevation  of  Lando,  418,  419— his 
judicious  administration,  419— restora- 
tion of   the  Guelfs,  420— comparative 
security  of  the  Florentines,  421— their 
territorial  acquisitions,  revenue,  popu- 
lation, &c.,  422,  423,  and  notes— Visa, 
bought    by    them,  426— further    dis- 
quietudes  in  their  government.  475— 
rise  of  the  Medici  [see  Medici]— first 
Florentine  voyage  to  Alexandria,  478 
and  note — Florentine  bankers  and  their 
transactions,  iii.  322  and  notes. 
Folcland,  nature  of,  ii.  333. 
Foreigners  Invested  with  power  in  Italian 

states,  I.  380,  398,  402,  407,  429. 
Forest  Laws  of  the  Anglo-Norman  kings, 
ii.  295— mitigation  of  their  severity,  iii. 
144— punishments  inflicted,  295. 
Fortescue    (Sir  John),  on   the    English 

constitution,  iii.  147. 
France,  policy  observed  In  the  territorial 
division  of,  i.  18,  note  «- insignificance 


II 


,1! 


i 


470 


INDEX. 


INDEX. 


471 


FRANC05IA. 


cdnroA. 


of  its  early  monarchs,  20  and  note  ^ — 
loss  of  the  English  possessions  in,  39 
— ^increase  of  the  French  domains,  5-3- 
66— its  state  at  the  commencement 
of  hostilities  by  Ed  ward  III.,  61— its 
condition  after  the  battle  of  Poitiers. 
65 — assembly  of  the  States-General,  Go 
—desolation  of  the  kingdom  by  fam- 
ine, 67  and  «o/e— ravaged  by  ban- 
ditti, ib. — the  Jacquerie  insurrection, 
68  and  note '—state  of  the  country 
under  Charles  V.  and  VI.,  74-75-— 
under  Charles  VII.,  85-92— consolida- 
tion of  its  dominions,  107— its  his- 
torians. 108,  notf  1 — its  deplorable  state 
under  Charles  the  IJjild,  139— its  pro- 
vincial government  under  the  Mero- 
vingian kings,  155 — succession  to  its 
monarchy,  15G,  and  214,  note »— its 
progress  from  weakness  to  strength, 
202— revenue  of  its  kings,  how  raised, 
206— its  coinage,  208,  209— taxation, 
209,  210 — its  constitution  never  &  free 
one,  225,  note  i — designs  of  its  kings 
upon  Naples,  481  et.  seq. 
Pranconia,  rise  of  the  House  of,  ii.  69— 

its  extinction,  72. 
Frankfort,  council  of.    See  Council. 
Franks,  territories  occupied  by  the,  i.l6 
and  note'i—iXxcxx  probable  origin,  Note 
II.  110.  Ill— their  position  under  Pe- 
pin, 122, 123— their  promise  to  Pepin, 
131,  156— character   of  their  church 
dignitaries,    152,    note'^ — increase    of 
the    power    of    their    kings,     157 — 
serfdom  and  villcnage  amongst  them, 
196,  199— extent  to  which  they   par- 
ticipated in  legislation,  211  and  note 
— origin  of  the  Ripuarian  Franks  and 
Salian    Franks,    271— their    numbers 
during  the  reign  of  Clovis,  283,  284— 
presumed    infrequency   of   marriages 
between  them  and  the  Romans,  288 
— extent  of  power  possessed  by  their 
kings,  292-300. 
Fredegonde,  queen.    See  Chilperic. 
Frederic  I.  (Frederic  Barbarossa),  third 
crusade    undertaken  by,  i.   51— title 
conferred  by  him  on  the   archbishop 
of  Lyons,  55^ommencement  of  his 
career  in  Italy,  357— he  besieges  Milan, 
858— subjugation  and  second  rise  of  its 
citizens,  359— destruction  of  their  city, 
880— league  of  Lombardy  against  him, 
t6.— his  defeat  and  flight,  362— peace 
of  Constance,  ib. — his  policy  relative 
to  Sicily,  334— his  response  to  Roman 
oratory,  400  and  note — his  accession  to 
the  German  throne,  ii.  73— Henry  the 
lion's   ingratitude    towards    him,  74 
and  note- — he  institutes  the  law  of 
defiance,  94 — his  forced  submission  to 
pope  Adrian  IV.,  195— his  limitation 
on  the  acquisition  of  property  by  the 


clergy,  216— bis  intellectual  acqulrec 
ments,  iii.  271,  no/e~his  patronage  of 
learning,  393. 

Frederic  II.,  position  of,  at  his  accession, 
i.  371 — cause  of  his  excommunication 
by  Gregory  IX.,  372--rancor  of  papal 
writers  against  him,  i7>.,  note^ — result 
of  his  c»usade,  373— his  wars  with  the 
Lombards,  tb.— his  successes  and  do- 
feats,  376— animosity  of  the  popi-s  to- 
wards him,  376,  377— sentence  of  the 
council  of  Lyons  against  him.  377— his 
accession  to  the  German  throne,  ii.  93 
— his  deposition.  94— ho  restrains  tho 
right  of  defiance,  93 — his  imperial  tri- 
bunal, 97— his  poetry,  iii.  418. 

Frederic  III.  of  Germany,  character  of 
the  reign  of,  ii.  88  and  no^r— his  signi- 
ficant motto,  88,  nore^i— objects  of  his 
diets,  95,  96— he  betrays  tho  empire 
to  the  pope,  240. 

Freemasonry,  and  its  connection  with 
.architecture,  iii.  339,  note  ». 

Freemen,  existence  of.  prior  to  tho  tenth 
century,  i.  313— allodial  proprietors 
evidently  of  this  class,  314 — other  free- 
men, ib  —consequence  of  their  mar- 
riage with  serf*,  322. 

Fregosi  and  Adorni  factions,  i.  475. 

Froissart,  value  of  tho  Chronicles  of,  i. 
75,  note  i, 

Fulk's  saucy  reproof  of  Louis  IV.,  iii. 
271,  note  *. 

Gandia  (duke  of),  claims  tho  throne  of 
Aragon,  ii.  43— his  death  and  fiilure  of 
his  son,  44,  note  ». 
Gaul  invaded  by  Clovis,  i.  16— condition 
of  its  Roman   natives,   1.52— privile-ics 
of  the  "  conviva  regis,"  153,  note  »,  274, 
and  note^ — retention  of  their  own  laws 
bv     the    Romans,    274— their     cities, 
278— their  subjection  to  taxation,  280 
— their  accession   to   higli    offices .  284 
—their    right    to  adopt  tlio  laws    of 
the  Franks,  285,  286— presumed  infre- 
quency of  marriage  between   the   two 
races,  288. 
Genoa,  early  history  of,  i.  426— her  wars 
with  Pisa  and  Venice,  42G.  427— victory 
of  her  fleet  over  Pisani,  423— insoleuce 
of  her  admiral  towards  the  Venetian 
ambassadors,  429— her  subsequent  re- 
verses,   429,    430— surrender    of    her 
forces  to  Venice,  430 — decline  of  her 
power,  431 — her  government  and  its 
various    changes,    ib. — dissensions  of 
the   Guelfs    and    Ghibelins,   432— her 
first  doge,   433— frequent   revolutions 
of  her  citizens,  434— the  Adorni  aiid 
Fregosi  factions.  475 — commen*ial  deal- 
ings of  the  Genoese,  iii.  .311— their  pos- 
ition     in    Constantinople.     312— their 
manufactures,  313— their  mouoy  trans- 


QERMART. 


QVELrS. 


actions,  319,  322— state  security  taken 
by  their  bankers,  322. 

Germany  conquered  by  Charlemagne,  i. 
23— held  by  Liouis  his  grandson,  29 — 
passes  away  from  his  family,  80 — its 
Hungarian  assailants,  32 — its  first 
apostlfs,  126— political  state  of  ancient 
Germany.  148— mode  in  which  kings 
were  chosen,  149— lands  in  conquered 
provinces,  how  divided,  150 — customs 
respecting  alodial  and  salic  lands,  152 
and  Mores— sup<^rior  position  of  its 
rulers  as  compared  with  those  of 
France,  202— causes  of  the  reversal  of 
this  stjite  of  things,  «7>. — degree  of 
reliance  due  to  Tacitus's  accounts  of 
German  institutions,  266-268 — char- 
acter of  its  governments.  293— limited 
power  of  Its  kings,  293-295— its  posi- 
tion at  the  death  of  Charles  the  Fat,  ii. 
67— election  of  its  emperors,  in  whom 
vested,  77-80 — partitions  of  territory 
amongst  its  princes,  83.  84 — import- 
ance of  its  free  cities,  89— privileges 
conferred  on  them.  ib. — their  warfare 
with  the  nobles.  90— the  sanctuary  of 
the  palisades,  91 — league  of  the  cities, 
ib. — polity  of  the  principalities,  92 — 
exti^nt  of  the  imperial  domains,  ib. — 
their  gradual  alienation  by  the  em- 
perors, ib. — the  diet  of  Worms  and  its 
results,  93,  97— limits  of  the  German 
empire  ut  various  periods,  99 — absence 
of  towns,  iii.  298— preeminence  of  its 
robber  chief-i,  298.    See  Diet,  Justice. 

Ghent,  pcpulousness  and  impregnability 
of.  I.  99,  100 — policy  of  Its  people  rel- 
ative to  taxation,  100,  note — its  trading 
eminence,  iii.  8(^— its  houses  and  pop- 
ulation, 302,  not^^. 

Ghibelins,  origin  of  the  word,  ii.  73.  See 
Guelfs. 

Giovanni  di  VIcenza,  singular  success  of 
the  exhortjitions  of,  i.  388— result  of 
his  attempts  at  sovereignty,  389. 

Gloucester,  duke  of  [temp.  Richard  II.), 
speaks  for  tho  parliament,  iii.  67,  note  t 
— made  lord  appellant,  71— reinstated 
in  the  council,  72 — his  animosity  tow- 
ards the  duke  of  Lancaster.  73-75— his 
seizure  by  the  kitJg,  76— his  murder 
and  posthumous  attainder,  ih. 

Godfrey  of  Uoulo.;ne,  eastern  domains 
a*»signed  to,  i.  49— liis  re.asons  for  re- 
fusing the  title  of  king,  ib.,  note- — his 
feats  of  strength,  ib.,  nnle^. 

Granada,  fertility  and  importance  of,  ii. 
62— its  unavailing  resibtanco  to  Fer- 
dinand, ib. 

Gratian,  ch.aractcr  of  the  Decretum  com- 
piled by.  ii.  194. 

Greek  church,  marriage  of  priests  per- 
mitteti  by  the,  ii.  170. 

Greek  cuipire,  degeneracy  of  the,  ii.  117 


— its  theological  di-sscnsions,  ib.—w» 
vival  of  its  power,  122— tactics  of  its 
emperors,  123  and  note'^ — exploits  of 
celebrated  usurpers.  124 — results  of 
the  first  crusade,  125  —  expeditions 
of  Alexius  Comnenus,  ib. — sacking  of 
the  capital,  126,  127 — partition  of  tho 
empire,  127 — its  declining  state,  129 — 
lukewarmness  of  the  western  Chris- 
tians, 132 — fall  of  the  empire,  ib. — the 
last  of  the  Caesars,  133— Greek  anti- 
exportation  anecdote,  iii.  299,  note  *. 
See  Constantinople. 

Gregory  I.,  character  of,  ii.l56 — he  estab- 
lishes the  appellant  jurisdiction,  t6., 
note  2. 

Gregory  II.,  design  of,  for  placing  Rome 
under  Charles  Martel's  protection,  i. 
126. 

Gregory  IV.  and  V.,  submission  of,  to 
imperial  authority,  ii.  175. 

Gregory  VII.,  projection  of  the  crusades 
by,  i.  46  —  his  obligations  to  the 
countess  Matilda,  3o0 — his  ascenden- 
cy over  tho  clergy,  ii.  176,  177 — elected 
pope,  177 — his  differences  with,  and 
excommunication  of,  Henry  IV.  of 
Germany,  177,  178,  and  note  —  rigor- 
ous humiliation  imposed  by  liim  on 
Henry,  179— his  exile  and  death,  180 
— his  declaration  against  investitures, 
181 — his  illimitable  ambition  and 
arrogance,  184 — his  despotism  tow- 
ards ecclesiastics,  185 — his  arrogance 
eclipsed  by  Innocent  III.,  217. 

Gregory  IX.,  excommunications  of  Fred- 
eric II.  by,  i.  372,  .376— his  further 
designs  against  Frederic,  ib. — Decre- 
tals publishcJ  by  his  order,  ii.  194— 
his  encroachments  on  tho  Englisli 
church,  203— his  pretext  for  levying 
contributions,  206  — immense  sum  ex- 
torted by  him  from  England,  207. 

Gregory  X.,  tax  levied  on  the  church  by, 
ii.  207- 

Gregory  XI.,  reinstates  the  papal  court 
at  Rome,  ii.  228. 

Gregory  XII.  elected  and  deposed,  ii. 
230. 

Grimoald.  usurpation  of  supremo  power 
by,  i.  20. 

Grosstetc  (Robert,  bishop  of  Lincoln), 
notices  of,  ii.  206,  note  o ;  iii.  404,  note  i, 

437. 

Guarnieri  (duke),  systematic  levy  of  con- 
tributions by,  i.  452 — success  of  his 
operations,  ib. 

Guelfs  and  Ghibelins,  origin  of  the  rival 
factions  of,  i.  339 — their  German  an- 
tecedents, 370  and  note — character- 
istics of  the  two  parties,  371 — irra- 
tionality of  the  distinctions,  390— 
temporary  union  of  the  factions,  391 
—expulsion   of    the   Ghibelins   from 


w 


472 


INDEX. 


INDEX. 


473 


OTI. 


HBntT  IT. 


HENBT  V. 


ITALT. 


Florence,  392— revival  of  their  party, 
895— origin  of  the  name  Guelfs,  ii.  73. 
See  Florence,  Genoa. 

Oui  de  Lusignan,  cause  of  his  flight  from 
France,  i.  47. 

Guienne,  seized  by  Philip  IV.,  i.  54  — 
restored  to  England,  65— insurrection 
of  its  people  ag.iinst  Charles  VII.,  93 
and  note  — suspicious  death  of  Charles 
duke  of,  93  and  note. 

Guiscard  (Robert),  territorial  conquests 
of,  i.  .330 — he  takes  Leo  IX.  prisoner, 
351 — his  English  opponents  at  Con- 
stantinople, ii.  290. 

Guiscard  ( Roger),  conquers  Sicily,  i.  350 

—  declared  king  by  Innocent  II.,  351 

—  he  shelters  Gregory  VII..  ii.  180  — 
he  subjugates  Anialfi,  iii.  311 — he  in- 
troduces silk  manutictures  at  Paler- 
mo, 313. 

Gunpowder.    See  Military  Systems. 

Hair,  length  of,  a  mark  of  nobility,  i.  301 
— Childebert's  proposal  relative  to 
Clodomir's  children,  302,  note. 

Hanse  towns,  confederacy  of  the,  iii. 
507. 

Haroun  Alraschid,  magnificence  of  the 
rule  of,  ii.  119 — African  principalities 
in  his  reign,  120. 

Hastings,  lord  (temp.  Edward  IV.),  re- 
ceives bribes  from  Louis  XL,  1.97 — hw 
reason  for  refusing  to  give  receipts  for 
the  same,  i6.,  7iote  -J. 

Hawkwood  (Sir  John),  military  renown 
acquired  by,  i.  453— gratitude  of  the 
Florentines  towards  him,  ib. — his  skill 
as  a  general,  454. 

Haxey  (Thomas),  surrendered  by  the 
commons  to  the  vengeance  of  Richard 
II.,  iii.  75,  99 — important  principles 
involved  in  his  case,  75,  notes. 

Henry  II.  of  Castile  rebels  against  Peter 
the  Cruel,  ii.  20 — his  defeat  and  sub- 
sequent victory,  ib. — his  vow  to  pre- 
serve justice,  40. 

Henry  III.  of  Castile  marries  John  of 
Gaunt's  daughter,  ii.  20. 

Henry  IV.  of  Castile,  despicable  charac- 
ter of,  ii.  22— deposed  by  a  conspira- 
cy of  nobles,  ib. — futile  efforts  of  his 
daughter  to  succeed  him,  23 — contests 
after  his  death,  ib. — his  reproof  by  the 
Cortez  of  Ocana,  37. 

Henry  I.  of  England,  extortions  on  the 
church  by,  ii.  208. 

Henry  II.  marries  the  repudiated  wife  of 
Louis  VII.,  i.  38— opposes  the  tyr- 
anny of  the  church  of  Rome,  ii.  212. — 
cause  of  his  dispute  with  Thomas  i. 
Becket,  213. 

Henry  III.  allows  Italian  priests  in  Eng- 
lish benefices,  ii.  203— abets  papal 
taxation  on  the  clergy,  207 — his  sub- 


missiveness,  215 — provisions  contained 
in  his  charter,  309,  310— worthlessuess 
of  his  character,  311 — his  perjuries, 
312 — his  pecuniary  difficulties  and 
extortions,  313 — his  expensive  foreign 
projccL«i,  3l4^Klemand3  of  the  pope, 
and  resolute  conduct  of  the  barons, 
315 — his  quarrel  with  the  earl  of  Pem- 
broke, iii.  157. 
Henry  IV.,  policy  and  views  of,  towards 
France,  i.  74,  82— circumstances  at- 
tending his  succession,  iii.  80  —  in- 
validity of  his  hereditary  title,  80— 
his  tactics  towards  the  parliament,  81 
— aid  granted  to  him  in  1400,  83— 
policy  of  the  commons  towards  him, 
81,  85 — limitations  imposed  on    him, 

90,  91 — he  comes  to  terms  with  them, 

91.  See  Bolingbroke. 

Henry  V.,  his  exorbitant  demands 
on  proposing  to  marry  Catharine  of 
France,  i.  83  and  note  •  —invasion  of 
France  by,  ib.  and  note'-^ — his  nego- 
tiations with  the  duke  of  Burgundy, 
83— his  marriage  and  death,  84— life 
subsidies  granted  to  him,  iii.  85— im- 
probability of  his  alleged  dissolute- 
ness, 93— his  claims  on  popular  affec- 
tion, ib. — his  clemency  to  the  earl  of 
March,  195. 

Henry  VI.,  parliamentary  policy  during 
the  minority  of,  iii.  95 — unpopularity 
of  his  marriage,  96 — his  conduct  on 
Suffolk's  impeachment,  96 — state  of 
the  kingdom  during  his  minority,  175 
— his  imbecility,  ib. — solemnities  ob- 
served in  nominating  a  regency  during 
his  infancy,  178,  181 — provisions  in 
consequence  of  his  mental  infirmities, 
181, 185. 

Henry  VII.,  conduct  of,  towards  the 
memory  of  his  predecessors,  iii.  190 
and  note  3. 

Henry  I.  of  France,  alleged  large  army 
levied  by,  i.  36,  note  '—extent  of  au- 
thority exercised  by  him,  141. 

Henry  I.,  the  Fowler,  elected  emperor 
of  Germany,  ii.  68 — his  scheme  for  im- 
proving his  territories,  ib.  note  2. 

Henry  II.,  of  Bavaria,  elected  emperor 
of  Germany,  ii.  68. 

Henry  III.  of  Germany,  imperial  influ- 
ence extended  by,  ii.  69— instances  of 
his  exercise  of  absolute  power,  70, 
93 — his  judicious  nomination  of  popes, 
175. 

Henry  IV.  of  Germany,  primary  cause 
of  the  misfortunes  of,  ii.  70 — con- 
spiracy against  him  during  his  infan- 
cy, 70,  note'^ — his  abduction  by  Han- 
no.,  ib. — his  e.xcommunication  and 
its  const  juences,  71  and  note  " — his 
remains  insulted  by  Rome.  72 — zeal 
of  the  cities  in  his  cause,  89 — his  con- 


tests with  Gregory  VII.,  177, 178— his 
humiliation  by  Gregory,  178 — the  ta- 
bles turned,  179 — animosity  of  Greg- 
ory's successors  towards  him,  179, 
180. 

Henry  V.  of  Germany,  accession  and 
death  of,  ii.  72 — privilege  granted  by 
hiin  to  the  cities,  89— his  compromise 
with  the  popes,  180. 

Henry  VI.  of  Germany,  repudiates  ar- 
rangements between  his  predecessor 
and  the  popes,  i.  337 — production  of 
his  alleged  will.  ib. — his  ambitious  pro- 
ject, ii.  75 — his  death,  ib. 

Henry  VII.  of  Germany,  acquires  Bo- 
hemia for  his  sou,  ii.  84 — his  opposi- 
tion to  the  papal  power,  223. 

Henry  the  Troud,  ancestry  and  posses- 
sions of,  ii.  72,  73 — consequences  of  his 
disobedience  to  the  emperor's  sum- 
mons, 73. 

Henry  the  Lion  restored  to  his  birth- 
right, ii.  74— fatal  results  of  his  in- 
gratitude, ib. 

Hereditary  succession,  how  far  observed 
among  the  Fnnks,  i.  156,  note  2,  291 
— disregarded  by  the  Anglo-Saxons,  ii. 
2-59 — estjiblislimcnt  of  the  principle  in 
England,  324-326— elucidatory  note 
upon  the  subject,  401-403. 

Hereford  (earl  and  duke  of).  See  Bohun, 
Bolingbroke. 

Herewartl.  brave  resistance  of,  to  William 
the  Conqueror,  ii.  288,  note 3. 

Hilary  deposed  by  Leo  the  Great,  ii.  155, 
note  *. 

Hildebrand.    See  Gregory  VII. 

Uonorius  III.,  establishment  of  mendi- 
cant orders  by,  ii.  195 — refusal  of  his 
requests  by  France  and  England,  203. 

Hugh  the  Great  of  France,  procures  the 
election  of  Louis  IV.,  i.  132. 

Hugh  Capet.     See  Capet. 

Hungarians,  ravages  in  Europe  by  the, 
L  32— their  ferocity  towards  the  clergy, 
83,  note  i — their  conversion  to  Chris- 
tianity, ii.  102— their  wars  with  the 
Turks,  103-105. 

Hungary,  kings  and  chiefs  of.  See  An- 
drew, Corvinus,  Uunniades,  Ladislaus, 
Louis  of  Hungary,  Sigismund,  Uladis- 
laus. 

Uungerford  (Sir  Thomas),  elected  speaker, 
iii.  58. 

Hunniades  (Johu),  heroic  career  of,  ii. 
103. 104— his  death,  104. 

Hu.ss  (John),  burued  to  death,  ii.  101 — 
characteristics  ot°  his  schism  and  his 
followers,  iii.  367  and  note  2, 368. 

Innocent  III.,  persecution  of  the  Albi- 
geois  by,  i.  40— his  ambitious  policy, 
865 — his  significant  production  of  the 
will  of  U»»nry  VI.  of  Germany,  367— 


position  of  the  Italian  cities  towards 
him,  ib. — use  made  by  him  of  his 
guardianship  of  Frederic  II.,  371— in- 
crease of  temporal  authority  under 
him,  401 — his  accession  to  the  papal 
chair,  ii.  187 — extravagance  of  his 
pretensions,  188 — his  scheme  of  uni- 
versal arbitration.  189 — his  decrees 
and  interdicts,  190 — his  interference 
with  the  German  Emperors,  192— his 
claim  to  nominate  bishops,  202 — 
cause  of  his  anger  with  the  chapter  ot 
Poitiers.  203— he  levies  taxes  on  the 
clergy,  ^06 — his  pretext  for  exercising 
jurisdiction,  209— he  exempts  the 
clergy  from  criminal  process,  211 — 
his  arrogance  eclipsed  by  Boniface 
VIII.,  217. 

Innocent  IV.,  outrageous  proceedings  of, 
against  Frederic  II.,  i.  377 — his  con- 
duct towards  Frederic's  successors, 
ib. — he  quarters  Italian  priests  on 
England,  ii.  203— height  of  papal 
tyranny  during  his  pontificate,  207 — 
his  disposal  of  the  crown  of  Portugal, 
220,  note  i — anecdote  of  him,  ^6, 
note  2, 

Innocent  VI.  elected  pope,  ii.  230. 

Interdicts,  ii.  165,  246,  note  i,  and  247. 
See  Papal  Power. 

Ireland  a  mediaeval  slave  depot,  iii.  299 
and  note  K 

Irene,  dethronement  of  Constantino  V. 
by,  i.  127 — Leo  III.'s  project  of  mar- 
riage between  her  and  Charlemagne, 
ib. 

Isabel  of  Bavaria  (queen  of  Charles  VI.), 
infamous  conduct  of,  towards  her  hus- 
band, i.  78— her  hatred  of  Armagnac, 
and  its  consequences,  81— joins  in  the 
treaty  with  Henry  V.,  84. 

Isabel  of  France,  marries  Edward  II.  of 
England,  i.  56. 

Isabella  of  Ciistile.    See  Ferdinand  II. 

Isidore,  publication  of  the  Falst  Decretals 
of,  ii.  160 — their  character  and  object, 
160, 161,  and  notfi- authority  accorded 
to  them  by  Gratian,  194. 

Italy,  occupied  by  the  Ostrogoths,  i.  15 
— its  subjection  by  the  Lombards,  21, 22 
— conquests  of  Pepin  and  Charlemagne, 
22— its  king  Bernard.  27 — its  state 
at  the  end  of  the  ninth  century,  340 
— authorities  referred  to  for  its  history, 
i6.,  note — its  monarchs  Berenger  I.  and 
II.,  345  and  note  i— assumption  ot 
power  by  Otho  the  Great,  ib. — execu- 
tion of  Crescentius  by  Otho  III.,  347 — 
election  and  subsequent  troubles  of 
Ardoin,  ib. — condition  of  its  people 
under  Henry  II.,  ib. — cause  of  its  sub- 
jection to  German  princes,  3t8 — acces- 
sion of  Conrad  II.,  and  consolidation 
of  Germanic  influences.  348,  349 — its 


' 


t 


^ 


474 


INDEX. 


INDEX. 


475 


JACQUERIX. 

Greek  provinces,  349,  350 — incursions 
and  successes  of  the  Normans,  350, 352 
— progress  of  the  Lombard  citie.*,  [see 
Lombards] — accession  of  Frederic  Bar- 
barossa,  357,  (see  Frederic  I.]— ciuso 
of  the  decadence  of  It;ily,  363.  Soi— 
its  domestic  manners,  iii.  323.  325. 

Jacquerie,  insurrection  of  the,  i.  68  and 
note  '. 

James  II.  of  Aragon,  renounces  the  Si- 
cilian crown,  i.  485 — invested  with  the 
Sardinian  crown,  ii.  220,  note  i. 

Jane  of  Navarre,  treaty  entered  into  on 
behalf  of  i.  56 — betrayal  of  her  cause 
by  the  duke  of  Burgundy,  57 — she  re- 
covers Navarre,  /6.,  note  ^. 

Janizaries,  institution  of  the,  ii.  134. 

Jerome  of  Prague,  burned  to  death,  ii. 
101. 

Jerusalem,  foundation  of  the  kingdom  of, 
i.  49 — its  conquest  by  Saladin,  51 — 
restored  to  the  Christians  by  the  Sara- 
cens, 52 — oppressive  system  of  mar- 
riages there,  under  the  feudal  system, 
180— title  of  the  kings  of  Naples  to 
sovereignty  over  it.  372,  note". 

Jews,  wealth  ani:issed  and  persecutions 
endured  by  the,  i.  207 — their  early 
celebrity  as  usurers,  i6.,  note'' — their 
final  expulsion  from  France,  208  and 
note"^ — ordinances  against  them,  219 
—exorbitant  rates  paid  by  them  in 
England,  ii.  302 — their  massacre  by  the 
Pastoureaux,  iii.  281— their  liability  to 
maltreatment,  289— barbarous  customs 
regarding  them.  i6.,  note — the  Jew- 
drowning  story,  290,  note  i — their  early 
money  dealings,  319— toleration  vouch- 
safed to  them,  ib. — decline  of  their 
trade,  320 — their  addiction  to  coin- 
clipping,  348,  note  3. 

Joan  of  Arc,  character,  successes,  and 
fate  of,  i.  87,  88— her  betrayer,  92,  note » 
— her  name  and  birthplace.  14&— great 
merit  of  Southey's  poem,  147. 

Joanna  of  Naples,  married  to  Andrew  of 
Hungary,  i.  466— her  husband's  murder 
imputed  to  her,  ib.  and  note^ — she 
dies  by  violence,  467. 

Joanna  11.  of  Naples,  and  her  favorites. 
i.  469 — her  vacillation  relative  to  her 
successors,  470 — puts  Oaraccioli  to 
death,  471,  note. 

John  I.  of  Castile,  accession  of,  ii.  20 — 
his  merited  defeat  by  the  Portuguese, 
21. 

John  II.  of  Castile,  wise  government  by 
the  guardians  of,  during  his  infancy, 
ii.  20, 21 — he  disgraces  and  destroys  his 
favorite  Alvaro  de  Luna,  21,  22— his 
death,  22— its  results,  60. ' 

John  (king  of  England),  cited  before 
Philip  Augustus,  i.  38— results  of  his 


JDSTICB. 

contumacy,  39— singular  fines  levied 
by  him,  ii.  303— hi.s  rapacity,  308  and 
«o/«  »— Magna  Charta,  308,  311— curi- 
ous instance  of  the  unpopularity  of 
his  name,  iii.  65,  note'^. 

John  I.  of  France,  birth  and  death  of,  i. 
67  and  note^. 

John  II.  of  France,  character  of,  i.  63— 
taken  pri.soner  at  Poitiers,  6&^bestows 
his  daughter  on  Charles  of  Navarre, 
66 — submits  to  the  peace  of  Bretigui, 
68 — his  response  to  the  citizens  ol 
Kochelle,  72. 

John  of  Procida,  designs  of,  on  Sicily,  i. 
463 — result  of  his  intrigues,  464. 

John  VIIL  (pope),  insolence  of,  towards 
Charles  the  Fat,  ii.  167— asserts  a  right 
to  nominate  the  em[>eror,  ib. 

John  XXII.  (pope),  claims  supremacy 
over  the  empire,  ii.  223— his  dispute 
with  Louis  of  Bavaria,  ib.—hti  per- 
secutes the  Franciscans,  225 — his  im- 
mense trea.sures,  226 — his  imposts  on 
the  clergy,  ib.,  note  ". 

John  XXill.  (pope),  convokes  and  is 
deposed  by  the  council  of  Constance, 
ii.  231. 

Joiuville  (the  chronicler),  refuses  to  ac- 
company St.  Louis  in  his  last  crusade, 
i.  53,  note. 

Judith  of  Bavaria,  marries  Louis  the 
Debonair,  i.  29. 

Julian's  betr.iyal  of  Spain  to  the  Moon: 
credibility  of  the  legend,  ii.  63-66. 

Jury.     See  Trial  by  Jury. 

Justice,  administration  of.  under  Charle- 
magne, i.  233— various  kinds  of  feudal 
jurisdiction,  234— judicial  privileges 
assigned  to  t!ie  owners  of  fief;,  236 — 
cruel  custom  in  Anigon.  236,  notei — 
trial  by  combat,  207,  23i,  and  notes^ 
the  Establishments  of  St.  Liouis,  239— 
limitations  on  trial  by  combat.  240,  241, 
242.  note  i — royal  tribunals  and  their 
jurisdiction,  241 — the  court  of  peers, 
242 — the  parli:inicnt  of  Paris  and  its 
lawyers,  243— jurisdiction  of  the  court 
of  the  palace,  325, 326 — its  constitution, 
327 — imperial  chamber  of  the  empire, 
ii.  95 — its  functions  and  jurisdiction, 
96 — the  six  circles  and  the  .\ulic 
council,  97,98— chum cter  of  the  king's 
court  in  England,  317,  396.  401— im- 
portance of  the  office  of  chief  justiciary, 
317,  note  '^ — functions  of  the  court  of 
exchequer,  318  and  note  i,  401— insti- 
tution of  justices  of  assizt',  318— estab 
lishment  of  the  court  of  common  pleas, 
319— origin  of  the  common  law,  320— 
difference  be»we<?n  the  Anglo-Saxoa 
and  Anglo-Norman  systems  of  juris- 
prudence, 320,  321— complicated  char- 
acter of  English  laws,  322— necessity 
for  a  reformation  of  the  statutc-Look, 


xnra. 

823andno/f— jurisdiction  of  the  king's 
council,   iii.    133,  141,  238,  244— safe- 

fuard  for  the  independence  of  judges, 
46,  note  •— rarity  of  instances  of  illegal 
condemnation.  150,  151— origin  and 
jurisdiction  of  the  court  of  chancery, 
229,233. 

King's  council  (England),  jurisdiction  of 
the,  iii.  133— its  composition,  ib. — its 
encroachments,  135 — limitations  on  its 
power,  136  —  remonstrances  of  the 
commons,  ib. — its  legislative  status, 
137 — its  frequent  junetion  with  the 
lords'  house.  139, 140.  and  note,^ — views 
of  t;ir  F.  Palgravc  on  the  subject, 
233,244. 

Knighthood.    See  Chivalry. 

Knights  Templars,  institution  of  the 
Order  of,  i.  50— their  large  possessions 
and  rapacitv,  ib.  and  note  -^ — question 
of  tlieir  guilt  or  innocence,  142,  143— 
Count  Purgstall's  charges  against  them, 
143-140— lUvnouard's  attempted  ref- 
utation, 146— tUeir  esutos  and  re- 
markable i:itluence  in  Spain,  ii.  14. 

Koran,  charocteri^itics  of  the,  ii.  112-115. 

Laborers,  amount  of  wages  paid  to,  iii 
851,  352— degree  of  comfort   thereby 
indicated,  352,  353. 

Ladislaus  of  Naples,  accession  of,  i.  468 
— energy  displayed  by  him,  469— his 
death,  ib. 

Ladislaus  of  Itungjiry,  defeat  of  the  par- 
tisans of,  ii.  103— his  accession  to  the 
throne,  ib. — his  death,  104— suspicions 
relative  thereto,  ib.,  note. 

Lambertazzi  (Imilda  de),  pathetic  story 
of,  i.  337. 

Lancjister  (duke  of),  ascendency  of,  over 
Kdw.  III.,  iii.  55 — his  ambitious  proj- 
ects, ib. — cause  of  his  retirement  from 
court,  5S— lie  curries  favor  with  the 
commons,  64. 65,  and  note^ — his  quarrel 
with  Arundel  and  Gloucester,  73— his 
marriage  with  Katherino  Swirieford, 
ib. — his  antenuptial  children  bj'  her, 
74— conduct  of  Richard  II.  on  his 
death.  79. 

Lancastrians  and  Yorkists,  wars  of  the, 
iii.  187. 

Laiido  (Michel  di),  cau.sc  of  the  eleva- 
tion of,  i.  419— his  just  exercise  of 
power,  ib. — sent  into  exile,  421. 

LandwcUr,  antiquity  of  the,  i.  257,  note  1. 

Lanfranc  (archbishop),  arrogant  conduct 
of,  ii.  289,  note  -i. 

Languages,  difficulty  of  accounting  for 
the  change  of,  i.  271,  272— principles 
deducible  from  difference  of  language, 
282, 283.  ' 

Languedoc,  spread  of  the  Albigensian  hsr- 
esy  in,  i.  40    and    note — devastation 


LEARMNa. 

of  the  country  by  the  papal  forces.  40, 
41,  and  notes — its  cession  to  the  crown 
of  France,  41 — its  provincial  assembly, 
230.  ^' 

Latimer  (lord),  impeached  by  the  com- 
mons, iii.  56— their  further  tactics  re- 
garding him,  59. 

Latin  tongue,  corruption  of  the,  iii.  261. 
See  Learning. 

Laura  (Petrarch's  mistress).  See  Pe- 
trarch. 

Laws.characteristics  of,  at  certain  periods, 
i.  288— study  of  the  civil  law,  iii.  890— 
fame  of  the  Bolognese  school,  391— 
necessity  for  legal  knowledge  in  med- 
iaeval magistrates,  392— unpopularity 
of  the  Roman  law  in  England,  393— 
neglect  of  the  elder  civilians,  394  and 
note  ■-.    See  J  ustice. 

Learning,  causes  of  the  decline  of.  iii. 
256— neglect  of  pagan  literature  by  the 
early  Christians,  2-58— blighting  in- 
fluence of  superstition  and  asceticism, 
259— corruption  of  the  Latin  tongue, 
26l — rules  observed  in  its  pronuncia- 
tion, 232,  263— errors  of  the  populace, 
263— changes  wrought,  by  the  Italians 
and  French,  265,  266— neglect  of  quan- 
tity, 267 — ppecimeis  of  verses  by  St. 
Augustin  and  otht  rs,  287,  268,  notes — 
change  of  Latin  i  ito  Romance,  269 — 
Itilian  corruptions  of  the  L:itin,270— 
effect  of  the  disuse  of  Latin,  271 — igno- 
rance of  various  sovereigns,  ib.,  notes—' 
extent  of  Charlemagne's  and  Alfred's 
learning,  272  and  n>te^ — ignorance  of 
the  clergy,  272, 273,  and  jio/f5— scarcity 
of  books.  274  and  note  i — erasure  of 
manuscripts,  t ft.  -lack  of  eminent 
learned  men,  ib. — John  Scotus  and 
Silvester  II.,  275  a  id  note  2_preserva- 
tivo  effects  of  religion  on  the  Jjatia 
tongue,  276, 278 — i.on-existence  of  libra- 
ries, 277.  notf — prevalence  of  sup  rsti- 
tions,  278,  280— revival  of  literature, 
389— study  of  civil  law,  390,  393— 
establishment  of  public  .«chools,  395 — 
Abelard  and  the  university  of  Paris, 
396,  397 — Oxford  univ(»r.<ity  and  its 
founders,  397,  398  and  notes — rapid 
increase  of  universities,  398,  400 — 
causes  of  their  celebrity,  401— spread 
of  the  scholastic  philosophy,  401 — its 
eminent  di.sputants,  402 — influence  of 
Aristotle  and  o:  the  church,  403,  4()4— 
unprofitableness  of  the  scholastic  dis- 
cussions, 404,  405— labors  of  Roger 
Bacon  and  Albertus  Magnus,  407  and 
note  - — cultivation  of  the  new  lan- 
guages, 408 — the  troubadours  and  their 
productions,  408,  410— origin  of  the 
French  language,  411— early  French 
compositions,  411,  412— Norman  tales 
and  romances,  413— the  Roman  de  la 


i 


I: 


476 


INDEX. 


INDEX. 


477 


LBQISLiTIOir. 

Rose,  414 — French  prose  writings,  415, 
416,  and  notes — formation  of  the  Span 
ish  Language:  the  Ciil,  416,  417,  and 
notes — rapid  growth  of  the  Italian 
language.  417,  418 — excuses  of  Italians 
for  writiu,'  in  French,  418,  note  - — 
Dante  and  his  Divine  Comedy,  419, 
422 — Petrarch  and  his  writings,  422, 
426 — dawn  of  the  English  tongue,  i6., 
— Layamon's  Brut,  ib.  and  note- — 
Robert  of  Gloucester  and  other  metri- 
cal writers,  427 — merit  of  Piers  Plow- 
man's Vision,  ib. — cause  of  the  slow 
progress  of  tac  English  language,  ib. 
— earliest  coujpositions  in  English,  426 
— prejmineuce  of  Chaucer,  429— re- 
vival of  classical  learning,  430 — 
eminent  cultivators  thereof,  431 — in- 
vention of  paper.  432 — transcribers  and 
booksellers,  ib.,  note  - — rarity  and  dear- 
ness  of  books,  433— recovery  of  classical 
manu.scripts,  434 — eminent  laborers 
in  this  field,  431,  43o— revival  of  the 
study  of  Greek,  433.  437— state  of 
learning  in  Greece,  439- services  ren- 
dered by  the  niediieval  Greeks,  439, 440, 
and  notes — oppo.sitioii  to  the  study  of 
Greek  at  Oxford,  442— fime  due  to 
Eton  and  Winchester  schools,  413 — 
invention  of  printing,  ib. — first  books 
issued  fixmi  the  press,  444 — first  print- 
ing presses  in  Italy,  ib. — elucidatory 
note  0.1  the  state  of  learning  in  the 
dark  ages,  446.  448— Dr.  Maitland's 
views  thereon,  448-451 — earliest  use 
of  the  English  language  in  public  doc- 
uments. 456,  457. 

Legisliition  under  the  early  French  kings, 
i.  210— the  "Champ  de  Mars"  or 
Field  of  March.  210,  211— participation 
of  the  people  m  legislative  pi'oceedings, 
211, 322, 325 — Charlemagne's  legislative 
assemblies,  212 — cessation  of  national 
assemblies,  215— assemblies  of  the  bar- 
ons, 216 — the  cours  plenicres,  217 — 
limitation  of  the  king's  power,  217 — 
substitutes  for  legislative  authority, 
218 — ecclesiastical  councils  and  their 
encroachments,  ib. — general  legisla- 
tion, when  first  practised,  ib. — increase 
of  the  legislative  power  of  the  crown, 
and  its  causes,  219,  220 — convocation 
of  the  States-General,  221— constitu- 
tion of  the  Saxon  witenagemot,  ii.  261 
— Anglo-Norman  legislation,  305.  306, 
and  7iote — prerogatives  of  the  crown, 
886— custom  of  the  Anglo-Saxon  kings, 
8S8.  See  Justice,  Parliament,  States- 
General. 

I«o  the  Great  deposes  Hilary,  ii.  155, 
note  *. 

Leo  III.  invests  Charlemagne  with  tho 
imperial  insignia,  i.  25— his  design  of 
marrying  Charlemagne  to  Irene,  127 — 


LOirOCHAXP. 

Charlemagne's  authority  over  him,  ii. 
175. 
Leo  VIII.  confers  on   the  emperor  the 
right  of  nominating  popes,  ii.  175  and 
note  3. 

Leo  IX.  leads  his  army  in  person,  i.  351 
— devotion  of  his  conquerors  towards 
him,  1*6.    See  Papal  Power. 

Leon,  foundation  of  the  kingdom  of,  ii.  9 
— its  king  killed  in  battle,  10— its  union 
with  Castile.  14. 

Leopold  of  Austria  defeated  by  the  Swiss, 
ii.  107. 

Libraries  in  the  fourteenth  and  fifteenth 
centuries,  iii.  433,  431,  and  notes. 

Literature.     See  Learning. 

Lollards,  rise  of  the,  iii.  366 — their  re- 
semblance to  the  Puritans,  366. 

Lombards,  original  settlement  of  the,  i. 
21,  22,  note  i — extension  of  their  do- 
minions, 22 — defeated  by  Pepin  and 
Charlemagne,  i6. — their  mode  of  legis- 
lating, 260— position  of  their  Roman 
subjects,  287 — progress  of  their  cities, 
351 — frequency  of  wars  between  them, 
352 — acquisition  of  territories  by  them, 
355 — democratic  tyranny  of  the  larger 
cities.  356 — destruction  of  Lodi  by  tho 
Milanese,  ib.  and  note'^ — courage  of 
the  citizens  of  Como,  357 — exclusion  of 
royal  palaces  from  Lombard  cities,  ib. 
— siege  and  subjugation  of  Milan  by 
Frederic  Barbarossa,  358.  359 — efforts 
of  the  Milanese  to  regain  tiieir  freedom, 
359 — destruction  of  Milan,  360 — league 
of  the  Lombard  cities,  ib. — defeat  and 
flight  of  Barbarassa,  382 — peace  of  Con- 
stance, ib. — their  successful  resistance 
a  lesson  to  tyrants,  363,  364— their 
w.ars  with  Frederic  II.,  373 — party 
nature  of  these  struggles,  374 — arrange- 
ment of  the  Lombard  cities,  374,  37^ 
checkered  results  of  their  conflicts  with 
Frederic,  370 — tiieir  papal  supporters, 
i&.^-causes  of  their  success,  378 — their 
means  of  defence.  330 — internal  gov- 
ernment of  their  cities,  381 — revival  of 
the  office  of  podesti,  382 — position  of 
aristocratic  offenders  amongst  them, 
ib. — duties  and  disabilities  of  tho  po- 
desti, 383 — their  internal  dissensions, 
383,  334— artisan  clubs  aud  aristo- 
cratic fortifications,  3S5 — vindictive- 
ness  of  conquerors  of  all  classes,  336  - 
inflammatory  nature  of  private  quar- 
rels, and  their  dis.astrous  results,  387 — 
effect  of  Giovanni  di  Vicenza's  exhorta- 
tions, 383,  389— moral  deducible  from 
the  fall  of  the  Lombard  republics,  392-- 
393— the  Visconti  in  Lombardy,  446. 
See  Visconti. 

Longchamp  (William,  bishop  of  Ely), 
constitutional  precedent  established  by 
tho  kanidhment  of,  ii.  307. 


Lo:rDOir. 

London,  early  election  of  the  magistrates 
of.  iii.  200 — its  municipal  divisions, 
209 — it.s  first  lord  mayor,  211 — not  ex- 
clusively a  city  of  traders,  212 — its  ox- 
tent  and  populatiou,  ib. — comparison 
with  Paris,  213. 

Loria  (Roger  di),  naval  successes  of,  i. 
464. 

Lothairc  (son  of  Louis  the  Debonair), 
associated  in  power  with  his  father,  i. 
28 — his  jealousy  of  his  half-brother, 
29— territories  allotted  to  him,  29,  30, 
and  notes  i,  -—cause  of  his  excommuni- 
cation, ii.  103,  164. 

Lothuire  (duke  of  Saxony),  elected  em- 
peror of  Germany,  ii.  72  and  note  i — 
failure  of  his  scheme  of  succession,  73 
— the  picture  and  couplet  relative  to 
his  coronation,  187,  note'^. 

Louis  of  Bavaria,  emperor  of  Germany, 
ii.  85 — his  contest  with  the  pojies, 
222— he  aids  the  Visconti,  223— he  dies 
unabsolved,  224. 

Louis  I.  (the  Debonair)  succeeds  Charle- 
magne ;  his  cruelty  to  his  nephew,  i. 
27 — his  character.  28 — associates  his 
sons  in  power  with  him,  ib. — his  second 
marriage  and  its  consequences,  29 — 
enmity  of  the  clergy  against  him,  ib. — 
his  practice  relative  to  the  hearing  of 
causes,  234,  note^ — his  attempted  de- 
position by  the  bishops,  ii.  150, 151 — 
he  prohibits  trial  by  ordeal,  iii.  279, 
note  '. 

Louis  of  Germany  (son  of  tho  above) 
made  king  of  Bavaria  by  his  father, 
i.  28 — share  of  empire  allotted  to  him 
on  his  father's  death,  29. 

Louis  II.  (the  Stammerer),  conditions 
exacted  by  the  French  nobles  from,  i. 
131. 

Louis  IV.  ("Outremer")  elected  king, 
i.  132— Fulk's  saucy  retort,  iii.  271, 
note*. 

Louis  v.,  i.  31. 133. 

Louis  VI.,  state  of  France  at  the  acces- 
sion of,  i.  37 — his  contests  with  tho 
Norman  princes,  ib. — his  participation 
in  judicial  matters,  238,  note  &. 

Ijouis  VII.,  untoward  marriage  of,  and 
its  consequences,  i.  38— confirms  the 
rights  of  the  clergy,  39— joins  in  the 
p«>cond  crusade.  49 — his  submissivencss 
to  Home,  ii.  213. 

Louis  VIII.  opposes  Itaymond  of  Tou- 
louse, i.  41 — issues  *  an  ordinance 
against  the  .lews,  218. 

Louis  IX.  (Saint  Louis),  accession  of,  i. 
42 — revolt  of  the  barons  against  him, 
•b. — excellences  of  his  character,  his 
rare  probity,  &c.,  42,  43— undue  in- 
fluence exercised  over  him  by  his 
mother,  44— his  superstition,  ib.  and 
note — ho  embarks  in  the  crusades,  45 — 


KAHOVET  n. 

calamitous  results  of  his  first  crusade, 
52 — his  second  expedition  and  death. 
t6.— his  Establishments,  219,  220,  239 
— his  open-air  administrations  of  jus- 
tice, 239 — the  Pragmatic  Sanction  and 
its  provisions,  ii.  204  and  nott'^ — his 
submissivencss  to  the  church,  216 — his 
restraint  on  the  church  holding  land, 
216  and  note. 

Louis  X.  (Louis  Ilutin),  accession  and 
death  of,  i.  56— treatment  of  his  queen 
and  family  by  Philip  the  Long,  57 — his 
edict  for  tho  abolition  of  serKlom,  200 
— he  renounces  lertain  taxes,  223. 

Louis  XL,  accession  of,  i.  94— hi,--  char- 
acter and  policy,  94,  95 — bestows 
Normandy  on  liis  brother  as  an  appan- 
age, 95 — and  then  deprives  him  of  it, 
95 — ^grants  pensions  to  the  English 
king  and  his  nobles,  90,  97 — his  con- 
tests with  Charles  of  Burgundy,  97, 98, 
and  notes — and  with  Mary  of  Burgun- 
dy, 101,  102,  and  notes — his  last  sick- 
ness and  its  terrors,  103 — his  belief  in 
relics,  ib.  and  note — court  boast  relative 
to  his  encroachments,  230 — civic  liberty 
encouraged  by  him,  246— he  repeals  the 
Pragmatic  Sanction,  ii.  242 — his  people 
oppose  the  repeal,  ib. — his  treatment 
of  cardinal  Balue,  245,  note  3. 

Louis  XII.    See  Orleans. 

Louis  of  Hungary  invades  Naples,  i.  466. 

Louis  of  Anjou  adopted  by  Joanna  of 
Naples,  i.  407— his  death.  468. 

Louis  II,  of  Anjou  and  Naples,  acces- 
sion c',  i.  468 — subdued  by  Ladis- 
laus,  ib. 

I/Ouis  III.  of  Anjou  and  Naples  called  in 
by  Joanna  II.,  i.  469— his  doubtful 
prospects,  and  death,  470. 

Lucius  II.  (pope),  cause  of  the  death  of, 
i.  400. 

Luna  (Alvaro  de),  influence  exerci^sed 
by,  ii.  21 — disgraced  and  beheaded, 
22 — law  on  which  his  opponents  re- 
lied, 41. 

Luna  (Antonio  de)  assassinates  the  aruh- 
bishop  of  Saragossa,  ii.  44. 

Luna  (Frederic  count  of)  claims  the 
throne  of  Amgon.  ii.  43— care  taken  of 
his  interests,  by  the  court,  44. 

Luna  (Peter  de).    See  Benedict  XIII. 

Lupus  Servatus,  literary  performances 
of,  iii.  447.  note"^. 

Luxemburg  (John  of),  execution  of  pris- 
oners of  war  by,  i.  91 — betrays  Joan 
of  Arc  to  the  English,  92,  note  i. 

Magna  Charta.    See  England. 

Mahomet  the  prophet.    See  Mohammed. 

Mahomet  II.  attacks  the  Venetians,  i. 
472 — his  success,  475 — failure  of  his 
assault  upon  Belgrade,  ii.  104 — he  cap- 
tures Constantinople,  132 — unrealized 


il 


I 


478 


INDEX. 


INDEX. 


479 


MAHDATS. 

achemes     for     hia    expulsion,    133 — 
his  European  successes  and  reverses, 
laV- .Eneas  3>  tvius's  odd  proposal,  134, 
note. 
Wandats  and  their  abuses,  ii.  203. 
Manfred,  brave  retention  of  the  imperial 

throne  by,  i.  377— killed,  391. 
Manichcans.     See  Keligious  Sects. 
Manners.      See  Chivalry,  Domestic  Life, 

Learning,  Superstition. 
Manufactures.    See  Trade. 
Manuscripts.     See  Learning. 
Marcel  (IMagistrate  of  Paris),  why  assas- 
sinated, i.  228. 
March  { Uo-jcer.  earl  of ),  opposes  the  duko 
of  Lancaster,  iil.  5(>— his  significant  pol- 
icy, 57 — his  popularity  with  the  par- 
liament, 64 — his   exclusion  from  the 
throne,  80,  lS5-K;Iemcncy  of  Henry  V. 
towards  him,  185. 
Margtiretof  Anjou  married  to  Ilenry  VI., 
iii.  96 — consequences  of  her  impolicy, 
185, 188.     See  Ilenry  VI. 
Mariner's  compass,  tradition  of  the  in- 
vention of  the,  iii.  ol4,  315. 
Maritinie  laws  of  early  times,  Hi.  315 — 
prev.ilence  of  piracy,  316 — law  of  re- 
prisals, 317. 
Marriages,  capricious  decrees  of  the  popes 
concerning,  ii.  198— dispensations  and 
their  abuses,  ib. 
Martin   (prince  of  Aragon),  marries  the 

queen  of  Sicily,  i.  470— his  death,  ib. 
Martin  (king  of  Aragon),  succeeds  to  his 
son's  Sicilian  dominions,  i.  470 — con- 
tests for  tlic  Aragonese  throne  at  his 
death,  ii.  42. 
Martin  V.  elected  pope.  ii.  234— he  con- 
vokes the  council  of  Pavia,  i6. — his 
anger  at  the  English  statute  of  praemu- 
nire. 238,   note  •^— his  concordat  with 
England,  233— powers  reserved  to  him 
by   the  German  concordats,  240 — re- 
jection of  his  concordat  by  France,  241. 
Mary  of  Burgundy.    See  Burgundy. 
Matilda  (countess),  bequeaths  her  domin- 
ions to  Home,  i.  366. 
Matthias  Corvinu.o.    See  Corvinns. 
Maximilian  of  Austria  marries  Mary  of 
Burgundy,  i.  102— becomes  king  of  the 
Romans, "ii.  93  and  ?ior^4— ascends  the 
German   throne,   94 — he   extinguishes 
the  robber-nobles,   95— institutes   the 
Aulic  council,  98-extcnt  of  the  empire 
at  his  accession,  99. 
Mayor  of  the  palace,  importance  of  the 
office    of,  i.   20,    119,  120,  159.     See 
Charles  Martel,  Pepin  Ilerisfcil,  Ebroin. 
Medici  (Salvestro  de'),  proposes  to  miti- 
gate the  severity  of  the  law  in  Flor- 
ence, 417 — rise    of  his  family,  477 — 
character  of  Giovanni,  ib.  and  noje — 
banishment  and  recall  of  Cosmo,  478 — 
his  death :  hia  soa  Piero,  47J>— death  of 


MOHAmno. 

Julian:  popularity  and  princely  career 
of  Lorenzo,  480 — his  bankruptcy  re- 
p.aired  at  the  cost  of  the  state,  48  and 
note  •^— hi.s  title  to  esteem,  482. 

Mendicant  friars,  first  appearance  of  the, 
ii.  196— success  of  their  preachings, 
197— their  extensive  privileges,  ib.,  198, 
and  notes. 

Mercenary  troops.  See  Military  Sys- 
tems. 

Merovingian  dynasty,  character  of  the 
times  during  which  it  ruled,  i.  19— 
chronological  sketch  of  its  career,  123- 

125. 
Middle  nges.  period  comprised  under  the 

term,  iii.  255. 
Milan,  resolute  conduct  of  the  people  of 
in  the  choice  of  a  bishop,  i.  353  and 
note^ — its  siege  by  Frederic  I.,  359 — 
destruction  of  the  city,  360— its  sta- 
tistics   in  the  13th  century,  379— its 
public   works,    380 — creation    of    the 
duchy  of  Milan,  397— lax  conduct  of 
the  Milanese  clergy,  ii.  179,  note ».    See 
Lombards. 
Military    systems  of  the   middle  ages, 
character    of    the  English   troops    at 
Crecy,  Poitiers,  and  Azincourt,  i.  64, 
85— disadvantages  of  feudal  obligations 
in   long  campaigns.  2.35,  256 — substi- 
tution of  mercenaries,  257 — Canute's 
soldiers,  and  his  institutes  re.specting 
them,  258  and  note  »— the  mercenaries 
of  the  Anglo-Norman  kings.  258— ad- 
vantages of  mercenary    troops,  259 — 
high  rate  of  p.ay  to  English  soldiers, 
85  and  note  'J,  259— establishment  of  a 
regular  force  by  Charles  VII.,  266— 
military  resources  of  the  Italian  cities, 
448— importance  of  their  carroccio,  f6. 
and    note- — their  foreign    auxiliaries, 
449 — arms  and  armor,  450  and  note  2 — 
citizens    excused  from    pcrvice,  450 — 
companies  of  adventurers:  Guarnieri's 
systematic  levies,  452— spirited  refusal 
of  tribute  by  Florence,  453— Sir  John 
Ilawkwood's    career,  (see   Ilawkwood] 
— enunent  Italian  genenila  and  their 
services,    455,  456 — probable  first  in- 
stance  of  half-pay,  456    and  notei — 
small  lo.s3  of  life  in  mediaeval  warfare, 
456,   457,   and   novs— long   bows  and 
cross  bows,  457,  458 — advantages  and 
disadvantages    of  armor,   458— intro- 
duction of  gunpowder.  459 — clumsiness 
of  early  artillery  and  fire-arms,  466 — 
increased  efficiency  of  infantry,  461. 

Mocenigo  (doge),  dying  prophecy  of,  i. 
446,  447,  and  note. 

Moguls,  ravages  of  the,  ii.  128 — their  ex- 
ploits under  Timur,  130. 

Mohammed,  advent  of,  ii.  112 — state  of 
Arabia  at  the  time,  113— dearth  of 
materials  for   ills  history,  ib.,  noU-" 


MOWARCHT. 

characteristics  of  his  writings,  113, 114 
— his  knowledge  of  Christianity  whence 
derived,  114.  note  i— martial  spirit  of 
his  systi?ni,  115.  116— career  of  his  fol- 
lowers. See  Abbassides,  Moors,  Otto- 
mans, Saracens.  Turks. 

Monarcliy  in  France,  character  of  the.  i. 
214.  note — means  by  which  it  became 
ab.solute,  220— its  jMiwer  of  enacting 
laws  unlimited,  225,  note  l. 

Mon:u«(eries.  cultivation  of  waste  lands 
by,  ii.  133— less  pure  sources  of  in- 
come. 140— their  exemption  from  epis- 
copal coitrol.  162  and  note  i— pn>serva- 
tion  of  books  by  them,  iii.  276 — extent 
of  their  charities,  286  and  tio(«— vices 
of  their  inmates,  287— their  anti-social 
influence,  288— their  agricultural  exer- 
tions, 340  and  }wte. 

Money,  high  interest  paid  for,  iii.  319— 
establishment  of  paper  credit,  321  and 
note  1— banks  of  Italy,  322— securities 
for  public  lojins,  /Va— changes  in  the 
value  of  money.  346-349— com panitive 
table  of  value,'3i9.  note.     See  coining. 

Montiigu  (minister  of  Charles  VI.),  arrest 
of.  i.  77,  note  I. 

Montfort  (Simon  de),  heads  the  crusade 
against  the  Albigeois,  i.  41. 

Montfort  (Simon  de,  earl  of  Leicester), 
his  writs  of  summons  to  the  towns  of 
England,  iii.  29. 

Montfort  (ally  of  Edward  III.)  obtains 
the  duchy  of  Britany,  i.  105. 

Moors,  successes  of  the  Spaniards  against 
the,  ii.  9— victories  of  Alfonso  VI.,  10— 
Cordova  taken  from  them,  15 — its  fabu- 
lous extent  and  wealth,  ib.,  note  - — 
cause  of  their  non-expulsion  from 
Spain,  15, 16. 

Moshcim,  error  of,  relative  to  Louis  IX., 
i.  44,  note  ». 

Mowbray  (earl  of  Nottingham  and  duke 
of  Norfolk),  made  lord  appellant,  iii. 
71 — he  espouses  the  king's  interest,  73 
—his  quarrel  with  Bolingbroke  and  its 
results,  78  and  note  i. 

Municipal  institutions  of  the  Roman 
provincial  cities,  i.  327 — importance  of 
the  office  of  defensor  civitatis,  329— 
duties  appertaining  to  it.  ib. — respon- 
sibilities of  the  decurions,  330 — the 
senatorial  orlers,  a30-332— civic  posi- 
tion of  the  Frank  bishops,  333— muni- 
cipal government  of  the  Frank  cities, 
3JJ1,  335 — corporate  towns  of  Spain,  3.35 
—of  France,  33G— their  struggles  for 
freedom,  336,  337— early  independence 
of  the  Flemish  and  Dutch  cities,  337 
—origin  of  the  French  communes.  338, 
339_gi.owth  of  the  burgages,  340 — 
policy  of  Louis  XI.  relative  to  civic 
liberty,  ib. — Itilian  municipalities,  341, 
812.  [see    Lombards] — free    cities    of 


KORMANS. 

Germany,  [see  Germany].  See  Parlia- 
ment, Towns. 
Murder,  gradation  of  fines  levied  aa 
punishment  for,  amongst  the  Franks, 
i.  152,  153.  and  notes^  197.  and  vote  -, 
274 — rates  of  compensation  amongst 
the  Anglo-Saxons,  ii.  2G0,  2G1. 

Naples  subjugated  by  Roger  Ouiscard,  i. 
351 — contest  for  its  crown  between 
Manfred  and  Charles  of  Anjou,  391 — 
murder  of  the  rightful  heir  by  Charles, 
892 — schemes  relative  to  the  severance 
of  Sicily,  463,  (see  Sicily]— accession 
of  Robert,  465 — queen  .Toauna  and  her 
murdered  husband.  466  and  note  i — 
Louis  of  Anjou  and  Charles  I II.,  467,468 
— reign  of  Louis  II.,  46S-ambition  of  the 
young  king  Ladislaus,  469 — his  death, 
ib. — Joanna  II.,  her  vices  .and  her  fa- 
vorites. 469,  470.  and  471,  note — career 
of  Alfonso,  472,  [see  Alfonso  V.] — 
invasion  of  the  kingdom  by  John  of 
Calabria,  473— his  fiilure,  474— Ferdi- 
nand secured  on  the  throne,  ib. — his 
odious  rule,  482. 

Navarre,  origin  of  the  kingdom  of,  ii.  9, 
10. 

Neustria,  extent  of  the  dominions  so 
termed,  i.  20,  note'^ — its  peculiar  fea- 
tures as  distinguished  from  Austrasia, 
123— when  first  erected  into  a  king- 
dom, 124  and  Ho<e— destruction  of  its 
independence,  125. 

Nevil  (lord),  impeached  by  the  commons, 
iii.  56. 

Nicolas  II.  (pope),  innovations  introduced 
by,  ii.  176 

Nobility,  origin  of,  in  France,  i.  159,  160, 
and  note,  188 — privileges  conferred  on 
the  class,  191 — consequences  of  mar- 
riage with  plebeians,  192— letters  of 
nobility  when  first  granted,  193 — dif- 
ferent orders,  and  rights  belonging  to 
each,  193 — their  gallows  distinctions, 
ib.,notei — tlieir  right  to  coin  money, 
203,  204— to  levy  private  war,  205— 
characteristics  of  the  early  Frank  no- 
bility, 300,  303— excesses  of  the  Floren- 
tine  nobility,  407,  408— turbulence  of 
the  Spanish  nobles,  ii.  18 — contests  of 
the  German  nobles  with  the  cities,  90, 
91 — rural  nobility,  how  supported,  93, 
94 — their  career,  how  checked,  94 — 
source  of  the  influence  of  the  English 
nobility,  iii.  158— their  patronage  of 
robbers,  161 — German  robber  lords,  297 
— legislative  province  of  the  English 
nobility,  [see  Parliament]. 

Norfolk  (earl  and  duke  of).  See  Bigod, 
Mowbray. 

Normans,  piratical  pursuits  of  the.  i.  33 
— their  plan  of  warfare,  3 1— sufferings 
of  the  clergy  at  their  hands,  ib. — their 


II 


480 


INDEX. 


KOTTIWGnAK. 

conversion  and  settlement  in  France, 
ib. — terror  excited  by  their  audacity, 
138,  139— b€nefici:il  effects  of  their 
conversion,  139 — their  incursions  into 
Italy,  351  imd  nnte  * — successes  of  their 
leaders,  351 — their  invasion  of  England, 
[see  England]. 
Nottingham  (eurl  of).     See  Mowbray. 

Oaths,  papal  dispensations  Ttom,  ii.  200 
— notable  instjinces  thereof,  201,  noie  i. 

Odo  (archbishop).     See  Dunstan. 

Oleron,  laws  of,  iii.  316. 

Ordeals,  nature  of,  iii.  278,  279 — stories 
of  queens  Emma  and  Cunegunda,  280, 
note  1 — instance  of  a  failure  of  the 
water  ordeal  and  its  consequences,  ii. 
320,  notei. 

Orleans  (Louis?,  duke  of),  alleged  amours 
of,  with  queen  Isabel,  78,  note  - — loses 
his  popularity,  78 — his  assassination 
and  its  probable  causes,  79  and  notes — 
commotions  which  ensued,  80,  81. 

Orleans  (Ix)uis,  duke  of,  afterwards 
Louis  XII.)  claims  the  regency  during 
the  minority  of  Charles  VIII.,  i.  104 — 
instigates  the  convocation  of  the  States- 
General,  231. 

Ostrogoths,  occupation  of  Italy,  by  the, 
i.  15 — annihilutiou  of  their  dominion, 
21 — Roman  jurisprudence  adopted  by 
them,  154. 

Otbman.     See  Ottomans. 

Otho  I.  (the  Great),  benefits  conferred 
upon  Germany  by,  ii.  68. 

Otho  II.  and  III.  chosen  emperors  of 
Germany,  ii.  68. 

Otho  IV.  aided  by  the  Milanese,  i.  3G8— 
enmity  of  the  pope  tow^ards  him,  370 — 
its  consequences,  ii.  75 — obtains  a  dis- 
pens.ation  from  Innocent  III.,  200 — 
rights  surrendered  by  him  to  Innocent, 
202,  320,  and  jwte  -. 

Ottoman  dynasty,  founded  by  Othman, 
ii.  129 — their  European  conquests,  ib. 
— their  reverses,  and  revival  under 
Auuirath,  131. 132 — they  capture  Con- 
stantinople, 132 — European  alarm  ex- 
cited thereby,  133— institution  of  the 
Janizaries,  134— suspension  of  Otto- 
man conquests,  135. 

Oxford  university.     See  Learning. 

Pagan  superstitions,  cause  of  the  limited 
influence  of,  i.  140. 

Palaces  (royal),  why  excluded  from  Lom- 
bard cities,  i.  357. 

Palermo,  foundation  of  silk  manufacture 
in,  iii.  313. 

Palestine,  commercial  value  of  the  set- 
tlements in,  iii.  311.    See  Crusades 

Pandects,  discovery  of  the,  iii.  391. 

Papal  power,  first  germ  of  the,  ii.  153, 
154 — preceded    by    the    patriarchate, 


PAPAL. 

t&.— character  of  Gregory  I.,  156 — hii 
vrary  proceedings,  ib.  and  riotr.t — con- 
vocation of  the  synod  of  Frankfort  by 
Boniface,    159.  IGO,  and   nottn — effect 
produced  by  the  False  Decretnls,  ItJO, 
161,  and  notes,  211— papal  encnvich- 
ments  on  the  hierarchy,  161 — exemp- 
tion   of    monasteries    from    epi3<'opal 
control,  162  and    note  i — kings    com- 
pelled tosuccumb  to  pnpal  supremacy, 
163 — origin  of  excommunications,  ib. — 
helpless  po.>ition   of  excommunicated 
persons.  165— interdicts  and  their  dis- 
astrous consequences,  ih. — further  in- 
terference  with    regal   rights   by    the 
popes,  167 — scandalous    state  of  the 
papacy  in  the  tenth  century.  168 — Leo 
IX. '8  reformatory  efforts,  170 — prerog- 
atives   of   the    emperors    relative    to 
papal  elections,  174,  175— innovations 
of  pope  Nicolas  II.,  175 — election  and 
death  of  Alexander  II..  176 — career  of 
Gregory    VII.,    [see    Gregory   VII. I — 
contests  of  his  successors  with  Henry 
IV.  and  V.  of  Germany,  180— Calixtus 
II.  and  the  concordat  of  Worms,  ib. — 
papal  opposition  to  investitures,   173, 
181.  182,  and  notes — abrogation  of  ec- 
clcsia.stical    independence,    1S5 — pa;  al 
legates  and  their  functions.  IStj — Alex- 
ander III.  and  Thomas  4  Becket,  187 
— career  of  Innocent  III.,  [see  Innocent 
III.] — height  of  the  papal  power  in  the 
13th  century,  193— promulgation  of  the 
canon    law,  194— its  analogy  to   the 
Justinian  code,  195  and  »o<m— estab- 
lishment of  the  meniMcant  friars,  190 
— disp<>n.sations  of  marriage,  1U8,  199, 
and  notes — dispensations  from  outlis, 
200 — encroachments  on  episcopal  elec- 
tions, 201 — and  on  rights  of  p:itron.ige, 
202 — m.'indats  and  their   abu.^e,  203^— 
the  Pragmatic  Sanction,  204  and  nnte 
— pretexts  for  taxing  the  clergy,  205, 
206 — clerical  disaffection  tow.nrds   the 
popes,  208 — progress  of   ecclesiastical 
jurisdiction,       'J)8,      211 — opposition 
thereto  by  England,  212  and  notes — 
faint  opposition  of  France,  214 — can'cr 
of  Boniface  VIII.,  [see  Boniface  VIII. ] 
— decline  of  the  papacy,  221 — removal 
of  the  papal  court  to  Avignon,  222 — its 
contests  with  Louis  of  Bavaria,  ib. — 
growing  resistance  to  the  popes,  224 — 
rapacity  of  the  Avignon  popes,  225 — 
participation  of  the  French  kings  in 
the    plunder,  226 — Independent   con- 
duct of  England,  227  and  notes — return 
of  the  popes  to  Uome,  228— contest  be- 
tween Urban  VI.  and  Clement  VII.,  ib. 
— the    two   papal   courts,  230 — three 
contemporary   popes,   ib. — prweedings 
at  the  councils  of  Pi.«a,  Constance,  and 
Banle,  231,  [see  Councils]— reflections 


INDEX. 


481 


PAPBK. 

pertinent  thereto,  23f),  239— effects  of 
the  concordat  of  Asehaffenburg,  240 — 
papal  encroachments  in  Castile.  241 — 
restraints  thereon  in  France,  241.  243 
—further  limits  on  ecclesiastical  juris- 
diction, 244.  246,  and  notes — decline  of 
papal  iiittueiice  in  Italy,  and  its  causes, 
246— despicable  nature  of  later  inter- 
dicts, ib.,  note  i.  See  Church,  Clergy, 
Monasteries. 

Paper  from  liucn,  when  invented,  iii.  432 
and  note-i. 

Paris,  seditions  at,  i.  75 — defeat  and 
harsh  treatment  of  its  citizens,  76  and 
no/M— their  fear  of  the  Normans,  138 
— population  of  the  city  in  early  times, 
Iii.  213.     See  Parliament  of  Paris. 

Parishes,  origin  of,  ii.  140  and  nof«s — 
their  slow  growth,  141. 

Parliament  of  Englind,  constituent  ele- 
ment{«  of  the,  iii.  8 — right  by  which  the 
spiritual  peers  sit,  8,  9,  118 — earls  and 
barons,  9— th(>ories  of  Sclden  and 
Madox,  10,  13 — tenants  in  chief  in 
parliament,  13,  14— first  germ  of  repre- 
sentition,  15,  16,  and  note' — county 
representation,  15  —  parliaments  of 
Henry  III.,  16,  17,  and  notes — knights 
of  the  shire,  liow  elected,  18,  22 — first 
summoning  of  towns  to  parliament, 
29  and  note  - — question  of  an  earlier 
date  discus.sed,  30.  32.  and  notes — the 
parli:uiientof  Acton  Burnell,  33,  note^ 
— the  Barnstaple  petition,  ib. — cause  of 
summoning  deputies  from  boroughs, 
86,  38— division  of  parliament  into  two 
houses,  88— proper  business  of  the 
house  of  commons,  40 — complaint  of 
the  commons  in  1339,  41 — rights  es- 
tablished by  them,  43— their  struggles 
with  the  king  relative  to  taxation,  43, 47 
•—concurrence  of  both  houses  in  legis- 
lation made  necessary,  48 — distinction 
between  stitutes  and  ordinances,  50, 53 
— interference  of  parliament  in  matters 
of  war  and  peace,  53,  54 — right  to  in- 
quire into  public  abuses,  54— increase 
of  the  power  of  the  commons  under 
Richard  II.,  58 — their  protests  against 
lavish  expenditure,  59-61 — success  of 
their  demands  for  accounts,  61 — bold- 
ness of  their  remonstrances,  62-64 — 
they  aid  the  duke  of  Lancaster,  65, 
note'^ — their  charges  against  the  earl 
of  Suffolk,  66,  67  —  submis.sion  of 
Richard  to  their  demands,  67,  69— 
they  come  to  an  understanding  with 
him,  72,  73— they  fiill  under  his  dis- 
pleuure,^  74 — servility  of  their  sub- 
mlMion,  75,  76 — necessity  for  deposing 
Richard,  79 — cautious  proceedings  of 
parliament  thereupon,  80,  81— rights 
acquired  by  the  commons  during  his 
reign,  82— their  constitutioual  advances 
VOL.  Ul.  31 


PAKLIAXKNV 

under  the  house  of  Lancaster,  ih. — their 
exclusive  right  of  taxation,  82,  84— 
their  right  of  granting  and  controlling 
supplies,  84— and  to  make  same  depend 
on  redress  of  grievances,  84,  85— es- 
tal)lishment  of  tiieir  legislative  rights, 
85,  86 — falsification  of  their  intentions 
how  accomplished,  86.  88 — their  first 
petition  in  Englisli,  88 — introduction 
of  bills,  public  and  private,  89 — legis- 
lative divisions  of  king,  lords,  and 
commons,  89,  note^  —  parliamentary 
interference  with  royal  expenditure,  90 
— limitations  laid  on  Henry  IV.  91,  92 
— reestablishment  of  a  good  under- 
standing with  him,  93 — harmony  be- 
tween Henry  V.  and  the  parliament, 
ib. — parliamentary  advice  sought  on 
public  affairs,  94 — their  right  to  im- 
peach ministers,  96 — Henry  VI. 's  mode 
of  evading  Suffolk's  impeachment,  ib. 
— assertion  of  the  privilege  of  parlia 
ment,  97— <;ases  of  Lark  and  Gierke, 
98 — principles  involved  in  Thorp's 
ca.se,  ib. — infringements  on  liberty  of 
speech,  99  —  privilege  of  originating 
money-bills,  100. 103— the  three  estates 
of  the  realm,  102,  note- — course  of 
proceeding  on  other  bills,  103,  104 — 
instince  of  excess  of  privilege,  105^ 
contested  elections  and  proceedings 
thereon,  105, 106— county  franchise,  in 
whom  vested,  107  and  note — represen- 
tation of  towns,  lOS,  109— partial  omis- 
sion of  boroughs,  109,  110,  and  notes — 
reluctance  o£  boroughs  to  send  mem- 
bers, 111 — in  whom  the  right  to  vote 
was  vested,  112,  113,  and  note'^  — 
status  of  the  mem'ters.  113 — exclusion 
of  lawyers  from  the  commons'  house, 
114 — members  ori^rinally  compelled  to 
be  residents,  114.  115 — election  irregu- 
larities and  crown  interference,  116, 
117 — constitution  of  the  house  of  lords, 
ib. — qualification  of  spiritual  barons, 
118 — barons  by  writ,  119, 121,  and  notes 
^-distinction  between  barons  and  ban- 
nerets, 121,  124 — creation  of  peers  by 
statute  and  by  patent,  125-126— cler- 
gy summoned  to  send  representatives, 
126,  132— remonstrances  of  the  com- 
mons against  the  encroachments  of  the 
council,  135, 136. 
Parliament  of  Paris,  constitution  and 
sittings  of  the,  i.  242 — progress  of  its 
jurisdiction,  244  —  enregistration  of 
royal  decrees  confided  to  it,  245 — its 
spirited  conduct  in  reference  thereto, 
ib. — interference  of  the  kings  with  its 
privileges,  ib. — establishment  of  its  in- 
dependence by  Louis  XI.,  246  —  its 
claims  on  the  respect  of  posterity,  ib 
— important  ordinance  of  Charlc^  V 
iii.  146,  no/ei. 


f 


I 


/    '■.,  1 


r 


482 


INDEX. 


INDEX. 


483 


POITIERS. 


EOBEftT. 


PAscHAt  n. 


poaoio. 


Paschal  II.  (pope),  opposition  to  investi- 
tures by,  ii.  180,  note  2,  and  182.  note  i 
— his  animosity  against  Uenry  IV.  of 
Germany,  180. 

Pastoureaux.    See  Superstitions. 

Paulicians.    See  Religious  Sects. 

Pauperism,  slavery  chosen  as  a  refuge 
from  the  miseries  of,  i.  317. 

Pecocke  (bishop),  character  of,  iii.  366, 
note  2. 

Peers  of  England.  See  Nobility,  Parlia- 
ment. 

Peers  of  France,  original  constitution  of 
the,  i.  243. 

Pelagius  II.  and  the  bishop  of  Aries,  ii. 
158. 

Pembroke  (William,  earl  of),  resolute  de- 
fiance of  Henry  III.  by,  iii.  157. 

People,  state  of  the,  temp.  Charlemagne 
and  his  successors,  i.  30,  31,  et  seq. — 
their  lawlessness,  iii.  291 — their  general 
immorality,  ib. 

Pepin  Heristal,  usurpation  of  supremacy 
by,  i.  20 — his  influence  over  the  desti- 
nies of  France.  122— he  restores  the  na- 
tional council.  212. 

Pepin  (son  of  Charles  Martel),  deposes 
Childeric  III.,  i.  21— ascends  the  throne, 
ib. — subdues  the  Lombards,  22 — his 
legislative  assemblies,  212. 

Perjury,  prevalence  of,  in  the  middle 
ages,  iii.  292. 

Perrers  (Alice).     See  Edward  III. 

Peter  the  Great  compared  with  Charle- 
magne, i.  26. 

Peter  the  Cruel,  succession  of  crimes 
perpetrated  by,  ii.  19— his  apologists, 
ib.  and  note — his  discomfiture  and 
death,  20. 

Peter  the  Hermit.    See  Crusades. 

Peter  II  of  Ar.igon  surrenders  his  king- 
dom to  the  pope,  ii.  191,  220. 

Peter  III.  of  Aragon  assists  John  of  Pro- 
cida,  i.  463 — he  accepts  the  crown  of 
Sicily,  464. 

Peter  IV.  of  Aragon,  character  and  reign 
of,  ii.  42 — consequences  of  his  at- 
tempts to  settle  the  crown  on  his 
daughter,  ib. 

Petrarch  on  the  state  of  France  in  1360, 
i.  68,  note. — his  extravagant  views  rel- 
ative to  Home,  402,  note — his  personal 
characteristics,  iii.  423  and  note  i — his 
great  popularity,  424 — his  goldsmith 
host,  /6.,  note  i — his  passion  for  Laura, 
ib. — character  of  his  poetry,  425  and 
note — his  efforts  for  the  preservation 
of  manuscripts,  434 — was  Laura  mar- 
ried or  single  ?  453,  455. 

Philip  Augustus,  accession  of,  i.  33 — he 
cites  John  king  of  England  before  him, 
ib. — deprives  the  English  crown  of  its 
French  possessions,  39— joins  in  the 
third  crusade,  51— his  request  to  an 


abbot  relative  to  coinage,  204 — pope 
Gregory's  menaces  towards  him,  ii.  184 
— his  fear  of  Innocent  III.,  IS^takes 
back  his  repudiated  wife,  191. 

Philip  III.  (the  Bold),  accession  of,  i.  53 
— his  conduct  towards  the  archbishop 
of  Lyons,  56 — he  taxes  the  clergy,  ii. 
209,  note  ». 

Philip  IV.  (the  Fair),  accession  of,  i.  54 — 
policy  adopted  by  him,  ih. — his  resent- 
ment against  the  English  king,  ib.^ 
note — his  fraudulent  conduct  towards 
him,  ib. — successful  resisUmce  of  the 
Flemings  against  his  attacks,  55  and 
note  1 — his  further  acquisitions,  55| 
and  siege  of  Lyons,  56 — claims  a  right 
to  debase  the  coin,  204,  note  < — his 
character  according  to  Guizot,  221,  not* 
— he  convokes  the  States-General,  ib. 
and  note — his  motives  in  embodying 
the  deputies  of  towns,  222 — he  taxes 
the  clergy,  ii.  217 — he  arrests  the  pope's 
legate,  219 — he  burns  the  pope's  bulla, 
ib. — retaliation  of  the  pope,  220 — his 
stratagem  against  the  pope,  221 — its 
con.sequences,  ib. 

Philip  V.  (the  Long),  assumption  of  the 
regency  of  France  by,  i.  56 — violates 
his  treaty  with  his  brother's  widow,  67 
— Salic  law  confirmed  in  his  reign.  59 
— decrees  the  abolition  of  rerfdom,  201 
— result  of  his  attempt  at  an  excise  on 
salt,  224. 

Philip  VI.  (of  Valois),  regency  and  coro- 
nation of,  i.  59-  sketch  of  his  charac- 
ter, ()2 — his  debasements  of  the  coin, 
224. 

Philip  of  Suabia'  elected  emperor  of  Ger- 
many, ii.  75 — his  assassination,  ib. 

Phocas,  supposed  concession  to  the  popef 
by,  ii.  157,  note  i. 

Pickering  (Sir  James),  tenor  of  a  speech 
made  by,  iii.  59. 

Piedmont,  comparative  obscurity  of  the 
history  of,  i.  375,  note. 

Piracy,  temptations  to  the  practice  of,  iii. 
316— difficulty  of  repressing  it,  317. 

Pisa,  early  naval  and  commercial  im- 
portance of,  i.  424 — her  wars  with 
Genoa,  425— her  reverses  and  sale  to 
Florence,  426— effect  of  the  crusade;! 
on  her  prosperity,  iii.  311. 

Pisani  (Vittor),  defeated  by  the  Genoese, 
and  imprisoned  by  the  Venetians,  i.  428 
— his  triumphant  recall  from  prison, 
429. 

Pius  II.    See  .l^neas  Sylvius. 

Podest^.  peculiarities  of  the  office  of,  I. 
882,383. 

Podiebnd  (George),  vigorous  rule  of 
Bohemia  by,  ii.  102 — suspected  of 
poisoning  Laiiislaus,  104,  not*  1. 

Poggio  Braccioiini,  services  of,  in  the  re^ 
vival  of  learning,  iii.  435. 


Poitiers,  battle  of.    See  Edward  III. 

Poland,  polity  of,  not  based  on  feudality, 
i.  187. 

Pole  (.Michael  de  la,  earl  of  Suffolk),  suc- 
ceeds Scropo  as  chancellor,  iii.  65 — 
refusal  of  Kichard  II.  to  dismiss  him, 
66— his  impeachment  and  sentence,  67 
— subsequent  proceedings  relative  to 
him,  71. 

Porcaro,  revolt  and  death  of.  i.  403. 

Pragniatic  Sanction  of  Bourges,  ii.  242 — 
repealed  by  Louis  XI.,  ib. — its  popu- 
larity with  the  people,  j6.— liberties 
secured  by  it,  243. 

Pragmatic  Sanction  of  St.  Louis,  enact- 
ment of  the,  ii.  204  and  note. 

Prague  university,  opposition  of  the  no- 
bles to  the  institution  of,  ii.  100;  nole^ 
— fate  of  its  rector,  ib. 

Precarious,  origin  of  the  adjective,  ii.  142, 
note  <. 

Prerogative  of  the  kings  of  England,  ob- 
servations on  the,  iii.  141, 244, 246.  See 
English  Constitution. 

Prices  of  Commodities,  iii.  347-349. 

Printing,  invention  oi,  iii.  443— first  books 
printed,  444— Italian  presses,  ib.  See 
Learning. 

Protadius,  oppressive  conduct  of.  i.  120. 

Provence  annexed  to  the  French  domin- 
ions, 1. 107 — note  upon  its  history,  ib. 

Public  weal,  origin  of  the  war  of  the,  i.  92 
— object  of  its  chiefs,  94,  95,  and  note  i 
—their  fate,  96. 

Punishments,  amongst  the  Franks  for 
murder,  i.  153, 154.  and  notes,  197.  and 
note  2,  274 — amongst  the  Burgundians, 
153  and  note  2. 

Purveyance,  oppressive  operation  of  the 
prerogative  of,  iii.  142  and  143,  note. 

Races,  turbulence  of  the  Carlovingian 
period  ascribed  to  the  antipathy  be- 
tween, i.  133, 138. 

Eachimburgii,  the,  i.  211— difference 
between  them  and  the  Scabini,  213, 
note  ♦. 

Bavenna,  conquest  and  reconquest  of,  i. 
22. 

Baymond  VI.  (count  of  Toulouse)  ex- 
communicated by  Innocent  III.,  i.40 — 
reverses  of  his  son  Raj'mond,  41. 

Regencies,  rule  in  France  relative  to,  i. 
77  and  twte- — instances  of  regencies 
In  England,  and  principles  deducible 
therefrom,  iii.  184,  190. 

Religious  sects,  moral  improvement  ac- 
celerated by  the  growth  of,  iii.  356— 
tenets  of  the  Manicheans  and  Pauli- 
cians. 357,  358,  359,  and  notes — the  Al- 
bigenses,  and  controversies  respecting 
them,  3G0,  3'3l,  and  note — origin  of  the 
Waldenses,  3G1.  332,  and  notes — moral- 
ity of  their  life,  332,  note  > — Manicheism 


of  the  Albigenses,  333— persecutions 
at  Oxford,  ib.  and  note — secret  read- 
ings of  the  scriptures,  384 — persecutions 
for  witchcraft,  ib.,  note — permissions 
and  prohibitions  concerning  the  sacred 
writings.  365 — continued  spread  of  her- 
esies. 3d6— strictness  of  Lollardism,  366 
— schism  of  the  Uussites,  367,  368,  and 
note  2. 
Representation  of  the  towns.  See  Parlia- 
ment, States-General. 
Representative  legislation,  first  germ  of, 

i.  213.    See  Parliament. 
Revenues  of  the  kings  of  France,  how  de- 
rived, i.  206, 209.     See  Taxation. 

Richard  I.,  non-success  of,  against  Philip 
Augustus,  i.  38— joins  with  Philip  in 
the  crusades,  51 — his  prowess ;  terror 
excited  by  his  name,  ib.  and  note  *-— 
his  refusal  relative  to  the  right  of  pri- 
vate war,  205,  note- — his  submission 
to  the  pope,  ii.  188 — deposition  of  his 
chancellor,  307 — enactment  of  the  laws 
of  Oleron  imputed  to  him,  iii.  316— his 
character  as  a  troubadour,  439  and 
note-. 

Richard  II.  loses  ground  in  France,  i.73, 
74 — his  coronation,  iii.  58 — his  council 
during  his  minority,  i6.— his  struggles 
with  parliament,  62-64— sketch  of  his 
character,  65 — his  dependence  on  fa- 
vorites, 65 — his  refusal  to  dismiss  de 
la  Pole,  duke  of  Suffolk,  66— deter- 
mined conduct  of  the  commons  towards 
him,  66, 67 — he  yields  to  their  demands, 
68 — his  further  attempts  at  indepen- 
dent rule,  72— his  complaint  against 
the  commons,  74 — their  submission,  75 
— his  seizure  of  the  duke  of  Gloucester 
and  other  arbitrary  acts,  75-77 — neces- 
sity for  his  deposition.  79— progress  of 
the  constitution  during  his  reign,  82 — 
extent  of  his  malpractices  relative  to 
the  raising  of  money,  82-84 — his  attack 
upon  Uaxey,  75,  99. 

Richard  (earl  of  Cornwall),  chosen  em- 
peror of  Germany,  ii.  76— absurdity  of 
the  choice,  77. 

Richard  (duke  of  York).    See  York. 

Richer  (a  mediaeval  historian),  degree  of 
value  due  to  the  testimony  of,  i.  134. 

"  Riding  the  city,"  meaning  of  the  phrase, 
i.  412. 

Rienzi  (Nicola  di),  sudden  accession  to 
power  of,  i.  401— his  exile,  recall,  and 
death.  402 — Petrarch's  enthusiasm  to- 
wards him,  ib.,  note. 

Robert  of  Artois,  impolitic  act  of  forgery 
committed  by,  i.  58,  note  2. 

Robert  of  Gloucester,  and  other  metrical 
writers,  iii.  427. 

Robert  of  Naples,  wise  rule  of,  i.  465^ 
singular  pi*ovisiou  made  by  him,  iL 
215,  note  5. 


484 


INDEX. 


BOBXttT. 

Bobert  (count  palatine)  supersedes  Wen- 
ceslaus  as  emperor  of  Germany,  ii. 
86. 

Bobertson  (the  historian),  value  of  his 
treatise  on  private  warfare,  i.  205, 
note  -. 

Rochelle,  patriotism  of  the  citizens  of,  i. 
72. 

Roierick  the  last  of  the  Goths,  credibil- 
ity of  tho  loj;enJ  relative  to,  ii.  63-66. 

Rodolph  of  Uiipsburg  elected  emperor  of 
Germany,  ii.  82— -Austria  conferred 
upon  his  son,  ib. — his  ascendency  in 
Switzerland,  105. 

RoUo  of  Normandy,  conversion  of,  i.  34. 

Romance  language,  ascendency  in  the 
Frank  dominions  of  the,  i.  135.  See 
Learning. 

Romano  (Kccclin  da).    See  Eccelin. 

Rome,  subversion  of  the  empire  of.  \.  15 
— its  division  by  barb;irous  races,  ib. — 

{lortion  which  remained  subject  to  it, 
6 — partition  of  its  provinces  amongst 
their  conquerors,  148,  268-270— its 
municipal  institutions,  328,  329 — its 
internal  stite  in  the  tenth  century,  346 
— infamous  conduct  of  candidates  for 
the  papal  chair,  i6.— execution  of  the 
consul  Crescentius,  347  and  note— 
schemes  of  Innocent  III.  for  aggrandiz- 
ing the  holy  see,  367,  368— increa.se  of 
the  temporal  authority  of  the  popes, 
898 — the  Roman  orator  and  Frederic 
Barbaro.s.sa,  400  and  note — expulsion 
of  popes  by  the  citizens,  ib. — the 
senators  and  their  jurisdiction,  ib. — 
mutual  animo.sitie8  of  the  nobles,  401 
—rise  and  fill  of  Uienzi,  ib.  402 — 
transient  revival  of  the  republican 
spirit,  402— miscarriage  of  Porcaro's 
revolutionary  projects,  403.  See  Papal 
Power. 
Romeo  and  Juliet,  parallel  to  the  stozy 
of,  i.  387  and  note. 

Saint  Bathilda,  character  of,  i.  118. 

Saint  Bonifice.     See  Winfrid. 

Saint  Denis,  8um  paid  for  redeeming  the 

abbot  of,  i.  34. 
Saint  .Joiin  of  .Jerusalem,  knights  of,  i.  51 

— their  saint,  who  he  Wiis,  ib.,  note- — 

their    enormous    possessions,   ib.   and 

notf'i. 
Saint  Louis.    See  Louis  IX. 
Saint  Mediird,  parentige  of.  i.  288. 
Saint  I'ol  (count  of),  anecdote  of,  i.  92, 

note  1 — executed  on  the  scaffold,  r6 — 

anecdote  of  his  distrust  of  Louis  XI., 

103,  nole^. 
Saint  >Vilfrid,  historical  service  rendered 

by,  i.  117. 
Saints,  great  addition  to  the  calendar  of, 

in  the  time  of  Clovis  and  his  sons,  i. 

117— historical  value  of  their  lives,  ib. 


■KBBA. 

—extent  of  their  title  to  canonization, 
117, 118. 

Saladin,  conquest  of  Jerusalem  by,  i. 
51. 

Salic  lands,  characteristics  of,  i.  150-152, 
and  notes. 

Salic  law  circumstances  which  led  to  the 
confirmation  of  the,  i.  57,  58 — date  o( 
its  enactment.  271,  272 — its  incom- 
pleteness as  a  code,  272. 

Sancho  the  Great  bestows  Castile  on  his 
second  son,  ii.  10  —  he  incorporates 
Naxara,  12. 

Sancho  IV.  assassinates  Don  Lope,  ii.  19 
— clerical  encroachments  encouraged 
by,  210,  note  ». 

Sanctuary,  institution  of  the  privilege  of, 
Ui.  286. 

Saracens,  expulsion  of  the,  from  France, 
i.  20  and  note'^ — their  inroads  upon 
Italy,  32  and  note  - — Eudon's  great  vic- 
tory over  them,  121 — their  conflicts 
with  the  Christians,  [see  Crusades] — 
they  conquer  Spain,  ii.  8 — encroach- 
ments of  the  Chri.stiiins  on  their  terri- 
tories, 9 — mainspring  of  their  heroism, 
115  —  their  eastern  conquests,  116 — 
their  triumphs  in  tho  west — ih. — effect 
Of  their  successes,  ib. — their  internal 
dissensions,  118.     See  Crusades,  Moors. 

Saragosa  taken  from  the  Moors,  ii.  11. 

Sardinia  conquered  by  the  Pi.sans,  i.  424 
— its  cession  to  the  king  of  Angon,  426. 

Saxons,  obstinate  resistance  to  Charle- 
magne by  the,  i.  23 — enormous  num< 
ber  beheaded  by  him,  26 — true  cause 
of  their  wars  with  the  Franks,  125— 
their  early  kings,  296.  See  Anglo- 
Saxons. 

Scabini.  representative  character  of  the, 
i.  213— UilTeronce  between  them  and 
the  Rachimburgii,  ib.,  note*  —  their 
functions,  233  and  note  '•>. 

Scanderbeg,  protracted  opposition  to  the 
Turks  by,  ii.  135. 

Scandinavia  and  her  Sea  Kings,  ii  257. 

Sclavonians,  territories  occupied  by  the- 
i.  32. 

Scotus  (Duns),  notices  of,  iii.  402,  403, 
no<«2,  4(H. 

Scotus  (John),  an  exception  to  the  igno- 
rance of  his  times,  iii.  275  and  note  ^— 
character  of  the  philosophy  iuti-oduced 
by  him,  405,  note-^. 

Scrope  (lord  steward),  answers  to  the 
commons  by,  iii.  60— cuuso  of  hit 
disniis.sal  from  office,  i]o. 

Serfdom  and  villenagc.  distinctive  feat- 
ures of,  i,  193,  19J.    See  Villeins. 

Servitude  enfoned  upon  the  cultivators 
of  the  soil  in  tliu  middle  ages.  i.  317, 
318— contrary  hypothesis  of  M.  Ga6- 
mrd,  319,  320. 

Sforza  Attendolo,  rise  to  dbtiuction  of, 


INDEX. 


485 


8P0BSA. 

I.  461 — his  tactics  relative  to  the  crown 
of  Naples,  469,  470. 

Sfbrza  (Francc.eco),  powerful  position 
achieved  by,  i.  462 — becomes  duke  of 
Milan,  463 — joins  In  the  quadruple 
league._  472 — bis  policy  towards  Na- 
ples, 473 — ^accession  and  assassination 
of  his  son  Galcazzo,  475  —  policy  of 
Ludovico  Sforjyi,  i6.— he  directs  the 
French  king's  attention  towards  Naples, 
483  —  short-sightedness  of  tiis  views, 
484. 

Sherirfs,  p.irti;ility  of,  in  elections,  iii. 
109- how  originally  appointed,  116  and 
note'-i. 

Bicily,  conquest  of  by  Roger  Guiscard, 
i.  350 — its  sub.scquenc  fortunes,  3'34-3t)5 
— its  rebellion  against  Charles  of  Anjou, 
463— the  Sicilian  Vespers,  464  and  Mo/e 
— opposition  of  the  Sicilians  to  Charles 

II.  of  Naples.  465— settlement  of  tho 
cruwn  on  Frederic,  ib. — Sicilian  pos- 
sessions of  the  Chiaramonti,  470 — 
union  of  Sicily  with  Aragon,  ib. 

Bigismund,  elected  emperor  of  Germany, 
ii.  87  and  nnte^  —  his  safe-conduct 
violated,  101 — acquires  the  crown  of 
Ilung.iry,  103— his  conduct  at  the  coun- 
cil of  Constiince,  237. 

Silk  manufacture  established  in  Palermo, 
iii.  313. 

Silvester  II.  (pope)  scientific  acquire- 
ments of,  iii.  275,  note. 

Simony.     See  Church,  Clergy. 

Slavery,  existence  of,  in  ancient  times,  I. 
196— iLs  features  amongst  the  Franks, 
197  and  nore-—volunt!irily  submitted 
to  from  superstitious  motives,  193 — 
edictji  for  it.s  abolition,  200— submitted 
to  by  the  poor  for  subsistence'  sake,  317 
— Venetian  and  English  slave-trading, 
iii.  299  and  note  5. 

Society,  state  of.  See  Architecture,  Chiv- 
alry, Clergy,  Feudal  System,  Learning, 
Superstition,  Trjide,  Villenage. 

Sorel  (Agues)  examination  of  the  story 
of,  i.  88,  note  a. 

Bout  hey  *8  .loan  of  Arc,  eulogium  of  a 
French  writer  upon,  i.  147. 

Spain,  character  of  the  Vislgothic  king- 
doms in,  ii.  7— its  conquest  by  the 
Saracens,  8 -kingdoms  of  Ixjon,  Na- 
varre, Antgon,  and  Castile,  9,  10— re- 
verses of  the  Saracens,  11— chartered 
towns,  12,  13— establishment  of  mili- 
tary orders,  14— non-expulsion  of  the 
Moors,  15  — its  prob.able  cause,  16 — 
Alfon.so  X.  and  his  shortcomings,  17 
— fre«iuciit  defection  of  the  nobles,  18 
—Peter  the  Cruel,  19— accession  of  the 
Trastamare  line,  20  —  disgrace  and 
execution  of  Alvaro  de  Luna,  21.  22 — 
contests  after  Henry  IV.'s  death,  22, 23 
—constitution  of  the  national  councils. 


SWITZERLAND. 

23— composition  of  the  Cortes.  26 — its 
trade  relations  with  England,  iii.  310. 
See  Aragon,  Castile,  Cortes. 

Spelman  (Sir  Henry),  remarkable  mistake 
of.  i.  167,  no/«i. 

Sports  of  the  field,  popularity  of,  iii.  293 
— addiction  of  the  clergy  thereto,  294 — 
evils  attendant  thereon,  295. 

States-General  of  France,  memorable  re- 
sistance to  taxation  by  the,  i.  75 — 
convoked  by  PhiUp  IV.,  221,  222— 
probability  of  their  earlier  convocation 
canva<;sed,  ib.,  note — Philip's  politic 
reasons  for  summoning  them,  223— 
extent  of  their  rights  as  to  taxation, 
223,  224,  and  note.s — their  resolute  pro- 
ceedings in  1355  and  1356,  224— their 
protest  against  the  debasement  of  the 
coin,  226  and  notes — disappointment 
occasioned  by  their  proceedings  in 
1357,  227 — they  compel  Charles  VI.  to 
revoke  all  illegal  taxes,  228 — effect  of 
their  limited  functions,  229 — theoreti- 
cal respect  attached  to  their  sanction, 
ib. — provincial  estates  and  their  juris- 
diction, 230 — encroachments  of  Louis 
XI.,  ib. — the  States-General  of  Tours, 
231 — means  by  which  their  delibera- 
tions were  jeopardized,  232 — unpalat- 
able nature  of  their  remonstrances, 
ib. 

Stephen  (king),  cruel  treatment  of  the 
people  in  his  reign,  ii.  302,  iiote  i. 

Stratford  (archbishop),  circumstances  at- 
tending the  trial  of,  iii.  195. 

Succession  to  kingly  and  other  dignities. 
See  Hereditary  Succession. 

Sucvi,  part  of  the  Koman  empire  held 
by  the.  i.  15. 

Suffolk  (duke  of),  impeachment  of,  iii. 96. 

Suffolk  (eari  of).    See  Pole. 

Sumptuary  laws,  enactment  and  disre- 
gard of,  iii.  325  and  notes. 

Superstition,  learning  discouraged  by,  iii. 
259 — its  universal  prevalence,  278— 
instances  of  its  results,  279 — ordeals, 
279,  280,  and  notex — fanatical  gather- 
ings: the  White  Caps,  280— the  Pas- 
toureaux,  281— the  Fiag('!lants,  282— 
tho  Bianchi,  282 — pretended  miracles, 
and  their  attendant  evils,  283.  284— 
miracles  ascribed  to  the  Virgin,  284  and 
note — redeeming  features  of  the  sys- 
tem, 285 — penances  and  pilgrimages, 
290,  291.    See  Religious  Sects. 

Surnames,  introduction  of,  i.  189. 

Sweden,  semi-feudal  custom  in,  relative 
to  military  service,  188.  note  2. 

Swineford  (Katherine),  proceedings  rela- 
tive to  the  marriage  of.  iii.  73.  74. 

Switzerland,  early  history  of,  ii.  265— 
ascendency  of  Hodolph,  ib. — expulsion 
and  defeat  of  Albert  and  Leopold,  106, 
107 — formation  of  the  Swiss  coufedera- 


486 


INDEX. 


STAGRIVS. 

tion,  107— indomitable  heroism  of  the 
Swiss,  109— their  military  excellence, 
ib. — failure  of  Maximilian's  attempt  to 
subjugate  them,  110. 
Byagriuri,  llomau  provinces  governed  by, 
i.  16— defeated  by  Clovis,  ib.  and  12. 

Taborites,  fanaticism  and  courage  of  the, 

ii.  101,  iii.  3o8. 
Tacitus,  general  accuracy  of  the  descrip- 
tions of,  i.  268— (iualiflcations  neces- 
sary to  be  observed  touching  hb  ac- 
count of  the  Germans,  267. 
Tartars.    See  Moguls. 
Taxation,  remarks  on  the  philosophy  of, 
i.  7(j — clumsy  substitutes  for  taxes  in 
the  middle  ages,  203— arbitrary  course 
adopted  by  Philip  Augustus,  209 — con- 
ditions annexed  by  the  States- General 
to  a  grant  of    taxes,  226 — Philip  de 
Comineson  taxation,  231— taxes  under 
the  Anglo-Norman  kings,  ii.  304,  305, 
and  notes.    See  States-General. 
Temple,  knights  of  the.     See  Knights 

Templars. 
Tenure  of  land  under  the  Anglo-Saxons 
and  Anglo-Normans,  ii.  277-2S5,  383, 
386.     See  Feudal  System. 
Teutonic  knights,  establishment  of  the 

order  of,  i.  51. 
Theodcbert,  story  of  the  wife  of,  iii.  290, 

note^. 
Theodoric,  disregard  of  learning  by,  iii. 

260. 
Thierry  (son  of  Clovis),  territories  pos- 
sessed by,  i.  18,  note  '•*. 
Timur,  conquering  career  of,  ii.  130. 
Tithes,  establishment  of,  ii.  140— Charle- 
magne's   capitulary  relative  thereto, 
141  and  no/fi— origin  of  lay  impro- 
priators, 143— nor«  relative  to  the  sub- 
ject, 249. 
Toledo  taken  from  the  Moors,  ii.  10. 
Torriani.    Sec  Visconti. 
Toulouse,  non-submission  of  the  counts 
of,  to  the  kings  of  France,  i.  89  and 
note  3— their  fall,  41.  See  Raymond  VI. 
Towns  and  cities,  earliest  charters  grant- 
ed to,  i.    249 — considerations  on  the 
causes  of  such  grants,  250,  251 — privi- 
leges of  incorporated  towns,  252 — their 
relationship  towards    the  crown,  253, 
254 — independence  of  maritime  towns, 
254 — chartered  towns  of  Spain,  ii.  12 — 
their  privileges  and   duties,  13,  14 — 
cause  of  their  importance,  25— -cities  of 
Germany,  J  see  Germany] — cities  of  Ita- 
ly, [see  Florence,  Genoa,  Milan,  Pisa, 
Venice]. 
Towns  of  England,  progress  of  the,  iii.  22 
— Canterbury,  Lincoln,  and  Stamford, 
23,    note^ — conversion    of    individual 
tributes    into    borough  rents,  24 — in- 
oorpuration  of  towns  by  charter,  24 


UBBAir  n. 

and  notes — curious  bond  relative  to 
Cambridgeshire,  25,  note^ — prosperity 
of  the  towns,  26— early  importance  and 
populousness  of  London,  27,  28,  and 
no/«5— participation  of  its  citizens  in 
constitutional  struggles,  29— first  sum- 
moning of  towns  to  parliament,  ib. 
See  JIunicipal  Institutions. 

Trade  and  commerce,  mediaBval  non- 
existence of,  iii.  297— barriers  to  their 
progress,  ift.,  298— extent  of  foreign 
conniierco,  ib. — home  traffic  in  slaves, 
299  and  note  » — woollen  manuf  ictures 
and  vacillating  policy  of  the  English 
kings  relative  thereto,  301,  305,  and 
no^M— opening  of  the  Baltic  trade.  306 
— growth  of  English  commerce,  308 — 
opulence  of  English  merchants,  ib.  309 
— increase  of  maritinio  traffic,  309,  310 
— commercial  eminence  of  the  Italian 
states,  310,  312.  and  nor«— inventioa 
of  the  mariners'  compass.  314,  315— 
compilation  of  maritime  laws,  315— 
frequency  and  irrepressibility  of  pir;v- 
cy,  316 — practice  of  reprisals,  317,  318, 
and  notes — liability  of  aliens  for  each 
other's  debts.  318— trade  profits  and 
rates  of  interest,  318,  319— price  of 
corn  and  cattle,  348. 

Trial  by  combat,  ceremonials  attending, 
i.  237.  233,  and  »io/c3— abolished  by 
St.  Louis,  239. 

Trial  bv  jury  and  its  antecedents,  ii. 
270-273— <;arly  modes  of  trial,  3(34-385 
— abolition  of  trial  by  ordeal,  3;>8 — dif- 
ference between  ancient  and  modem 
trial  by  jury,  369— original  functions 
of  juries,  ib. — origin  of  the  modern 
system,  379,  aSl— character  of  the 
early  system,  382. 

Troubadours  (the),  and  their  produc- 
tions, iii.  408,  410. 

Troyes,  conditions  of  the  treaty  of,  i.  84 
and  note. 

Turks,  Italian  fears  of  the,  i.  474— tri- 
umphant progress  of  their  arms,  ii.  124 
— their  defeat  by  the  crusaders  and 
Alexius,  125— their  settlement  under 
Othman,  129— war  declared  against 
them  at  Frankfort,  133— the  Janizaries, 
134.     See  Ottomans. 

Tuscany  (Boniface,  marquis  of),  flogged 

for  simony,  ii.  174,  note  2. 
Tuscany,  league  of  the  cities  of,  i.  SOS- 
espousal  of  the  papal  cause,  t&.,  375 — 
progress  of  its  cities.    See  Florence. 

Uladislaus  crowned  king  of  Hungary, 
ii.  103— violates  his  treaty  with  the 
Turks,  ib. — its  fatal  results,  ib. 

Urban  II.,  encouragement  of  the  crusadca 
by,  i.  46 — he  succeeds  Gregory  VII.. 
ii.  180— his  concession  to  the  kings  of 
Castile,  182. 


INDEX. 


487 


UIBAH  ▼. 

Urban  V.  retiansfera  the  papal  court  to 
Avignon,  ii.  228. 

Urban  VI,  aids  Charles  of  Durazzo  in  his 
designs  on  .loanna  of  Naples,  i.  467— 
sanctions  perjury  towards  heretics,  ii. 
aOl,  notei — his  contest  with  Clement 
VII.,  228 — validity  of  his  election,  229. 

Urgel  (count  of),  lays  claim  to  the  crown 
of  Anigon,  ii.  43,  44— rejection  of  his 
pretensions,  4-5 — consequences  of  his 
unwise  resort  to  arms,  ib. 

Usury  treated  as  a  crime,  iii.  319,  321, 
note  2. 

Valencia,  constitution  of  the  kingdom 
of,  ii.  59. 

Valentinian  III.,  authority  of  the  holy 
gee  extended  by.  ii.  155. 

Vandals,  portions  of  the  Roman  empire 
possessed  by  the,  i.  15. 

Vase  of  Soissons,  .story  of  the,  i.  157 — 
principle  involved  in  the  anecdote,  292, 
293,  aid  noteK 

Vassjils  and  Vassalage.  See  Feudal 
System. 

Vavassors,  privileges  attaching  to  the 
nmk  of,  i.  193  and  noie  2— their  ma- 
norial courts,  216. 

Venice,  contiicts  of,  with  Genoa,  i.  426 — 
defeat  of  her  admiral  by  the  Genoese, 
428— insolence  of  the  latter  towards 
her  ai.b.n-ssadors,  429— successful  tac- 
tics of  her  doge,  430— triumph  of  her 
fleet,    431— her    alleged    early    inde- 
pendence, 435 — her  subjection  to  the 
emperors,    i^.    and    note* — her    Dal- 
matian and  Levantine  acquisitions,  436 
— her  government :  powers  of  the  doge, 
487— the  great  council,  438— criminal 
jurisdiction,     how    exercised,    439 — 
checks  to  undue  influence  on  the  part 
of  the  doge,  440 — singular  complicatiou 
in  ballots  for  the  dogeship,  441— Marin 
Falieri's  treason,  442— the  council  of 
ten  and  its  secret  proc«»edings,  442,  443 
— exclusion  of  the  nobles  from  tndc, 
443,  uolr  i — Venetian  form  of  govern- 
ment not  entitled  to  high  admiration, 
443.  444,  and  note — territorial  acquisi- 
tions of  Venice,  445— prophecy  of  the 
doge   Moceniso,   446,  447,  and   note — 
Veneti:iu  conquests  under  Carmagnola, 
447 — wars  of  the   republic  with  Ma- 
homet II.,  472,  475. 
Verdun,  treaty  of,  i.  29 — its  results,  30 

and  notes. 
Vere,  favoritism  of  Richard  II.  towards, 

iii.  06— his  funeral,  73. 
Verona,  seized  by  Francesco  da  Carrara, 

L416. 
Vienna,  .Tineas  Sylvius's  florid  descrip- 
tion of.  iii.  326,  note*. 
Villani  (.loltn),  falls  a  victim  to  the  plague, 
i.  67,  note. 


WAEWICK. 

Villeins  and  villenage  :  conditions  oC  vil- 
leins, i.  196  —  consequences  of  their 
marriage  with  free  persons,  199  and 
note  '  —  privileges  acquired  by  them 
199,  200,  and  notes- their  obliga 
tions,  ^0 — their  legal  position  in  Eng- 
land, 322 — villenage  never  established 
in  Leon  and  Castile,  ii.  11 — question  of 
its  existence  among  the  Anglo-Saxons, 
262 — dependence  of  the  villein  on  his 
lord,  iii.  164 — condition  of  his  property 
and  children,  ib.  and  note- — legal 
distinctions,  165  and  notes — difficulties 
besetting  the  abolition  of  villenage,  i». 
— gradual  softening  of  its  features,  166, 
168  —  merger  of  villeins  into  hired 
laborers,  1G9 — effects  of  the  anti-poll- 
tax  insurrection,  173— disappearance 
of  villenage,  173,  174  — elucidatory 
notes  on  the  subject,  247,  251. 

Virgin,  absurd  miracles  ascribed  to  the, 
iii.  284,  note. 

Visconti  and  Torriani  families,  rivalry 
of  the,  i.  394,  395-triumph  of  the 
Visconti,  395 — their  power  and  un- 
popularity, 396— their  marriages  with 
royalty,  397,  and  no/e  i— tyranny  of 
Bernabo  Visconti,  422— Giovanni  Vis- 
conti's  brutality,  t6.— his  assassination, 
447 — Filippo  Visconti's  accession,  ib. 
— his  ingratitude  to  Carmagnola,  ib. 
his  mistrust  of  Sforza,  462— his  alliance 
with  Alfonzo,  472— quarrels  of  the  fam- 
ily with  the  popes,  ii.  223. 

Visigoths,  portions  of  the  Roman  prov- 
inces possessed  by  the,  i.  15 — conduct 
of  their  earlier  rulers  towards  the  Cath- 
olicsj  17,  note  - — their  mode  of  divid- 
ing conquered  provinces,  149 — their 
laws,  how  compiled,  153,  154,  note^ — 
difference  between  the  Frank  monarchy 
and  theirs,  ii.  7,  8. 

Voltaire,  limited  knowledge  of  early 
French  history  by,  i.  211,  note  i. 

Wages,  futility  of  laws  for  the  regulati<m 
of,   iii.  170.     See  Laborers. 

Waldenscs.     See  Religious  Sects. 

Wales,  causes  of  the  turbulent  state  of, 
iii.  161,  note  ». 

Walworth  and  Philpot  made  stewards  of 
a  Rub.sidy  (tetnp.  Richard  11.),  iii.  59 — 
allegations  relative  to  their  steward- 
ship, 60. 

Wamba  (king  of  the  Visigoths),  ques- 
tion of  his  deposition  discussed,  ii.  151, 
note^. 

War,  private,  exercise  of  the  right  of, 
i.  205— by  whom  checked  and  sup- 
pressed, ib.  and  note  s—its  prevalence 
amongst  the  German  nobles,  ii.  93,  94. 

Warna,  circumstances  which  led  to  the 
battle  of,  ii.  103. 

Warwick  (earl  of )  popularity  of  the,  iii 


488 


INDEX. 


WATEB-OSBXAI.. 

64 — made  a  lord  appellant,  71 — ban- 
ished by  Richard  II.,  76. 

Water-Ordeal.    See  Ordeals. 

Wenceslaus,  confirmed  in  the  Imperial 
sucesdion,  ii.  86 — his  deposition,  ib. — 
he  attets  the  league  of  the  Rhine,  92. 

Weregild,  or  couipensatioa  for  murder. 
See  Murder. 

Wicliff  (.John),  influence  of  the  tenets 
of.  ii.  239,  ill.  171,  and  note^,  386,  367. 

Widows  in  Burgundy,  reason  for  the 
speedy  remarriage  of,  i.  100,  note. 

Wilfred  (bishop  of  Hexham),  question 
involved  in  his  appeal  to  the  pope,  ii. 
158,  note  ^. 

William  of  Holland  elected  emperor  of 
Germany,  ii.  76. 

William  the  Conqueror,  separation  of 
the  ecclesiastical  and  civil  tribunals 
by,  ii.  211  and  no/e  5— position  of 
England  at  its  conquest  by  him,  286 — 
his  considerate  treatment  of  Edgar,  i6., 
note — alleged  inadequacy  of  the  mili- 
tary forces  of  the  Saxons,  287,  note — 
their  fruitless  rebellions  against  him, 
288  and  notfs — instinces  of  his  oppres- 
sive conduct,  289— his  devastating 
clearances  for  forests,  295 — and  in- 
human forest  laws,  ib.  and  note — his 
enormous  revenues,  296 — his  feudal 
innovations,  297 — his  preservation  of 
public  peace  and  efforts  to  learn 
English,  293  and  note— policy  of  his 
manorial  grants,  300 — tyranny  of  his 
government,  301. 

Winchester,  early  opulence  and  popu- 
lousness  of,  iii.  214. 

Windsor  castle,  laborers  for  the  erection 
of,  how  procured,  iii.  143. 

Winfrid  (St.  Boniface),  importance  of 
the  ecclesiastical  changes  effected  by, 
ii.158. 


WInkeliYed,  the  Swiss  patriot,  heroio 
death  of,  ii.  109. 

Wisbuy,  ordinances  of,  iii.  816  and. 
note  ■■'. 

Witchcraft,  cruel  treatment  of  persona 
charged  with,  iii.  363,  tiole^. 

Witikiud.  acknowledgment  of  Charle- 
magne's authority  by,  i.  24- 

Witenagcmot,  bishops  appointed  by  the, 
ii.  173— its  chararteristics,  264— how 
often  assembled,  387,  388.  See  Anglo- 
Saxons. 

Women,  legal  position  of.  in  Italy  during 
coverture,  i.  104,  nolf  ^ — perils  attend- 
ing their  marriage  with  slaves,  199, 
note^. 

Woollen  manufacture  established  in 
Flanders,  iii.  301— impolitic  regula- 
tions respecting  it,  302  aud  nole'-^ — 
export  of  wool  from  England,  SOS- 
English  woollen  manufactun*,  304— 
policy  adopted  towards  the  Flemings, 
ib.  and  note  * — laws  relative  to  the 
trade,  305— relations  of  England  and 
Spain  regarding  it,  f6.,  notes. 

Worms,  diet  of.    See  Diet. 

Wykeham  (bishop  of  Winchester)  in- 
vested with  the  great  seal,  iii.  72. 

York  (Richard,  duke  of)  appointed  pro- 
tector to  Henry  VI.,  iii.  182— his  claim 
to  the  throne,  185 — his  cautious  policy, 
18G. 

YorkisM  and  Lancastrians,  wars  of  the, 
iU.  187. 

Zimi-sccs  (John),  military  exploits  of,  ii. 

123. 
SUsca  (John),  the  blind  hero,  victories 

of  the  Bohemians  under,   i.  461 — his 

exploits;  enthusiasm  of  his  followers, 

ii.  101. 


THE  END. 


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